23.2 Consent of Kilpatrick Stockton LLP (included in Exhibit
5.1 and Exhibit 8.1)
23.3 Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2)
24.1 Power of Attorney of certain officers and directors of
the Company (included on Signature Page)
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan
Bank to act as trustee as to the Capital Securities
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan
Bank to act as trustee as to the Junior Subordinated
Debentures
25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee as to the Guarantee for the benefit of the
holders of Exchange Capital Securities of the Company
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
EXHIBIT 4.1
JUNIOR SUBORDINATED INDENTURE
Between
UNITED COMMUNITY BANKS, INC.
and
THE CHASE MANHATTAN BANK
(as Trustee)
dated as of
July 20, 1998
UNITED COMMUNITY CAPITAL TRUST
Certain Sections of this Junior Subordinated Indenture relating
to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Junior Subordinated
Act Section Indenture Section
----------- -----------------
Section 310 (a)(1)............................... 6.9
(a)(2)............................... 6.9
(a)(3)............................... Not Applicable
(a)(4)............................... Not Applicable
(a)(5)............................... 6.9
(b).................................. 6.8, 6.10
Section 311 (a).................................. 6.13
(b).................................. 6.13
(b)(2)............................... 7.3(a)
Section 312 (a).................................. 7.1, 7.2(a)
(b).................................. 7.2(b)
(c).................................. 7.2(c)
Section 313 (a).................................. 7.3(a)
(a)(4)............................... 7.3(a)
(b).................................. 7.3(b)
(c).................................. 7.3(a)
(d).................................. 7.3(c)
Section 314 (a).................................. 7.4
(b).................................. 7.4
(c)(1)............................... 1.2
(c)(2)............................... 1.2
(c)(3)............................... Not Applicable
(e).................................. 1.2
Section 315 (a).................................. 6.1(a)
(b).................................. 6.2, 7.3
(c).................................. 6.1(b)
(d).................................. 6.1(c)
(e).................................. 5.14
Section 316 (a).................................. 5.12
(a)(1)(A)............................ 5.12
(a)(1)(B)............................ 5.13
(a)(2)............................... Not Applicable
(b).................................. 5.8
(c).................................. 1.4(f)
Section 317 (a)(1)............................... 5.3
(a)(2)............................... 5.4
(b).................................. 10.3
Section 318 (a).................................. 1.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
SECTION 1.1. DEFINITIONS..............................................1
SECTION 1.2. COMPLIANCE CERTIFICATE AND OPINIONS.....................11
SECTION 1.3. FORMS OF DOCUMENTS DELIVERED TO TRUSTEE.................12
SECTION 1.4. ACTS OF HOLDERS.........................................13
SECTION 1.5. NOTICES, ETC. TO TRUSTEE AND COMPANY....................15
SECTION 1.6. NOTICE TO HOLDERS; WAIVER...............................15
SECTION 1.7. CONFLICT WITH TRUST INDENTURE ACT.......................16
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS................16
SECTION 1.9. SUCCESSORS AND ASSIGNS..................................16
SECTION 1.10. SEPARABILITY CLAUSE....................................16
SECTION 1.11. BENEFITS OF INDENTURE..................................16
SECTION 1.12. GOVERNING LAW..........................................17
SECTION 1.13. NON-BUSINESS DAYS......................................17
ARTICLE II SECURITY FORMS...................................................17
SECTION 2.1. FORMS GENERALLY.........................................17
SECTION 2.2. FORM OF FACE OF SECURITY................................18
SECTION 2.3. FORM OF REVERSE OF SECURITY.............................22
SECTION 2.4. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL SECURITY.......27
SECTION 2.5. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.........28
ARTICLE III THE SECURITIES.................................................28
SECTION 3.1. TITLE AND TERMS.........................................28
SECTION 3.2. DENOMINATIONS...........................................31
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING...........31
SECTION 3.4. TEMPORARY SECURITIES....................................33
SECTION 3.5. GLOBAL SECURITIES.......................................33
SECTION 3.6. REGISTRATION, TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; SECURITIES ACT
LEGENDS................................................34
SECTION 3.7. MUTILATED, LOST AND STOLEN SECURITIES...................39
SECTION 3.8. PAYMENT OF INTEREST AND ADDITIONAL INTEREST;
INTEREST RIGHTS PRESERVED..............................40
SECTION 3.9. PERSONS DEEMED OWNERS...................................41
SECTION 3.10. CANCELLATION...........................................42
SECTION 3.11. COMPUTATION OF INTEREST................................42
SECTION 3.12. DEFERRALS OF INTEREST PAYMENT DATES....................42
SECTION 3.13. RIGHT OF SET-OFF.......................................43
SECTION 3.14. AGREED TAX TREATMENT...................................44
SECTION 3.15. SHORTENING OR EXTENSION OF STATED MATURITY..............44
SECTION 3.16. CUSIP NUMBERS..........................................44
ARTICLE IV SATISFACTION AND DISCHARGE.......................................44
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.................44
SECTION 4.2 APPLICATION OF TRUST MONEY...............................46
ARTICLE V REMEDIES ........................................................ 46
SECTION 5.1. EVENTS OF DEFAULT.......................................46
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT......47
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.................................49
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM........................49
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIM WITHOUT POSSESSION OF
SECURITIES.............................................50
SECTION 5.6 APPLICATION OF MONEY COLLECTED..........................50
SECTION 5.7 LIMITATION ON SUITS.....................................51
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST; DIRECT ACTION BY
HOLDERS OF CAPITAL SECURITIES..........................52
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES......................52
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.........................52
SECTION 5.11. DELAY OR OMISSION NOT WAIVER...........................53
SECTION 5.12. CONTROL BY HOLDERS.....................................53
SECTION 5.13. WAIVER OF PAST DEFAULTS................................53
SECTION 5.14. UNDERTAKING FOR COSTS..................................54
SECTION 5.15. WAIVER OF USURY, STAY OR EXTENSION LAWS................54
ARTICLE VI THE TRUSTEE .....................................................55
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.....................55
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE...............................56
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.............................................57
SECTION 6.5. MAY HOLD SECURITIES.....................................57
SECTION 6.6. MONEY HELD IN TRUST.....................................58
SECTION 6.7. COMPENSATION AND REIMBURSEMENT..........................58
SECTION 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.................59
SECTION 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.................59
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR......60
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.................61
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...............................................62
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY......62
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT....................63
ARTICLE VII HOLDER'S LISTS AND REPORTS BY TRUSTEE, PAYING AGENT AND
COMPANY................................................65
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS................................................65
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS................................................65
SECTION 7.3. REPORTS BY TRUSTEE AND PAYING AGENT.....................65
SECTION 7.4. REPORTS BY COMPANY......................................66
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...........66
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS....66
SECTION 8.2. SUCCESSOR COMPANY SUBSTITUTED...........................67
ARTICLE IX SUPPLEMENTAL INDENTURES..........................................68
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS......68
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.........69
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES....................71
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES.......................71
SECTION 9.5. CONFORMITY WITH TRUST INDENTURE ACT.....................71
SECTION 9.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES......71
ARTICLE X COVENANTS 71
SECTION 10.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.............71
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY........................72
SECTION 10.3. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST........72
SECTION 10.4. STATEMENT AS TO COMPLIANCE.............................74
SECTION 10.5. WAIVER OF CERTAIN COVENANTS............................74
SECTION 10.6. ADDITIONAL SUMS........................................74
SECTION 10.7. ADDITIONAL COVENANTS...................................75
SECTION 10.8. FURNISHING ANNUAL INFORMATION..........................76
ARTICLE XI REDEMPTION OF SECURITIES.........................................76
SECTION 11.1. APPLICABILITY OF THIS ARTICLE..........................76
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE..................76
SECTION 11.3. SELECTION OF SECURITIES TO BE REDEEMED.................77
SECTION 11.4. NOTICE OF REDEMPTION...................................77
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE............................78
SECTION 11.6. PAYMENT OF SECURITIES CALLED FOR REDEMPTION............78
SECTION 11.7. RIGHT OF REDEMPTION OF SECURITIES INITIALLY ISSUED
TO AN ISSUER TRUST.....................................79
ARTICLE XII SINKING FUNDS...................................................79
ARTICLE XIII SUBORDINATION OF SECURITIES....................................80
SECTION 13.1. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS..........80
SECTION 13.2. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT;
PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.........80
SECTION 13.3. PAYMENT PERMITTED IF NO DEFAULT........................82
SECTION 13.4. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS...........................................82
SECTION 13.5. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS............82
SECTION 13.6. TRUSTEE TO EFFECTUATE SUBORDINATION....................83
SECTION 13.7. NO WAIVER OF SUBORDINATION PROVISIONS..................83
SECTION 13.8. NOTICE TO TRUSTEE......................................83
SECTION 13.9. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT......................................84
SECTION 13.10. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS...........................................84
SECTION 13.10. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS...........................................84
SECTION 13.11. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.........85
SECTION 13.12. ARTICLE APPLICABLE TO PAYING AGENTS...................85
SECTION 13.13. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.......85
ANNEX A FORM OF RESTRICTED SECURITIES
CERTIFICATE
JUNIOR SUBORDINATED INDENTURE
THIS JUNIOR SUBORDINATED INDENTURE, dated as of July 20, 1998, is between
UNITED COMMUNITY BANKS, INC., a Georgia bank holding company (the "COMPANY"),
having its principal office at 59 Highway 515, Blairsville, Georgia 30512, and
THE CHASE MANHATTAN BANK, as Trustee, having its principal corporate trust
office at 450 West 33rd Street, 15th Floor, New York, New York 10001 (the
"TRUSTEE").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in series (hereinafter called the
"SECURITIES") of substantially the tenor hereinafter provided, including
Securities issued to evidence loans made to the Company from the proceeds from
the issuance from time to time by one or more business trusts (each an "ISSUER
TRUST") of undivided preferred beneficial interests in the assets of such Issuer
Trusts (the "CAPITAL SECURITIES") and common undivided interests in the assets
of such Issuer Trusts (the "COMMON SECURITIES" and, collectively with the
Capital Securities, the "TRUST SECURITIES"), and to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as such term is defined in Section 1.1 hereof)
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, and intending
to be legally bound hereby, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(4) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect at the time of computation;
(5) Whenever the context may require, any gender shall be deemed to
include the other;
(6) Unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Indenture; and
(7) The words "hereby", "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT" when used with respect to any Holder has the meaning specified in
Section 1.4(a).
"ADDITIONAL INTEREST" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security.
"ADDITIONAL SUMS" has the meaning specified in Section 10.6.
"ADDITIONAL TAXES" means any additional taxes, duties and other
governmental charges to which an Issuer Trust has become subject from time to
time as a result of a Tax Event.
"ADMINISTRATOR" means, in respect of any Issuer Trust, each Person
appointed in accordance with the related Trust Agreement, solely in such
Person's capacity as Administrator of such Issuer Trust and not in such Person's
individual capacity, or any successor Administrator appointed as therein
provided.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
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indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGENT MEMBER" means any member of, or participant in, the Depositary.
"APPLICABLE PROCEDURES" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Global Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"BOARD OF DIRECTORS" means the board of directors of the Company or the
Executive Committee of the board of directors of the Company (or any other
committee of the board of directors of the Company performing similar functions)
or, for purposes of this Indenture, a committee designated by the board of
directors of the Company (or such committee), comprised of two or more members
of the board of directors of the Company or officers of the Company, or both.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or any Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the City of New York, New York, or the City
of Blairsville, Georgia, are authorized or required by law or executive order to
remain closed, or (iii) a day on which the Corporate Trust Office of the
Trustee, or, with respect to the Securities of a series initially issued to an
Issuer Trust, the "Corporate Trust Office" (as defined in the related Trust
Agreement) of the Property Trustee or the Delaware Trustee under the related
Trust Agreement, is closed for business.
"CAPITAL SECURITIES" has the meaning specified in the first recital of
this Indenture.
"CAPITAL TREATMENT EVENT" means, in respect of any Issuer Trust, the
reasonable determination by the Company that, as a result of the occurrence of
any amendment to, or change (including any announced prospective change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of the
issuance of the Capital Securities of such Issuer Trust, there is more than an
insubstantial risk that the Company will not
-3-
be entitled to treat an amount equal to the Liquidation Amount of such Capital
Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes of
the risk-based capital adequacy guidelines of the Board of Governors of the
Federal Reserve System, as then in effect and applicable to the Company.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"COMMON SECURITIES" has the meaning specified in the first recital of
this Indenture.
"COMMON STOCK" means the common stock, $1.00 par value per share of the
Company.
"COMPANY" means the Person named as the "COMPANY" in the first paragraph
of this instrument until a successor entity shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "COMPANY" shall mean
such successor entity.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, its President or a Senior Vice President or Vice President, and by
its Chief Financial Officer, its Treasurer or an Assistant Treasurer, or its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"CREDITOR" has the meaning specified in Section 6.7(c).
"DEFAULTED INTEREST" has the meaning specified in Section 3.8.
"DELAWARE TRUSTEE" means, with respect to any Issuer Trust, the Person
identified as the "Delaware Trustee" in the related Trust Agreement, solely in
its capacity as Delaware Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware trustee appointed as therein provided.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"DISCOUNT SECURITY" means any security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
-4-
"DOLLAR" or "$" means the currency of the United States of America that,
as at the time of payment, is legal tender for the payment of public and private
debts.
The term "ENTITY" includes a bank, corporation, association, company,
limited liability company, joint-stock company or business trust.
"EVENT OF DEFAULT," unless otherwise specified in the supplemental
indenture or specified in or pursuant to the Board Resolution creating a series
of Securities, has the meaning specified in Article V.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"EXCHANGE OFFER" means an exchange offer of Exchange Securities for
Private Securities, which is registered under the Securities Act pursuant to a
registration rights agreement.
"EXCHANGE SECURITIES" means a new series of Securities issued by the
Company in a mandatory exchange offer for Private Securities, such exchange
offer being registered under the Securities Act.
"EXPIRATION DATE" has the meaning specified in Section 1.4(f).
"EXTENSION PERIOD" has the meaning specified in Section 3.12.
"GLOBAL SECURITY" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"GUARANTEE" means, with respect to any Issuer Trust, the Guarantee
Agreement executed by the Company for the benefit of the Holders of the Capital
Securities issued by such Issuer Trust as modified, amended or supplemented from
time to time.
"HOLDER" means a Person in whose name a Security is registered in the
Securities Register.
"INDENTURE" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
-5-
"INTEREST PAYMENT DATE" means, as to each series of Securities, the Stated
Maturity of an installment of interest on such Securities.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"INVESTMENT COMPANY EVENT" means the receipt by an Issuer Trust of an
Opinion of Counsel (as defined in the relevant Trust Agreement) experienced in
such matters to the effect that, as a result of the occurrence of a change in
law or regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that such Issuer Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the issuance of
the Capital Securities of such Issuer Trust.
"ISSUER TRUST" has the meaning specified in the first recital of this
Indenture.
"LIQUIDATION AMOUNT" shall have the meaning assigned in the applicable
related Trust Agreement.
"MATURITY" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"NOTICE OF DEFAULT" means a written notice of the kind specified in
Section 5.1(3).
"OFFICERS' CERTIFICATE" means a certificate signed by the Chief Executive
Officer, the President or a Vice President, and by the Chief Financial Officer,
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the party provided herein. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 10.4) shall
include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
-6-
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for or an employee of the Company or any Affiliate of the Company.
"ORIGINAL ISSUE DATE" means the date of issuance specified as such in a
Security or, if not so specified, the date of original issuance of such Security
(including any Predecessor Security).
"OUTSTANDING" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other Securities
have been authenticated and delivered or that have been paid pursuant to Section
3.7, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor (other than, for the avoidance of doubt, the
Issuer Trust to which Securities of the applicable series were initially issued)
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor (other than, for the avoidance of doubt, such
Issuer Trust). Upon the written request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Company to be owned or held by or for the
account of the Company, or any other obligor on the Securities or any Affiliate
of the Company or such obligor (other than, for the avoidance of doubt, such
Issuer Trust), and, subject to the provisions of Section 6.1, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
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"PAYING AGENT" means the Trustee or any Person authorized by the Company
to pay the principal of (or premium, if any) or interest on, or other amounts in
respect of any Securities on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT" means, with respect to the Securities of any series,
the place or places where the principal of (and premium, if any) and interest on
the Securities of such series are payable pursuant to Section 3.1.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.7 in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"PRINCIPAL SUBSIDIARY BANK" means each of (i) United Community Bank, a
bank chartered under the laws of Georgia, (ii) any other banking subsidiary of
the Company the consolidated assets of which constitute 20% or more of the
consolidated assets of the Company and its consolidated subsidiaries, (iii) any
other banking subsidiary designated as a Principal Subsidiary Bank pursuant to a
Board Resolution and set forth in an Officers' Certificate delivered to the
Trustee, and (iv) any banking subsidiary of the Company that owns, directly or
indirectly, any voting securities, or options, warrants or rights to subscribe
for or purchase voting securities, of any Principal Subsidiary Bank under clause
(i), (ii) or (iii), and in the case of clause (i), (ii), (iii) or (iv) their
respective successors (whether by consolidation, merger, conversion, transfer of
substantially all their assets and business or otherwise) so long as any such
successor is a banking subsidiary (in the case of clause (i), (ii) or (iii) or a
subsidiary (in the case of clause (iv))) of the Company.
"PRIVATE SECURITY" means a Restricted Security.
"PROCEEDING" has the meaning specified in Section 13.2.
"PROPERTY TRUSTEE" means, with respect to any Issuer Trust, the Person
identified as the "Property Trustee" in the related Trust Agreement, solely in
its capacity as Property Trustee of such Issuer Trust under such Trust Agreement
and not in its individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as therein provided.
"REDEMPTION DATE", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture or the
terms of such Security.
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"REDEMPTION PRICE", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of such series, the close of
business on the fifteenth day of the month next preceding such Interest Payment
Date (whether or not a Business Day).
"RESPONSIBLE OFFICER", when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary, trust officer, senior trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of this Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"RESTRICTED SECURITY" means each Security required pursuant to Section
3.6(c) to bear a Restricted Securities Legend.
"RESTRICTED SECURITIES CERTIFICATE" means a certificate substantially in
the form set forth in Annex A.
"RESTRICTED SECURITIES LEGEND" means a legend substantially in the form of
the legend required in the form of Security set forth in Section 2.2 to be
placed upon a Restricted Security.
"RIGHTS PLAN" means any plan of the Company providing for the issuance by
the Company to all holders of its Common Stock, of rights entitling the holders
thereof to subscribe for or purchase shares of any class or series of capital
stock of the Company which rights (i) are deemed to be transferred with such
shares of such Common Stock, (ii) are not exercisable, and (iii) are also issued
in respect of future issuances of such Common Stock, in each case until the
occurrence of a specified event or events.
"SECURITIES" or "SECURITY" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as modified, amended or
supplemented from time to time.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 3.6(a).
"SENIOR INDEBTEDNESS" means, whether recourse is to all or a portion of
the assets of the Company and whether or not contingent: (i) every obligation of
the Company for money borrowed; (ii) every obligation of the Company evidenced
by bonds, debentures, notes or other
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similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of the Company with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of the Company; (iv)
every obligation of the Company issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business); (v) every capital lease
obligation of the Company; (vi) every obligation of the Company for claims (as
defined in Section 101(4) of the United States Bankruptcy Code of 1978, as
amended) in respect of derivative products such as interest and foreign exchange
rate contracts, commodity contracts and similar arrangements; and (vii) every
obligation of the type referred to in clauses (i) through (vi) of another Person
the payment of which the Company has guaranteed or is responsible or liable,
directly or indirectly, as obligor or otherwise; without limiting the generality
of the foregoing, Senior Indebtedness shall include the Company's $12,000,000
loan with the Bankers Bank, Atlanta, Georgia; and $3,500,000 aggregate amount of
Floating Rate Convertible Subordinated Payable in Kind Debentures due December
31, 2006 (the "Floating Rate Debentures"). "Senior Indebtedness" shall not
include (i) any obligations which, by their terms, are expressly stated to rank
PARI PASSU in right of payment with, or to not be superior in right of payment
to, the Junior Subordinated Debentures, (ii) any Senior Indebtedness of the
Company which when incurred and without respect to any election under Section
1111(b) of the United States Bankruptcy Code of 1978, as amended, was without
recourse to the Company, (iii) any indebtedness of the Company to any of its
subsidiaries, (iv) indebtedness to any executive officer or director of the
Company, except for indebtedness with respect to the Floating Rate Debentures,
or (v) any indebtedness in respect of debt securities issued to any trust, or a
trustee of such trust, partnership or other entity affiliated with the Company
that is a financing entity of the Company in connection with the issuance of
such financing entity of securities that are similar to the Capital Securities.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.8.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
pursuant to the terms of such Security as the fixed date on which the principal
of such Security or such installment of principal or interest is due and
payable, as such date may, in the case of such principal, be shortened or
extended as provided pursuant to the terms of such Security and this Indenture.
"SUBSIDIARY" means an entity more than 50% of the outstanding voting stock
of which is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries. For
purposes of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"SUCCESSOR SECURITY" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.7 in
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exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"TAX EVENT" means the receipt by an Issuer Trust of an Opinion of Counsel
(as defined in the relevant Trust Agreement) experienced in such matters to the
effect that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official or administrative pronouncement or action or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement or decision is announced
on or after the date of issuance of the Capital Securities of such Issuer Trust,
there is more than an insubstantial risk that (i) such Issuer Trust is, or will
be within 90 days of the delivery of such Opinion of Counsel, subject to United
States Federal income tax with respect to income received or accrued on the
corresponding series of Securities issued by the Company to such Issuer Trust,
(ii) interest payable by the Company on such corresponding series of Securities
is not, or within 90 days of the delivery of such Opinion of Counsel will not
be, deductible by the Company, in whole or in part, for United States Federal
income tax purposes, or (iii) such Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to more than a DE MINIMIS
amount of other taxes, duties or other governmental charges.
"TRUST AGREEMENT" means, with respect to any Issuer Trust, the trust
agreement or other governing instrument of such Issuer Trust.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first paragraph
of this Indenture, solely in its capacity as such and not in its individual
capacity, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "TRUSTEE" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "TRUSTEE" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as modified,
amended or supplemented from time to time, except as provided in Section 9.5.
"TRUST SECURITIES" has the meaning specified in the first recital of
this Indenture.
"VICE PRESIDENT," when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 1.2. COMPLIANCE CERTIFICATE AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants compliance with which constitutes a
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condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or opinion
that such individual has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions of such individual contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
SECTION 1.3. FORMS OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his or her certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a Person acting in other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be provided in any other manner that the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, PROVIDED that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply
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with respect to, the giving or making of any notice, declaration, request or
direction referred to in the next succeeding paragraph. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date, and no other Holders, shall be entitled to
take the relevant action, whether or not such Holders remain Holders after such
record date, PROVIDED that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date (as defined below) by
Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2), or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect) and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record date may designate any day as the "EXPIRATION DATE"
and from time to time may change the Expiration Date to any earlier or later
day, PROVIDED that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 1.6 on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any
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record date set pursuant to this Section, the party hereto that set such record
date shall be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.5. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or
the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Global Trust Services, or
(2) the Company by the Trustee, any Holder or any holder of Capital
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument, Attention: Jimmy C. Tallent
or at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.6. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail services or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall
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be filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
SECTION 1.7. CONFLICT WITH TRUST INDENTURE ACT.
This Indenture is intended to be in conformity with the provisions of the
Trust Indenture Act that would be required to be part of this Indenture were
this Indenture to be qualified under the Trust Indenture Act and shall, to the
extent applicable, be governed by such provisions. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
If 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 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and
9.2, the holders of Capital Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
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SECTION 1.12. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. NON-BUSINESS DAYS.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or the Securities) payment of interest or principal (and
premium, if any) or other amounts in respect of such Security need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day) except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (in each case with the
same force and effect as if made on the Interest Payment Date or Redemption Date
or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. FORMS GENERALLY.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax or securities laws or the rules
of any securities exchange or as may, consistently herewith, be determined by
the officers executing such securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 with respect to the authentication and
delivery of such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities
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may be listed, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
Securities distributed to holders of Global Capital Securities (as defined
in the applicable Trust Agreement) upon the dissolution of an Issuer Trust shall
be distributed in the form of one or more Global Securities registered in the
name of a Depositary or its nominee, and deposited with the Securities
Registrar, as custodian for such Depositary, or with such Depositary, for credit
by the Depositary to the respective accounts of the beneficial owners of the
Securities represented thereby (or such other accounts as they may direct).
Securities distributed to holders of Capital Securities other than Global
Capital Securities upon the dissolution of an Issuer Trust shall not be issued
in the form of a Global Security or any other form intended to facilitate
book-entry trading in beneficial interests in such Securities.
SECTION 2.2. FORM OF FACE OF SECURITY.
UNITED COMMUNITY BANKS, INC.
[Title of Security]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE
PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT IN A TRANSACTION THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED
STATES. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
THE ISSUER THAT THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE
EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF THE SECURITIES.
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THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY SUCH TRANSFER OF
SECURITIES IN A BLOCK HAVING A PRINCIPAL AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING BUT
NOT LIMITED TO THE RECEIPT OF INTEREST AND PRINCIPAL PAYABLE ON SUCH SECURITIES,
AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
SECURITIES.
No. $
UNITED COMMUNITY BANKS, INC., a Georgia bank holding company (hereinafter
called the "COMPANY", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, the principal sum of Dollars on , [IF THE SECURITY
IS A GLOBAL SECURITY, THEN INSERT, IF APPLICABLE--, or such other principal
amount represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture, OR the
principal sum specified in the Schedule annexed hereto] [; PROVIDED that the
Company may (i) shorten the Stated Maturity of the principal of this Security to
a date not earlier than , and (ii) extend the Stated Maturity of the
principal of this Security at any time on one or more occasions, subject to
certain conditions specified in Section 3.15 of the Indenture, but in no event
to a date later than ]. The Company further promises to pay interest on said
principal from ,or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [monthly] [quarterly]
[semi-annually] [IF APPLICABLE, INSERT--(subject to deferral as set forth
herein)] in arrears on [INSERT APPLICABLE INTEREST PAYMENT DATES] of each year,
commencing at the [variable rate equal to [INSERT APPLICABLE INTEREST RATE
FORMULA]] [rate of ____%] per annum, [if applicable insert--together with
Additional Sums, if any, as provided in Section 10.6 of the Indenture,] until
the principal hereof is paid or duly provided for or made available for payment
[if applicable, insert--; provided that any overdue principal, premium or
Additional Sums and any overdue installment of interest shall bear Additional
Interest at the [variable rate equal to [INSERT APPLICABLE INTEREST RATE
FORMULA]] [rate of ____%] per annum (to the extent that the payment of such
interest shall be legally enforceable), compounded [monthly] [quarterly]
[semi-annually], from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The amount
of interest payable for any period less than a full interest period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in such period. The amount of interest payable
for any full interest period shall be computed by dividing the applicable rate
per annum by [twelve/four/two]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest installment [IF APPLICABLE, INSERT--, which shall
be the [ or ] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date]. Any such
-19-
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee (notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date) or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[IF APPLICABLE, INSERT--So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time during the term of
this Security, from time to time to defer the payment of interest on this
Security for up to consecutive [monthly] [quarterly] [semi-annual] interest
payment periods with respect to each deferral period (each an "Extension
Period") [IF APPLICABLE, INSERT--, during which Extension Periods the Company
shall have the right to make partial payments of interest on any Interest
Payment Date, and] at the end of which the Company shall pay all interest then
accrued and unpaid including Additional Interest, as provided below; PROVIDED,
HOWEVER, that no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security [IF STATED MATURITY CAN BE SHORTENED OR EXTENDED,
INSERT--, as then in effect,] and no such Extension Period may end on a date
other than an Interest Payment Date; and PROVIDED, FURTHER, however, that during
any such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock, or (ii)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank PARI PASSU in
all respects with or junior in interest to this Security (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or shareholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the Company's capital stock (or any capital stock of a
Subsidiary of the Company) for any class or series of the Company's capital
stock or of any class or series of the Company's indebtedness for any class or
series of the Company's capital stock, (c) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(d) any declaration of a dividend in connection with any Rights Plan, or the
issuance of rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks PARI PASSU with
or junior to such stock). Prior to the termination of any such Extension Period,
the Company may further defer the payment of interest, PROVIDED that no
Extension Period shall exceed consecutive [monthly] [quarterly]
-20-
[semi-annual] interest payment periods, extend beyond the Stated Maturity of the
principal of this Security or end on a date other than an Interest Payment Date.
Upon the termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any Interest
Payment Date, the Company may elect to begin a new Extension Period, subject to
the above conditions. No interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest (to the extent that the payment of such interest shall be
legally enforceable) at the [variable rate equal to [INSERT APPLICABLE INTEREST
RATE FORMULA]] [rate of ____%] per annum, compounded [monthly] [quarterly]
[semi-annually] and calculated as set forth in the first paragraph of this
Security, from the date on which such amounts would otherwise have been due and
payable until paid or made available for payment. The Company shall give the
Holder of this Security and the Trustee notice of its election to begin any
Extension Period at least one Business Day prior to the next succeeding Interest
Payment Date on which interest on this Security would be payable but for such
deferral [IF APPLICABLE, INSERT--or so long as this Security is held by [INSERT
NAME OF APPLICABLE ISSUER TRUST], at least one Business Day prior to the earlier
of (i) the next succeeding date on which Distributions on the Capital Securities
of such Issuer Trust would be payable but for such deferral, and (ii) the date
on which the Property Trustee of such Issuer Trust is required to give notice to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.]
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts [IF APPLICABLE, INSERT--; PROVIDED, HOWEVER that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register, or (ii) if to a Holder of $1,000,000 or more in aggregate principal
amount of this Security, by wire transfer in immediately available funds upon
written request to the Trustee not later than 15 calendar days prior to the date
on which the interest is payable].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
-21-
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UNITED COMMUNITY BANKS, INC.
By:____________________________________
Name:
Title:
Attest:
_______________________________________
SECRETARY OR ASSISTANT SECRETARY
SECTION 2.3. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "SECURITIES"), issued and to be issued in one or more
series under the Junior Subordinated Indenture, dated as of July 20, 1998
(herein called the "INDENTURE"), between the Company and The Chase Manhattan
Bank, as Trustee (herein called the "TRUSTEE", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [IF
APPLICABLE, INSERT--, limited in aggregate principal amount to $ ].
All terms used in this Security that are defined in the Indenture [IF
APPLICABLE, INSERT-- or in [insert name of trust agreement], dated as of
_________ (as modified, amended or supplemented from time to time the "TRUST
AGREEMENT"), relating to [INSERT NAME OF ISSUER TRUST] (the "ISSUER TRUST")
among the Company, as Depositor, the Trustees named therein and the Holders from
time to time of the Trust Securities issued pursuant thereto] [IF APPLICABLE,
INSERT -- or in the Registration Rights Agreement, dated as of _________ (the
"Registration Rights Agreement"), among the Company, [INSERT NAME OF ISSUER
TRUST] and [INSERT NAME OF INITIAL PURCHASER]], shall
-22-
have the meanings assigned to them in the Indenture [IF APPLICABLE, INSERT--or
the Trust Agreement [IF APPLICABLE, INSERT -- or the Registration Rights
Agreement], as the case may be].
[IF APPLICABLE, INSERT--The Company has the right to redeem this Security
(i) on or after _________, in whole at any time or in part from time to time, or
(ii) in whole (but not in part), at any time within 90 days following the
occurrence and during the continuation of a Tax Event, Investment Company Event,
or Capital Treatment Event, in each case at the Redemption Price described
below, and subject to possible regulatory approval.]
[IF APPLICABLE, INSERT--In the case of a redemption on or after
___________, the Redemption Price shall equal the following prices, expressed in
percentages of the principal amount hereof, together with accrued interest to
but excluding the date fixed for redemption, if redeemed during the 12-month
period beginning ___________:
Redemption
Year Price
---- -----
and 100% on or after __________.
In the case of a redemption on or after __________ following a Tax Event,
Investment Company Event or Capital Treatment Event, the Redemption Price shall
equal the Redemption Price then applicable to a redemption under the preceding
paragraph.
In the case of a redemption prior to _________ following a Tax Event,
Investment Company Event or Capital Treatment Event in respect of the Issuer
Trust, the Redemption Price shall equal the Make-Whole Amount for a
corresponding $_________ principal amount hereof, together with accrued interest
to but excluding the date fixed for redemption, which Make-Whole Amount will be
equal to the greater of (i) 100% of the principal amount hereof, and (ii) as
determined by a Quotation Agent (as defined in the Trust Agreement), the sum of
the present values of the principal amount hereof and premium, if any, payable
as part of the Redemption Price with respect to an optional redemption hereof on
___________, together with the present values of scheduled payments of interest
(not including the portion of any such payments of interest accrued as of the
Redemption Date) from the date fixed for redemption to ___________, in each case
discounted to the date fixed for redemption on a [monthly] [quarterly]
[semi-annual] basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate (as defined in the Trust Agreement).]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT--In the
event of redemption of this Security in part only, a new Security or Securities
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.]
-23-
[IF APPLICABLE, INSERT--Pursuant to the Registration Rights Agreement, in
the event that: (i) (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the Commission on or prior to the [
]th day after the Issue Date or (B) notwithstanding that the Company and the
Issuer Trust have consummated or will consummate an Exchange Offer, the Company
and the Issuer Trust are required to file a Shelf Registration Statement and
such Shelf Registration Statement is not filed on or prior to the date required
by the Registration Rights Agreement, then commencing on the day after the
applicable required filing date, liquidated damages shall accrue on the
principal amount of the Junior Subordinated Debentures and, if the Exchange
Offer has been consummated, the New Junior Subordinated Debentures, each at a
rate of ____% per annum; or (ii) (A) neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is declared effective by the
Commission on or prior to the [ ]th day after the Issue Date or (B)
notwithstanding that the Company and the Issuer Trust have consummated or will
consummate an Exchange Offer, the Company and the Issuer Trust are required to
file a Shelf Registration Statement and such Shelf Registration Statement is not
declared effective by the Commission on or prior to the _____ day after the date
such Shelf Registration Statement was required to be filed, then, commencing on
the _____ day after the Issue Date, liquidated damages shall accrue on the
principal amount of the Junior Subordinated Debentures and, if the Exchange
Offer has been consummated, the New Junior Subordinated Debentures, each at a
rate of ____% per annum; or (iii) (A) the Issuer Trust has not exchanged New
Capital Securities for all Capital Securities validly tendered for exchange by
their respective Holders or the Company has not exchanged the New Guarantee or
New Junior Subordinated Debentures for the Guarantee or Junior Subordinated
Debentures validly tendered, in accordance with the terms of the Exchange Offer
on or prior to the _____ day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if applicable, the Shelf
Registration Statement has been declared effective and such Shelf Registration
Statement ceases to be effective at any time prior to the expiration of the Rule
144(k) Period (other than as allowed pursuant to the Registration Rights
Agreement or after such time as all Capital Securities have been disposed of
thereunder or otherwise cease to be Registrable Securities), then liquidated
damages shall accrue on the principal amount of the Junior Subordinated
Debentures and, if the Exchange Offer has been consummated, the New Junior
Subordinated Debentures, each at a rate of ____% per annum commencing on (x) the
____ day after such effective date, in the case of (A) above, or (y) the day
such Shelf Registration Statement ceases to be effective in the case of (B)
above; PROVIDED, HOWEVER, that the liquidated damages on the Junior Subordinated
Debentures and, if the Exchange Offer has been consummated, the New Junior
Subordinated Debentures, may not exceed in the aggregate ____% per annum;
provided, further, however, that (1) upon the filing of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the case of clause
(i) above), (2) upon the effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (ii) above),
or (3) upon the exchange of New Capital Securities, the New Guarantee and New
Junior Subordinated Debentures for all Capital Securities, the Guarantee and all
Junior Subordinated Debentures validly tendered (in the case of clause (iii)(A)
above), or upon the effectiveness of the Shelf Registration Statement which had
ceased to remain effective (in the case of clause (iii)(B) above) liquidated
damages on the Junior Subordinated Debentures and, if the Exchange Offer has
been consummated, the New Junior Subordinated Debentures, shall cease to accrue
and accumulate.
-24-
Any amounts of liquidated damages due pursuant to the preceding paragraph,
will be payable in cash on the next succeeding Interest Payment Date to Holders
on the relevant Regular Record Date.]
[IF APPLICABLE, INSERT--The Indenture contains provisions for defeasance
at any time [of the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance by the Company with certain conditions set forth in
the Indenture.]
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
[IF THE SECURITY IS NOT A DISCOUNT SECURITY, INSERT--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then, and in every such case, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders) [if applicable, insert--, provided that, if
upon an Event of Default, the Trustee or such Holders fail to declare the
principal of all the Outstanding Securities of this series to be immediately due
and payable, the Holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities then outstanding shall have the right to make such
declaration by a notice in writing to the Company and the Trustee]; and upon any
such declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities of this series shall become
immediately due and payable, PROVIDED that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.]
[IF THE SECURITY IS A DISCOUNT SECURITY, INSERT--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
-25-
series may declare an amount of principal of the Securities of this series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders) [IF APPLICABLE, INSERT--, provided that, if upon an
Event of Default, the Trustee or such Holders fail to declare such principal
amount of the Outstanding Securities of this series to be immediately due and
payable, the Holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities then outstanding shall have the right to make such
declaration by a notice in writing to the Company and the Trustee. The principal
amount payable upon such acceleration shall be equal to--INSERT FORMULA FOR
DETERMINING THE AMOUNT]. Upon any such declaration, such amount of the principal
of and the accrued interest (including any Additional Interest) on all the
Securities of this series shall become immediately due and payable, PROVIDED
that the payment of such principal and interest (including any Additional
Interest) on all the Securities of this series shall remain subordinated to the
extent provided in Article XIII of the Indenture. Upon payment (i) of the amount
of principal so declared due and payable and (ii) of interest on any overdue
principal, premium and interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and premium and interest, if any, on
this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest (including Additional Interest) on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of [$100,000 and any integral multiple of $1,000 in
excess thereof]. [IF APPLICABLE, INSERT-- Securities or portions thereof may be
transferred or exchanged only in principal amounts of not less than $100,000.
Any transfer, exchange or other disposition of Securities in contravention of
Section 3.6(b)(v) of the Indenture shall be deemed to be void and of no legal
effect whatsoever, any such transferee shall be deemed not to be the Holder or
owner of any beneficial interest in such Securities for any purpose, including
but not limited to the receipt of interest payable on such Securities, and such
transferee shall be deemed to have no interest whatsoever in such Securities.]
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
-26-
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agrees that for United States Federal, state and
local tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE COMPANY, DOES
NOT EVIDENCE DEPOSITS AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY.
SECTION 2.4. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL SECURITY.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, 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 A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
-27-
SECTION 2.5. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:_____________________ THE CHASE MANHATTAN BANK,
as Trustee
By:_________________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1. TITLE AND TERMS.
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. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities as a series:
(a) the title of the securities of such series, which shall distinguish
the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder); PROVIDED, HOWEVER, that the authorized
aggregate principal amount of such series may be increased above such amount by
a Board Resolution to such effect;
(c) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
-28-
(d) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof, and
any dates on which or circumstances under which, the Company shall have the
right to extend or shorten such Stated Maturity or Maturities;
(e) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable with respect to any Securities of such
series, the date or dates from which any such interest or Additional Interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable, the right, pursuant to Section 3.12 or as otherwise set forth therein,
of the Company to defer or extend an Interest Payment Date, and the Regular
Record Date for the interest payable on any Interest Payment Date or the method
by which any of the foregoing shall be determined;
(f) the place or places where the principal of (and premium, if any) and
interest or Additional Interest on the Securities of such series shall be
payable, the place or places where the Securities of such series may be
presented for registration of transfer or exchange, any restrictions that may be
applicable to any such transfer or exchange in addition to or in lieu of those
set forth herein and the place or places where notices and demands to or upon
the Company in respect of the Securities of such series may be made;
(g) the period or periods within or the date or dates on which, if any,
the price or prices at which and the terms and conditions upon which the
Securities of such series may be redeemed, in whole or in part, at the option of
the Company, and if other than by a Board Resolution, the manner in which any
election by the Company to redeem such Securities shall be evidenced;
(h) the obligation or the right, if any, of the Company to redeem, repay
or purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions, or at the option of a Holder thereof, and
the period or periods within which, the price or prices at which, the currency
or currencies (including currency unit or units) in which and the other terms
and conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(i) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $100,000 and any integral multiple of
$1,000 in excess thereof;
(j) if other than Dollars, the currency or currencies (including any
currency unit or units) in which the principal of (and premium, if any) and
interest and Additional Interest, if any, on the Securities of the series shall
be payable, or in which the Securities of the series shall be denominated and
the manner of determining the equivalent thereof in Dollars for purposes of
determining the Dollar equivalent of the principal amount of Outstanding
Securities;
(k) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
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(l) if, other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal amount
shall be determined);
(n) if applicable, that the Securities of the series, in whole or in any
specified part, shall be defeasible and, if other than by a Board Resolution,
the manner in which any election by the Company to defease such Securities shall
be evidenced;
(o) the additions or changes, if any, to this Indenture with respect to
the Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(p) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(q) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global Securities, the form of any legend
or legends that shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to or in
lieu of those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(r) the appointment of any Paying Agent or agents for the Securities of
such series;
(s) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the additions
or changes, if any, to this Indenture with respect to the Securities of such
series to permit or facilitate such conversion or exchange;
(t) if such Securities are to be issued to an Issuer Trust, the form or
forms of the Trust Agreement and Guarantee relating thereto;
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(u) if, other than as set forth herein, the relative degree, if any, to
which the Securities or the series shall be senior to or be subordinated to
other series of Securities in right of payment, whether such other series of
Securities are Outstanding or not;
(v) 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 5.2;
(w) any other terms of the Securities of such series (which terms shall
not be inconsistent with the provisions of this Indenture, except as permitted
by Section 9.1(3)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth, or determined in the manner
provided, in such Officers' Certificate or in any indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
SECTION 3.2. DENOMINATIONS.
The Securities of each series shall be in registered form without coupons
and shall be issuable in minimum denominations of $100,000 and any integral
multiples of $1,000 in excess thereof, unless otherwise specified as
contemplated by Section 3.1(i).
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, its Chief Financial Officer or one of its Vice
Presidents, under its corporate seal reproduced or impressed thereon and
attested by its Secretary, or one of its Assistant Secretaries or Vice
Presidents. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication,
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together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the Securities
of the series have been established by or pursuant to one or more Board
Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner that
is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and the preceding paragraph,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers or signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver
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such Security to the Trustee for cancellation as provided in Section 3.10, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.4. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon receipt of a Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities of such series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 3.5. GLOBAL SECURITIES.
(a) Each Global Security issued under this Indenture shall be registered
in the name of the Depositary designated by the Company for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary advises the Trustee in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Company is unable to locate a qualified successor, (ii) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects to
terminate the book-entry system through the Depositary, or (iii) there shall
have occurred and be continuing an Event of Default.
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(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancellation as provided
in this Article III. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either
(i) such Global Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced, subject to Section 3.6(b)(v), or increased by an amount equal to the
portion thereof to be so exchanged or canceled, or equal to the principal amount
of such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar or an appropriate notation made on the Global Security,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Security by the Depositary, accompanied by registration instructions, the
Trustee shall, subject to Section 3.6(b) and as otherwise provided in this
Article III, authenticate and deliver any Securities issuable in exchange for
such Global Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article III, Section 9.6 or 11.6 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or agent. Neither the
Trustee nor the Securities Registrar shall have any liability in respect of any
transfers effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
SECTION 3.6. REGISTRATION, TRANSFER AND EXCHANGE GENERALLY; CERTAIN
TRANSFERS AND EXCHANGES; SECURITIES ACT LEGENDS.
(a) (i) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
transfers of Securities. Such register
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is herein sometimes referred to as the "SECURITIES REGISTER." The Trustee is
hereby appointed "SECURITIES REGISTRAR" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the offices
or agencies of the Company designated for that purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series of any authorized denominations of like tenor and aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like tenor and
aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (i) to issue, register the transfer of or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of selection for redemption of Securities of that series
pursuant to Article XI and ending at the close of business on the day of mailing
of the notice of redemption, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case of
any such Security to be redeemed in part, any portion thereof not to be
redeemed.
(ii)(A) In addition to the restrictions on transfer set forth in
Section 3.6(a)(i) and 3.6(a)(ii)(B), beneficial ownership of every Private
Security is subject to the restrictions on transfer imposed by the Securities
Act and rules and regulations promulgated by the Commission thereunder and each
certificate representing Private Securities shall bear the Restrictive
Securities Legend, unless such restrictions on transfer shall be terminated in
accordance with the
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provisions of this Section 3.6. The Holder of each Private Security, by such
Holder's acceptance thereto, agrees to be bound by such restrictions on
transfer.
(B) The restrictions imposed by the Securities Act and this
Indenture upon the transferability of any particular Private Security shall
cease and terminate upon delivery by the Company to the Trustee of an Officers'
Certificate stating that such Private Security has been sold pursuant to an
effective registration statement under the Securities Act, exchanged for a
corresponding aggregate principal amount of Exchange Securities of like tenor
pursuant to an effective registration statement under the Securities Act, or
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto). Any Private Security as to which the Company has
delivered to the Trustee an Officers' Certificate that such restrictions on
transfer shall have expired in accordance with their terms or shall have
terminated may, upon surrender of such Private Security for exchange to the
Securities Registrar or any transfer agent in accordance with the provisions of
this paragraph (ii)(B), be exchanged for a new Security, of like tenor and
aggregate principal amount, which shall not bear the Restrictive Securities
Legend. The Company shall inform the Trustee in writing of the effective date of
any registration statement registering the Private Securities or the Exchange
Securities under the Securities Act. The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
aforementioned Officers' Certificate.
As used in paragraphs (A) and (B) of this paragraph (ii), the term
"transfer" encompasses any sale, pledge, transfer, or other disposition of any
Private Security.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other provision
of this Indenture, transfers and exchanges of Securities and beneficial
interests in a Global Security shall be made only in accordance with this
Indenture.
(i) RESTRICTED NON-GLOBAL SECURITY TO GLOBAL SECURITY. If the Holder
of a Restricted Security (other than a Global Security) wishes at any time
to transfer all or any portion of such Security to a Person who wishes to
take delivery thereof in the form of a beneficial interest in a Global
Security, such transfer may be effected only in accordance with the
provisions of this clause (b)(i) and subject to the Applicable Procedures.
Upon receipt by the Securities Registrar of (A) such Security as provided
in Section 3.6(a) and instructions satisfactory to the Securities
Registrar directing that a beneficial interest in the Global Security in a
specified principal amount not greater than the principal amount of such
Security be credited to a specified Agent Member's account and (B) a
Restricted Securities Certificate duly executed by such Holder or such
Holder's attorney duly authorized in writing accompanied by a
certification that such transfer is being affected in accordance with Rule
144A, then the Securities Registrar shall cancel such Security (and issue
a new Security in respect of any untransferred portion thereof) as
provided in Section 3.6(a) and increase the aggregate principal amount of
the Global Security by the specified principal amount as provided in
Section 3.5(c).
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(ii) NON-GLOBAL SECURITY TO NON-GLOBAL SECURITY. A Security that is
not a Global Security may be transferred, in whole or in part, to a Person
who takes delivery in the form of another Security that is not a Global
Security as provided in Section 3.6(a), PROVIDED that if the Security to
be transferred in whole or in part is a Restricted Security, the
Securities Registrar shall have received a Restricted Securities
Certificate duly executed by the transferor Holder or such Holder's
attorney duly authorized in writing.
(iii) EXCHANGES BETWEEN GLOBAL SECURITY AND NON-GLOBAL SECURITY. A
beneficial interest in a Global Security may be exchanged for a Security
that is not a Global Security as provided in Section 3.5.
(iv) CERTAIN INITIAL TRANSFERS OF NON-GLOBAL SECURITIES. In the case
of Securities initially issued other than in global form, an initial
transfer or exchange of such Securities that does not involve any change
in beneficial ownership may be made to an Institutional Accredited
Investor or Investors as if such transfer or exchange were not an initial
transfer or exchange; PROVIDED that written certification shall be
provided by the transferee and transferor of such Securities to the
Securities Registrar that such transfer or exchange does not involve a
change in beneficial ownership.
(v) LIMITATIONS RELATING TO PRINCIPAL AMOUNT. Notwithstanding any
other provision of this Indenture and unless otherwise specified as
permitted by Section 3.1; Securities or portions thereof may be
transferred or exchanged only in principal amounts of not less than
$100,000. Any transfer, exchange or other disposition of Securities in
contravention of this Section 3.6(b)(v) shall be deemed to be void and of
no legal effect whatsoever, any such transferee shall be deemed not to be
the Holder or owner of any beneficial interest in such Securities for any
purpose, including but not limited to the receipt of interest payable on
such Securities, and such transferee shall be deemed to have no interest
whatsoever in such Securities.
(c) RESTRICTED SECURITIES LEGEND. Except as set forth below and in Section
3.6(a)(ii)(B), all Securities shall bear a Restricted Securities Legend:
(i) subject to the following clauses of this Section 3.6(c), a
Security or any portion thereof that is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Restricted Securities Legend while represented thereby;
(ii) subject to the following clauses of this Section 3.6(c), a new
Security which is not a Global Security and is issued in exchange for
another Security (including a Global Security) or any portion thereof,
upon transfer or otherwise, shall, if such new Security is required
pursuant to Section 3.6(b)(ii) or (iii) to be issued in the form of a
Restricted Security, bear a Restricted Securities Legend;
(iii) a new Security (other than a Global Security) that does not
bear a Restricted Securities Legend may be issued in exchange for or in
lieu of a Restricted
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Security or any portion thereof that bears such a legend if, in the
Company's judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the written direction of the Company
in the form of an Officers' Certificate, shall authenticate and deliver
such a new Security as provided in this Article III;
(iv) notwithstanding the foregoing provisions of this Section
3.6(c), a Successor Security of a Security that does not bear a Restricted
Securities Legend shall not bear such form of legend unless the Company
has reasonable cause to believe that such Successor Security is a
"restricted security" within the meaning of Rule 144, in which case the
Trustee, at the written direction of the Company in the form of an
Officers' Certificate, shall authenticate and deliver a new Security
bearing a Restricted Securities Legend in exchange for such Successor
Security as provided in this Article III; and
(v) Securities distributed to a holder of Capital Securities upon
dissolution of an Issuer Trust shall bear a Restricted Securities Legend
if the Capital Securities so held bear a similar legend.
(d) EXCHANGE OF SECURITIES. The Securities may be exchanged for Exchange
Securities pursuant to the terms of the Exchange Offer. In such an exchange, the
Trustee shall make the exchange as follows:
The Company shall present the Trustee with an Officer's Certificate
certifying as follows:
(i) Upon issuance of the Exchange Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(ii) (A) the principal amount Securities that are represented by a
Global Security properly tendered in the Exchange Offer by persons that
certify in a Letter of Transmittal that they are not a broker-dealer, they
are not participating in a distribution and they are not an affiliate of
the Company and (B) the principal amount of Securities that are
represented by definitive certificated Securities properly tendered in the
Exchange Offer by persons that certify in a Letter of Transmittal that
they are not a broker-dealer, they are not participating in a distribution
and they are not an affiliate of the Company, the name of each Holder of
such definitive certificated Securities, and the name and address to which
definitive certificated Securities for Exchange Securities shall be
registered and sent for each such Holder.
The Trustee, upon receipt of such Officers' Certificate with respect to
the preceding paragraph and to the effect that the Exchange Securities
have been registered under the Securities Act and the Trust Agreement has
been qualified under the Trust Indenture Act and with respect to the
matters set forth in the Registration Rights Agreement, shall
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authenticate (A) a Global Security representing the Exchange Securities in
aggregate principal amount equal to the aggregate principal amount of the
Securities so exchanged represented by a Global Security indicated in such
Officers' Certificate and (B) definitive Securities representing the
Exchange Securities registered in the names of, and in the princpal
amounts indicated in such Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the then
outstanding Securities shall have properly tendered and not withdrawn, the
Trustee shall make an endorsement on the Global Security representing such
untendered Securities indicating the reduction in the number and aggregate
principal amount represented thereby as a result of the Exchange Offer.
SECTION 3.7. MUTILATED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series,
of like tenor and aggregate principal amount, bearing the same legends, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security, and
(ii) such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a BONA FIDE purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series, of
like tenor and aggregate principal amount and bearing the same legends as such
destroyed, lost or stolen Security, and bearing a number not contemporaneously
Outstanding.
If 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 3.7, 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 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 such series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.8. PAYMENT OF INTEREST AND ADDITIONAL INTEREST; INTEREST
RIGHTS PRESERVED.
Unless otherwise provided in the Securities of such series, interest and
Additional Interest on any Security of any series that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date, shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest in respect of Securities of such series, except that, unless
otherwise provided in the Securities of such series, interest payable on the
Stated Maturity of the principal of a Security shall be paid to the Person to
whom principal is paid. The initial payment of interest on any Security of any
series that is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Security or in the Board
Resolution pursuant to Section 3.1 with respect to the related series of
Securities.
Any interest on any Security that is due and payable, but is not timely
paid or duly provided for, on any Interest Payment Date for Securities of such
series (herein called "DEFAULTED INTEREST"), shall forthwith cease to be payable
to the registered Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series in respect of
which interest is in default (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of
the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon, the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest, which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class,
postage prepaid, to each Holder of a Security of such series at the
address of such Holder as it appears in the Securities Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least
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once in a newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of Manhattan, The
City of New York, New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of the series in respect of
which interest is in default may be listed and, upon such notice as may be
required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause 2, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue interest, that were carried by such other Security.
SECTION 3.9. PERSONS DEEMED OWNERS.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.8) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and
such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.
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SECTION 3.10. CANCELLATION.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities shall be disposed of by the
Trustee in accordance with its customary procedures and the Trustee shall
deliver to the Company a certificate of such disposition.
SECTION 3.11. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
period shall be computed on the basis of a 360-day year of twelve 30-day months
and the actual number of days elapsed in any partial month in such period, and
interest on the Securities of each series for a full period shall be computed by
dividing the rate per annum by the number of interest periods that together
constitute a full twelve months.
SECTION 3.12. DEFERRALS OF INTEREST PAYMENT DATES.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods (each an "EXTENSION PERIOD") not to
exceed the number of consecutive quarterly, semi-annual or other periods that
equal five years with respect to each Extension Period, during which Extension
Periods the Company shall, if so specified as contemplated by Section 3.1, have
the right to make partial payments of interest on any Interest Payment Date. No
Extension Period shall end on a date other than an Interest Payment Date. At the
end of any such Extension Period, the Company shall pay all interest then
accrued and unpaid on the Securities (together with Additional Interest thereon,
if any, at the rate specified for the Securities of such series to the extent
permitted by applicable law); PROVIDED, HOWEVER, that no Extension Period shall
extend beyond the Stated Maturity of the principal of the Securities of such
series; and PROVIDED FURTHER, HOWEVER, that, during any such Extension Period,
the Company shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank PARI PASSU in all respects with or junior in
interest to the Securities of such series (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more
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employees, officers, directors or consultants, in connection with a dividend
reinvestment or shareholder stock purchase plan or in connection with the
issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a Subsidiary of the Company) for any
class or series of the Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's capital stock,
(c) the purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (d) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights, stock or other
property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks PARI PASSU with or junior to such stock). Prior
to the termination of any such Extension Period, the Company may further defer
the payment of interest, PROVIDED that no Event of Default has occurred and is
continuing and PROVIDED FURTHER, that no Extension Period shall exceed the
period or periods specified in such Securities, extend beyond the Stated
Maturity of the principal of such Securities or end on a date other than an
Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Company may elect to begin a new
Extension Period, subject to the above conditions. No interest or Additional
Interest shall be due and payable during an Extension Period, except at the end
thereof, but each installment of interest that would otherwise have been due and
payable during such Extension Period shall bear Additional Interest as and to
the extent as may be specified as contemplated by Section 3.1. The Company shall
give the Holders of the Securities of such series and the Trustee notice of its
election to begin any such Extension Period at least one Business Day prior to
the next succeeding Interest Payment Date on which interest on Securities of
such series would be payable but for such deferral or, with respect to any
Securities of a series issued to an Issuer Trust, so long as any such Securities
are held by such Issuer Trust, at least one Business Day prior to the earlier of
(i) the next succeeding date on which Distributions on the Capital Securities of
such Issuer Trust would be payable but for such deferral, and (ii) the date on
which the Property Trustee of such Issuer Trust is required to give notice to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Securities of such
series.
SECTION 3.13. RIGHT OF SET-OFF.
With respect to the Securities of a series initially issued to an Issuer
Trust, notwithstanding anything to the contrary herein, the Company shall have
the right to set off any payment it is otherwise required to make in respect of
any such Security to the extent the
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Company has theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee relating to such Security or to a holder
of Capital Securities pursuant to an action undertaken under Section 5.8 of this
Indenture.
SECTION 3.14. AGREED TAX TREATMENT.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security agree that for
United States Federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
SECTION 3.15. SHORTENING OR EXTENSION OF STATED MATURITY.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date and (ii) extend the Stated Maturity of the principal of the
Securities of such series at any time at its election for one or more periods,
PROVIDED that, if the Company elects to exercise its right to extend the Stated
Maturity of the principal of the Securities of such series pursuant to clause
(ii) above, at the time such election is made and at the time of extension, such
conditions as may be specified in such Securities shall have been satisfied.
SECTION 3.16. 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 notice
of redemption and other similar or related materials as a convenience to
Holders; PROVIDED that any such notice or other materials 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 redemption or other materials
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities that have been destroyed, lost
or stolen and that have been replaced or paid as provided in Section
3.7 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(iii) 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,
and the Company, in the case of subclause (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which
the Securities of such series are payable sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for the principal (and premium, if any) and
interest (including any Additional Interest) to the date of such deposit
(in the case of Securities that have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive.
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Notwithstanding the foregoing, in any case where the Securities are not
due and payable and have not been called for redemption, such Securities
shall remain recourse obligations of the Company.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Interest for the payment of which such money or
obligations have been deposited with or received by the Trustee. Money held by
the Trustee under this Section shall not be subject to the claims of the holders
of Senior Indebtedness under Article XIII.
ARTICLE V
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to the Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of Article XIII or by law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it
becomes due and payable, and continuance of such default for a period of
30 days (subject to the deferral of any due date in the case of any
Extension Period); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the
Securities of that series or in this Indenture for a period of 90 days
after the date on which written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the
Trustee by registered or certified mail or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series; or
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(4) entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal
or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of
substantially all of the property of the Company, or ordering the
winding-up or liquidation of its affairs, and the continuance of any such
decree of order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days; or
(5)(A) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or (B) the consent by the Company
or the entry of a decree of order for relief in respect of itself in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company, or (C) the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state law or (D) the consent by the Company to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of all or substantially all of the property of the Company,
or (E) the making by the Company of an assignment for the benefit of
creditors; or
(6) any other Event of Default provided with respect to Securities
of that series.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then, and in every such case, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), PROVIDED that,
in the case of the Securities of a series issued to an Issuer Trust, if, upon an
Event of Default, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series fail to declare the
principal of all the Outstanding Securities of such series to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the
related series of Capital Securities issued by such Issuer Trust then
outstanding shall have the right to make such declaration by a notice in writing
to the Company
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and the Trustee; and upon any such declaration such principal amount (or
specified portion thereof) of and the accrued interest (including any Additional
Interest) on all the Securities of such series shall become immediately due and
payable. If an Event of Default specified in Section 5.1(4) or 5.1(5) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of such series (or, if the Securities of
such series are Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms of that series) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable. Payment of principal
and interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding that such
amount shall become immediately due and payable as herein provided.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all
Securities of such series;
(B) any accrued Additional Interest on all Securities of such
series;
(C) the principal of (and premium, if any, on) any Securities
of such series that have become due otherwise than by such
declaration of acceleration and interest and Additional Interest
thereon at the rate borne by the Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
that has become due solely by such acceleration, have been cured or waived
as provided in Section 5.13.
In the case of Securities of a series initially issued to an Issuer Trust,
if the Holders of such Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
related series of Capital Securities issued by such Issuer Trust then
outstanding shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Company and the Trustee, subject to
the satisfaction of the conditions set forth in clauses (1) and (2) above of
this Section 5.2.
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No such rescission shall affect any subsequent default or Event of Default
or impair any right consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security of any series when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (and premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and
interest (including any Additional Interest), and, in addition thereto,
all amounts owing the Trustee under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
monies adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial or
administrative proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue
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principal (and premium, if any) or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing
and unpaid in respect to the Securities and to file such other papers or
documents as may be necessary or advisable and to take any and all actions
as are authorized under the Trust Indenture Act in order to have the
claims of the Holders and the Trustee and any predecessor to the Trustee
under Section 6.7 allowed in any such judicial or administrative
proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any monies or other property payable or deliverable on any such
claims and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator,
conservator (or other similar official) in any such judicial or administrative
proceeding is hereby authorized by each Holder to make such payments to the
Trustee for distribution in accordance with Section 5.6, and in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor Trustee
under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to 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; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIM WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, subject to
Article XIII and after provision for the payment of all the amounts owing the
Trustee and any predecessor Trustee under Section 6.7, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation
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of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon Securities of such series for principal (and premium, if any)
and interest (including any Additional Interest) in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 LIMITATION ON SUITS.
Subject to Section 5.8, no Holder of any Securities 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, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing itself
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to
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enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST; DIRECT ACTION BY HOLDERS OF
CAPITAL SECURITIES.
Notwithstanding any other provision in this Indenture, the Holder of any
Security of any series shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional Interest)
on such Security on the respective 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 right shall not be impaired
without the consent of such Holder. In the case of Securities of a series issued
to an Issuer Trust, any registered holder of the series of Capital Securities
issued by such Issuer Trust shall have the right, upon the occurrence of an
Event of Default described in Section 5.1(1) or 5.1(2), to institute a suit
directly against the Company for enforcement of payment to such holder of
principal of (premium, if any) and (subject to Sections 3.8 and 3.12) interest
(including any Additional Interest) on the Securities having a principal amount
equal to the aggregate Liquidation Amount of such Capital Securities held by
such holder.
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee, any Holder or any holder of Capital Securities issued by
any Issuer Trust 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, such Holder or such
holder of Capital Securities, then, and in every such case, the Company, the
Trustee, such Holders and such holder of Capital Securities shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, such Holder and such holder of Capital Securities shall continue as
though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or 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 prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee, any Holder of any Security with
respect to the Securities of the related series or any holder of any Capital
Security to exercise any right or remedy accruing upon any Event of Default with
respect to the Securities of the related series 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 and the right and remedy given to the holders of Capital
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Capital
Securities, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, PROVIDED that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction; and
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the
proceeding so directed would be unjustly prejudicial to the Holders not
joining in any such direction or would involve the Trustee in personal
liability.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series affected thereby and, in the case of
any Securities of a series initially issued to an Issuer Trust, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities issued by
such Issuer Trust may waive any past default hereunder and its consequences with
respect to such series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such
series (unless such default has been cured and the Company has paid to or
deposited with the Trustee a sum sufficient to pay all matured
installments of interest (including Additional Interest) and all principal
of
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(and premium, if any, on) all Securities of that series due otherwise than
by acceleration); or
(2) in respect of a covenant or provision hereof that under Article
IX cannot be modified or amended without the consent of each Holder of any
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series, or in the case of waiver by holders of Capital
Securities issued by such Issuer Trust, by all holders of Capital Securities
issued by such Issuer Trust.
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 Event of Default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may, in
its discretion, require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may, in its
discretion, assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate 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 premium, if any) or interest
(including any Additional Interest) on any Security on or after the respective
Stated Maturities expressed in such Security.
SECTION 5.15. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture, but
in the case of any such certificates or opinions that by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.12 relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of a series.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if there shall be
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reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; PROVIDED, HOWEVER, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and PROVIDED FURTHER,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "DEFAULT" means any event that is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
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(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 6.5. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
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SECTION 6.6. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.7. COMPENSATION AND REIMBURSEMENT.
(a) The Company agrees to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts as the
Company and the Trustee shall agree from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust).
(b) The Company agrees to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith.
(c) Since the Issuer Trust is being formed solely to facilitate an
investment in the Trust Securities, the Company, as Holder of the Common
Securities, hereby covenants to pay all debts and obligations (other than with
respect to the Capital Securities and the Common Securities) and all reasonable
costs and expenses of the Issuer Trust (including without limitation all
reasonable costs and expenses relating to the organization of the Issuer Trust,
the fees and expenses of the trustees and all costs and expenses relating to the
operation of the Issuer Trust) and to pay any and all taxes, duties, assessments
or governmental charges of whatever nature (other than withholding taxes)
imposed on the Issuer Trust by the United States, or any taxing authority, so
that the net amounts received and retained by the Issuer Trust and the Property
Trustee after paying such expenses will be equal to the amounts the Issuer Trust
and the Property Trustee would have received had no such costs or expenses been
incurred by or imposed on the Issuer Trust. The foregoing obligations of the
Company are for the benefit of, and shall be enforceable by, any person to whom
any such debts, obligations, costs, expenses and taxes are owed (each, a
"CREDITOR") whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations directly against the Company, and the
Company irrevocably waives any right or remedy to require that any such Creditor
take any action against the Issuer Trust or any other person before proceeding
against the Company. The Company shall execute such additional agreements as may
be necessary or desirable to give full effect to the foregoing.
(d) The Company shall indemnify the Trustee for, and hold it harmless
against, any loss, liability or expense (including the reasonable compensation
and the expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the reasonable costs and expenses of defending itself against any
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claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. This indemnification shall survive the termination
of this Indenture or the resignation or removal of the Trustee.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(4) or 5.1(5) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b). Each
Guarantee with respect to an Issuer Trust shall be deemed to be sufficiently
described in this Indenture for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
SECTION 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be:
(a) an entity organized and doing business under the laws of the United
States of America or of any state or territory thereof or of the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, state, territorial or District
of Columbia authority; or
(b) an entity or other Person organized and doing business under the laws
of a foreign government that is permitted to act as Trustee pursuant to a rule,
regulation or order of the Commission, authorized under such laws to exercise
corporate trust powers, and subject to supervision or examination by authority
of such foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustees;
in either case having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal or state authority. If such
entity publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then, for
the purposes of this Section, the combined capital and surplus of such entity
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article. Neither the Company nor any Person directly
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or indirectly controlling, controlled by or under common control with the
Company shall serve as Trustee for the Securities of any series issued
hereunder.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to the Securities of all
series issued hereunder, or (ii) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
such Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to the Securities of
all series issued hereunder and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation,
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removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of such
series and supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, subject to Section 5.14, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
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necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees or co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless, at the time
of such acceptance, such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any entity into which the Trustee may be merged or converted or with which
it may be consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such entity shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated, and in case any Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor Trustee or in the name of such successor
Trustee, and in all cases the certificate of authentication shall have the full
force which it is provided anywhere in the Securities or in this Indenture that
the certificate of the Trustee shall have.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities, which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be an entity organized and doing business under
the laws of the United States of America, or of any state or territory thereof
or of the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any entity into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any entity succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such entity shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent, which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provision of
this Section.
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The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:___________________________ THE CHASE MANHATTAN BANK,
as Trustee
By:_________________________________
As Authenticating Agent
Name:
Title:
By:_________________________________
Authorized Signatory
Name:
Title:
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after December 31 and June 30 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such date; and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, EXCLUDING from any such list names and addresses received by the
Trustee in its capacity as Securities Registrar.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. REPORTS BY TRUSTEE AND PAYING AGENT.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year,
commencing with the first July 15 after the first issuance of Securities under
this Indenture, such reports to be dated as of the preceding May 15.
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(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
(d) The Paying Agent shall comply with all withholding, backup
withholding, tax and information reporting requirements under the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations issued thereunder
with respect to payments on, or with respect to, the Securities.
SECTION 7.4. REPORTS BY COMPANY.
The Company shall file or cause to be filed with the Trustee and with the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided in the Trust Indenture
Act. In the case of information, documents or reports required to be filed with
the Commission pursuant to Section 13(a) or Section 15(d) of the Exchange Act,
the Company shall file or cause the filing of such information documents or
reports with the Trustee within 15 days after the same are required to be filed
with the Commission.
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) If the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance or transfer, or that leases, the properties and
assets of the Company substantially as an entirety shall be an entity
organized and existing under the laws of the United States of America or
any state thereof or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any), and interest (including any
Additional Interest) on all the Securities of every series and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed; provided, however, that nothing herein shall
be deemed to restrict or prohibit, and no supplemental
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indenture shall be required in the case of, the merger of a Principal
Subsidiary Bank with and into a Principal Subsidiary Bank or the Company,
the consolidation of Principal Subsidiary Banks into a Principal
Subsidiary Bank or the Company, or the sale or other disposition of all or
substantially all of the assets of any Principal Subsidiary Bank to
another Principal Subsidiary Bank or the Company, if, in any such case in
which the surviving, resulting or acquiring entity is not the Company, the
Company would own, directly or indirectly, at least 80% of the voting
securities of the Principal Subsidiary Bank (and of any other Principal
Subsidiary Bank any voting securities of which are owned, directly or
indirectly, by such Principal Subsidiary Bank) surviving such merger,
resulting from such consolidation or acquiring such assets;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with and, in the case of a transaction subject to this Section
8.1 but not requiring a supplemental indenture under paragraph (1) of this
Section 8.1, an Officer's Certificate or Opinion of Counsel to the effect
that the surviving, resulting or successor entity is legally bound by the
Indenture and the Securities; and the Trustee, subject to Section 6.1, may
rely upon such Officers' Certificates and Opinions of Counsel as
conclusive evidence that such transaction complies with this Section 8.1.
SECTION 8.2. SUCCESSOR COMPANY SUBSTITUTED.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor entity formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such conveyance or
transfer (but not in the case of any such lease) the Company shall be discharged
from all obligations and covenants under the Indenture and the Securities.
Such successor Person may cause to be executed, and may issue either in
its own name or in the name of the Company, any or all of the Securities
issuable hereunder that theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities that previously shall have been signed and delivered by the
officers of the Company to the Trustee for
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authentication pursuant to such provisions and any Securities that such
successor Person thereafter shall cause to be executed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may amend
any provision of this Indenture or may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee or to surrender any right or power herein conferred
upon the Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) to facilitate the issuance of Securities of any series in
certificated or other definitive form; or
(5) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of the
series specified) or to surrender any right or power herein conferred upon
the Company; or
(6) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Defaults are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of the series specified); or
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(7) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall (a) become effective
only when there is no Security Outstanding of any series created prior to
the execution of such supplemental indenture that is entitled to the
benefit of such provision or (b) not apply to any Outstanding Securities;
or
(8) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, PROVIDED that such action pursuant
to this clause (8) shall not adversely affect the interest of the Holders
of Securities of any series in any material respect or, in the case of the
Securities of a series issued to an Issuer Trust and for so long as any of
the corresponding series of Capital Securities issued by such Issuer Trust
shall remain outstanding, the holders of such Capital Securities; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or
(10) to comply with the requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture
Act.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each series affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the
amount of principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the place of payment where, or the coin or currency
in which, any Security or interest thereon is payable, or impair the right
to institute suit for the
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enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.5, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Security affected thereby;
PROVIDED, FURTHER, that, in the case of the Securities of a series issued
to an Issuer Trust, so long as any of the corresponding series of Capital
Securities issued by such Issuer Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Capital
Securities in any material respect, and no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate Liquidation
Amount of such Capital Securities then outstanding unless and until the
principal of (and premium, if any, on) the Securities of such series and
all accrued and (subject to Section 3.8) unpaid interest (including any
Additional Interest) thereon have been paid in full or provision therefor
shall have been made in accordance with Article IV, and (ii) no amendment
shall be made to Section 5.8 of this Indenture that would impair the
rights of the holders of Capital Securities issued by an Issuer Trust
provided therein without the prior consent of the holders of each such
Capital Security then outstanding unless and until the principal of (and
premium, if any, on) the Securities of such series and all accrued and
(subject to Section 3.8) unpaid interest (including any Additional
Interest) thereon have been paid in full or provision therefor shall have
been made in accordance with Article IV.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or any corresponding
series of Capital Securities of an Issuer Trust that holds the Securities of any
series, or that modifies the rights of the Holders of Securities of such series
or holders of such Capital Securities of such corresponding series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series or holders
of Capital Securities of any other such corresponding series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent herein provided for relating to such action have
been complied with. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X COVENANTS
SECTION 10.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including any Additional Interest) on the Securities of
that series in accordance with the terms of such Securities and this Indenture.
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SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that 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 that series and this Indenture
may be served. The Company initially appoints the Trustee, acting through its
Corporate Trust Office, as its agent for said purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain such office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands. Unless otherwise provided in the Securities of a series, the Place of
Payment for the Securities of each series shall be the Borough of Manhattan, The
City of New York, State of New York.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation and any change in
the location of any such office or agency.
SECTION 10.3. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest (including Additional Interest)
on any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest (including Additional Interest) so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m., New York City time, on each due date of the principal of (or
premium, if any) or interest, including Additional Interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest, including Additional Interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal (and
premium, if any) or interest, including Additional Interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
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The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on the Securities
of a series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon such Securities) in the making of any payment of principal (and
premium, if any) or interest (or Additional Interest) in respect of any Security
of any Series;
(3) at any time during the continuance of any default with respect to a
series of Securities, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent with respect to such
series; and
(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company in trust for the payment of the principal of (and premium, if any)
or interest (including Additional Interest) on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
(including Additional Interest) has become due and payable shall (unless
otherwise required by mandatory provision of applicable escheat or abandoned or
unclaimed property law) be paid on Company Request to the Company, or (if then
held by the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, the City of New York, notice that such money remains unclaimed and
that, after a
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date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.4. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar year, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of any, or is in compliance with, the
terms, provisions, covenants and conditions of this Indenture, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge. For the purpose of this Section
10.4, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture. One of
the signatories to such Officers' Certificate shall be the Company's principal
executive officer, principal financial officer or principal accounting officer.
SECTION 10.5. WAIVER OF CERTAIN COVENANTS.
Subject to the rights of holders of Capital Securities specified in
Section 9.2, if any, the Company may omit in any particular instance to comply
with any covenant or condition provided pursuant to Section 3.1 with respect to
the Securities of any series, if before or after the time for such compliance
the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 10.6. ADDITIONAL SUMS.
In the case of the Securities of a series initially issued to an Issuer
Trust, so long as no Event of Default has occurred and is continuing and except
as otherwise specified as contemplated by Section 2.1 or Section 3.1, if (i) an
Issuer Trust is the Holder of all of the Outstanding Securities of such series,
and (ii) a Tax Event has occurred and is continuing in respect of such Issuer
Trust, the Company shall pay to such Issuer Trust (and its permitted successors
or assigns under the related Trust Agreement) for so long as such Issuer Trust
(or its permitted successor or assignee) is the registered holder of the
Outstanding Securities of such series, such additional sums as may be necessary
in order that the amount of Distributions (including any Additional Amounts (as
defined in such Trust Agreement)) then due and payable by such Issuer Trust on
the related Capital Securities and Common Securities that at any time remain
outstanding in accordance with the terms thereof shall not be reduced as a
result of such Additional Taxes (the "ADDITIONAL SUMS"). Whenever in this
Indenture or the Securities there is a reference in any context to the payment
of principal of or interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Sums provided
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for in this paragraph to the extent that, in such context, Additional Sums are,
were or would be payable in respect thereof pursuant to the provisions of this
paragraph and express mention of the payment of Additional Sums (if applicable)
in any provisions hereof shall not be construed as excluding Additional Sums in
those provisions hereof where such express mention is not made; PROVIDED,
HOWEVER, that the deferral of the payment of interest pursuant to Section 3.12
on the Securities shall not defer the payment of any Additional Sums that may be
due and payable.
SECTION 10.7. ADDITIONAL COVENANTS.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not (x) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of the Company's capital stock, or (y) make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank PARI PASSU in all respects with or junior in
interest to the Securities of such series (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
shareholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period or other event referred to below, (b) as a
result of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a Subsidiary of the Company) for any
class or series of the Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's capital stock,
(c) the purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (d) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights, stock or other
property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks PARI PASSU with or junior to such stock) if at
such time (i) there shall have occurred any event (A) of which the Company has
actual knowledge that with the giving of notice or the lapse of time, or both,
would constitute an Event of Default with respect to the Securities of such
series, and (B) which the Company shall not have taken reasonable steps to cure,
(ii) if the Securities of such series are held by an Issuer Trust, the Company
shall be in default with respect to its payment of any obligations under the
Guarantee relating to the Capital Securities issued by such Issuer Trust, or
(iii) the Company shall have given notice of its election to begin an Extension
Period with respect to the Securities of such series as provided herein and
shall not have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to an Issuer Trust (i) to hold, directly or indirectly, 100% of the
Common Securities of such Issuer
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Trust, PROVIDED that any permitted successor of the Company as provided under
Section 8.2 may succeed to the Company's ownership of such Common Securities,
(ii) as holder of such Common Securities, not to voluntarily terminate, windup
or liquidate such Issuer Trust, other than (a) in connection with a distribution
of the Securities of such series to the holders of the related Capital
Securities in liquidation of such Issuer Trust, or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the related Trust
Agreement, and (iii) to use its reasonable efforts, consistent with the terms
and provisions of such Trust Agreement, to cause such Issuer Trust to continue
to be taxable as a grantor trust for United States Federal income tax purposes.
SECTION 10.8. FURNISHING ANNUAL INFORMATION.
On or before December 15 of each year during which any Securities are
outstanding, the Company shall furnish to each Paying Agent such information as
may be reasonably requested by each Paying Agent in order that each Paying Agent
may prepare the information which it is required to report for such year on
Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall include the
amount of original issue discount includible in income for each authorized
minimum denomination of principal amount at Stated Maturity of outstanding
Securities during such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. APPLICABILITY OF THIS ARTICLE.
Redemption of Securities of any series as permitted or required by any
form of Security issued pursuant to this Indenture shall be made in accordance
with such form of Security and this Article; PROVIDED, HOWEVER, that, if any
provision of any such form of Security shall conflict with any provision of this
Article, the provision of such form of Security shall govern. Except as
otherwise set forth in the form of Security for such series, each Security of a
series shall be subject to partial redemption only in the amount of $100,000 or
any integral multiples of $1,000 in excess thereof.
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, not less than 45 nor more than 60 days prior to
the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and, in the case of Securities of a series held by
an Issuer Trust, the Property Trustee under the related Trust Agreement, of such
date and of the principal amount of Securities of the applicable series to be
redeemed and provide the additional information required to be included in the
notice or notices contemplated by Section 11.4; PROVIDED that, in the case of
any series of Securities initially issued to an Issuer
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Trust, for so long as such Securities are held by such Issuer Trust, such notice
shall be given not less than 45 nor more than 75 days prior to such Redemption
Date (unless a shorter notice shall be satisfactory to the Property Trustee
under the related Trust Agreement). In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or subject to compliance with any conditions precedent
provided in such terms, the Company shall furnish the Trustee with an Officers'
Certificate and an Opinion of Counsel evidencing compliance with such
restriction or conditions.
SECTION 11.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
PROVIDED that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be redeemed.
SECTION 11.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities of such series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be calculated
prior to the time the notice is required to be sent, the manner of calculation
thereof, or if the terms of such Securities provides for an estimate of the
Redemption Price, the estimate of the Redemption Price provided pursuant to such
terms together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to the
Redemption Date (if such an estimate of the Redemption Price is given, a
subsequent notice shall be given as set forth above setting forth the Redemption
Price promptly following the calculation thereof);
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(c) if less than all Outstanding Securities of such particular series are
to be redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed;
(d) that, on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(f) such other provisions as may be required in respect of the terms of a
particular series of Securities; and
(g) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
The notice, if mailed in the manner provided above, shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, a failure to give such notice by mail or any defect in the
notice to the Holder of any Security designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security.
With respect to any redemption, the Redemption Price for which cannot be
calculated prior to the giving of the notice of redemption, the Company shall
notify the Trustee of the Redemption Price promptly after the calculation
thereof.
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m., New York City time, on the Redemption Date specified
in the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and any accrued interest (including Additional Interest) on, all the
Securities (or portions thereof) that are to be redeemed on that date.
SECTION 11.6. PAYMENT OF SECURITIES CALLED FOR REDEMPTION.
If any notice of redemption has been given as provided in Section 11.4,
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date.
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On presentation and surrender of such Securities at a Place of Payment in said
notice specified, the said Securities or the specified portions thereof shall be
paid and redeemed by the Company at the applicable Redemption Price, together
with accrued interest (including any Additional Interest) to the Redemption
Date; PROVIDED, HOWEVER, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest (including Additional Interest) whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant record dates according to their
terms and the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. RIGHT OF REDEMPTION OF SECURITIES INITIALLY ISSUED TO AN
ISSUER TRUST.
In the case of the Securities of a series initially issued to an Issuer
Trust, except as otherwise specified as contemplated by Section 3.1, the
Company, at its option, may redeem such Securities (i) on or after the date
specified in such Security, in whole at any time or in part from time to time,
or (ii) upon the occurrence and during the continuation of a Tax Event, an
Investment Company Event or a Capital Treatment Event, at any time within 90
days following the occurrence and during the continuation of such Tax Event,
Investment Company Event or Capital Treatment Event, in whole (but not in part),
in each case at a Redemption Price specified in such Security, together with
accrued interest (including Additional Interest) to the Redemption Date.
If less than all the Securities of any such series are to be redeemed, the
aggregate principal amount of such Securities remaining Outstanding after giving
effect to such redemption shall be sufficient to satisfy any provisions of the
Trust Agreement related to the Issuer Trust to which such Securities were
issued.
ARTICLE XII
SINKING FUNDS
Except as may be provided in any supplemental or amended indenture, no
sinking fund shall be established or maintained for the retirement of Securities
of any series.
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ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities of each and every series are hereby expressly
made subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness.
SECTION 13.2. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT; PAYMENT
OVER OF PROCEEDS UPON DISSOLUTION, ETC.
If the Company shall default in the payment of any principal of (or
premium, if any) or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if any) or interest (including
Additional Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Securities.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors or (iv) any
other marshalling of the assets of the Company (each such event, if any, herein
sometimes referred to as a "PROCEEDING"), all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
entity provided for by a plan of reorganization or readjustment, the payment of
which is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for these subordination provisions) be
payable or deliverable in respect of the Securities of any series shall be paid
or delivered directly to the holders of Senior Indebtedness in accordance with
the priorities then existing among such holders until all Senior Indebtedness
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(including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities, and such other obligations. If,
notwithstanding the foregoing, any payment or distribution of any character or
any security, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any plan of reorganization or readjustment), shall be received by
the Trustee or any Holder in contravention of any of the terms hereof and before
all Senior Indebtedness shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and the Holders shall take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
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SECTION 13.3. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time, except during the
pendency of the conditions described in the first paragraph of Section 13.2 or
of any Proceeding referred to in Section 13.2, from making payments at any time
of principal of (and premium, if any) or interest (including Additional
Interest) on the Securities, or (b) the application by the Trustee of any monies
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, two Business
Days prior to the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
SECTION 13.4. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all amounts due or to become due on all
Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, 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 (equally and ratably with the holders
of all indebtedness of the Company that by its express terms is subordinated to
Senior Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium if any) and interest (including Additional Interest) on the Securities
shall be paid in full. For 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, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 13.5. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall: (a) impair, as between the Company and the Holders of the Securities,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and when the
same shall become due and payable in
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accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
their rights in relation to the holders of Senior Indebtedness; or (c) prevent
the Trustee or the Holder of any Security (or to the extent expressly provided
herein, the holder of any Capital Security) from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
including filing and voting claims in any Proceeding, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 13.6. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.7. NO WAIVER OF SUBORDINATION PROVISIONS.
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 that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities of any series, without incurring responsibility to such Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of such Holders of the Securities to
the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 13.8. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company that would prohibit the making of
any payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other
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provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof in accordance with Section 1.5 from the
Company or a holder of Senior Indebtedness or from any trustee, agent or
representative therefor; PROVIDED, HOWEVER, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any monies may become payable
for any purpose (including, the payment of the principal of (and premium, if
any, on) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary that may be received by it within two Business Days prior to
such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing itself
to be a holder of Senior Indebtedness (or a trustee, agent or representative
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee, agent or representative therefor). 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, 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, 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 13.9. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, conservator,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 13.10. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the
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Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 13.11. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness that may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
The rights of the Trustee under Section 6.7 shall not be subject to the
claims of the holders of Senior Indebtedness under this Article XIII.
SECTION 13.12. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee (unless such
Paying Agent shall be the Company or an Affiliate thereof).
SECTION 13.13. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For purposes of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Securities of any series shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any, on) or interest (including any Additional Interest) on such
Securities or on account of the purchase or other acquisition of such
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
Security of any series shall be deemed to constitute payment on account of the
principal of such security. For the purposes of this Section, the term "JUNIOR
SECURITIES" means (i) shares of any stock of any class of the Company, and (ii)
securities of the Company that are subordinated in right of payment to all
Senior Indebtedness that may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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[Remainder of page left intentionally blank; signatures appear on following
page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
UNITED COMMUNITY BANKS, INC.
By: /s/ Jimmy C. Tallent
------------------------------
Jimmy C. Tallent
President
Attest: /s/ Billy M. Decker
------------------------
Billy M. Decker
THE CHASE MANHATTAN BANK,
as Trustee, and not in its individual capacity
By: /s/ William G. Keenan
-------------------------------
Name: William G. Keenan
Title: Trust Officer
Attest:______________________
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ANNEX A
FORM OF RESTRICTED SECURITIES CERTIFICATE
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.6(b) of
the Indenture referred to below)
[ ],
as Securities Registrar
[address]
Re: [Title of Securities] of United Community Banks, Inc. (the
"SECURITIES")
Reference is made to the Junior Subordinated Indenture, dated as of July
20, 1998 (the "INDENTURE"), between United Community Banks, Inc., a Georgia bank
holding company, and The Chase Manhattan Bank, as Trustee. Terms used herein and
defined in the Indenture or in Regulation S, Rule 144A or Rule 144 under the
U.S. Securities Act of 1933 (the "SECURITIES ACT") are
used here as so defined.
This certificate relates to $ aggregate principal amount of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
CUSIP No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A, Regulation D, Regulation S or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies that
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer.
(2) Regulation S Transfers. If the transfer is being effected in
accordance with Regulation S:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting
in behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either;
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf know that the transaction
has been prearranged with a buyer in the United States;
(D) no directed selling efforts within the meaning of
Regulation S have been made in the United States by or on behalf of
the Owner or any affiliate thereof; and
(E) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(3) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the date the Specified Securities were
acquired from the Company or from an affiliate (as such term is
defined in Rule 144), or such shorter period as Rule 144 may
hereinafter require, of the Company, whichever is later, and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of paragraphs (e), (f) and (h) of Rule
144;
(B) the transfer is occurring after a holding period of at
least three years has elapsed since the date the Specified
Securities were acquired from the Company or from an affiliate (as
such term is defined in Rule 144) of the Company, whichever is
later, and the Owner is not, and during the preceding three months
has not been, an affiliate of the Company; or
(C) the Owner is a Qualified Institutional Buyer under Rule
144A or has acquired the Securities otherwise in accordance with
Sections (1), (2) or (3) hereof and is transferring the Securities
to an institutional accredited investor in a transaction exempt from
the requirements of the Securities Act, and in accordance with
Section 4 hereof.
(4) Institutional Accredited Investor Transfers. If the transfer is
to an Institutional Accredited Investor:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is an "INSTITUTIONAL ACCREDITED INVESTOR" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under Securities Act acquiring
for its own account or for the account of a qualified institutional
buyer;
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Regulation D under the Securities Act in
connection with the transfer; and
(C) no general solicitation within the meaning of Regulation D
has been made by or on behalf of the Owner or any affiliate thereof.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers (as defined in
the Trust Agreement relating to the Issuer Trust to which the Securities were
initially issued).
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
Dated:______________________________ ______________________________________
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By: __________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
EXHIBIT 4.3
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
----------------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF BUSINESS TRUST REGISTRATION OF
"UNITED COMMUNITY CAPITAL TRUST", FILED IN THIS OFFICE ON THE
THIRTEENTH DAY OF JULY, A.D. 1998, AT 4:30 O'CLOCK P.M.
[SEAL] /s/Edward J. Freel
------------------
Edward J. Freel, Secretary of
State
2920059 8100 AUTHENTICATION: 9192970
981271113 DATE: 07-13-98
CERTIFICATE OF TRUST OF
UNITED COMMUNITY CAPITAL TRUST
THIS CERTIFICATE OF TRUST of United Community Capital Trust (the "Trust"),
dated July 13th, 1998, is being duly executed and filed by Chase Manhattan Bank
Delaware, a Delaware banking corporation, as trustee, to create a business trust
under the Delaware Business Trust Act (12 Del. C. ss. 3801 et seq.).
1. Name. The name of the business trust created hereby is "United
Community Capital Trust."
2. Delaware Trustee. The name and address of the trustee of the Trust in
the State of Delaware is:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Trust shall be effective on July
13th, 1998.
IN WITNESS whereof, the undersigned trustee of the Trust has executed this
Certificate of Trust as of the date first written above.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity, but solely as
trustee
By: /s/John J. Cashin
----------------------
Name: John J. Cashin
Title: Vice-President
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:30 PM 07/13/1998
981271113-2920059
EXHIBIT 4.4
AMENDED AND RESTATED
TRUST AGREEMENT
among
UNITED COMMUNITY BANKS, INC.,
as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
and
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
DATED AS OF JULY 20, 1998
--------------------
UNITED COMMUNITY CAPITAL TRUST
--------------------
- ------------------------------------------------------------------------------
UNITED COMMUNITY CAPITAL TRUST
Certain Sections of this Trust Agreement relating, to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Trust Agreement
Section Section
- ------------------- ---------------
Section 310(a)(1) .......................... 8.7
(a)(2)............................... 8.7
(a)(3)............................... 8.9
(a)(4)............................... 2.7(a)(ii)
(b).................................. 8.8, 10.10(b)
Section 311(a) ............................. 8.13, 10.10(b)
(b).................................. 8.13, 10.10(b)
Section 312(a) ............................. 10.10(b)
(b).................................. 10.10(b), (f)
(c).................................. 5.7
Section 313(a) ............................. 8.15(a)
(a)(4)............................... 10.10(c)
(b).................................. 8.15(c), 10.10(c)
(c).................................. 10.8, 10.10(c)
(d).................................. 10.10(c)
Section 314(a) ............................. 8.16, 10.10(d)
(b).................................. Not Applicable
(c)(1)............................... 8.17, 10.10(d), (e)
(c)(2)............................... 8.17, 10.10(d), (e)
(c)(3)............................... 8.17, 10.10(d), (e)
(e).................................. 8.17, 10.10(e)
Section 315(a) ............................. 8.1(d)
(b).................................. 8.2
(c).................................. 8.1(c)
(d).................................. 8.1(d)
(e).................................. Not Applicable
Section 316(a) ............................. Not Applicable
(a)(1)(A)............................ Not Applicable
(a)(1)(B)............................ Not Applicable
(a)(2)............................... Not Applicable
(b).................................. 5.13
(c).................................. 6.7
Section 317(a)(1) .......................... Not Applicable
(a)(2)............................... 8.14
(b).................................. 5.10
Section 318(a) ............................. 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
-2-
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I DEFINED TERMS......................................................2
SECTION 1.1. DEFINITIONS..............................................2
ARTICLE II CONTINUATION OF THE ISSUER TRUST.................................16
SECTION 2.1. NAME....................................................16
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS...............................................16
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES................................16
SECTION 2.4. ISSUANCE OF THE CAPITAL SECURITIES......................16
SECTION 2.5. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF JUNIOR SUBORDINATED DEBENTURES.............17
SECTION 2.6. DECLARATION OF TRUST....................................17
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS........17
SECTION 2.8. ASSETS OF TRUST.........................................21
SECTION 2.9. TITLE TO TRUST PROPERTY.................................21
ARTICLE III PAYMENT ACCOUNT.................................................22
SECTION 3.1. PAYMENT ACCOUNT.........................................22
ARTICLE IV DISTRIBUTIONS; REDEMPTION........................................22
SECTION 4.1. DISTRIBUTIONS...........................................22
SECTION 4.2. REDEMPTION..............................................23
SECTION 4.4. PAYMENT PROCEDURES......................................26
SECTION 4.5. TAX RETURNS AND REPORTS.................................27
SECTION 4.6. PAYMENT OF TAXES, DUTIES, ETC. OF THE ISSUER TRUST......27
SECTION 4.7. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS................................................27
SECTION 4.8. LIABILITY OF THE HOLDER OF COMMON SECURITIES............28
ARTICLE V TRUST SECURITIES CERTIFICATES.....................................28
SECTION 5.1. INITIAL OWNERSHIP.......................................28
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES.......................28
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES...........................................29
SECTION 5.4. GLOBAL CAPITAL SECURITY.................................29
SECTION 5.5. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; CAPITAL
SECURITIES CERTIFICATES; SECURITIES ACT LEGENDS........30
SECTION 5.6. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES................................35
SECTION 5.7. PERSONS DEEMED HOLDERS..................................36
SECTION 5.8. ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES..........36
SECTION 5.9. MAINTENANCE OF OFFICE OR AGENCY.........................37
SECTION 5.10. APPOINTMENT OF PAYING AGENT............................37
-i-
SECTION 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR............37
SECTION 5.12. NOTICES TO CLEARING AGENCY.............................38
SECTION 5.13. RIGHTS OF HOLDERS......................................38
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING................................40
SECTION 6.1. LIMITATIONS ON HOLDER'S VOTING RIGHTS...................40
SECTION 6.2. NOTICE OF MEETINGS......................................41
SECTION 6.3. MEETINGS OF HOLDERS.....................................42
SECTION 6.4. VOTING RIGHTS...........................................42
SECTION 6.5. PROXIES, ETC............................................42
SECTION 6.6. HOLDER ACTION BY WRITTEN CONSENT........................42
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES...............43
SECTION 6.8. ACTS OF HOLDERS.........................................43
SECTION 6.9. INSPECTION OF RECORDS...................................44
ARTICLE VII REPRESENTATIONS AND WARRANTIES..................................44
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE.......................44
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.............45
ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS........................46
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.....................46
SECTION 8.2. EVENTS OF DEFAULT; WAIVER...............................48
SECTION 8.3. CERTAIN NOTICES.........................................49
SECTION 8.4. CERTAIN RIGHTS OF PROPERTY TRUSTEE......................49
SECTION 8.5. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.............................................51
SECTION 8.6. MAY HOLD SECURITIES.....................................51
SECTION 8.7. COMPENSATION; INDEMNITY; FEES...........................51
SECTION 8.8. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES AND ADMINISTRATORS............................52
SECTION 8.9. CONFLICTING INTERESTS...................................53
SECTION 8.10. CO-TRUSTEES AND SEPARATE TRUSTEE.......................53
SECTION 8.11. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR......55
SECTION 8.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.................56
SECTION 8.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...............................................56
SECTION 8.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR ISSUER TRUST..............................57
SECTION 8.15. TRUSTEE MAY FILE PROOFS OF CLAIM.......................57
SECTION 8.16. REPORTS BY PROPERTY TRUSTEE............................57
SECTION 8.17. REPORTS TO THE PROPERTY TRUSTEE........................58
SECTION 8.18. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.......58
SECTION 8.19. NUMBER OF ISSUER TRUSTEES..............................58
SECTION 8.20. DELEGATION OF POWER....................................59
SECTION 8.21. APPOINTMENT OF ADMINISTRATORS..........................59
SECTION 8.22. DELAWARE TRUSTEE.......................................59
-ii-
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER..............................60
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE........................60
SECTION 9.2. EARLY DISSOLUTION.......................................60
SECTION 9.3. TERMINATION.............................................61
SECTION 9.4. LIQUIDATION.............................................61
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE ISSUER TRUST.......................63
ARTICLE X MISCELLANEOUS PROVISIONS..........................................64
SECTION 10.1. LIMITATION OF RIGHTS OF HOLDERS........................64
SECTION 10.2. AMENDMENT..............................................64
SECTION 10.3. SEPARABILITY...........................................65
SECTION 10.4. GOVERNING LAW..........................................65
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.......................66
SECTION 10.6. SUCCESSORS.............................................66
SECTION 10.7. HEADINGS...............................................66
SECTION 10.8. REPORTS, NOTICES AND DEMANDS...........................67
SECTION 10.9 AGREEMENT NOT TO PETITION...............................67
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT..........................................68
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE..........................................68
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
Exhibit E Form of Restricted Securities Certificate
-iii-
AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 20, 1998,
is by and among (i) UNITED COMMUNITY BANKS, INC., a Georgia bank holding company
(including any successors or assigns, the "DEPOSITOR"), (ii) THE CHASE MANHATTAN
BANK, a New York banking corporation, as property trustee, (in such capacity,
the "PROPERTY TRUSTEE" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "BANK"), and (iii) CHASE MANHATTAN BANK
DELAWARE, a Delaware banking corporation, as Delaware trustee (the "DELAWARE
TRUSTEE") (the Property Trustee and the Delaware Trustee are referred to
collectively herein as the "ISSUER TRUSTEES") and (iv) the several Holders, as
hereinafter defined.
W I T N E S S E T H:
-------------------
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a certain Trust Agreement, dated as of July 13, 1998
(the "ORIGINAL TRUST AGREEMENT"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on July 13, 1998 (the "CERTIFICATE OF TRUST"),
attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the Capital
Securities by the Issuer Trust pursuant to the Purchase Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Junior Subordinated Debentures, (iv) the appointment of the
Administrators, (v) the mandatory exchange by the Property Trustee with the
Depositor of the Private Debentures for the Exchange Debentures, and the
exchange by the Issuer Trust with the Holders of the Private Capital Securities
for the Exchange Capital Securities, each such exchange registered under the
Securities Act; and (vi) the addition of the Property Trustee as a party to this
Trust Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be legally
bound, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of computation;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement;
(f) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(g) All references to the date the Capital Securities were originally
issued shall refer to the date the 8.125% Capital Securities were originally
issued.
"ACT" has the meaning specified in Section 6.8.
"ADDITIONAL AMOUNTS" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"ADDITIONAL SUMS" has the meaning specified in Section 10.6 of the
Indenture.
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date,
the Treasury Rate plus (i) 200 basis points if such Redemption Date occurs on or
before December 31, 1998 or (ii) 150 basis points if such Redemption Date occurs
after December 31, 1998.
-2-
"ADMINISTRATORS" means each Person appointed in accordance with Section
8.21 solely in such Person's capacity as Administrator of the Issuer Trust
heretofore formed and continued hereunder and not in such Person's individual
capacity, or any successor Administrator appointed as herein provided; with the
initial Administrators being Jimmy C. Tallent and Christopher J. Bledsoe.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the Depositary for such Capital Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"BANK" has the meaning specified in the preamble to this Trust
Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding-up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section 10.9.
-3-
"BOARD OF DIRECTORS" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Issuer Trustees.
"BUSINESS DAY" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the City of New York, New York, or the City
of Blairsville, Georgia are authorized or required by law or executive order to
remain closed or (c) a day on which the Property Trustee's Corporate Trust
Office or the Delaware Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"CAPITAL SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as
Exhibit D.
"CAPITAL SECURITY" means a preferred undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $1,000 and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"CAPITAL TREATMENT EVENT" means, in respect of the Issuer Trust, the
reasonable determination by the Depositor that, as a result of the occurrence of
any amendment to, or change (including any announced prospective change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of the
issuance of the Capital Securities of the Issuer Trust, there is more than an
insubstantial risk that the Depositor will not be entitled to treat an amount
equal to the Liquidation Amount of such Capital Securities as "Tier 1 Capital"
(or the then equivalent thereof) for purposes of the risk-based capital adequacy
guidelines of the Board of Governors of the Federal Reserve System, as then in
effect and applicable to the Depositor.
"CEDE" means Cede & Co.
"CERTIFICATE DEPOSITARY AGREEMENT" means the agreement among the Issuer
Trust, the Property Trustee and the Depositary, as the initial Clearing Agency,
dated as of the Closing Date, substantially in the form attached as Exhibit B,
as the same may be amended and supplemented from time to time.
-4-
"CERTIFICATE OF TRUST" has the meaning specified in the preamble to
this Trust Agreement.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depositary shall be the
initial Clearing Agency.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"CLOSING DATE" means the Closing Time, which date is also the date of
execution and delivery of this Trust Agreement.
"CLOSING TIME" has the meaning specified in the Purchase Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, as amended, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"COMMON SECURITY" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"COMPARABLE TREASURY ISSUE" means with respect to any Redemption Date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after July 15, 2008, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"COMPARABLE TREASURY PRICE" means (A) the average of five Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest of such Reference Treasury Dealer Quotations, or (B) if the Debenture
Trustee obtains fewer than five
-5-
such Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Property Trustee located in the City of New York which at the time of the
execution of this Trust Agreement is located at 450 West 33rd Street, 15th
Floor, New York, New York 10001.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as defined
in the Indenture.
"DEBENTURE REDEMPTION DATE" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Junior Subordinated Indenture,
the date fixed for redemption of such Debentures under the Indenture.
"DEBENTURE TRUSTEE" means The Chase Manhattan Bank, a New York banking
corporation and any successor.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, ET SEQ., as it may be amended from time to
time.
"DELAWARE TRUSTEE" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Issuer Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"DEPOSITARY" means The Depository Trust Company or any successor
thereto.
"DEPOSITOR" has the meaning specified in the preamble to this Trust
Agreement.
"DISTRIBUTION DATE" has the meaning specified in Section 4.1(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"EARLY TERMINATION EVENT" has the meaning specified in Section 9.2.
"EVENT OF DEFAULT" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a period of 30
days; or
-6-
(c) default by the Issuer Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in this Trust Agreement (other
than a covenant or warranty a default in the performance of which or the breach
of which is dealt with in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer Trustees and the Depositor by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Capital Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "NOTICE OF
DEFAULT" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the Property
Trustee or all or substantially all of its property if a successor Property
Trustee has not been appointed within a period of 90 days thereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, as amended from time to time.
"EXCHANGE CAPITAL SECURITIES" means Capital Securities representing
preferred undivided beneficial interests in the assets of the Issuer Trust,
issued by the Issuer Trust in an exchange offer for the Private Capital
Securities, such exchange offer being registered under the Securities Act, all
pursuant to the Registration Rights Agreement; PROVIDED HOWEVER that the
aggregate Liquidation Amount of the Private Capital Securities and the Exchange
Capital Securities at any one time outstanding shall not exceed $21,000,000.
"EXCHANGE DEBENTURES" means a new series of junior subordinated
debentures issued by the Depositor in a mandatory exchange offer for the Private
Debentures, such exchange offer being registered under the Securities Act, all
pursuant to the Debenture Exchange and Registration Rights Agreement.
"EXCHANGE GUARANTEE" means the Exchange Guarantee extended by the
Depositor for the benefit of the Holders of Capital Securities pursuant to the
Exchange Guarantee Agreement, and registered under the Securities Act pursuant
to the Registration Rights Agreement.
"EXCHANGE GUARANTEE AGREEMENT" means the Guarantee Agreement to be
entered into by the Depositor, as Guarantor and The Chase Manhattan Bank, as
Guarantee Trustee, pursuant to the Registration Rights Agreement.
"EXCHANGE OFFER" means an exchange offer of the Exchange Securities for
the Securities, which is registered under the Securities Act pursuant to the
Registration Rights Agreement.
"EXPIRATION DATE" has the meaning specified in Section 9.1.
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"GLOBAL CAPITAL SECURITIES CERTIFICATE" means a Capital Securities
Certificate evidencing ownership of Global Capital Securities.
"GLOBAL CAPITAL SECURITY" means a Capital Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
"GUARANTEE" means (i) prior to the exchange in connection with the
Exchange Offer, the Private Guarantee and (ii) following the exchange in
connection with the Exchange Offer, the Exchange Guarantee.
"GUARANTEE AGREEMENT" means the Guarantee Agreement dated as of July
20, 1998, between the Depositor, as Guarantor, and The Chase Manhattan Bank, as
Guarantee Trustee.
"HOLDER" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"INDENTURE" means the Junior Subordinated Indenture, dated as of July
20, 1998, between the Depositor and the Debenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"INITIAL PURCHASER" has the meaning specified in the Purchase
Agreement.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940,
as amended.
"INVESTMENT COMPANY EVENT" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Capital Securities.
"ISSUER TRUST" means United Community Capital Trust.
"ISSUER TRUSTEES" means, collectively, the Property Trustee and the
Delaware Trustee.
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"JUNIOR SUBORDINATED DEBENTURES" means the aggregate principal amount
of the Depositor's 8.125% Junior Subordinated Deferrable Interest Debentures due
July 15, 2028, issued pursuant to the Indenture.
"LIEN" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIKE AMOUNT" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Capital Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
Junior Subordinated Debentures to Holders of Trust Securities in connection with
a dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.
"LIQUIDATION AMOUNT" means the stated amount of $1,000 per Trust
Security.
"LIQUIDATION DATE" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Issuer Trust pursuant to Section 9.4.
"LIQUIDATION DISTRIBUTION" has the meaning specified in
Section 9.4(d).
"MAJORITY IN LIQUIDATION AMOUNT OF THE CAPITAL SECURITIES" or "MAJORITY
IN LIQUIDATION AMOUNT OF THE COMMON SECURITIES" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chief
Executive Officer, President or an Executive Vice President, a Senior Vice
President or Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
party provided herein. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
(other than pursuant to Section 8.17) shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
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(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor or
any Issuer Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the preamble
to this Trust Agreement.
"OTHER CAPITAL SECURITIES" means the Capital Securities sold by the
Initial Purchaser in the initial offering contemplated by the Purchase Agreement
to Institutional Accredited Investors in reliance on an exemption from the
registration requirement of the Securities Act other than Rule 144A.
"OUTSTANDING," with respect to Trust Securities, means, as of the date
of determination, all Trust Securities theretofore executed, authenticated and
delivered under this Trust Agreement, EXCEPT:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Capital Securities, PROVIDED that if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid, or in exchange for, or in
lieu of which, other Trust Securities have been executed and delivered pursuant
to Sections 5.4, 5.5 and 5.6 PROVIDED, HOWEVER, that in determining whether the
Holders of the requisite Liquidation Amount of the Outstanding Capital
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Capital Securities owned by the Depositor, any
Issuer Trustee, any Administrator or any Affiliate of the Depositor, shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Issuer Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Capital
Securities that such Issuer Trustee knows to be so owned shall be so disregarded
and (b) the foregoing shall not apply at any time when all of the Outstanding
Capital Securities are owned by the Depositor, one or more of the Issuer
Trustees, one or more of the Administrators and/or any such Affiliate. Capital
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrators
the pledgee's right so to act with respect to such Capital Securities and that
the pledgee is not the Depositor or any Affiliate of the Depositor.
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"OWNER" means each Person who is the beneficial owner of Global Capital
Securities as reflected in the records of the Clearing Agency or, if a Clearing
Agency Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing corporate
trust account maintained with the Property Trustee in its corporate trust
department for the benefit of the Holders in which all amounts paid in respect
of the Junior Subordinated Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with Sections 4.1 and 4.2.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"PORTAL MARKET" means the Private Offering, Resales and Trading
through Automated Linkages Market operated by the National Association of
Securities Dealers, Inc. (or any successor thereto).
"PRIVATE CAPITAL SECURITIES" means the $21,000,000 aggregate
Liquidation Amount of the Issuer Trust's 8.125% Capital Securities representing
preferred undivided beneficial interests in the assets of the Issuer Trust,
having a Liquidation Amount of $1,000 per Capital Security and having the rights
provided therefor in this Trust Agreement, and the certificates of which
initially shall bear legends indicating that they have not been registered under
the Securities Act and restricting transfers thereof.
"PRIVATE DEBENTURES" means the $21,650,000 aggregate principal amount
of the Depositor's 8.125% Junior Subordinated Deferrable Interest Debentures due
July 15, 2028, issued pursuant to the Indenture on the Closing
Date.
"PRIVATE GUARANTEE" means the Guarantee extended by the Depositor for
the benefit of the Holders of Private Capital Securities pursuant to the
Guarantee Agreement.
"PROPERTY TRUSTEE" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Issuer Trust formed and continued hereunder and not in
its individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
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"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of July 15,
1998, among the Issuer Trust, the Depositor and the Initial Purchaser, as the
same may be amended from time to time.
"QUOTATION AGENT" means Wheat First Securities, Inc. and its
successors; PROVIDED, HOWEVER, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Depositor shall substitute therefor another Primary Treasury
Dealer.
"REDEMPTION DATE" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; PROVIDED that each Junior Subordinated Debenture redemption date and
the stated maturity of the Junior Subordinated Debentures shall be a Redemption
Date for a Like Amount of Trust Securities, including but not limited to any
date of redemption pursuant to the occurrence of any Special Event.
"REDEMPTION PRICE" means:
(a) in the case of a redemption, other than as provided in paragraph
(b) below, the following prices expressed in percentages of the Liquidation
Amount, together with accumulated Distributions to but excluding the date fixed
for redemption, if redeemed during the 12-month period beginning January 1:
YEAR REDEMPTION PRICE
---- ----------------
2008 104.06 %
2009 103.66
2010 103.25
2011 102.84
2012 102.44
2013 102.03
2014 101.63
2015 101.22
2016 100.81
2017 100.41
and 100% on or after January 1, 2018.
(b) in the case of a redemption prior to July 15, 2008 following a Tax
Event, Investment Company Event or Capital Treatment Event, an amount equal to
for each Capital Security the Make-Whole Amount for a corresponding $1,000
principal amount of Junior Subordinated Debentures together with accumulated
Distributions to but excluding the date fixed for redemption. The "MAKE-WHOLE
AMOUNT" will be equal to the greater of (i) 100% of the principal amount of such
Junior Subordinated Debentures, or (ii) as determined by a Quotation Agent, the
sum of the present values of the principal amount and premium payable as part of
the Redemption Price with respect to an optional redemption of such Junior
Subordinated Debentures
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on July 15, 2008, together with the present values of scheduled payments of
interest (not including the portion of any such payments of interest accrued as
of the Redemption Date) from the Redemption Date to July 15, 2008 (the
"REMAINING LIFE"), in each case discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate. The Redemption Price in the case of a redemption on or
after July 15, 2008 following a Tax Event, Investment Company Event or Capital
Treatment Event shall equal the Redemption Price then applicable to a redemption
under paragraph (a) above.
"REFERENCE TREASURY DEALER" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Depositor.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
"REGISTRATION RIGHTS AGREEMENT" means an agreement dated July 20, 1998,
among the Depositor, the Trust and the Initial Purchaser.
"REGULATION D" means Regulation D under the Securities Act (or any
successor provision), as it may be amended from time to time.
"RULE 144" means Rule 144 as promulgated under the Securities Act, or
any successor rule.
"RELEVANT TRUSTEE" has the meaning specified in Section 8.11.
"RESPONSIBLE OFFICER" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary, trust officer, senior trust officer or any other officer of
the Property Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"RESTRICTED CAPITAL SECURITIES" means all Capital Securities, the
Capital Securities Certificate for which is required pursuant to Section 5.5(c)
to bear a Restricted Capital Securities Legend. Such term includes the Global
Capital Securities Certificate.
"RESTRICTED CAPITAL SECURITIES LEGEND" means a legend substantially in
the form of the legend required in the form of a Capital Securities Certificate
set forth in Exhibit D to be placed upon a Restricted Capital Security.
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"RESTRICTED SECURITIES CERTIFICATE" means a certificate
substantially in the form set forth in Exhibit E.
"REGULATION S" means Regulation S under the Securities Act or any
successor provision.
"RULE 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"RULE 144A CAPITAL SECURITIES" means the Capital Securities purchased
by the Initial Purchaser from the Issuer Trust pursuant to the Purchase
Agreement, other than the Other Capital Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
"SENIOR INDEBTEDNESS" has the meaning specified in the Indenture.
"SECURITIES REGISTER" AND "SECURITIES REGISTRAR" have the respective
meanings specified in Section 5.5.
"SPECIAL EVENT" means any Tax Event, Capital Treatment Event or
Investment Company Event.
"SUCCESSOR CAPITAL SECURITIES CERTIFICATE" of any particular Capital
Securities Certificate means every Capital Securities Certificate issued after,
and evidencing all or a portion of the same beneficial interest in the Issuer
Trust as that evidenced by, such particular Capital Securities Certificate; and,
for the purposes of this definition, any Capital Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"SUCCESSOR CAPITAL SECURITY" has the meaning specified in Section 9.5.
"TAX EVENT" means the receipt by the Issuer Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of issuance of the Capital Securities, there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States Federal income
tax with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest
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payable by the Depositor on the Junior Subordinated Debentures is not, or within
90 days of the delivery of such Opinion of Counsel will not be, deductible by
the Depositor, in whole or in part, for United States federal income tax
purposes, or (iii) the Issuer Trust is, or will be within 90 days of the
delivery of such Opinion of Counsel, subject to more than a DE MINIMIS amount of
other taxes, duties or other governmental charges.
"TREASURY RATE" means (i) the yield, under the heading which represents
the average for the week immediately prior to the calculation date, appearing in
the most recently published statistical release designated "H.15 (519)" or any
successor publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the Remaining
Life (if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding to the
nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date. The Treasury
Rate shall be calculated on the third Business Day preceding the Redemption
Date.
"TRUST AGREEMENT" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto, and (ii) for
all purposes of this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Amended and Restated Trust
Agreement and any modification, amendment or supplement, respectively.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 or any
successor statute, in each case as amended from time to time.
"TRUST PROPERTY" means (a) the Junior Subordinated Debentures, (b) any
cash on deposit in, or owing to, the Payment Account, (c) all proceeds and
rights in respect of the foregoing and (d) any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Trust Agreement.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"TRUST SECURITY" means any one of the Common Securities or the
Capital Securities.
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ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. NAME.
The Issuer Trust continued hereby shall be known as "United Community
Capital Trust", as such name may be modified from time to time by the
Administrators following written notice to the Holders of Trust Securities and
the Issuer Trustees, in which name the Administrators and the Issuer Trustees
may engage in the transactions contemplated hereby, make and execute contracts
and other instruments on behalf of the Issuer Trust and sue and be sued.
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS.
The address of the Delaware Trustee in the State of Delaware is Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware, 19801,
Attention: Corporate Trustee Administration Department, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Holders and the Depositor. The principal executive office of the Issuer
Trust is in care of United Community Banks, Inc., 59 Highway 515, Blairsville,
Georgia 30512, Attention: Jimmy C. Tallent.
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES.
The Issuer Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constitutes the initial Trust Property. The Depositor shall pay all
organizational expenses of the Issuer Trust as they arise or shall, upon request
of any Issuer Trustee, promptly reimburse such Issuer Trustee for any such
expenses paid by such Issuer Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4. ISSUANCE OF THE CAPITAL SECURITIES.
The Depositor and the Issuer Trust executed and delivered the Purchase
Agreement as of July 15, 1998, pursuant to the Original Trust Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrator, on behalf of the Issuer Trust, shall by manual or facsimile
signature execute in accordance with Section 5.3 and the Property Trustee shall
authenticate in accordance with Section 5.3 and deliver to the Initial
Purchaser, Capital Securities Certificates, registered in the names requested by
the Initial Purchaser, in an aggregate amount of 21,000 Capital Securities
having an aggregate Liquidation Amount of $21,000,000, against receipt of the
aggregate purchase price of such Capital Securities of $20,873,370 by the
Property Trustee. The certificates of authentication to be delivered by the
Property Trustee shall be substantially in the forms as set forth on Exhibits C
and D attached hereto.
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SECTION 2.5. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF JUNIOR SUBORDINATED DEBENTURES.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall by manual or
facsimile signature execute or cause to be executed in accordance with Section
5.3 and the Property Trustee shall authenticate in accordance with Section 5.3
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of 650 Common Securities having an
aggregate Liquidation Amount of $650,000 against receipt of the aggregate
purchase price of such Common Securities of $650,000 by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor the Junior Subordinated
Debentures, registered in the name of the Property Trustee and having an
aggregate principal amount equal to $21,650,000, and, in satisfaction of the
purchase price for such Junior Subordinated Debentures, the Property Trustee, on
behalf of the Issuer Trust, shall deliver to the Depositor the sum of
$21,523,370 (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4, and (ii) the first sentence
of this Section 2.5) and receive on behalf of the Issuer Trust the Junior
Subordinated Debentures.
SECTION 2.6. DECLARATION OF TRUST.
The exclusive purposes and functions of the Issuer Trust are to (a)
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Junior Subordinated Debentures, and (b) engage in only those other
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Issuer Trustees as trustees of the Issuer Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Issuer
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. The
Depositor hereby appoints the Administrators, with such Administrators having
all rights, powers and duties set forth herein with respect to accomplishing the
purposes of the Issuer Trust, and the Administrators hereby accept such
appointment; PROVIDED, HOWEVER, that it is the intent of the parties hereto that
such Administrators shall not be trustees or, to the fullest extent permitted by
law, fiduciaries with respect to the Issuer Trust and this Trust Agreement shall
be construed in a manner consistent with such intent. The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be one of the
trustees of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act and for taking
such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set
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forth in paragraph (b) of this Section and in accordance with the following
provisions (i) and (ii), the Property Trustees and the Administrators shall act
as follows:
(i) Each Administrator shall:
(A) comply with the Purchase Agreement regarding the
issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act,
applicable state securities or blue sky laws and the Trust
Indenture Act;
(C) assist in the listing of the Capital Securities upon
such securities exchange or exchanges as shall be determined by
the Depositor, with the registration of the Capital Securities
under the Exchange Act, if required, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer
Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer
identification number for the Issuer Trust;
(F) unless otherwise determined by the Depositor or Holders
of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business
Trust Act or the Trust Indenture Act, execute on behalf of the
Issuer Trust any documents that the Administrators have the power
to execute pursuant to this Trust Agreement, including without
limitation, a Junior Subordinated Debentures Purchase Agreement
and a Common Securities Purchase Agreement, both by and between
the Issuer Trust and the Depositor;
(G) have the power and authority to cause the Issuer Trust
to enter into, and to execute, deliver and perform on behalf of
the Issuer Trust, the Registration Rights Agreements, and such
other agreements as may be necessary or desirable in connection
with the purposes and function of the Issuer Trust;
(H) assist in the registration of the Exchange Offer and
the Exchange Capital Securities under the Securities Act, and
under the state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust indenture under
the Trust Indenture Act, all in accordance with the Capital
Securities Exchange and Registration Rights Agreement;
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(I) send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with this
Trust Agreement;
(J) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of this Trust
Agreement.
(ii) The Property Trustee shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and
any other payments made in respect of the Junior Subordinated
Debentures in the Payment Account;
(D) the distribution, through the Paying Agent, of amounts
owed to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Junior Subordinated Debentures
(subject to the terms of this Trust Agreement);
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated
Debentures to the Holders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding-up of the affairs of and liquidation of the Issuer Trust
and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under paragraph
(b), (c), (d), or (e) of the definition of such term if such
Event of Default is by or with respect to the Property Trustee),
comply with the provisions of this Trust Agreement and take any
action to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the
Holders (without consideration of the effect of any such action
on any particular Holder);
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(J) the exchange of the Private Guarantee for the Exchange
Guarantee in an exchange in connection with the Exchange Offer
pursuant to the Registration Rights Agreement; and
(K) the exchange of the Private Debentures for the Exchange
Debentures in an exchange in connection with the Exchange Offer
pursuant to the Registration Rights Agreement;
provided, however, that nothing in this Section 2.7(a)(ii) shall
require the Property Trustee to take any action that is not otherwise
required in this Trust Agreement and the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the
Administrators set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust)
shall not undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Issuer
Trustees nor the Administrators shall (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would cause the Issuer Trust to
become taxable other than as a grantor trust for United States Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Property Trustee shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Issuer Trust or the Holders in
their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation by the Issuer Trust of an offering memorandum
in relation to the Capital Securities, including any amendments thereto
and the taking of any action necessary or desirable to sell the Capital
Securities in a transaction or a series of transactions exempt from the
registration requirements of the Securities Act;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Capital
Securities and the determination of any and all such acts, other than
actions that must be taken by or on behalf of the Issuer Trust, and the
advice to the Administrators of actions they must take on behalf of the
Issuer Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Issuer Trust or on behalf of
the Issuer Trust, as the Depositor
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deems necessary or advisable in order to comply with the applicable
laws of any such States in connection with the sale of the Capital
Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Purchase Agreement providing for the sale of the
Capital Securities;
(iv) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Exchange Offer, including any amendments thereto and/or a "shelf"
registration statement to register the Private Capital Securities, the
Private Guarantee and the Private Debentures, in each case in
accordance with the provisions of the Registration Rights Agreement;
and
(v) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators
are authorized and directed to conduct the affairs of the Issuer Trust and to
operate the Issuer Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
and will not be taxable other than as a grantor trust for the United States
Federal income tax purposes and so that the Junior Subordinated Debentures will
be treated as indebtedness of the Depositor for United States Federal income tax
purposes. In this connection, the Administrators and the Holders of Common
Securities are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that the Administrators
and Holders of Common Securities determine in their discretion to be necessary
or desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Outstanding Capital
Securities. In no event shall the Administrators or the Issuer Trustees be
liable to the Issuer Trust or the Holders for any failure to comply with this
section that results from a change in law or regulations or in the
interpretation thereof.
SECTION 2.8. ASSETS OF TRUST.
The assets of the Issuer Trust shall consist solely of the Trust
Property.
SECTION 2.9. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Issuer Trust and the Holders in
accordance with this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in and withdrawals from the Payment
Account in accordance with this Trust Agreement. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the Holders
and for distribution as herein provided, including (and subject to) any priority
of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Debentures.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Junior Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative and
will accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall
accumulate from July 20, 1998, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Junior Subordinated Debentures pursuant to the
Indenture, shall be payable semi-annually in arrears on January 15 and
July 15 of each year, commencing on January 15, 1999. If any date on
which a Distribution is otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall be made
on the next succeeding day that is a Business Day (without any
additional Distributions or other payment in respect of any such
delay), with the same force and effect as if made on the date on which
such payment was originally payable (each date on which distributions
are payable in accordance with this Section 4.1(a), a "DISTRIBUTION
DATE").
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(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of 8.125% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period
less than a full Distribution period shall be computed on the basis of
a 360-day year of twelve 30-day months and the actual number of days
elapsed in a partial month in a period. Distributions payable for each
full Distribution period will be computed by dividing the rate per
annum by two. The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred and
is continuing, the Depositor has the right under the Indenture to defer
the payment of interest on the Junior Subordinated Debentures at any
time and from time to time for a period not exceeding 10 consecutive
semi-annual periods (an "Extension Period"), provided that no Extension
Period may extend beyond July 15, 2028 or end on a day other than an
Interest Payment Date (as defined in the Indenture). As a consequence
of any such deferral, semi-annual Distributions on the Trust Securities
by the Trust will also be deferred (and the amount of Distributions to
which Holders of the Trust Securities are entitled will accumulate
additional Distributions thereon at a rate of 8.125% per annum,
compounded semi-annually) from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of twelve 30-day
months and the actual days elapsed in a partial month in such period.
Additional Distributions payable for each full Distribution period will
be computed by dividing the rate per annum by two. The term
"Distributions" as used in Section 4.1 shall include any such
additional Distributions provided pursuant to this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds
then on hand and available in the Payment Account for the payment of
such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on December 31 or
June 30 (whether or not a Business Day).
SECTION 4.2. REDEMPTION.
(a) On each Junior Subordinated Debenture Redemption Date and on the
stated maturity of the Junior Subordinated Debentures, the Issuer Trust will be
required to redeem a Like Amount of Trust Securities at the applicable
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to
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each Holder of Trust Securities to be redeemed, at such Holder's address
appearing in the Security Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
manner of calculation thereof;
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" or
"private placement" numbers (if then generally in use), and, if so, the Property
Trustee shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices of redemption and related materials 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 Trust Securities
or as contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of Junior Subordinated Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Issuer Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
(d) If the Issuer Trust gives a notice of redemption in respect of any
Capital Securities, then, by 10:00 a.m., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made, then by 12:00 noon, New
York City time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, with respect to Capital Securities held in global form,
irrevocably deposit with the Clearing Agency for such Capital Securities, to the
extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give such Clearing Agency irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Capital Securities. With
respect to Capital Securities that are not held in global
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form, the Property Trustee, subject to Section 4.2(c), will irrevocably deposit
with the Paying Agent, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Capital Securities upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Holders holding Trust Securities so called for redemption will cease, except the
right of such Holders to receive the Redemption Price and any Distribution
payable in respect of the Trust Securities on or prior to the Redemption Date,
but without interest, and such Securities will cease to be Outstanding. In the
event that any date on which any applicable Redemption Price is payable is not a
Business Day, then payment of the applicable Redemption Price payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day falls in the next calendar year, such payment will be made on
the immediately preceding Business Day, in each case, with the same force and
effect as if made on such date. In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will continue
to accumulate, as set forth in Section 4.1 and in accordance with the continued
accrual of interest on the Junior Subordinated Debentures, from the Redemption
Date originally established by the Issuer Trust for such Trust Securities to the
date such applicable Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Trust Securities to be redeemed shall be allocated
PRO RATA to the Common Securities and the Capital Securities based on the
relative Liquidation Amounts of such classes, subject to the requirement that no
Holder shall hold Capital Securities with an aggregate Liquidation Amount of
less than $100,000 after such redemption. The particular Capital Securities to
be redeemed shall be selected by the Property Trustee by such method (including,
without limitation, on a PRO RATA basis based on their respective Liquidation
Amounts or by lot) as the Property Trustee shall deem fair and appropriate,
which may provide for the selection for redemption of portions (equal to $1,000
or integral multiples thereof) of the Liquidation Amount of Capital Securities
of a denomination larger than $1,000, not more than 60 days prior to the
Redemption Date from the Outstanding Capital Securities not previously called
for redemption, or if the Capital Securities are then held in the form of a
Global Capital Security, by the Clearing Agency in accordance with the customary
procedures for the Clearing Agency, PROVIDED that, after giving effect to such
redemption, no Holder shall hold Capital Securities with an aggregate
Liquidation Amount of less than $100,000, PROVIDED, however, that with respect
to Holders that would be required to hold less than 100 but more than zero
Capital Securities as a result of any such pro rata redemption, the Property
Trustee shall redeem each such Holder to either 100 Capital Securities or zero
Capital Securities. In any such proration, the Property Trustee shall make such
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adjustments so that any Capital Security to be redeemed shall, after such
redemption, be in an authorized denomination. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Capital Securities
selected for redemption and, in the case of any Capital Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Capital Securities shall relate, in the
case of any Capital Securities redeemed or to be redeemed only in part, to the
portion of the aggregate Liquidation Amount of Capital Securities that has been
or is to be redeemed.
SECTION 4.3. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation Distribution in
respect of, the Trust Securities, as applicable, shall be made, subject to
Section 4.2(e), PRO RATA among the Common Securities and the Capital Securities
based on the Liquidation Amount of such Trust Securities; PROVIDED, HOWEVER,
that if on any Distribution Date or Redemption Date any Event of Default
resulting from a Debenture Event of Default in Section 5.1(1) or 5.1(2) of the
Indenture shall have occurred and be continuing, no payment of any Distribution
(including any Additional Amounts) on, Redemption Price of, or Liquidation
Distribution in respect of, any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding Capital
Securities for all Distribution periods terminating on or prior thereto, or, in
the case of payment of the Redemption Price, the full amount of such Redemption
Price on all Outstanding Capital Securities then called for redemption, or in
the case of payment of the Liquidation Distribution the full amount of such
Liquidation Distribution on all Outstanding Capital Securities, shall have been
made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price of,
Capital Securities then due and payable. The existence of an Event of Default
does not entitle the Holders of Capital Securities to accelerate the maturity
thereof.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common Securities shall
be deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effects of all such Events of
Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital Securities will have the right
to direct the Property Trustee to act on their behalf.
SECTION 4.4. PAYMENT PROCEDURES.
Payments of Distributions (including any Additional Amounts) in respect
of the Capital Securities shall be made by check mailed to the address of the
Person entitled thereto as
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such address shall appear on the Securities Register or, if the Capital
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which will credit the
relevant accounts on the applicable Distribution Dates. Payments of
Distributions to Holders of $1,000,000 or more in aggregate Liquidation Amount
of Capital Securities may be made by wire transfer of immediately available
funds upon written request of such Holder to the Securities Registrar not later
than 15 calendar days prior to the date on which the Distribution is payable.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.5. TAX RETURNS AND REPORTS.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrators shall (a) prepare and file (or
cause to be prepared and filed) all Internal Revenue Service forms required to
be filed in respect of the Issuer Trust in each taxable year of the Issuer Trust
and (b) prepare and furnish (or cause to be prepared and furnished) to each
Holder all Internal Revenue Service forms required to be provided by the Issuer
Trust. The Administrators shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Property Trustee shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Capital
Securities are outstanding, the Administrators shall furnish to the Paying Agent
such information as may be reasonably requested by the Property Trustee in order
that the Property Trustee may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Internal Revenue Code of 1986, as amended. Such information
shall include the amount of original issue discount includible in income for
each outstanding Capital Security during such year, if any.
SECTION 4.6. PAYMENT OF TAXES, DUTIES, ETC. OF THE ISSUER TRUST.
Upon receipt under the Junior Subordinated Debentures of Additional
Sums and the written direction of any of the Administrators, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Issuer Trust by
the United States or any other taxing authority.
SECTION 4.7. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT ACTIONS.
Any amount payable hereunder to any Holder of Capital Securities shall
be reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 5.8 of the Indenture or Section 5.13 of this Trust
Agreement.
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SECTION 4.8. LIABILITY OF THE HOLDER OF COMMON SECURITIES.
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7 of the Indenture
regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP.
Upon the formation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES.
(a) The Capital Securities Certificates shall be issued in fully
registered form in minimum blocks of at least 100 (representing a minimum of
$100,000 aggregate Liquidation Amount and multiples of $1,000 in excess
thereof), and shall be at all times held in minimum blocks of 100, and the
Common Securities Certificates shall be issued in minimum blocks of 100
(representing a minimum of $100,000 aggregate Liquidation Amount). The Trust
Securities Certificates shall be executed on behalf of the Issuer Trust by
manual or facsimile signature of at least one Administrator. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Issuer Trust, shall be validly issued and entitled to the benefits
of this Trust Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of delivery of
such Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the rights and
subject to the obligations of a Holder hereunder, upon due registration of such
Trust Securities Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates
representing Rule 144A Capital Securities shall be issued in the form of a
Global Capital Securities Certificate registered in the name of Cede as DTC's
nominee and deposited with or on behalf of Depositary for credit by Depositary
to the respective accounts of the Owners thereof (or such other accounts as they
may direct). Except as set forth herein, record ownership of the Global Capital
Security may be transferred, in whole or in part, only to the Depositary,
another nominee of the Depositary or to a successor Depositary or its nominee.
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(c) Upon their original issuance, Capital Securities Certificates
representing Other Capital Securities shall be issued in definitive certificated
form and may not be represented by the Global Capital Security.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
At the Closing Time, an Administrator shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust and delivered to the Property
Trustee and upon such delivery the Property Trustee shall authenticate such
Trust Securities Certificates and deliver such Trust Securities Certificates
upon the written order of the Trust, executed by an Administrator thereof,
without further corporate action by the Depositor, in authorized denominations.
Only such Trust Securities Certificates as shall bear thereon a certificate of
authentication substantially in the form provided for herein executed by the
Property Trustee by manual signature of an authorized officer thereof shall be
entitled to the benefits of this Trust Agreement or be valid or obligatory for
any purpose.
SECTION 5.4. GLOBAL CAPITAL SECURITY.
(a) The Global Capital Security issued under this Trust Agreement shall
be registered in the name of the nominee of the Clearing Agency and delivered to
the Property Trustee as custodian therefor, and such Global Capital Security
shall constitute a single Capital Security for all purposes of this Trust
Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, the
Global Capital Security may not be exchanged in whole or in part for Capital
Securities registered, and no transfer of the Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security, Cede, or other nominee thereof unless
(i) such Clearing Agency advises the Depositor and the Property Trustee in
writing that such Clearing Agency is no longer willing or able to properly
discharge its responsibilities as Clearing Agency with respect to such Global
Capital Security, and the Depositor is unable to locate a qualified successor,
(ii) the Issuer Trust (by an Administrator) at its option advises the Depositary
in writing that it elects to terminate the book-entry system through the
Clearing Agency, or (iii) there shall have occurred and be continuing an Event
of Default.
(c) If the Global Capital Security is to be exchanged for other Capital
Securities or cancelled in whole, it shall be surrendered by or on behalf of the
Clearing Agency or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article V. If the Global Capital Security is to
be exchanged for other Capital Securities or cancelled in part, or if another
Capital Security is to be exchanged in whole or in part for a beneficial
interest in the Global Capital Security, then either (i) such Global Capital
Security shall be so surrendered for
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exchange or cancellation as provided in this Article V or (ii) the Liquidation
Amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or cancelled or equal to the Liquidation Amount of
such other Capital Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Security Registrar, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of the Global Capital Security by the
Clearing Agency, accompanied by registration instructions, the Property Trustee
shall, subject to Section 5.4(b) and as otherwise provided in this Article V,
authenticate and deliver any Capital Securities issuable in exchange for such
Global Capital Security (or any portion thereof) in accordance with the
instructions of the Clearing Agency. The Property Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(d) Every Capital Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, the Global
Capital Security or any portion thereof, whether pursuant to this Article V or
Article IV or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Capital Security, unless such Global Capital Security is
registered in the name of a Person other than the Clearing Agency for such
Global Capital Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner of the
Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Trust Agreement and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Security registered in their names, shall not receive nor be entitled to
receive physical delivery of any such Capital Securities in definitive
certificated form and shall not be considered the Holders thereof under this
Trust Agreement. Accordingly, any such owner's beneficial interest in the Global
Capital Security shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Clearing Agency or its
nominee. Neither the Property Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the Clearing Agency.
(f) The rights of owners of beneficial interests in the Global Capital
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and the
Clearing Agency.
SECTION 5.5. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; CAPITAL SECURITIES CERTIFICATES; SECURITIES
ACT LEGENDS.
(a) (i) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Capital Securities Certificates and transfers and exchanges of Capital
Securities Certificates in which the registrar and transfer agent
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with respect to the Capital Securities (the "SECURITIES REGISTRAR"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Capital Securities Certificates and Common Securities
Certificates (subject to Section 5.5(a)(i) in the case of Capital Securities and
Section 5.5(a)(ii) in the case of Private Capital Securities and subject to
Section 5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Capital Securities Certificates as herein provided.
Such register is herein sometimes referred to as the "SECURITIES REGISTER." The
Property Trustee is hereby appointed Securities Registrar for the purpose of
registering Capital Securities and transfers of Capital Securities as herein
provided.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the offices or agencies of the Property Trustee designated for
that purpose an Administrator shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities Certificates of any authorized
denominations of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, Capital Securities Certificates may be
exchanged for other Capital Securities Certificates of any authorized
denominations, of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement, upon surrender
of the Capital Securities to be exchanged at such office or agency. Whenever any
Capital Securities are so surrendered for exchange, an Administrator shall
execute and the Property Trustee shall authenticate and deliver the Capital
Securities that the Holder making the exchange is entitled to receive.
All Capital Securities Certificates issued upon any transfer or
exchange of Capital Securities shall be the valid obligations of the Issuer
Trust, evidencing the same debt, and entitled to the same benefits under this
Trust Agreement, as the Capital Securities Certificates surrendered upon such
transfer or exchange.
Every Capital Securities Certificate presented or surrendered for
transfer or exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar, duly executed
by the Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Capital Securities.
Neither the Issuer Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (x) to issue, register the transfer
of or exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of selection for redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of mailing of the notice of redemption, or (y) to register the transfer of or
exchange any
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Capital Security so selected for redemption in whole or in part, except, in the
case of any such Capital Security to be redeemed in part, any portion thereof
not to be redeemed.
(ii) (A) In addition to the restrictions on transfer set forth in
Section 5.5(a)(i) and 5.5(a)(ii)(B), beneficial ownership of every Private
Capital Security is subject to the restrictions on transfer imposed by the
Securities Act and rules and regulations promulgated by the Commission
thereunder and each certificate representing Private Capital Securities shall
bear restrictive legends (the "Securities Act Legends") substantially in the
form set forth on Exhibit D hereto, unless such restrictions on transfer shall
be terminated in accordance with the provisions of this Section 5.5. The Holder
of each Private Capital Security, by such Holder's acceptance thereto, agrees to
be bound by such restrictions on transfer.
(B) The restrictions imposed by the Securities Act and
this Trust Agreement upon the transferability of any particular Private Capital
Security shall cease and terminate upon delivery by at least one Administrator
on behalf of the Issuer Trust to the Property Trustee of an Officers'
Certificate stating that such Private Capital Security has been sold pursuant to
an effective registration statement under the Securities Act, exchanged for a
corresponding Liquidation Amount of Exchange Capital Securities pursuant to an
effective registration statement under the Securities Act, or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto). Any Private Capital Security as to which such Administrator has
delivered to the Property Trustee an Officers' Certificate that such
restrictions on transfer shall have expired in accordance with their terms or
shall have terminated may, upon surrender of such Private Capital Security for
exchange to the Securities Registrar or any transfer agent in accordance with
the provisions of this paragraph (ii)(B) be exchanged for a new Capital
Security, of like tenor and aggregate Liquidation Amount, which shall not bear
the Securities Act Legends. The Administrator shall inform the Property Trustee
in writing of the effective date of any registration statement registering the
Private Capital Securities or the Exchange Capital Securities under the
Securities Act. The Property Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
Officers' Certificate.
As used in paragraphs (A) and (B) of this paragraph (ii), the term "transfer"
encompasses any sale, pledge, transfer or other disposition of any Private
Capital Security.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of this Trust Agreement, transfers and exchanges of Capital Securities
and beneficial interests in a Global Capital Security shall be made only in
accordance with this Trust Agreement.
(i) NON-GLOBAL RESTRICTED CAPITAL SECURITY TO GLOBAL CAPITAL
SECURITY. If the Holder of a Restricted Capital Security (other than
the Global Capital Security) wishes at any time to transfer all or any
portion of such Trust Security to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Global Capital
Security, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) and subject to the Applicable
Procedures. Upon receipt by the Securities Registrar of (A) such Trust
Security as provided in Section 5.5(a) and instructions
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satisfactory to the Securities Registrar directing that a beneficial
interest in the Global Capital Security in a specified Liquidation
Amount not greater than the Liquidation Amount of such Trust Security
be credited to a specified Clearing Agency Participant's account and
(B) a Restricted Securities Certificate duly executed by such Holder or
such Holder's attorney duly authorized in writing accompanied by a
certification that such transfer is being affected in accordance with
Rule 144A, then the Securities Registrar shall cancel such Trust
Security (and issue a new Trust Security in respect of any
untransferred portion thereof) as provided in Section 5.5(a) and
increase the aggregate Liquidation Amount of the Global Capital
Security by the specified Liquidation Amount as provided in Section
5.4(c).
(ii) NON-GLOBAL CAPITAL SECURITY TO NON-GLOBAL CAPITAL SECURITY.
A Trust Security that is not a Global Capital Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Trust Security that is not a Global Capital Security as
provided in Section 5.5(a) PROVIDED that if the Trust Security to be
transferred in whole or in part is a Restricted Capital Security, the
Security Registrar shall have received a Restricted Securities
Certificate duly executed by the transferor Holder or such Holder's
attorney duly authorized in writing. The Issuer Trust or the Depositor
may require from any Holder seeking to transfer any Private Capital
Security an Opinion of Counsel reasonably satisfactory to the Issuer
Trust or the Depositor, as the case may be, that such transfer complies
with the requirements of the securities laws of the United States and
any applicable laws of individual states and other jurisdictions.
(iii) EXCHANGES BETWEEN GLOBAL CAPITAL SECURITY AND NON-GLOBAL
TRUST SECURITY. A beneficial interest in the Global Capital Security
may be exchanged for a Trust Security that is not a Global Capital
Security only as provided in Section 5.4.
(iv) CERTAIN INITIAL TRANSFERS OF NON-GLOBAL TRUST SECURITIES. In
the case of Trust Securities initially issued other than in global
form, a transfer or exchange of such Trust Securities that does not
involve any change in beneficial ownership may be made to an
Institutional Accredited Investor or Investors as if such transfer or
exchange were not a transfer or exchange; PROVIDED that written
certification shall be provided by the transferee and transferor of
such Trust Securities to the Securities Registrar that such transfer or
exchange does not involve a change in beneficial ownership.
(v) LIMITATIONS RELATING TO PRINCIPAL AMOUNT. Notwithstanding any
other provision of this Trust Agreement and unless otherwise specified
as permitted by this Trust Agreement, Trust Securities or portions
thereof may be transferred or exchanged only in Liquidation Amounts of
not less than $100,000. Any transfer, exchange or other disposition of
Trust Securities in contravention of this Section 5.5(b)(v) shall be
deemed to be void and of no legal effect whatsoever, any such
transferee shall be deemed not to be the Holder or owner of any
beneficial interest in such Trust Securities for any purpose, including
but not limited to the receipt of Distributions
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payable on such Trust Securities, and such transferee shall be deemed
to have no interest whatsoever in such Trust Securities.
(c) RESTRICTED SECURITIES LEGEND. Except as set forth below and in
Section 5.5(a)(ii)(B), all Capital Securities shall bear a Restricted Capital
Securities Legend:
(i) subject to the following Clauses of this Section 5.5(c), a
Capital Security or any portion thereof that is exchanged, upon
transfer or otherwise, for a Global Capital Security or any portion
thereof shall bear the Restricted Capital Securities Legend while
represented thereby;
(ii) subject to the following Clauses of this Section 5.5(c), a
new Capital Security which is not a Global Capital Security which is
issued in exchange for another Capital Security (including a Global
Capital Security) or any portion thereof, upon transfer or otherwise,
shall, if such new Capital Security is required to be issued in the
form of a Restricted Capital Security, bear a Restricted Capital
Securities Legend;
(iii) a new Capital Security (other than a Global Capital
Security) that does not bear a Restricted Capital Securities Legend may
be issued in exchange for or in lieu of a Restricted Capital Security
or any portion thereof that bears such a legend if, in the Depositor's
judgment, placing such a legend upon such new Capital Security is not
necessary to ensure compliance with the registration requirements of
the Securities Act, and the Property Trustee, at the written direction
of the Issuer Trust in the form of an Officers' Certificate, shall
authenticate and deliver such new Capital Security as provided in this
Article V;
(iv) notwithstanding the foregoing provisions of this Section
5.5(c), a Successor Capital Security Certificate of a Capital Security
that does not bear a Restricted Capital Securities Legend shall not
bear such form of legend unless the Depositor has reasonable cause to
believe that such Successor Capital Security Certificate is a
"restricted security" within the meaning of Rule 144 under the
Securities Act, in which case the Property Trustee, at the written
direction of the Issuer Trust in the form of an Officers' Certificate,
shall authenticate and deliver a new Capital Security bearing a
Restricted Capital Securities Legend in exchange for such Successor
Capital Security Certificate as provided in this Article V; and
(v) Junior Subordinate Debentures distributed to a holder of
Capital Securities upon dissolution of the Issuer Trust shall bear a
Restricted Capital Securities Legend if the Capital Securities so
held bear a similar legend.
(d) EXCHANGE OF CAPITAL SECURITIES. The Capital Securities may be
exchanged for Exchange Capital Securities pursuant to the terms of the
Exchange Offer. In such an exchange, the Property Trustee shall make
the exchange as follows:
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The Depositor shall present the Property Trustee with an Officer's
Certificate certifying as follows:
(i) Upon issuance of the Exchange Capital Securities, the
transactions contemplated by the Exchange Offer have been consummated;
and
(ii) (A) the number of Capital Securities that are represented by
a Global Capital Security properly tendered in the Exchange Offer by
persons that certify in a Letter of Transmittal that they are not a
broker-dealer, they are not participating in a distribution and they
are not an affiliate of the Company and (B) the number of Capital
Securities that are represented by definitive certificated Capital
Securities properly tendered in the Exchange Offer by persons that
certify in a Letter of Transmittal that they are not a broker-dealer,
they are not participating in a distribution and they are not an
affiliate of the Company, the name of each Holder of such definitive
certificated Capital Securities, and the name and address to which
definitive certificated Capital Securities for Exchange Capital
Securities shall be registered and sent for each such Holder.
The Property Trustee, upon receipt of such Officers' Certificate with
respect to the preceding paragraph and to the effect that the Exchange
Capital Securities have been registered under the Securities Act and
the Trust Agreement has been qualified under the Trust Indenture Act
and with respect to the matters set forth in the Registration Rights
Agreement, shall authenticate (A) a Global Capital Security
representing the Exchange Capital Securities in aggregate Liquidation
Amount equal to the aggregate Liquidation Amount of the Capital
Securities so exchanged represented by a Global Capital Security
indicated in such Officers' Certificate and (B) definitive Capital
Securities representing the Exchange Capital Securities registered in
the names of, and in the Liquidation Amounts indicated in such
Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the then
outstanding Capital Securities shall have properly tendered and not
withdrawn, the Property Trustee shall make an endorsement on the Global
Capital Security representing such untendered Capital Securities
indicating the reduction in the number and aggregate Liquidation Amount
represented thereby as a result of the Exchange Offer.
(e) All Trust Securities shall be dated their date of authentication.
SECTION 5.6. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrators, or any one of them, on behalf
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of the Issuer Trust shall execute and make available for delivery, and the
Property Trustee shall authenticate, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Trust Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
The provisions of this Section 5.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Trust Securities Certificates.
SECTION 5.7. PERSONS DEEMED HOLDERS.
The Issuer Trustees, the Administrators or the Securities Registrar
shall treat the Person in whose name any Trust Securities are issued as the
owner of such Trust Securities for the purpose of receiving Distributions and
for all other purposes whatsoever (subject to the record date provisions
hereof), and none of the Issuer Trustees, the Administrators nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.8. ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Depositor shall furnish or cause to be furnished to
the Property Trustee, semiannually not more than 15 days after December 31 and
June 30, of each year beginning with December 31, 1998, and at such other times
as the Property Trustee may request in writing within 30 days after receipt by
the Depositor of any such request, a list, in such form as the Property Trustee
may reasonably require containing all information in the possession or control
of the Depositor, or any Paying Agent or any registrar of the Trust Securities
other than the Property Trustee, as to the names and addresses of the Holders
obtained (in the case of each list other than the first list) since the date as
of which the next previous list was furnished. Any such list may be dated as of
a date not more than fifteen days prior to the time such information is
furnished or caused to be furnished, and need not include information received
after such date. The rights of Holders to communicate with other Holders with
respect to their rights under this Trust Agreement or under the Trust
Securities, and the corresponding obligations and rights of the Property
Trustee, shall be as provided in the Trust Indenture Act. Each Holder and each
Owner shall be deemed to have agreed not to hold the Depositor, the Property
Trustee, or the Administrators accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
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SECTION 5.9. MAINTENANCE OF OFFICE OR AGENCY.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Capital Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates its
Corporate Trust Office at 450 West 33rd Street, 15th Floor, New York, New York
10001, Attention: Corporate Trustee Administration Department, as its corporate
trust office for such purposes. The Property Trustee shall give prompt written
notice to the Depositor, the Administrators and to the Holders of any change in
the location of the Securities Register or any such office or agency.
SECTION 5.10. APPOINTMENT OF PAYING AGENT.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrators. Any Paying Agent shall have the revocable power
to withdraw funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove any Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators, and
the Property Trustee. In the event that the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
appointed by the Property Trustee shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Issuer Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Holders in trust for the benefit of the Holders entitled
thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply
to the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Trust Agreement to the Paying Agent
shall include any co-paying agent chosen by the Property Trustee unless the
context requires otherwise.
SECTION 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At the Closing Time, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. Neither the Depositor nor any
successor Holder of the Common Securities may transfer less than all the Common
Securities, and the Depositor or any such successor Holder may transfer the
Common Securities only (i) in connection with a consolidation or merger of the
Depositor into another entity or any conveyance, transfer or lease
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by the Depositor of its properties and assets substantially as an entirety to
any Person, pursuant to Section 8.1 of the Indenture, or (ii) to an Affiliate of
the Depositor in compliance with applicable law (including the Securities Act
and applicable state securities and blue sky laws). To the fullest extent
permitted by law, any attempted transfer of the Common Securities, other than as
set forth in the immediately preceding sentence, shall be void. The
Administrators shall cause each Common Securities Certificate issued to the
Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
SECTION 5.12. NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Capital Securities are
represented by a Global Capital Securities Certificate, the Administrators and
the Issuer Trustees shall give all such notices and communications specified
herein to be given to the Clearing Agency, and shall have no obligations to the
Owners.
SECTION 5.13. RIGHTS OF HOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial ownership interest in the assets of the Issuer Trust conferred by
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Issuer Trust except as described
below. The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor, as provided herein, will
be fully paid and nonassessable by the Issuer Trust. Except as otherwise
provided in Section 4.8, the Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon
a Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Junior Subordinated
Debentures fail to declare the principal of all of the Junior Subordinated
Debentures to be immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Capital Securities then Outstanding shall have such
right to make such declaration by a notice in writing to the Property Trustee,
the Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debentures has been made and before a judgment or decree
for payment of the money due has been obtained by the Debenture Trustee as
provided in the Indenture, the Holders of a Majority in Liquidation Amount of
the Capital Securities, by written notice to the Property
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Trustee, the Depositor and the Debenture Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of the
Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of the Junior
Subordinated Debentures,
(C) the principal of (and premium, if any, on) any Junior
Subordinated Debentures which have become due otherwise than by
such declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Junior Subordinated
Debentures, and
(D) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Debenture Events of Default other than the non-payment
of the principal of the Junior Subordinated Debentures which has become
due solely by such acceleration, have been cured or waived as provided
in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Junior
Subordinated Debentures. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Global Capital Securities, a
record date shall be established for determining Holders of Outstanding Capital
Securities entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; PROVIDED, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or
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rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.9 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Junior Subordinated Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Capital Securities of such Holder (a "DIRECT ACTION"). Except as set forth in
Sections 5.13(b) and 5.13 (c), the Holders of Capital Securities shall have no
right to exercise directly any right or remedy available to the holders of, or
in respect of, the Junior Subordinated Debentures.
The holders of a Majority in Liquidation Amount of the Capital Securities
at the time Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to the Capital Securities; PROVIDED, HOWEVER, that, the Property Trustee
shall have the right to decline to follow any such direction if the Property
Trustee being advised by counsel determines that the action so directed may not
lawfully be taken, or if the Property Trustee in good faith shall determine that
the proceedings so directed would be illegal or involve it in personal liability
or be unduly prejudicial to the rights of Holders of Capital Securities not
parties to such direction, and PROVIDED FURTHER that nothing in this Trust
Agreement shall impair the right of the Property Trustee to take any action
deemed proper by the Property Trustee and which is not inconsistent with such
direction by such Holders.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON HOLDER'S VOTING RIGHTS.
(a) Except as provided in this Trust Agreement and in the Indenture and
as otherwise required by law, no Holder of Capital Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Issuer Trust or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Trust
Securities Certificates be construed so as to constitute the Holders from time
to time as members of an association.
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(b) So long as any Junior Subordinated Debentures are held by the
Property Trustee on behalf of the Issuer Trust, the Property Trustee shall not
(i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or power
conferred on the Property Trustee with respect to such Junior Subordinated
Debentures, (ii) waive any past default that may be waived under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Junior Subordinated Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of the Indenture
or the Junior Subordinated Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Capital Securities, PROVIDED, HOWEVER,
that where a consent under the Indenture would require the consent of each
Holder of Junior Subordinated Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior written consent of each
Holder of Capital Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of Capital
Securities, except by a subsequent vote of the Holders of Capital Securities.
Subject to Section 8.2, the Property Trustee shall notify all Holders of the
Capital Securities of any notice of default received with respect to the Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Capital Securities, prior to taking any of the foregoing actions,
the Property Trustee shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that such action will not
cause the Issuer Trust to be taxable other than as a grantor trust for United
States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trust otherwise proposes to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences or
special rights of the Capital Securities, whether by way of amendment to the
Trust Agreement or otherwise, or (ii) the dissolution, winding-up or termination
of the Issuer Trust, other than pursuant to the terms of this Trust Agreement,
then the Holders of Outstanding Trust Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities, except as otherwise provided in
Section 10.2(c). Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
it would cause the Issuer Trust to be taxable other than as a grantor trust for
United States Federal income tax purposes.
SECTION 6.2. NOTICE OF MEETINGS.
Notice of all meetings of the Holders, stating the time, place and
purpose of the meeting, shall be given by the Property Trustee pursuant to
Section 10.8 to each Holder of record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
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SECTION 6.3. MEETINGS OF HOLDERS.
No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of Holders to vote on any matter upon the
written request of the Holders of record of 25% of the aggregate Liquidation
Amount of the Capital Securities and the Administrators or the Property Trustee
may, at any time in their discretion, call a meeting of Holders of Capital
Securities to vote on any matters as to which Holders are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or represented by proxy, shall constitute a quorum
at any meeting of Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
of record present, in person or by proxy, holding Capital Securities
representing at least a Majority in Liquidation Amount of the Capital Securities
held by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of Capital Securities, unless this Trust
Agreement requires a greater number of affirmative votes.
SECTION 6.4. VOTING RIGHTS.
Holders shall be entitled to one vote for each $1,000 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5. PROXIES, ETC.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, PROVIDED that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Property Trustee, or with such other officer
or agent of the Issuer Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. HOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation Amount
of all Trust Securities
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entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any other provision of this Trust Agreement) shall consent
to the action in writing.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as otherwise expressly provided herein,
such action shall become effective when such instrument or instruments are
delivered to the Property Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "ACT" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Issuer Trustees, if made in the manner provided
in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrator receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder of every Trust Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Issuer
Trustees, the Administrators or the Issuer Trust in reliance thereon, whether or
not notation of such action is made upon such Trust Security.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the Administrators or the
Issuer Trustees with respect to the authenticity, validity or binding nature of
any request, demand, authorization, direction, consent, waiver or other Act of
such Holder or Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Issuer Trust, any Issuer Trustee, any Administrator or
any person or entity.
SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrators and the Property Trustee,
the records of the Issuer Trust shall be open to inspection by Holders during
normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with corporate trust
powers, duly organized, validly existing and in good standing under the laws of
New York, with corporate trust power and authority to execute and deliver, and
to carry out and perform its obligations under the terms of this Trust
Agreement.
(b) The execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Property Trustee; and this Trust Agreement has been duly
executed and delivered by the Property Trustee, and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium,
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insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of this Trust Agreement by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Time, the Property Trustee has not knowingly created
any liens or encumbrances on the Trust Securities.
(e) No consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority governing the banking
or trust powers of the Property Trustee is required for the execution, delivery
or performance by the Property Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with corporate trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement.
(g) The execution, delivery and performance by the Delaware Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee; and this Trust Agreement has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' right
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(h) The execution, delivery and performance of this Trust Agreement by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to any Delaware or federal banking authority governing the trust powers
of the Delaware Trustee is required for the execution, delivery or performance
by the Delaware Trustee, of this Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
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(a) the Trust Securities Certificates issued at the Closing Time on
behalf of the Issuer Trust have been duly authorized and will have been duly and
validly executed, and, subject to payment therefor, issued and delivered by the
Issuer Trust pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will be, as of each such
date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Administrators or Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and performance
by either the Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Trust Agreement shall require the Issuer Trustees or the
Administrators to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Issuer
Trustees or the Administrators shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrator or an Issuer Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct. To the extent
that, at law or in equity, an Issuer Trustee or Administrator has duties and
liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee
or Administrator shall not be liable to the Issuer Trust or to any Holder for
such Issuer Trustee's or Administrator's good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of the Issuer Trustees and
Administrators otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
Issuer Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
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revenue and proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that neither the Issuer Trustees nor
the Administrators are personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Issuer
Trustees expressly set forth elsewhere in this Trust Agreement or, in the case
of the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10), and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
If an Event of Default has occurred (that has not been cured or waived pursuant
to this Trust Agreement or Section 5.13 of the Indenture), the Property Trustee
shall exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Trust Agreement (including pursuant to Section 10.10), and the
Property Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Property Trustee and conforming to the requirements of this
Trust Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
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(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures and the Payment Account shall be to deal with
such property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrators or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Issuer
Trustee, the Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Trust Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall either Administrator be liable for the
default or misconduct of any other Administrator, the Issuer Trustees or the
Depositor.
SECTION 8.2. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past Event of Default and its consequences, except a default described in
clause (b) or (c) of the definition of "Event of Default" contained in Section
1.1, a default in respect of a covenant or provision which under this Trust
Agreement cannot be modified or amended without the consent of the Holder of
each
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Outstanding Capital Security or a Debenture Event of Default that the Holders of
a Majority in Liquidation Amount of the Capital Securities would not be entitled
to waive pursuant to Section 5.13(b). Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Trust Agreement, but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent therefrom.
SECTION 8.3. CERTAIN NOTICES.
(a) Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee assigned
to its Corporate Trust Office, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Holders and the Administrators, unless such Event of Default
shall have been cured or waived.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Holders and the Administrators, unless such exercise shall
have been revoked.
SECTION 8.4. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(c) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or reregistration thereof;
(d) the Property Trustee may consult with counsel of its own choosing
(which counsel may be counsel to the Property Trustee, the Depositor or any of
its Affiliates, and may include any of its employees) and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Property Trustee shall
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have the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(e) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction; PROVIDED that,
nothing contained in this Section 8.4(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement in
accordance with the standard specified in Section 8.1(c);
(f) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, PROVIDED that the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(h) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions;
(i) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement;
(j) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrators; and
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(k) the Property Trustee shall not be charged with knowledge of an
Event of Default unless an officer of the Property Trustee assigned to its
Corporate Trust Office obtains actual knowledge of such event or the Property
Trustee receives written notice of such event from the Depositor, any
Administrator or Holders holding a Majority in Liquidation Amount of the Capital
Securities.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee or Administrator to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrator shall be construed to be a duty.
SECTION 8.5. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrators do not assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Depositor of the proceeds of the Junior Subordinated
Debentures.
SECTION 8.6. MAY HOLD SECURITIES.
Except as provided in the definition of the term "OUTSTANDING" in
Article I, the Administrators, any Issuer Trustee or any other agent of any
Issuer Trustee or the Issuer Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.9 and
8.14, may otherwise deal with the Issuer Trust with the same rights it would
have if it were not an Administrator, Issuer Trustee or such other agent.
SECTION 8.7. COMPENSATION; INDEMNITY; FEES.
The Depositor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Issuer Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the Issuer Trustees in
accordance with any provision of this Trust Agreement (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to their negligence
or willful misconduct; and
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(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust, (referred to herein as an "INDEMNIFIED PERSON") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
The provisions of this Section 8.7 shall survive the termination of
this Trust Agreement.
No Issuer Trustee may claim any lien or charge on any Trust Property as
a result of any amount due pursuant to this Section 8.7.
The Depositor, any Administrator and any Issuer Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Administrator, nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Administrator or any Issuer Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee may engage or be interested in any financial or other transaction with
the Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.
SECTION 8.8. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES AND ADMINISTRATORS.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VIII. At the time of appointment,
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the Property Trustee must have securities rated in one of the three highest
rating categories by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder.
Each Administrator shall be either a natural person who is at least 21 years of
age or a legal entity that shall act through one or more persons authorized to
bind that entity. An employee, officer or Affiliate of the Depositor may serve
as an Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.9. CONFLICTING INTERESTS.
(a) If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
(b) The Guarantee and the Indenture shall be deemed to be sufficiently
described in this Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.10. CO-TRUSTEES AND SEPARATE TRUSTEE.
At any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor and
the Administrators shall for such purpose join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor or
the Administrators do not join in such appointment within 15 days after the
receipt by them of a request to do so, or in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have the power
to make such appointment. Any co-trustee or separate trustee appointed pursuant
to this Section shall either be (i) a natural person who is at least 21 years of
age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
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Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor, provided, that, if a Debenture Event of Default shall have
occurred and be continuing the Property Trustee may execute any such instrument
on behalf of the Depositor as its agent and attorney-in-fact therefor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities Certificates shall be authenticated by the
Property Trustee, and the Trust Securities Certificates shall be authenticated
and delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Property Trustees specified
hereunder, shall be exercised, solely by the Property Trustee and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal, provided, that, if a Debenture Event of Default shall
have occurred and be continuing the Property Trustee may execute any such
instruments or agreements on behalf of the Depositor as its agent and
attorney-in-fact therefor. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section
8.10.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
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(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.11. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.12.
Subject to the immediately preceding paragraph, an Issuer Trustee may
resign at any time by giving written notice thereof to the Holders and the
Depositor. If the instrument of acceptance by the successor Issuer Trustee
required by Section 8.12 shall not have been delivered to the Relevant Trustee
within 60 days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Issuer Trust, any competent court of
the State of Delaware for the appointment of a successor Issuer Trustee.
The Property Trustee or the Delaware Trustee may be removed at any time
by Act of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Issuer Trust) (i) for cause (including upon the
occurrence of an Event of Default described in subparagraph (e) of the
definition thereof with respect to the Relevant Trustee), or (ii) if a Debenture
Event of Default shall have occurred and be continuing at any time.
If a Relevant Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if any vacancy shall occur in the office of any
Issuer Trustee for any cause, the Depositor shall appoint a successor Relevant
Trustee. Within one year after the appointment by the Depositor of a successor
Relevant Trustee, the Holders of the Capital Securities, by Act of the Holders
of record of not less than 25% in aggregate Liquidation Amount of the Capital
Securities then Outstanding delivered to such Relevant Trustee, may appoint a
successor Relevant Trustee, and such successor Relevant Trustee shall comply
with the applicable requirements of Section 8.12 and the successor Relevant
Trustee appointed by the Depositor shall be superseded. If no successor Trustee
shall have been so appointed by the Depositor or the Holders of the Capital
Securities and accepted appointment in the manner required by Section 8.12, any
Holder, on behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court in the State of Delaware for the
appointment of a successor Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Relevant Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor and to the Administrators. Each notice shall include the name of the
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
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Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrators if there are
at least two of them or (b) otherwise by the Depositor (with the successor in
each case being a Person who satisfies the eligibility requirement for Delaware
Trustee, set forth in Section 8.8).
SECTION 8.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each such successor Relevant Trustee with
respect to the Trust Securities shall execute, acknowledge and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Issuer Trust, and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Issuer Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall, upon payment of
its charges, duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust
and the Depositor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to above.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be eligible
under this Article VIII.
SECTION 8.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, PROVIDED that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
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SECTION 8.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR
OR ISSUER TRUST.
If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Depositor (or any such other obligor) only if
this Trust Agreement is subject to the Trust Indenture Act.
SECTION 8.15. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any monies 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 Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.16. REPORTS BY PROPERTY TRUSTEE.
(a) Not later than July 15 of each year commencing with July 15, 1999,
the Property Trustee shall transmit to all Holders in accordance with Section
10.8, and to the Depositor, a brief report dated as of the immediately preceding
May 15 concerning the Property
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Trustee and its actions under this Trust Agreement if and as may be required
pursuant to Section 313(a) of the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to Holders such
other reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the Depositor.
SECTION 8.17. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. The Depositor and the Administrators shall annually file with the
Property Trustee a certificate specifying whether such Person is in compliance
with all the terms and covenants applicable to such Person hereunder, such
compliance certificate to be delivered annually within 120 days after the end of
each fiscal year of the Depositor ending after the date hereof.
SECTION 8.18. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrators on behalf of the Issuer
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.19. NUMBER OF ISSUER TRUSTEES.
(a) The number of Issuer Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person, in which case, the number of
Issuer Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Issuer Trust.
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SECTION 8.20. DELEGATION OF POWER.
(a) Any Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time
to such of their number the doing of such things and the execution of such
instruments either in the name of the Issuer Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.
SECTION 8.21. APPOINTMENT OF ADMINISTRATORS.
(a) The Administrators shall be appointed by the Holders of a Majority
in Liquidation Amount of the Common Securities and may be removed by the Holders
of a Majority in Liquidation Amount of the Common Securities or may resign at
any time. Upon any resignation or removal, the Depositor shall appoint a
successor Administrator. Each Administrator shall execute this Trust Agreement
thereby agreeing to comply with, and be legally bound by, all of the terms,
conditions and provisions of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 8.21, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this Trust
Agreement, in the event any Administrator who is a natural person dies or
becomes, in the opinion of the Holders of a Majority in Liquidation Amount of
the Common Securities, incompetent, or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such vacancy, and by
the Depositor, if there were not two such Administrators immediately prior to
such vacancy (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrators set forth in Section 8.8).
Except as otherwise provided in this Trust Agreement, or by applicable
law, any one Administrator may execute any document or otherwise take any action
which the Administrators are authorized to take under this Trust Agreement.
SECTION 8.22. DELAWARE TRUSTEE.
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(a) Notwithstanding any other provision of this Trust Agreement other
than Section 8.8, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrators or the Property Trustee described in this
Trust Agreement. Except as set forth in Section 8.8, the Delaware Trustee shall
be a Trustee for the sole and limited purpose of fulfilling the requirements of
ss. 3807 of the Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Issuer
Trust, (i) any agreements or instruments executed or delivered by Chase
Manhattan Bank Delaware are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Trust Agreement in the
exercise of the powers and authority conferred and vested in it, (ii) each of
the representations, undertakings and agreements herein made on the part of the
Issuer Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by Chase Manhattan Bank Delaware in its individual
capacity but is made and intended for the purpose of binding only the Issuer
Trust, and (iii) under no circumstances shall Chase Manhattan Bank Delaware in
its individual capacity be personally liable for the payment of any indebtedness
or expenses of the Issuer Trust or be liable for the breach or failure of any
obligation, representation, warranty, or covenant made or undertaken by the
Issuer Trust under this Trust Agreement except if such breach or failure is due
to any gross negligence or willful misconduct of the Delaware Trustee.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved pursuant to an Early Termination Event, the
Issuer Trust shall automatically dissolve on July 15, 2029 (the "EXPIRATION
DATE"), and thereafter the Trust Property shall be distributed in accordance
with Section 9.4.
SECTION 9.2. EARLY DISSOLUTION.
The first to occur of any of the following events is an "EARLY
TERMINATION EVENT" and shall cause dissolution of the Issuer Trust.
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Depositor or all or substantially all of its property, or a court or other
governmental agency shall enter a decree or order relating to the Depositor for
relief in a voluntary or involuntary case under Chapter 7 or Chapter 11 of the
United States Bankruptcy Code or any other similar state or federal law now or
hereafter in effect and such decree or order shall remain unstayed and
undischarged for a period of 60 days, unless the Depositor shall transfer the
Common Securities as provided by Section 5.11, in which case this provision
shall refer instead to any such successor Holder of the Common Securities;
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(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to dissolve the Issuer Trust and to distribute
the Junior Subordinated Debentures to Holders in exchange for the Capital
Securities (which direction, subject to Section 9.4(a), is optional and wholly
within the discretion of the Holders of the Common Securities);
(c) the repayment of all of the Capital Securities in connection with
the redemption of all the Junior Subordinated Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
SECTION 9.3. TERMINATION.
As soon as is practicable after the occurrence of an event referred to
in Section 9.1 or 9.2, and upon the completion of the winding-up and liquidation
of the Issuer Trust, the Administrators and the Issuer Trustees (each of whom is
hereby authorized to take such action) shall file a certificate of cancellation
with the Secretary of State of the State of Delaware terminating the Issuer
Trust and, upon such filing, the respective obligations and responsibilities of
the Issuer Trustees, the Administrators and the Issuer Trust created and
continued hereby shall terminate, except as otherwise required by law or this
Trust Agreement.
SECTION 9.4. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
wound-up and liquidated by the Property Trustee as expeditiously as the Property
Trustee determines to be possible by distributing, after paying or making
reasonable provision to pay all claims and obligations of the Issuer Trust in
accordance with Section 3808(e) of the Delaware Business Trust Act, to each
Holder a Like Amount of Junior Subordinated Debentures, subject to Section
9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 15 nor more than 45
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated
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Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrators or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Issuer Trust and distribution of the Junior Subordinated
Debentures to Holders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Junior Subordinated Debentures in
exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency for the Capital Securities or its nominee,
as the registered holder of the Global Capital Securities Certificate, shall
receive a registered global certificate or certificates representing the Junior
Subordinated Debentures to be delivered upon such distribution with respect to
Capital Securities held by the Clearing Agency or its nominee, and, (iii) any
Trust Securities Certificates not held by the Clearing Agency for the Capital
Securities or its nominee as specified in clause (ii) above will be deemed to
represent Junior Subordinated Debentures having a principal amount equal to the
stated Liquidation Amount of the Trust Securities represented thereby and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until such certificates are
presented to the Securities Registrar for transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Junior Subordinated Debentures is
not practical, or if any Early Termination Event specified in clause (c) of
Section 9.2 occurs, the Issuer Trust shall be dissolved, and the Trust Property
shall be liquidated, by the Property Trustee in such manner as the Property
Trustee determines. In such event, on the date of the dissolution of the Issuer
Trust, Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after paying or making reasonable
provision to pay all claims and obligations of the Issuer Trust in accordance
with Section 3808(e) of the Delaware Business Trust Act, an amount equal to the
aggregate of Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "LIQUIDATION
DISTRIBUTION"). If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Issuer Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Issuer Trust on the Trust
Securities shall be paid on a PRO RATA basis (based upon Liquidation Amounts).
The Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, PRO RATA (determined as aforesaid) with
Holders of Capital Securities, except that, if a Debenture Event of Default has
occurred and is continuing, the Capital Securities shall have a priority over
the Common Securities as provided in Section 4.3.
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SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS
OF THE ISSUER TRUST.
The Issuer Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section
9.5. At the request of the Holders of the Common Securities, and with the
consent of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, but without the consent of the Issuer Trustees, the Issuer
Trust may merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to a trust organized as such under the laws of any state; PROVIDED, HOWEVER,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Issuer Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "SUCCESSOR CAPITAL SECURITIES") so
long as the Successor Capital Securities have the same priority as the Capital
Securities with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is appointed to hold the Junior
Subordinated Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital Securities
(including any Successor Capital Securities) to be downgraded by any nationally
recognized statistical rating organization, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Capital Securities) in any material respect,
(v) such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights preferences
and privileges of the Holders of the Capital Securities (including any Successor
Capital Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Issuer Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act and (vii) the Depositor or
any permitted transferee to whom it has transferred the Common Securities
hereunder owns all of the securities of such successor entity that are
equivalent to the Common Securities and guarantees the obligations of such
successor under the Successor Capital Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, the Issuer Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the Capital
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be taxable other than as a grantor trust for United States
Federal income tax purposes. Any merger agreement or similar agreement shall be
executed by the Administrators on behalf of the Trust.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. LIMITATION OF RIGHTS OF HOLDERS.
Except as set forth in Section 9.2, the death or incapacity of any
person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any Holder for such person, to claim
an accounting, take any action or bring any proceeding in any court for a
partition or winding-up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
SECTION 10.2. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee and the Holders of a Majority in Liquidation Amount of the
Common Securities, without the consent of any Holder of the Capital Securities
(i) to cure any ambiguity, correct or supplement any provision herein which may
be inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement,
PROVIDED, HOWEVER, that such amendment shall not adversely affect in any
material respect the interests of any Holder, (ii) to modify, eliminate or add
to any provisions of this Trust Agreement to such extent as shall be necessary
to ensure that the Issuer Trust will not be taxable other than as a grantor
trust for United States Federal income tax purposes at any time that any Trust
Securities are Outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the Investment Company Act
or (iii) in accordance with the requirements of Section 8.12.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Property Trustee and the Holders of a
Majority in Liquidation Amount of the Common Securities with (i) the consent of
Holders of at least a Majority in Liquidation Amount of the Capital Securities
and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the Issuer Trustees
in accordance with such amendment will not affect the Issuer Trust's being
taxable as a grantor trust for United States Federal income tax purposes or
cause the Issuer Trust to lose its exemption from status as an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date.
-64-
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or be taxable other than as a grantor trust for United States Federal income
tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement or otherwise. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
(h) The Administrators shall give notice to the Holders of each
amendment to this Trust Agreement, provided, however, that any failure by the
Administrators to deliver, or any defect in, such notice, shall not affect the
validity or effectiveness of any such amendment.
SECTION 10.3. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS SHALL GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE
ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY PROVISION OF THE
LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS OTHER
THAN THE DELAWARE
-65-
BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE
TERMS HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF
TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE
REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY,
(D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL,
(F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR
CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING,
STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE
ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS
ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
LIABILITIES OR AUTHORITIES AND POWERS OF THE ISSUER TRUSTEES OR THE
ADMINISTRATOR AS SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION 3540
OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE ISSUER TRUST.
NOTWITHSTANDING THE FOREGOING, THE IMMUNITIES AND STANDARD OF CARE OF THE
PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.2(d)), with the same force and effect as though
made on the date fixed for such payment, and no Distributions shall accumulate
on such unpaid amount for the period after such date.
SECTION 10.6. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust, the Administrators
and any Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.7. HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
-66-
SECTION 10.8. REPORTS, NOTICES AND DEMANDS.
Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of Common
Securities or the Depositor, to United Community Banks, Inc., 59 Highway 515,
Blairsville, Georgia 30512, Attention: Christopher J. Bledsoe, facsimile no.:
(706)745-8619 or to such other address as may be specified in a written notice
by the Depositor to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been sufficiently
given or made, for all purposes, upon hand delivery, mailing or transmission.
Such notice, demand or other communication to or upon the Depositor shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Depositor.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Issuer Trust, the Property Trustee, the Delaware Trustee or the
Administrators shall be given in writing addressed (until another address is
published by the Issuer Trust) as follows: (a) with respect to the Property
Trustee to The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New York,
New York, 10001, Attention: Corporate Trustee Administration Department; (b)
with respect to the Delaware Trustee to Chase Manhattan Bank Delaware, 1201
Market Street, Wilmington, Delaware 19801, Attention: Corporate Trustee
Administration Department; (c) with respect to the Administrators, to them at
the address above for notices to the Depositor, marked "Attention: Office of the
Chief Financial Officer" and (d) with respect to the Issuer Trust to United
Community Capital Trust C/O United Community Banks, Inc., 59 Highway 515,
Blairsville, Georgia 30512, attention: Christopher J. Bledsoe. Such notice,
demand or other communication to or upon the Issuer Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Issuer Trust, the Property Trustee, or such
Administrator.
SECTION 10.9 AGREEMENT NOT TO PETITION.
Each of the Issuer Trustees, the Administrators and the Depositor agree
for the benefit of the Holders that, until at least one year and one day after
the Issuer Trust has been terminated in accordance with Article IX, they shall
not file, or join in the filing of, a petition against the Issuer Trust under
any bankruptcy, insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"BANKRUPTCY LAWS") or otherwise join in the commencement of any proceeding
against the Issuer Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.9, the Property Trustee agrees, for
the benefit of Holders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Issuer Trust or the commencement of
such action and raise the defense that the Depositor has agreed in writing not
to take such action and should be estopped and precluded therefrom and such
other defenses, if any, as counsel for the Issuer Trustee or the Issuer Trust
may assert. If any Issuer Trustee or Administrator takes action in violation of
this Section 10.9, the Depositor agrees, for the benefit of the Holders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such petition by such Person against
the Issuer Trust or the commencement of such action and raise the
-67-
defense that such Person has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other defenses, if any, as
counsel for the Depositor may assert. The provisions of this Section 10.9 shall
survive the termination of this Trust Agreement.
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE
ACT.
(a) TRUST INDENTURE ACT; APPLICATION. (i) This Trust Agreement is
intended to be in conformity with the provisions of the Trust Indenture Act that
would be required to be part of this Trust Agreement were this Trust Agreement
to be qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions; (ii) if and to the extent that any
provision of this Trust Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control; (iii) if any provision of this Trust Agreement
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Trust Agreement as so modified or excluded, as the case may be, (iv) for
purposes of this Trust Agreement, the Property Trustee, to the extent permitted
by applicable law and/or the rules and regulations of the Commission, shall be
the only Issuer Trustee which is a trustee for the purposes of the Trust
Indenture Act; and (v) the application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Capital Securities and the Common
Securities as equity securities representing undivided beneficial interests in
the assets of the Issuer Trust.
(b) DISCLOSURE INFORMATION. The disclosure of information as to the
names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Property Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
-68-
AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF
THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-69-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed, all as of the day and year first
above written.
UNITED COMMUNITY BANKS, INC.,
as Depositor
By:/s/Jimmy C. Tallent
-----------------------------
Name: Jimmy C. Tallent
Title: President
THE CHASE MANHATTAN BANK,
as Property Trustee, and not in its
individual capacity
By:/s/William G. Keenan
-------------------------------
Name: William G. Keenan
Title: Trust Officer
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee, and not
in its individual capacity
By:/s/Denis Kelly
------------------------------
Name: Denis Kelly
Title: Trust Officer
Agreed to and Accepted by,
/s/Jimmy C. Tallent
- ----------------------
Name: Jimmy C. Tallent
Title: Administrator
/s/Christopher J. Bledsoe
- -------------------------
Name: Christopher J. Bledsoe
Title: Administrator
-70-
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
EXHIBIT B
[INSERT FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
United Community Capital Trust
8.125% Common Securities
(liquidation amount $1,000 per Common Security)
United Community Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
United Community Banks, Inc. (the "Holder") is the registered owner of
____________ (_____) common securities of the Issuer Trust representing
undivided beneficial interests in the assets of the Issuer Trust and designated
the 8.125% Common Securities (liquidation amount $1,000 per Common Security)
(the "Common Securities"). Except in accordance with Section 5.11 of the Trust
Agreement (as defined below), the Common Securities are not transferable and any
attempted transfer hereof other than in accordance therewith shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of July 20, 1998, as the same may be amended from
time to time (the "Trust Agreement") among United Community Banks, Inc., as
Depositor, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee, and the Holders of Trust Securities, including
the designation of the terms of the Common Securities as set forth therein. The
Issuer Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Issuer Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this _____ day of _______, 199__.
UNITED COMMUNITY CAPITAL TRUST
By:
-------------------------------
ADMINISTRATOR
Certificate of Authentication:
This is one of the Common Securities referred to in the within-mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
----------------------------------
Name:
Authorized Officer
EXHIBIT D
CAPITAL SECURITIES CERTIFICATE
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL CAPITAL
SECURITIES CERTIFICATE, INSERT -- This Capital Securities Certificate is a
Global Capital Securities Certificate within the meaning of the Trust Agreement
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Capital Securities Certificate is exchangeable for
Capital Securities Certificates registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Capital Securities Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to United Community Capital Trust or its agent for
registration of transfer, exchange or payment, and any Capital Securities
Certificate issued is registered in the name of such nominee as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, has an interest herein.]
[If the Capital Security is to be a Restricted Capital Security, {Insert}]
THE CAPITAL SECURITIES EVIDENCED HEREBY AND ANY JUNIOR SUBORDINATED
DEBENTURES ISSUABLE IN CONNECTION THEREWITH HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE
PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT IN A TRANSACTION THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED
STATES. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS. THE HOLDER OF THIS CAPITAL SECURITY AGREES FOR THE
BENEFIT OF THE ISSUER THAT THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CAPITAL SECURITY
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. NO REPRESENTATION CAN BE
MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF
THE CAPITAL SECURITIES OR ANY JUNIOR SUBORDINATED DEBENTURES DISTRIBUTABLE TO
HOLDERS OF THE CAPITAL SECURITIES.
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100 CAPITAL
SECURITIES). ANY SUCH TRANSFER OF CAPITAL SECURITIES IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO
THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL SECURITIES.
[INITIAL]*
CERTIFICATE NUMBER AGGREGATE LIQUIDATION AMOUNT
P-__ ______________________
(CAPITAL SECURITIES)
CUSIP NO. ________________
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
UNITED COMMUNITY CAPITAL TRUST
8.125% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
United Community Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
________ (the "Holder") is the registered owner of [the aggregate Liquidation
Amount of Capital Securities of the Issuer Trust specified in Schedule I
hereto]* [____________ Dollars ($_______) aggregate Liquidation Amount of
capital securities of the Issuer Trust]** representing a preferred undivided
beneficial interest in the assets of the Issuer Trust and designated the United
Community Capital Trust 8.125% Capital Securities (liquidation amount $1,000 per
Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Issuer Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in Section 5.5 of the Trust Agreement
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities are set
forth in, and this certificate and the Capital Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of July 20,
1998, as the same may be amended from time to time (the "Trust Agreement"),
among United Community Banks, Inc., as Depositor, The Chase Manhattan Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, and the
Holders of Trust Securities, including the designation of the terms of the
Capital Securities as set forth therein. The Holder is entitled to the benefits
of the Guarantee Agreement entered into by United Community Banks, Inc., a
Georgia bank holding company, and The Chase Manhattan Bank, as Guarantee
Trustee, dated as of July 20, 1998 (the "Guarantee Agreement"), to the extent
provided therein. The Issuer Trust will furnish a copy of the Trust Agreement
and the Guarantee Agreement to the Holder without charge upon written request to
the Issuer Trust at its principal place of business or registered office.
- --------------------
* Insert in Global Capital Security Certificate
**Insert in Non-Global Capital Security Certificate
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this _____ day of _______________, 199__.
UNITED COMMUNITY CAPITAL TRUST
By:
--------------------------------
ADMINISTRATOR
Certificate of Authentication
This is one of the Capital Securities referred to in the within-mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
---------------------------
Name:
Authorized Officer
Schedule I*
The initial Liquidation Amount of Capital Securities evidenced by this Global
Capital Securities Certificate is $_______.
Changes in Liquidation Amount of Global Capital Securities Certificate
Date Liquidation Amount by Liquidation Amount of Notation Made
which Global Capital Global Capital by
Securities Certificate Securities Certificate
is Being Increased or After Increase or
Decreased Decrease
*Insert in Global Capital Security Certificate
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax
identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Capital Securities Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: __________________
Signature: __________________________________
(Sign exactly as your name appears
on the other side of this Capital
Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
EXHIBIT E
[Form of Restricted Securities Certificate]
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 5.5(b)
of the Trust Agreement)
[--------------------------],
as Security Registrar
[address]
Re: 8.125% Capital Securities of United Community Capital Trust
(the "Issuer Trust") (the "Capital Securities")
-----------------------------------------------
Reference is made to the Amended and Restated Trust Agreement, dated as
of July 20, 1998 (the "Trust Agreement"), among United Community Banks, Inc., as
Depositor (the "Company"), The Chase Manhattan Bank, as Property Trustee and
Chase Manhattan Bank Delaware, as Delaware Trustee, and the Holders (as defined
therein) from time to time. Terms used herein and defined in the Trust Agreement
or in Regulation D, Rule 144A or Rule 144 under the U.S. Securities Act of 1933,
as amended, (the "Securities Act"), are used herein as so defined.
This certificate relates to $__________ aggregate Liquidation Amount of
Capital Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s):
--------------------------------------------------------
CERTIFICATE No(s):
--------------------------------------------------
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER."
The Specified Securities are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of a Restricted
Capital Security. In connection with such transfer, the Owner hereby certifies
that, unless such transfer is
being effected pursuant to an effective registration statement under the
Securities Act, it is being effected in accordance with Rule 144A, Regulation D,
Regulation S or Rule 144 under the Securities Act and all applicable securities
laws of the states of the United States and other jurisdictions. Accordingly,
the Owner hereby further certifies that
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer.
(2) Regulation S Transfers. If the transfer is being effected in
accordance with Regulation S:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or the Issuer Trust or any such distributor
or a person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either;
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf know that the transaction
has been prearranged with a buyer in the United States;
(D) no directed selling efforts within the meaning of
Regulation S have been made in the United States by or on behalf of
the Owner or any affiliate thereof; and
(E) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(3) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the date the Specified Securities were
acquired from the Company or the Issuer Trust or from an affiliate
(as such term is defined in Rule 144) of the Company or the Issuer
Trust, or such shorter period as Rule 144 may hereinafter require,
whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of
paragraphs (e), (f) and (h) of Rule 144;
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the date the Specified Securities
were acquired from the Company or the Issuer Trust or from an
affiliate (as such term is defined in Rule 144) of the Company or
the Issuer Trust, whichever is later, and the Owner is not, and
during the preceding three months has not been, an affiliate of the
Company or the Issuer Trust; or
(C) the Owner is a Qualified Institutional Buyer under Rule
144A or has acquired the Securities otherwise in accordance with
Sections (1), (2) or (3) hereof and is transferring the Securities
to an institutional accredited investor in a transaction exempt from
the requirements of the Securities Act, and in accordance with
Section 4 hereof.
(4) Institutional Accredited Investor Transfers. If the transfer is
to an Institutional Accredited Investor:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is an "INSTITUTIONAL ACCREDITED INVESTOR" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under Securities Act acquiring
for its own account or for the account of a qualified institutional
buyer;
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Regulation D under the Securities Act in
connection with the transfer; and
(C) no general solicitation within the meaning of Regulation D
has been made by or on behalf of the Owner or any affiliate thereof.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Issuer Trust and the Initial
Purchaser.
Dated:
--------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By: ----------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
EXHIBIT 4.6
GUARANTEE AGREEMENT
Between
UNITED COMMUNITY BANKS, INC.
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Guarantee Trustee)
dated as of
July 20, 1998
UNITED COMMUNITY CAPITAL TRUST
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Guarantee Agreement
Act Section Section
----------- -------
Section 310 (a) (1)...................... 4.1 (a)
(a) (2)...................... 4.1 (a)
(a) (3)...................... Not Applicable
(a) (4)...................... Not Applicable
(b).......................... 2.8, 4.1 (c)
Section 311 (a).......................... Not Applicable
(b).......................... Not Applicable
Section 312 (a).......................... 2.2 (a)
(b).......................... 2.2 (b)
(c).......................... Not Applicable
Section 313 (a).......................... 2.3
(a) (4)...................... 2.3
(b).......................... 2.3
(c).......................... 2.3
(d).......................... 2.3
Section 314 (a).......................... 2.4
(b).......................... 2.4
(c) (1)...................... 2.5
(c) (2)...................... 2.5
(c) (3)...................... 2.5
(e).......................... 1.1, 2.5, 3.2
Section 315 (a).......................... 3.1 (d)
(b).......................... 2.7
(c).......................... 3.1 (c)
(d).......................... 3.1 (d)
(e).......................... Not Applicable
Section 316 (a).......................... 1.1, 2.6, 5.4
(a) (1) (A).................. 5.4
(a) (1) (B).................. 5.4
(a) (2)...................... Not Applicable
(b).......................... 5.3
(c).......................... Not Applicable
Section 317 (a) (1)...................... Not Applicable
(a) (2)...................... Not Applicable
(b).......................... Not Applicable
Section 318 (a).......................... 2.1
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Guarantee Agreement.
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS......................................................2
SECTION 1.1. DEFINITIONS...............................................2
ARTICLE II. TRUST INDENTURE ACT.............................................5
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION..........................5
SECTION 2.2. LIST OF HOLDERS...........................................6
SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE..........................6
SECTION 2.4. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE.................6
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT..........7
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.................................7
SECTION 2.7. EVENT OF DEFAULT; NOTICE..................................7
SECTION 2.8. CONFLICTING INTERESTS.....................................8
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE.............8
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE................8
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE......................10
SECTION 3.3 COMPENSATION.............................................11
SECTION 3.4. INDEMNITY................................................12
ARTICLE IV. GUARANTEE TRUSTEE..............................................12
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY...........................12
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE......................................12
ARTICLE V. GUARANTEE........................................................13
SECTION 5.1. GUARANTEE................................................13
SECTION 5.2. WAIVER OF NOTICE AND DEMAND..............................14
SECTION 5.3. OBLIGATIONS NOT AFFECTED.................................14
SECTION 5.4. RIGHTS OF HOLDERS........................................15
SECTION 5.5. GUARANTEE OF PAYMENT.....................................15
SECTION 5.6. SUBROGATION..............................................16
SECTION 5.7. INDEPENDENT OBLIGATIONS..................................16
ARTICLE VI. COVENANTS AND SUBORDINATION....................................16
SECTION 6.1. SUBORDINATION............................................16
SECTION 6.2. PARI PASSU GUARANTEES....................................16
ARTICLE VII. TERMINATION...................................................17
SECTION 7.1. TERMINATION..............................................17
ARTICLE VIII. MISCELLANEOUS................................................17
SECTION 8.1. SUCCESSORS AND ASSIGNS...................................17
SECTION 8.2. AMENDMENTS...............................................17
SECTION 8.3. NOTICES..................................................18
SECTION 8.4. BENEFIT..................................................19
SECTION 8.5. INTERPRETATION...........................................19
SECTION 8.6. GOVERNING LAW............................................20
SECTION 8.7. COUNTERPARTS.............................................20
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of July 20, 1998, is executed and
delivered by UNITED COMMUNITY BANKS, INC., a Georgia bank holding company (the
"Guarantor") having its principal office at 59 Highway 515, Blairsville, Georgia
30512, and THE CHASE MANHATTAN BANK, a New York banking corporation, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Capital Securities (as defined herein) of United
Community Capital Trust, a Delaware statutory business trust (the "Issuer
Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of July 20, 1998, among United Community Banks,
Inc., as Depositor, The Chase Manhattan Bank, as Property Trustee (the "Property
Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee (the "Delaware
Trustee") (collectively, the "Issuer Trustees") and the Holders from time to
time of undivided beneficial ownership interests in the assets of the Issuer
Trust, the Issuer Trust is issuing $21,000,000 aggregate Liquidation Amount (as
defined herein) of its 8.125% Capital Securities, Liquidation Amount $1,000 per
capital security (the "Capital Securities"), representing preferred undivided
beneficial ownership interests in the assets of the Issuer Trust and having the
terms set forth in the Trust Agreement;
WHEREAS, the Capital Securities will be issued by the Issuer Trust
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer Trust's Common Securities (as defined herein), will be used to purchase
the 8.125% Junior Subordinated Deferrable Interest Debentures due July 15, 2028
(the "Junior Subordinated Debentures") of the Guarantor which will be deposited
with The Chase Manhattan Bank, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Capital Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of the Capital
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, and intending to be legally bound hereby, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders from time to time of the Capital Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement as in effect on the date hereof.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" AND "CONTROLLED" have meanings correlative to the
foregoing.
"CAPITAL SECURITIES" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"COMMON SECURITIES" means the securities representing common
undivided beneficial interests in the assets of the Issuer Trust.
"DISTRIBUTIONS" means preferential cumulative cash distributions
accumulating from July 20, 1998 and payable semiannually in arrears on January
15 and July 15 of each year, commencing January 15, 1999, at an annual rate of
8.125% of the Liquidation Amount.
"EVENT OF DEFAULT" means (i) a default by the Guarantor in any of
its payment obligations under this Guarantee Agreement, or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"GUARANTEE AGREEMENT" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time, (ii) the
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Redemption Price, with respect to the Capital Securities called for redemption
by the Issuer Trust to the extent that the Issuer Trust shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
termination, winding-up or liquidation of the Issuer Trust, unless the Junior
Subordinated Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and unpaid Distributions
to the date of payment to the extent the Issuer Trust shall have funds on hand
available to make such payment at such time and (b) the amount of assets of the
Issuer Trust remaining available for distribution to Holders on liquidation of
the Issuer Trust (in either case, the "LIQUIDATION DISTRIBUTION").
"GUARANTEE TRUSTEE" means The Chase Manhattan Bank, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"GUARANTOR" shall have the meaning specified in the first paragraph
of this Guarantee Agreement.
"HOLDER" means any holder, as registered on the books and records of
the Issuer Trust, of any Capital Securities; PROVIDED, HOWEVER, that, in
determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"INDENTURE" means the Junior Subordinated Indenture dated
as of July 20, 1998, between United Community Banks, Inc. and The Chase
Manhattan Bank, as trustee, as may be modified, amended or supplemented
from time to time.
"ISSUER TRUST" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"LIKE AMOUNT" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Capital Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
Junior Subordinated Debentures to Holders of Trust Securities in connection with
a dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.
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"LIQUIDATION AMOUNT" means the stated amount of $1,000 per
Capital Security.
"MAJORITY IN LIQUIDATION AMOUNT OF THE CAPITAL SECURITIES" means,
except as provided by the Trust Indenture Act, Capital Securities representing
more than 50% of the aggregate Liquidation Amount of all then outstanding
Capital Securities issued by the Issuer Trust.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chief
Executive Officer, President, Executive Vice President or a Senior Vice
President or Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
(other than pursuant to Section 2.4) shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"REDEMPTION DATE" means, with respect to any Capital Security to be
redeemed, the date fixed for such redemption by or pursuant to the Trust
Agreement; provided that each Junior Subordinated Debenture Redemption Date and
the stated maturity of the Junior Subordinated Debentures shall be a Redemption
Date for a Like Amount of Capital Securities.
-4-
"REDEMPTION PRICE" shall have the meaning specified in the
Trust Agreement.
"RESPONSIBLE OFFICER" means, when used with respect to the Guarantee
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary, Senior Trust Officer, Trust Officer or any other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Guarantee Agreement, and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"SENIOR INDEBTEDNESS" shall have the meaning specified in
the Indenture.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"TRUST AGREEMENT" means the Amended and Restated Trust Agreement,
dated as of July 20, 1998, executed by United Community Banks, Inc., as
Depositor, Chase Manhattan Bank Delaware, as Delaware Trustee, and The Chase
Manhattan Bank, as Property Trustee.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
(15 U.S.C. ss.ss. 77aaa-77bbbb), as amended.
"TRUST SECURITIES" means the Common Securities and the
Capital Securities.
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
This Guarantee Agreement is intended to be in conformity with the
provisions of the Trust Indenture Act that would be required to be part of this
Guarantee Agreement were this Guarantee Agreement to be qualified under the
Trust Indenture Act and shall, to the extent applicable, be governed by such
provisions. If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the
-5-
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Guarantee Agreement, the provision of
the Trust Indenture Act shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Guarantee Agreement as so modified or to be excluded, as the case may be.
SECTION 2.2. LIST OF HOLDERS.
(a) The Guarantor will furnish or cause to be furnished to the
Guarantee Trustee a list of Holders at the following times:
(i) semiannually, not more than 15 days after December 31 and
June 30 in each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders as of such
December 31 and June 30; and
(ii) at such other times as the Guarantee Trustee may request
in writing, within 30 days after the receipt by the Guarantor of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided that the Guarantor shall not
be obligated to provide such a list at any time such list does not differ from
the most recent list of holders given to the Guarantee Trustee by the Guarantor.
(b) The Guarantee Trustee shall comply with the requirements of
Section 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE.
Not later than 60 days after May 15 of each year, commencing May 15,
1999 the Guarantee Trustee shall provide to the Holders such reports dated as of
such May 15, 1999, if any, as are required by Section 313 of the Trust Indenture
Act in the form and in the manner provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE.
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The Guarantor shall provide to the Guarantee Trustee, and the
Holders such documents, reports and information, if any, as required by Section
314 of the Trust Indenture Act and the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act, in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders, waive any past Event of Default and
its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent therefrom.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the Guarantee
Trustee has actual knowledge of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notice of all Events of Default actually
known to the Guarantee Trustee, unless such Events of Default have been cured
before the giving of such notice; PROVIDED THAT, except in the case of a default
in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected
in withholding such notice if and so long as the Board of Directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless a Responsible Officer charged with the
administration of this Guarantee Agreement shall have received written notice
from the Guarantor or a Holder of such Event of Default.
-7-
SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee hereunder. The right, title and interest of the
Guarantee Trustee, as such, hereunder shall automatically vest in any Successor
Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its
appointment hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to the Guarantee Trustee
has occurred and is continuing, the Guarantee Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall be obligated to perform only such duties as are specifically set forth in
this Guarantee Agreement (including pursuant to Section 2.1), and no implied
covenants shall be read into this Guarantee Agreement against the Guarantee
Trustee. If an Event of Default has occurred that is actually known to the
Guarantee Trustee (that has not been cured or waived pursuant to Section 2.6),
the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
-8-
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the express provisions of this
Guarantee Agreement (including pursuant to Section 2.1), and the Guarantee
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee Agreement (including
pursuant to Section 2.1); and
(B) in the absence of bad faith on the part of
the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee Agreement; but in the case of
any such certificates or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Guarantee
Agreement;
(ii) The Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) The Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in Liquidation
Amount of the Capital Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
(iv) No provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers if the Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or liability
is not assured to it under the terms of this Guarantee
-9-
Agreement or adequate indemnity against such risk or liability is not reasonably
assured to it.
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the advice or written opinion of such legal counsel with respect to legal
matters shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such legal counsel may be legal
counsel to the Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement from any
court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee.
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(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any negligence or willful misconduct on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request instructions from the Holders
of a Majority in Liquidation Amount of the Capital Securities, (B) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received and (C) shall be fully protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3 COMPENSATION.
The Guarantor agrees to pay to the Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Guarantee Trustee in accordance with any provision of
this Guarantee Agreement.
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SECTION 3.4. INDEMNITY.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the Guarantee
Trustee, arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee will
not claim or exact any lien or charge on any Guarantee Payments as a result of
any amount due to it under this Guarantee Agreement.
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE
GUARANTEE TRUSTEE.
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(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the Successor Guarantee
Trustee by written instrument executed by the Successor Guarantee Trustee and
delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee
Trustee may resign at any time by giving written notice thereof to the Guarantor
and the Holders. If the instrument of acceptance by the Successor Guarantee
Trustee shall not have been delivered to the Guarantee Trustee within 60 days
after the giving of such notice of resignation, the Guarantee Trustee may
petition, at the expense of the Guarantor, any court of competent jurisdiction
for the appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any time by
Act (within the meaning of Section 6.8 of the Trust Agreement) of the Holders of
at least a Majority in Liquidation Amount of the Capital Securities, delivered
to the Guarantee Trustee, or with or without cause, by the Guarantor at any time
except during an Event of Default.
(d) If a Guarantee Trustee shall resign, be removed or become
incapable of acting as Guarantee Trustee, or if any vacancy shall occur in the
office of any Guarantee Trustee for any cause, the Guarantor shall appoint a
successor Guarantee Trustee. If no Successor Guarantee Trustee shall have been
so appointed by the Guarantor and such appointment accepted by the Successor
Guarantee Trustee, any Holder, on behalf of himself and all others similarly
situated, may petition any court of competent jurisdiction for the appointment
of a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer
Trust may have or assert, except the defense of payment. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer Trust
to pay such amounts to the Holders. The Guarantor shall give prompt written
notice to the Guarantee Trustee in the event it makes any direct payment
hereunder.
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SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer Trust of any express or implied
agreement, covenant, term or condition relating to the Capital Securities to be
performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of all
or any portion of the Distributions (other than an extension of time for payment
of Distributions that results from the extension of any interest payment period
on the Junior Subordinated Debentures as so provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums payable under the
terms of the Capital Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the Capital
Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Capital Securities, or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer Trust or any of the
assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the
Capital Securities;
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(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor (other than
payment of the underlying obligation), it being the intent of this Section 5.3
that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. RIGHTS OF HOLDERS.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement,
PROVIDED, HOWEVER, that, subject to Section 3.1, the Guarantee Trustee shall
have the right to decline to follow any such direction if the Guarantee Trustee
being advised by counsel determines that the action so directed may not lawfully
be taken, or if the Guarantee Trustee in good faith shall, by a Responsible
Officer or Officers of the Guarantee Trustee, determine that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of the Holders not party to such direction, and
PROVIDED FURTHER that nothing in this Guarantee Agreement shall impair the right
of the Guarantee Trustee to take any action deemed proper by the Guarantee
Trustee and which is not inconsistent with such direction; and (iv) any Holder
may institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer Trust or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Junior Subordinated Debentures
to Holders as provided in the Trust Agreement.
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SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all rights (if any) of the
Holders against the Issuer Trust in respect of any amounts paid to the Holders
by the Guarantor under this Guarantee Agreement; PROVIDED, HOWEVER, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the Capital
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.1. SUBORDINATION.
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank subordinate and junior in right of payment to all
Senior Indebtedness of the Guarantor to the extent and in the manner set forth
in the Indenture with respect to the Junior Subordinated Debentures, and the
provisions of Article XIII of the Indenture will apply, MUTATIS MUTANDIS, to the
obligations of the Guarantor hereunder. The obligations of the Guarantor
hereunder do not constitute Senior Indebtedness of the Guarantor.
SECTION 6.2. PARI PASSU GUARANTEES.
The obligations of the Guarantor under this Guarantee Agreement
shall rank PARI PASSU with any similar guarantee agreements issued by the
Guarantor on behalf
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of the holders of preferred or capital securities issued by any other trust
similar to the Issuer Trust and with any other security, guarantee or other
obligation that is expressly stated to rank PARI PASSU with the obligations of
the Guarantor under this Guarantee Agreement.
ARTICLE VII. TERMINATION
SECTION 7.1. TERMINATION.
This Guarantee Agreement shall terminate and be of no further force
and effect upon (i) full payment of the Redemption Price of all Capital
Securities, (ii) the distribution of Junior Subordinated Debentures to the
Holders in exchange for all of the Capital Securities, (iii) full payment of the
amounts payable in accordance with Article IX of the Trust Agreement upon
liquidation of the Issuer Trust, or (iv) the exchange of this Guarantee
Agreement for the Exchange Guarantee Agreement, provided, that, all Private
Capital Securities shall have been exchanged for Exchange Capital Securities
pursuant to the Exchange Offer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder is required to restore payment of any sums paid
under the Capital Securities or this Guarantee Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder, and any purported assignment that is not in accordance
with these provisions shall be void.
SECTION 8.2. AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this
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Guarantee Agreement may only be amended with the prior approval of the Holders
of not less than a Majority in Liquidation Amount of the Capital Securities. The
provisions of Article VI of the Trust Agreement concerning meetings or consents
of the Holders shall apply to the giving of such approval.
SECTION 8.3. NOTICES.
Any notice, request or other communication required or permitted to
be given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied with receipt confirmed, or mailed by first
class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address or telecopy number or to the attention of such
other Person as the Guarantor may give notice to the Guarantee Trustee and the
Holders:
United Community Banks, Inc.
59 Highway 515
Blairsville, Georgia 30512
Facsimile No.: (706) 745-8619
Attention: Christopher J. Bledsoe
(b) if given to the Issuer Trust at the Issuer Trust's (and the
Guarantee Trustee's) address or telecopy number set forth below or such other
address or telecopy number or to the attention of such other Person as the
Issuer Trust or the Guarantee Trustee may give notice to the Guarantee Trustee
(if given by the Issuer Trust) and the Holders:
United Community Capital Trust
c/o United Community Banks, Inc.
59 Highway 515
Blairsville, Georgia 30512
Facsimile No.: (706) 745-8619
Attention: Christopher J. Bledsoe
with a copy to:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Facsimile No.: (212) 946-8160
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Attention: Corporate Trustee Administration
(c) if given to the Guarantee Trustee, to the address or telecopy
number set forth below or such other address or telecopy number or to the
attention of such other Person as the Guarantee Trustee may give notice to the
Guarantor and the Holders:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Facsimile No.: (212) 946-8160
Attention: Corporate Trustee Administration
(d) if given to any Holder, at the address set forth on the books
and records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 8.4. BENEFIT.
This Guarantee Agreement is solely for the benefit of the Holders
and is not separately transferable from the Capital Securities.
SECTION 8.5. INTERPRETATION.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
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(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.6. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 8.7. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above written.
UNITED COMMUNITY BANKS, INC.
as Guarantor
By: /s/Jimmy C. Tallent
---------------------
Name: Jimmy C. Tallent
Title: President
THE CHASE MANHATTAN BANK,
as Guarantee Trustee, and not
in its individual capacity
By: /s/William G. Keenan
---------------------
Name: William G. Keenan
Title: Trust Officer
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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
DATED JULY 20, 1998
AMONG
UNITED COMMUNITY BANKS, INC.
UNITED COMMUNITY CAPITAL TRUST
AND
WHEAT FIRST SECURITIES, INC.
AS INITIAL PURCHASER
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of July 20, 1998 among UNITED COMMUNITY BANKS, INC., a registered bank
holding company organized under the laws of the State of Georgia (the
"Company"), UNITED COMMUNITY CAPITAL TRUST, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), and WHEAT FIRST
SECURITIES, INC. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated July 15,
1998 (the "Purchase Agreement"), among the Company, as issuer of the 8.125%
Junior Subordinated Deferrable Interest Debentures due July 15, 2028 (the
"Junior Subordinated Debentures"), the Issuer Trust and the Initial Purchaser,
which provides for among other things, the sale by the Issuer Trust to the
Initial Purchaser of 21,000 of the Issuer Trust's 8.125% Capital Securities,
liquidation amount $1,000 per Capital Security (the "Capital Securities"), the
proceeds of which will be used by the Issuer Trust to purchase the Junior
Subordinated Debentures. The Capital Securities, together with the Junior
Subordinated Debentures and the Company's guarantee of the Capital Securities
(the "Guarantee") are collectively referred to as the "Securities." In order to
induce the Initial Purchaser to enter into the Purchase Agreement, the Company
and the Issuer Trust have agreed to provide to the Initial Purchaser and its
direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"ADVICE" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"APPLICABLE PERIOD" shall have the meaning set forth in Section
3(t) hereof.
"BUSINESS DAY" shall mean a day that is not a Saturday, a Sunday, or a day
on which banking institutions in New York, New York or in Atlanta, Georgia, are
authorized or required to be closed.
"CLOSING TIME" shall mean the Closing Time as defined in the
Purchase Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Issuer Trust; PROVIDED, HOWEVER, that such
depositary must have an address in the Borough of Manhattan, in the City of New
York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 2(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"EXCHANGE OFFER" shall mean the offer by the Company and the Issuer Trust
to the Holders to exchange all of the Registrable Securities (other than Private
Exchange Securities) for a like principal amount of Exchange Securities pursuant
to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such Registration Statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section
2(a) hereof.
"EXCHANGE SECURITIES" shall mean (i) with respect to the Junior
Subordinated Debentures, the 8.125% New Junior Subordinated Deferrable Interest
Debentures due July 15, 2028 (the "New Junior Subordinated Debentures")
containing terms substantially identical to the Junior Subordinated Debentures
(except that they will not contain terms with respect to the transfer
restrictions under the Securities Act (other than to require minimum transfers
thereof to be in blocks of $100,000 principal amount) and will not provide for
any liquidated damages thereon), (ii) with respect to the Capital Securities,
the Issuer Trust's 8.125% New Capital Securities, liquidation amount $1,000 per
Capital Security (the "New Capital Securities") which will have terms
substantially identical to the Capital Securities (except that they will not
contain terms with respect to transfer restrictions under the Securities Act
(other than require minimum transfers thereof to be in blocks of $100,000
liquidation amount) and will not provide for any increase in the distribution
rate thereon) and (iii) with respect to the Guarantee, the Company's guarantee
(the "New Guarantee") of the New Capital Securities which will have terms
substantially identical to the Guarantee.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become
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registered owners of Registrable Securities under the Indenture or the Trust
Agreement. In the event of a Shelf Registration Statement, references to selling
Holders (including, without limitation, the requirement that a Holder provide
certain information to the Company and the Issuer Trust) will include beneficial
owners of Registrable Securities to the extent necessary and appropriate.
"INDENTURE" shall mean the Junior Subordinated Indenture dated as of July
20, 1998 relating to the Junior Subordinated Debentures and the New Junior
Subordinated Debentures between the Company, as issuer, and The Chase Manhattan
Bank, as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"INITIAL PURCHASER" shall have the meaning set forth in the
preamble to this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 3(n)
hereof.
"ISSUE DATE" shall mean the date of original issuance of the
Securities.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
2(e) hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
liquidation amount of outstanding Capital Securities.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 3(t) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section
2(a) hereof.
"PRIVATE EXCHANGE SECURITIES" shall have the meaning set forth in Section
2(a) hereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
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"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble to this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(n) hereof.
"REGISTRABLE SECURITIES" shall mean the Securities and, if issued, the
Private Exchange Securities; PROVIDED, HOWEVER, that the Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities (i) when a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
exchanged or disposed of pursuant to such Registration Statement by a person
other than a Participating Broker-Dealer, (ii) following the exchange by a
Participating Broker-Dealer in the Exchange Offer of a Security for an Exchange
Security, the date on which such Exchange Security is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement, as
amended or supplemented, (iii) when such Securities or Private Exchange
Securities, as the case may be, shall have been sold to the public pursuant to
Rule 144 or are eligible for sale pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the Securities Act, or (iv)
when such Securities or Private Exchange Securities, as the case may be, shall
have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all Commission or National Association of Securities
Dealers, Inc. (the "NASD") registration and filing fees, including, if
applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities) and compliance with the rules of
the NASD, (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing the Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
(v) the fees and disbursements of counsel for the Company and of the independent
certified public accountants of the Company, including the expenses of any "cold
comfort" letters required by or incident to such performance and compliance,
(vi) the fees and expenses of the Trustee, and any exchange agent or custodian,
(vii) all fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities on any
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securities exchange or exchanges, and (viii) the reasonable fees and expenses of
any special experts retained by the Company in connection with the Registration
Statement.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and the Issuer Trust which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"RULE 144(K) PERIOD" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SECURITIES" shall have the meaning set forth in the preamble to
this Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION EVENT" shall have the meaning set forth in Section
2(b) hereof.
"SHELF REGISTRATION EVENT DATE" shall have the meaning set forth in
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf registration" statement
of the Company and the Issuer Trust pursuant to the provisions of Section 2(b)
hereof which covers all of the Registrable Securities or all of the Private
Exchange Securities, as the case may be, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
Commission, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"TRUST AGREEMENT" shall mean the Amended and Restated Trust Agreement,
dated as of July 20, 1998, by the trustees named therein, the Company as
depositor and the holders from time to time of undivided beneficial interests in
the assets of the Issuer Trust.
"TRUSTEES" shall mean any and all trustees with respect to (i) the Capital
Securities under the Trust Agreement, (ii) the Junior Subordinated Debentures
under the Indenture and (iii) the Guarantee.
-5-
2. Registration Under the Securities Act.
(a) EXCHANGE OFFER. To the extent not prohibited by any applicable
law or applicable interpretation of the staff of the Commission, the Company and
the Issuer Trust shall use their respective best efforts, for the benefit of the
Holders, at the Company's cost, (i) to cause to be filed with the Commission as
soon as practicable after the Issue Date, but in no event later than 150 days
after the Issue Date, an Exchange Offer Registration Statement on an appropriate
form under the Securities Act covering the Exchange Offer, (ii) to cause such
Exchange Offer Registration Statement to be declared effective under the
Securities Act by the Commission not later than the date which is 180 days after
the Issue Date, and (iii) to keep such Exchange Offer Registration Statement
effective for not less than 30 Business Days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders. Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Issuer Trust shall promptly commence the Exchange Offer and
use their respective best efforts to enable each Holder eligible and electing to
exchange Registrable Securities for a like principal amount of New Junior
Subordinated Debentures or a like liquidation amount of New Capital Securities,
together with the New Guarantee, as applicable (assuming that such Holder is not
an affiliate of the Company within the meaning of Rule 405 under the Securities
Act and is not a broker-dealer tendering Registrable Securities acquired
directly from the Company for its own account, acquires the Exchange Securities
in the ordinary course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Company and the Issuer
Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period
of not less than 30 Business Days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange
Offer;
-6-
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, 5:00 p.m., New York City time, on the
last Business Day of the Exchange Period, by, including without
limitation, sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Securities delivered for exchange,
and a statement that such Holder is withdrawing his election to have such
Securities exchanged;
(v) notify each Holder that any Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to
accrue interest or accumulate distributions, as the case may be, but will
not retain any rights under this Agreement (except in the case of the
Initial Purchaser and Participating Broker-Dealers as provided herein);
and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside counsel
that it is not eligible to participate in the Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment in the
initial distribution, as soon as practicable upon receipt by the Company and the
Issuer Trust of a written request from such Initial Purchaser, the Company and
the Issuer Trust, as applicable, shall issue and deliver to such Initial
Purchaser in exchange (the "Private Exchange") for the Securities held by such
Initial Purchaser, a like liquidation amount of New Capital Securities of the
Issuer Trust, together with the New Guarantee, or a like principal amount of the
Junior Subordinated Debentures of the Company, as applicable, that are identical
(except that such securities may bear a customary legend with respect to
restrictions on transfer pursuant to the Securities Act) to the Exchange
Securities (the "Private Exchange Securities") and which are issued pursuant to
the Indenture, the Trust Agreement or the Guarantee (which provides that the
Exchange Securities will not be subject to the transfer restrictions set forth
in the Indenture or the Trust Agreement, as applicable (other than to require
minimum transfers thereof to be in blocks of $100,000 principal amount or
liquidation amount, as the case may be), and that the Exchange Securities, the
Private Exchange Securities and the Securities will vote and consent together on
all matters as one class and that neither the Exchange Securities, the Private
Exchange Securities nor the Securities will have the right to vote or consent as
a separate class on any matter). The Private Exchange Securities shall be of the
same series as the Exchange Securities and the Company and the Issuer Trust
will, to the extent permitted, seek to cause the CUSIP Service Bureau to issue
the same CUSIP Numbers for the Private Exchange Securities as for the Exchange
Securities issued pursuant to the Exchange Offer.
-7-
As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Company and the Issuer Trust, as the case
requires, shall:
(i) accept for exchange all Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee
for cancellation all Securities or portions thereof so accepted for
exchange by the Company; and
(iii) issue, and cause the applicable Trustee under the Indenture,
the Trust Agreement or the Guarantee, as applicable, to promptly
authenticate and deliver to each Holder, new Exchange Securities or
Private Exchange Securities, as applicable, equal in principal amount to
the principal amount of the Junior Subordinated Debentures or equal in
liquidation amount to the liquidation amount to the Capital Securities
(together with the guarantee thereof) as are surrendered by such Holder.
Distributions on each New Capital Security and interest on each New Junior
Subordinated Debenture issued pursuant to the Registered Exchange Offer and
Distributions or interest, as the case may be, on each Private Exchange Security
issued in the Private Exchange will accrue from the last date on which a
Distribution or interest was paid on the Capital Security or the Junior
Subordinated Debenture surrendered in exchange therefore or, if no Distribution
or interest has been paid on such Capital Security or Junior Subordinated
Debenture, from the Issue Date. To the extent not prohibited by any law or
applicable interpretation of the staff of the Commission, the Company and the
Issuer Trust shall use their best efforts to complete the Exchange Offer as
provided above, and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission. Each Holder of
Registrable Securities who wishes to exchange such Registrable Securities for
Exchange Securities in the Exchange Offer will be required to make certain
customary representations in connection therewith, including, in the case of any
Holder of Capital Securities, representations that (i) it is not an affiliate of
the Issuer Trust or the Company, (ii) the Exchange Securities to be received by
it were acquired in the ordinary course of its business and (iii) at the time of
the Exchange Offer, it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the New Capital
Securities. The Company and the Issuer Trust shall inform the Initial Purchaser,
after consultation with the Trustee, of the names and addresses of the Holders
to whom the Exchange Offer is made, and the Initial Purchaser shall have the
right to contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
-8-
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company and the Issuer Trust shall have no further
obligation to register the Registrable Securities (other than Private Exchange
Securities) pursuant to Sections 2(a) or 2(b) of this Agreement.
(b) SHELF REGISTRATION. In the event that: (i) the Company, the
Issuer Trust or the Majority Holders reasonably determine, after conferring with
counsel, that the Exchange Offer Registration provided in Section 2(a) above is
not available because of any change in law or in currently prevailing
interpretations of the staff of the Commission; (ii) the Company has received an
opinion of counsel, rendered by a law firm having a recognized national tax
practice, to the effect that, as a result of the consummation of the Exchange
Offer, there is more than an insubstantial risk that (x) the Issuer Trust would
be subject to United States federal income tax with respect to income received
or accrued on the Junior Subordinated Debentures or New Junior Subordinated
Debentures, (y) interest payable by the Company on such Junior Subordinated
Debentures or New Junior Subordinated Debentures would not be deductible by the
Company, in whole or in part, for United States federal income tax purposes, or
(z) the Issuer Trust would be subject to more than a de minimis amount of other
taxes, duties or other governmental charges; (iii) the Exchange Offer
Registration Statement is not declared effective within 180 days of the Issue
Date; or (iv) upon notice from any Holder on or before the 20th day following
the consummation of the Exchange Offer that (A) it is prohibited by law or
Commission policy from participating in the Exchange Offer, (B) it may not
resell the New Capital Securities, the New Guarantee and the New Junior
Subordinated Debentures acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales or (C) it is a broker-dealer and owns Capital Securities acquired
directly from the Issuer Trust or an affiliate of the Issuer Trust, (any of the
events specified in clauses (i) through (iv) being a "Shelf Registration Event"
and the date of occurrence thereof, the "Shelf Registration Event Date"), the
Company and the Issuer Trust shall, at their cost, use their respective best
efforts to cause to be filed as promptly as practicable after such Shelf
Registration Event Date, as the case may be, and, in event, within 45 days after
such Shelf Registration Event Date, a Shelf Registration Statement providing for
the sale by the Holders of all of the Registrable Securities, and shall use
their respective best efforts to have such Shelf Registration Statement declared
effective by the Commission as soon as practicable. No Holder of Registrable
Securities shall be entitled to include any of its Registrable Securities in any
Shelf Registration pursuant to this Agreement unless and until such Holder
agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company and the Issuer Trust in
writing, within 20 days after receipt of a request therefor, such information as
the Company and the Issuer Trust may, after conferring with counsel with regard
to information relating to Holders
-9-
that would be required by the Commission to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request for
inclusion in the Shelf Registration Statement or Prospectus included therein.
Each selling Holder as to which any Shelf Registration is being effected agrees
to furnish to the Company and the Issuer Trust all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
The Company and the Issuer Trust agree to use their respective best
efforts to keep the Shelf Registration Statement continuously effective for the
Rule 144(k) Period (subject to extension pursuant to the last paragraph of
Section 3 hereof) or for such shorter period which will terminate when all of
the Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be outstanding
(the "Effectiveness Period"). The Company and the Issuer Trust shall not permit
any securities other than Registrable Securities to be included in the Shelf
Registration. The Company and the Issuer Trust will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement, notify each such Holder when the Shelf Registration has
become effective and use their respective best efforts to take certain other
actions as are required to permit certain unrestricted resales of the
Registrable Securities. The Company and the Issuer Trust further agree, if
necessary, to supplement or amend the Shelf Registration Statement, if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or by the Securities
Act or by any other rules and regulations thereunder for shelf registrations,
and the Company and the Issuer Trust agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the Commission.
(c) HOLDBACK AGREEMENT; POSTPONEMENT. The Company and the Issuer
Trust shall be entitled to cause the Shelf Registration Statement to be
withdrawn and the effectiveness thereof to be terminated and shall be entitled
to cause any Participating Broker-Dealers who have notified the Company and the
Issuer Trust that they will be utilizing the Prospectus contained in the
Exchange Offer Registration Statement as provided in Section 3(t) hereof to
suspend the use of the Prospectus, for a reasonable period of time, but not in
excess of 30 days during any twelve (12) month period, if the Board of Directors
of the Company determines in good faith that the registration and distribution
of the Securities covered by the Exchange Offer Registration Statement or
covered or to be covered by the Shelf Registration Statement would require
premature disclosure by the Company of any material corporate development
(including potential material business combination and merger and acquisition
transactions) affecting the Company and the Company promptly gives the Holders
of Registrable Securities and any Participating Broker-Dealers written notice of
such determination, containing a general statement of the reasons for such
postponement or withdrawal and an approximation of the period of the
-10-
anticipated delay; PROVIDED, HOWEVER, that (i) the Holders of Registrable
Securities and any Participating Broker-Dealers will not disclose the
information contained in such statement and will not buy or sell shares of any
publicly traded class of the Company's capital stock until such information is
publicly disclosed by the Company and (ii) the Company may not utilize this
right more than twice in any twelve (12) month period.
(d) EXPENSES. The Company, as issuer of the Junior Subordinated
Debentures, shall pay all Registration Expenses in connection with any
Registration Statement pursuant to Section 2(a) or 2(b) hereof and will
reimburse the Initial Purchaser for the reasonable fees and disbursements of
Alston & Bird LLP, counsel for the Initial Purchaser, incurred in connection
with the Exchange Offer and, if applicable, the Private Exchange, and either
Alston & Bird LLP or any one other counsel designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable Securities in
connection with a Shelf Registration Statement, which other counsel shall be
reasonably satisfactory to the Company. Except as provided herein, each Holder
shall pay all expenses of its counsel, underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(e) EFFECTIVE REGISTRATION STATEMENT. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) will not be deemed to have become effective unless it
has been declared effective by the Commission; PROVIDED, HOWEVER, that if, after
it has been declared effective, the offering of Registrable Securities pursuant
to a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or any other
governmental agency or court, such Registration Statement will be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume. The Company and the Issuer Trust will be deemed not to have used their
best efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if either of them voluntarily takes any action that
would result in such any Registration Statement not being declared effective or
in the Holders of Registrable Securities covered thereby not being able to
exchange or offer and sell such Registrable Securities during that period unless
such action is required by applicable law.
(f) ADDITIONAL INTEREST. In the event that:
(i) (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement is filed with the Commission on or
prior to the 150th day after the Issue Date or (B) notwithstanding
that the Company and the Issuer Trust have consummated or will
consummate an Exchange Offer, the Company and the
-11-
Issuer Trust are required to file a Shelf Registration Statement and
such Shelf Registration Statement is not filed on or prior to the
date required by Section 2(b) hereof, then commencing on the day
after the applicable required filing date, liquidated damages or
additional Distributions, as the case may be, shall accrue on the
principal or liquidation amount of the Registrable Securities to
which such default relates at a rate of 0.25% per annum; or
(ii) (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement is declared effective by the
Commission on or prior to the 180th day after the Issue Date or (B)
notwithstanding that the Company and the Issuer Trust have
consummated or will consummate an Exchange Offer, the Company and
the Issuer Trust are required to file a Shelf Registration Statement
and such Shelf Registration Statement is not declared effective by
the Commission on or prior to the 30th day after the date such Shelf
Registration Statement was required to be filed, then, commencing on
the 181st day after the Issue Date, liquidated damages or additional
Distributions, as the case may be, shall accrue on the principal or
liquidation amount of the Registrable Securities to which such
default relates at a rate of 0.25% per annum; or
(iii) (A) the Issuer Trust has not exchanged New Capital
Securities for all Capital Securities validly tendered for exchange
by their respective Holders or the Company has not exchanged the New
Guarantee or New Junior Subordinated Debentures for the Guarantee or
Junior Subordinated Debentures validly tendered, in accordance with
the terms of the Exchange Offer on or prior to the 30th day after
the date on which the Exchange Offer Registration Statement was
declared effective or (B) if applicable, the Shelf Registration
Statement has been declared effective and such Shelf Registration
Statement ceases to be effective at any time prior to the expiration
of the Rule 144(k) Period (other than after such time as all Capital
Securities have been disposed of thereunder, otherwise cease to be
Registrable Securities), then liquidated damages or additional
Distributions, as the case may be, shall accrue on the principal or
liquidation amount of the Registrable Securities at a rate of 0.25%
per annum commencing on (x) the 31st day after such effective date,
in the case of (A) above, or (y) the day such Shelf Registration
Statement ceases to be effective in the case of (B) above, except as
provided in the next succeeding paragraph hereto;
PROVIDED, HOWEVER, that neither the liquidated damages nor additional
Distributions on the principal or liquidation amount of such Registrable
Securities may exceed in the aggregate 0.25% per annum; PROVIDED, FURTHER,
HOWEVER, that (1) upon the filing of the Exchange Offer Registration Statement
or a Shelf Registration Statement (in the case of clause (i) above), (2)
-12-
upon the effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), or (3) upon the
exchange of New Capital Securities, the New Guarantee and New Junior
Subordinated Debentures for all Capital Securities, the Guarantee and all Junior
Subordinated Debentures tendered (in the case of clause (iii)(A) above), or upon
the effectiveness of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iii)(B) above) liquidated damages or
additional Distributions on the principal or liquidation amount of such
Registrable Securities shall cease to accrue and accumulate.
If the Company or Issuer Trust issues a notice pursuant to Section 2(c)
hereof that the Shelf Registration Statement is unusable due to the pendency of
an announcement of a material corporate transaction, or such notice is required
under applicable securities laws to be issued by the Company or Issuer Trust,
and the aggregate number of days in any consecutive twelve-month period for
which the Shelf Registration Statement shall not be usable due to all such
notices issued or required to be issued exceeds 30 days in the aggregate, then
the interest rate borne by the Securities will be increased as described above
beginning on the 31st such date that such Shelf Registration Statement ceases to
be usable. Upon the Shelf Registration Statement once again becoming usable, the
interest rate borne by the Securities will be reduced to the original interest
rate if the Company or Issuer Trust is otherwise in compliance with this
Agreement as such time.
Any amounts of liquidated damages and additional distributions due
pursuant to Section 2(f)(i), (ii) or (iii) above ("Liquidated Damages"), will be
payable in cash on the next succeeding January 15 or July 15 , as the case may
be, to Holders on the relevant record dates for the payment of interest and
distributions pursuant to the Indenture and the Trust Agreement, respectively.
(g) SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Holders, the Company and the Issuer Trust acknowledge that any failure by
the Company or the Issuer Trust to comply with its obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Issuer Trust's obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company and the Issuer Trust with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company and the Issuer Trust
shall:
-13-
(a) prepare and file with the Commission a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period specified in Section 2 hereof on the appropriate form
under the Securities Act, which form (i) shall be selected by the Company and
the Issuer Trust, (ii) shall, in the case of a Shelf Registration, be available
for the sale of the Registrable Securities by the selling Holders thereof and,
in the case of an Exchange Offer, be available for the exchange of the
Registrable Securities, and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include all financial
statements required by the Commission to be filed therewith; and use their best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof, PROVIDED, HOWEVER, that if (1)
such filing is pursuant to Section 2(b), or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company and the Issuer
Trust shall furnish to and afford the Holders of the Registrable Securities and
each Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity, which shall be no less than five business days, to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed. The Company and the Issuer Trust shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto in respect of
which the Holders or Participating Broker-Dealers must be afforded an
opportunity to review prior to the filing of such document if the Majority
Holders or such Participating Broker-Dealer, as the case may be, their counsel
or the managing underwriters, if any, shall reasonably object within five
business days after receipt thereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be; and cause each Prospectus to be
supplemented, if so determined by the Company or the Issuer Trust or requested
by the Commission, by any required prospectus supplement and as so supplemented
to be filed pursuant to Rule 424 (or any similar provision then in force) under
the Securities Act, and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder applicable to
it with respect to the disposition of all securities covered by each
Registration Statement during the Effectiveness Period or the Applicable Period,
as the case may be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
-14-
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such Holder
that the distribution of Registrable Securities will be made in accordance with
the method selected by the Majority Holders; and (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; and (iii)
consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions by the time the applicable Registration Statement is
declared effective by the Commission as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request in writing in
advance of such date of effectiveness, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; PROVIDED, HOWEVER, that the Company
and the Issuer Trust shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(e) in the case of (1) a Shelf Registration or (2) Participating
Broker-Dealers from whom the Company or the Issuer Trust has received prior
written notice that they will be utilizing the Prospectus contained in the
Exchange Offer Registration Statement as provided in Section 3(t) hereof, are
seeking to sell Exchange Securities and are required to deliver Prospectuses,
notify each Holder of Registrable Securities or such Participating
Broker-Dealers, as the case may be, covered by the Registration Statement, their
counsel and the managing underwriters, if any, promptly and promptly confirm
such notice in writing (i) when a Registration Statement has become effective
and when any post-effective amendments and supplements thereto become effective,
(ii) of any request by the Commission or any state securities authority for
amendments and supplements to a Registration Statement or Prospectus or for
additional information after the Shelf Registration Statement has become
effective, (iii) of
-15-
the issuance by the Commission or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the
qualification of the Registrable Securities or the Exchange Securities to be
offered or sold by the Participating Broker-Dealer in any jurisdiction described
in paragraph 3(d) hereof or the initiation of any proceedings for that purpose,
(iv) of the happening of any event or the failure of any event to occur or the
discovery of any facts or otherwise, during the Effectiveness Period which makes
any statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (v) the Company and the Issuer Trust's reasonable determination
that a post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible time;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included within the coverage of such Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and in such denominations (consistent with the
provisions of the Indenture and the Trust Agreement) and registered in such
names as the selling Holders or the underwriters may reasonably request at least
two Business Days prior to the closing of any sale of Registrable Securities
pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best efforts to prepare
a supplement or post-effective amendment to such Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event;
-16-
(j) in the case of a Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the selling Holders; and make such of the representatives of the Company and
the Issuer Trust as shall be reasonably requested by such Holders of Registrable
Securities or the Initial Purchaser on behalf of such Holders available for
discussion of such document;
(k) obtain a CUSIP number for all New Capital Securities and the
Capital Securities (and if the Issuer Trust has made a distribution of the
Junior Subordinated Debentures or New Junior Subordinated Debentures to the
Holders of the Capital Securities, the Junior Subordinated Debentures), not
later than the effective date of an Exchange Offer Registration Statement, and
provide the Trustee with printed certificates for the Exchange Securities or the
Registrable Securities in a form eligible for deposit with the Depositary;
(1) cause the Indenture, the Trust Agreement, the Guarantee, and the
New Guarantee to be qualified under the Trust Indenture Act of 1939 (the "TIA")
in connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, and effect such changes to such documents as may
be required for them to be so qualified in accordance with the terms of the TIA
and execute, and use its best efforts to cause the relevant trustee to execute,
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the Commission to enable such documents to
be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions as are reasonably requested in order
to expedite or facilitate the registration or the disposition of such
Registrable Securities, and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration, if requested by (x) the Initial Purchaser, in the case where such
Initial Purchaser holds Securities acquired by it as part of its initial
distribution and (y) other Holders of Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable Securities and the
underwriters (if any), with respect to the business of the Issuer Trust, the
Company and its subsidiaries as then conducted and the Shelf Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and the Issuer
Trust and updates thereof (which may be in the form of a reliance letter) in
form and substance reasonably satisfactory to the managing underwriters (if any)
and the Holders of a majority in principal amount of the Registrable Securities
being sold, addressed to each selling Holder and
-17-
the underwriters (if any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such underwriters (it being agreed that the matters to be covered
by such opinions may be subject to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the independent
certified public accountants of the Company and the Issuer Trust (and, if
necessary, any other independent certified public accountants of any subsidiary
of the Company and the Issuer Trust or of any business acquired by the Company
and the Issuer Trust for which financial statements and financial data are, or
are required to be, included in the Shelf Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable Securities
covered by such Shelf Registration Statement and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders). The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b),
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make reasonably available for inspection by any selling
Holder of such Registrable Securities being sold or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Securities, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours and upon request, all financial and other records, pertinent corporate
documents and properties of the Issuer Trust, the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuer Trust, the Company and its subsidiaries to
supply all relevant information in each case reasonably requested by any such
Inspector in connection with such Shelf Registration Statement PROVIDED,
HOWEVER, that the foregoing inspection and information gathering shall be
coordinated by the Initial Purchaser and, on behalf of the selling Holders of
Registrable Securities, by one counsel designated as described in Section 2(c)
hereof. Records which the Company and the Issuer Trust determine, in good faith,
to be confidential and any records which either of them notifies the Inspectors
are
-18-
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) the information in such Records has been made generally
available to the public. Each selling Holder of such Registrable Securities and
each such Participating Broker-Dealer will be required to agree in writing that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuer Trust or the Company unless and
until such is made generally available to the public. Each such selling Holder
of such Registrable Securities and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company at its expense to undertake appropriate action
to prevent disclosure of the Records deemed confidential;
(o) comply with all applicable rules and regulations of the
Commission so long as any provision of this Agreement shall be applicable and
make generally available to their respective security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Securities are sold to underwriters
in a firm commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a Private Exchange, if
requested by a Trustee, obtain an opinion of counsel to the Company addressed to
the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer or the Private Exchange, as the case may be,
and which includes an opinion that (i) the Company or the Issuer Trust, as the
case requires, has duly authorized, executed and delivered the Exchange
Securities or the Private Exchange Securities, as the case may be, and (ii) each
of the Exchange Securities or the Private Exchange Securities, as the case may
be, constitute a legal, valid and binding obligation of the Company or the
Issuer Trust, as the case requires, enforceable against the Company or the
Issuer Trust, as the case requires, in accordance with their respective terms
(in each case, with customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the Company or the
Issuer Trust, as applicable (or to such other Person as directed by the Company
or the Issuer Trust, respectively),
-19-
in exchange for the Exchange Securities or the Private Exchange Securities, as
the case may be, mark, or cause to be marked, on such Registrable Securities
delivered by such Holders that such Registrable Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be; in no event shall such Registrable Securities be marked as paid or
otherwise satisfied;
(r) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD;
(s) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the Initial
Purchaser or another representative of the Participating Broker-Dealers, and
which shall contain a summary statement of the positions taken or policies made
by the staff of the Commission with respect to the potential "underwriter"
status of any broker-dealer (a "Participating Broker-Dealer") that holds
Registrable Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the Commission or such
positions or policies, in the reasonable judgment of the Initial Purchaser or
such other representative, represent the prevailing views of the staff of the
Commission, including a statement that any such broker-dealer who receives
Exchange Securities for Registrable Securities pursuant to the Exchange Offer
may be deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without charge,
as many copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request (each of the
Company and the Issuer Trust hereby consents to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment or
supplement thereto by any Person subject to the prospectus delivery requirements
of the Securities Act, including all Participating Broker-Dealers, in connection
with the sale or transfer of the Exchange Securities covered by the Prospectus
or any amendment or supplement thereto), (iii) keep the Exchange Offer
Registration Statement effective and amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully delivered by
all Persons subject to the
-20-
prospectus delivery requirements of the Securities Act for such period of time
as such Persons must comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the Exchange Securities;
PROVIDED, HOWEVER, that such period shall not be required to exceed 90 days (or
such longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) substantially the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the sale of Registrable Securities, the broker-dealer will not
be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer Registration Statement,
the Company and the Issuer Trust agree to deliver to the Initial Purchaser or to
another representative of the Participating Broker-Dealers, if requested by such
Initial Purchaser or such other representative of the Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers upon consummation
of the Exchange Offer (i) an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchaser or such other representative of the
Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions), (ii) an officers' certificate containing certifications
substantially similar to those set forth in Section 5(f) of the Purchase
Agreement and such additional certifications as are customarily delivered in a
public offering of debt securities and (iii) as well as upon the effectiveness
of the Exchange Offer Registration Statement, a comfort letter, in each case, in
customary form if permitted by Statement on Auditing Standards No.
72.
The Company or the Issuer Trust may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company or the Issuer Trust, as applicable, such information regarding such
seller as may be required by the staff of the Commission to be included in a
Registration Statement. The Company or the Issuer Trust may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
The Company
-21-
shall have no obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information within a
reasonable time (not to exceed 20 days) after receiving such request and shall
be under no obligation to compensate any such seller for any lost income,
interest or other opportunity foregone, or any liability increased as a result
of the Company's decision to exclude such Seller. In addition, each Holder, by
its acquisition of a Registrable Security, agrees to the extent that it is
required to comply with the registration and prospectus delivery requirements of
the Securities Act, such Holder agrees to comply with such requirements.
In the case of (1) a Shelf Registration Statement or (2) Participating
Broker-Dealers who have notified the Company and the Issuer Trust that they will
be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(t) hereof and are seeking to sell Exchange
Securities and are required to deliver Prospectuses, each selling Holder agrees
that, upon receipt of any notice from the Company or the Issuer Trust of the
happening of any event of the kind described in Section 3(c), 3(e)(ii),
3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith suspend use of
the Prospectus and discontinue disposition of Registrable Securities pursuant to
a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company and the Issuer Trust that
the use of the applicable Prospectus may be resumed, and, if so directed by the
Company and the Issuer Trust, such Holder will deliver to the Company or the
Issuer Trust (at the Company's or the Issuer Trust's expense, as the case
requires) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may be, current at
the time of receipt of such notice. If the Company or the Issuer Trust shall
give any such notice to suspend the disposition of Registrable Securities, or
Exchange Securities, as the case may be, pursuant to a Registration Statement,
the Company and the Issuer Trust shall use their best efforts to file and have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Registration Statement and shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Company and the Issuer
Trust shall have made available to the Holders (x) copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company and
the Issuer Trust shall, jointly and severally, indemnify and hold harmless the
Initial Purchaser, each Holder, each underwriter who participates in an offering
of the Registrable Securities, each Participating Broker-Dealer, each Person, if
any, who controls any of such parties within the
-22-
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto), covering Registrable Securities or
Exchange Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided that any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Holder,
such Participating Broker-Dealer, or any underwriter (except to the extent
otherwise expressly provided in Section 4(c) hereof)), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 4(a);
PROVIDED, HOWEVER, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information furnished in writing to the Company or
the Issuer Trust by such Holder, such Participating Broker-Dealer, or any
underwriter with respect to such Holder, Participating Broker-Dealer or any
underwriter, as the case may be, expressly for use in a Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) and (ii) the Company and the Issuer Trust shall not be liable to any
such Holder, Participating Broker-Dealer, any underwriter or controlling person,
with respect to any untrue statement or alleged untrue statement or omission
-23-
or alleged omission in any preliminary Prospectus to the extent that any such
loss, liability, claim, damage or expense of any Holder, Participating
Broker-Dealer, any underwriter or controlling person results from the fact that
such Holder, any underwriter or Participating Broker-Dealer, sold Securities to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final Prospectus as then amended or
supplemented if the Company had previously furnished copies thereof to such
Holder, underwriter, or Participating Broker-Dealer, and the loss, liability,
claim, damage or expense of such Holder, underwriter, Participating
Broker-Dealer, or controlling person results from an untrue statement or
omission of a material fact contained in the preliminary Prospectus which was
corrected in the final Prospectus. Any amounts advanced by the Company or the
Issuer Trust to an indemnified party pursuant to this Section 4 as a result of
such losses shall be returned to the Company or the Issuer Trust if it shall be
finally determined by such a court in a judgment not subject to appeal or final
review that such indemnified party was not entitled to indemnification by the
Company or the Issuer Trust.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Issuer Trust, any underwriter and the other
selling Holders and each of their respective directors, officers (including each
officer of the Company and the Issuer Trust who signed the Registration
Statement), employees and agents and each Person, if any, who controls the
Company, the Issuer Trust, any underwriter or any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company or the Issuer Trust by such selling Holder with respect to such Holder
expressly for use in such Registration Statement (or any amendment thereto), or
any such Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER,
that, in the case of a Shelf Registration Statement, no such Holder shall be
liable for any amount hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party shall assume the defense of such action, including the employment of
counsel reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred.
-24-
In the case of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by the Company, and, in the case of
parties indemnified pursuant to Section 7(b) above, counsel to the indemnified
parties shall be selected by the Holders, Participating Broker-Dealers or
underwriters, if any. Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Notwithstanding the last sentence of Section 4(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel
pursuant to Section 4(a)(iii) above, such indemnifying party agrees that it
shall be liable for any settlement effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; PROVIDED that an indemnifying party shall not be
liable for any such settlement effected without its consent if such indemnifying
party (1) reimburses such indemnified party in accordance with such request to
the extent it considers
-25-
reasonable and (2) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable to the indemnified parties
although applicable in accordance with its terms, the indemnifying parties shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by such indemnified
party, as incurred; PROVIDED that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation.
As between the Company, the Issuer Trust, and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company
and Issuer Trust, on the one hand, and the Holders, on the other hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations.
The relative fault of the Company and the Issuer Trust, on the one
hand, and of the Holders, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Issuer Trust, on the one
hand, or by or on behalf of the Holders, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Issuer Trust and the Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 4 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
For purposes of this Section 4, each affiliate of a Holder, and each
director, officer, employee, agent and Person, if any, who controls a Holder or
such affiliate within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the
-26-
same rights to contribution as such Holder, and each director of each of the
Company or the Issuer Trust, each officer of each of the Company or the Issuer
Trust who signed the Registration Statement, and each Person, if any, who
controls each of the Company and the Issuer Trust within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as each of the Company or the Issuer Trust.
5. Participation in Underwritten Registrations. No Holder may participate
in any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
covered by a Shelf Registration Statement who desire to do so may sell the
securities covered by such Shelf Registration in an underwritten offering. In
any such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Registrable Securities included in
such offering; PROVIDED, HOWEVER, that such underwriters and managers must be
reasonably satisfactory to the Company and the Issuer Trust.
7. Miscellaneous.
(a) RULE 144 AND RULE 144A. For so long as the Company or the Issuer
Trust is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act and any Registrable Securities remain outstanding, each of the
Company and the Issuer Trust, as the case may be, will use its best efforts to
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
Commission thereunder, or, if it ceases to be so required to file such reports,
it will, upon the request of any Holder of Registrable Securities (a) make
publicly available such information as is necessary to permit sales of their
securities pursuant to Rule 144 under the Securities Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales of their
securities pursuant to Rule 144A under the Securities Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (ii) Rule 144A
under the Securities Act, as such rule may be amended from time to time, or
(iii) any similar rules or regulations hereafter adopted by
-27-
the Commission. Upon the request of any Holder of Registrable Securities, the
Company or the Issuer Trust, as the case may be, will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company or the Issuer Trust has
not entered into nor will the Company or the Issuer Trust on or after the date
of this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's or the Issuer Trust's other
issued and outstanding securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Issuer Trust have obtained the
written consent of Holders of at least a majority in aggregate principal amount
of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure; PROVIDED no amendment,
modification or supplement or waiver or consent to the departure with respect to
the provisions of Section 4 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Company, the Issuer Trust and the
Initial Purchaser, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with other
provisions of this Agreement, (ii) this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the provisions hereof
may be given, by written agreement signed by the Company, the Issuer Trust and
the Initial Purchaser to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the Commission) or any change therein and (iii) to the extent any
provision of this Agreement relates to the Initial Purchaser, such provision may
be amended, modified or supplemented, and waivers or consents to departures from
such provisions may be given, by written agreement signed by the Initial
Purchaser, the Company and the Issuer Trust.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company or the Issuer Trust by means of a notice given in
-28-
accordance with the provisions of this Section 7(d), which address initially is,
with respect to the Initial Purchaser, the address set forth in the Purchase
Agreement; and (ii) if to the Company or the Issuer Trust, initially at the
Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED, HOWEVER, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) THIRD-PARTY BENEFICIARY. The Initial Purchaser shall be a third
party beneficiary of the agreements made hereunder between the Company and the
Issuer Trust, on the one hand, and the Holders, on the other hand, and shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) COUNTERPARTS. This Agreement 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.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
-29-
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF GEORGIA. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF GEORGIA IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY, THE ISSUER TRUST OR ITS
AFFILIATES. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company, the Issuer Trust or its affiliates (as such term
is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
-30-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED COMMUNITY BANKS, INC.
By: /s/Jimmy C. Tallent
---------------------------
Name: Jimmy C. Tallent
Title: President
UNITED COMMUNITY CAPITAL TRUST
By: /s/Jimmy C. Tallent
---------------------------
Name: Jimmy C. Tallent
Title: Administrator
Confirmed and accepted as of the date first above written:
WHEAT FIRST SECURITIES, INC.
By: /s/Scott R. Anderson
--------------------------
Name: Scott R. Anderson
Title: Managing Director
-31-
ATTORNEYS AT LAW
Suite 2800
1100 Peachtree Street
Atlanta, Georgia 30309-4530
Telephone: (414) 815-6500
KILPATRICK STOCKTON LLP Facsimile: (414) 815-6555
September 30, 1998
United Community Banks, Inc.
Post Office Box 398
59 Highway 515
Blairsville, Georgia 30512
RE: REGISTRATION STATEMENT ON FORM S-4
Ladies and Gentlemen:
We are counsel to United Community Banks, Inc., a Georgia corporation (the
"Company"), in connection with the registration under the Securities Act of 1933
(the "Securities Act") of its 8.125% Junior Subordinated Deferrable Interest
Debentures due July 15, 2028 (the "New Debentures") and its Guarantee with
respect to newly-issued 8.125% Capital Securities of United Community Capital
Trust (the "Guarantee"). The transaction in which the New Debentures will be
issued is described in the Company's Registration Statement on Form S-4 (the
"Registration Statement"), expected to be filed with the Securities and Exchange
Commission (the "Commission") on September 30, 1998. The New Debentures will be
issued under an Indenture, dated as of July 20, 1998 (the "Indenture"), between
the Company and The Chase Manhattan Bank, as Trustee. In connection with the
filing of the Registration Statement, you have requested our opinion concerning
certain corporate matters.
This opinion is limited by, and in accordance with, the January 1, 1992
edition of the Interpretive Standards applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion Committee of the
Corporate and Banking Law Section of the State Bar of Georgia, which
Interpretive Standards are incorporated in this opinion letter by this
reference. All capitalized terms used herein, unless expressly defined herein,
have the meanings ascribed to such terms the Interpretive Standards.
We have participated in the preparation of the Registration Statement and
have reviewed originals or copies, certified or otherwise identified to our
satisfaction, of such documents and records of the Company and such other
instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below.
In the course of our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
Board of Directors of
United Community Banks, Inc.
September 30, 1998
Page 2
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents, as well as the validity, binding effect and
enforceability thereof on such parties.
Based upon the foregoing, we are of the opinion that:
(1) The New Debentures have been duly authorized by all requisite
corporate action of the Company and, when executed and authenticated in the
manner provided for in the Indenture and delivered against surrender and
cancellation of a like aggregate principal amount of the Company's outstanding
8.125% Junior Subordinated Deferrable Interest Debentures due July 15, 2028, as
contemplated in the Registration Rights Agreement dated July 20, 1998 to which
the Company is a party, the New Debentures will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles (regardless of whether considered
in a proceeding in equity or at law).
(2) The Guarantee has been duly authorized by all requisite corporate
action of the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles (regardless of whether considered
in a proceeding in equity or at law).
We are licensed in the State of Georgia. Our opinions are limited to the
laws of the State of Georgia, and we express no opinion concerning the laws of
any other jurisdiction.
We consent to the filing of this opinion with the Securities and Exchange
Commission (the "Commission") as an exhibit to the Registration Statement and to
the references to us in the Prospectus included therein. In giving this consent,
we do not admit that we are within the category of persons whose consent is
required by Section 7 of the Securities Act or the rules and regulations
promulgated thereunder by the Commission.
Very truly yours,
Sincerely,
KILPATRICK STOCKTON LLP
By: /s/ F. Sheffield Hale, a Partner
/br
Exhibit 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
September 30, 1998
United Community Capital Trust
c/o United Community Banks, Inc.
59 Highway 515
P.O. Box 398
Blairsville, Georgia 30512
Re: United Community Capital Trust
Ladies and Gentlemen:
We have acted as special Delaware counsel for United Community
Banks, Inc., a Georgia Bank Holding Company (the "Company"), and United
Community Capital Trust, a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
() The Certificate of Trust of the Trust, dated as of July 13,
1998 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on July 13, 1998;
() The Trust Agreement of the Trust, dated as of July 13,
1998, by and between the Company, as depositor, and Chase Manhattan Bank
Delaware, a Delaware banking corporation, as trustee of the Trust;
United Community Capital Trust
September 30, 1998
Page 2
() The Amended and Restated Trust Agreement of the Trust, dated
as of July 20, 1998 (including Exhibits A, C, D and E thereto) (the "Trust
Agreement"), among the Company, as depositor, the trustees and administrators
named therein and the several holders from time to time of beneficial
interests in the Trust;
() The registration statement on Form S-4, including a related
preliminary prospectus (the "Prospectus"), relating to the 8.125% New Capital
Securities of the Trust representing undivided beneficial interests in the
assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company and the Trust
with the Securities and Exchange Commission (the "SEC") on or about September
30, 1998 (the "Registration Statement"); and
() A Certificate of Good Standing for the Trust, dated September
30, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed above, and we have assumed that there exists
no provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the
creation, operation and termination of the Trust, and that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (collectively, the "Preferred Security
United Community Capital Trust
September 30, 1998
Page 3
Holders") of a certificate evidencing the Preferred Security, in accordance
with the Trust Agreement and the Registration Statement, and (vii) that the
Preferred Securities are issued to the Preferred Security Holders in
accordance with the Trust Agreement and the Registration Statement. We have
not participated in the preparation of the Registration Statement and assume
no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12
Del. C. ss. 3801, et seq.
2. When issued and sold, the Preferred Securities will represent
valid and, subject to the qualifications set forth in paragraph 3 below,
fully paid and nonassessable undivided beneficial interests in the assets of
the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
United Community Capital Trust
September 30, 1998
Page 4
We consent to the filing of this opinion with the SEC as an
exhibit to the Registration Statement. In addition, we hereby consent to the
use of our name under the heading "Validity of New Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of
the SEC thereunder. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by,
any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A
MIL/GWL/RRM/mag
EXHIBIT 8.1
ATTORNEYS AT LAW
Suite 2800
1100 Peachtree Street
Atlanta, Georgia 30309-4530
Telephone: 404.815.6500
KILPATRICK STOCKTON LLP Facsimile: 404.815.6555
September 28, 1998
Board of Directors
United Community Banks, Inc.
59 Highway 515, P.O. Box 398
Blairsville, Georgia 30512
United Community Capital Trust -- Exchange Offer
Certain Federal Income Tax Matters
Ladies and Gentlemen:
We have acted as counsel to United Community Capital Banks, Inc.
(the "Company") and United Community Capital Trust (the "Trust") in connection
with the preparation of a Registration Statement on Form S-4 (the "Registration
Statement") for the registration under the Securities Act of 1933, as amended
(the "Act"), of (1) up to $21 million aggregate liquidation amount of the
Trust's 8.125% Capital Securities (the "New Capital Securities"), (2) the
Company's 8.125% Junior Subordinated Deferrable Interest Debentures due July 15,
2028 (the "Debentures"), and (3) the Company's related guarantee of certain
payments (the "Guarantee"). The New Capital Securities, the Debentures, and the
Guarantee are to be issued in order to effect the exchange of New Capital
Securities for a like liquidation amount of the Trust's outstanding 8.125%
Capital Securities.
We have reviewed copies of (1) the Registration Statement, including
the prospectus included therein, and (2) such other documents as we have deemed
necessary or appropriate as a basis for the opinion set forth below. We have
also relied upon, and assumed the accuracy of, certain written representations
made to us by the Company.
Based on the foregoing, we confirm that the statements of law and
legal conclusions contained in the Registration Statement under the caption
"Certain Federal Income Tax Consequences" constitute our opinion, subject to the
assumptions, conditions, and limitations described therein, and that the
discussion thereunder does not omit any material provision with respect to the
matters covered.
September 28, 1998
Page 2
We consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to Kilpatrick Stockton
LLP under the caption "Certain Federal Income Tax Consequences" in the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required by Section 7 of the Act or the
rules and regulations promulgated thereunder by the Securities and Exchange
Commission.
Very truly yours,
/s/ KILPATRICK STOCKTON LLP
Exhibit 12.1
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
(INCLUDING INTEREST ON DEPOSITS)
The Company's ratios of earnings to fixed charges (including interest on
deposits) for the six months ended June 30, 1998 and 1997 and the five years
ended December 31, 1997 were as follows:
(dollars in thousands) Six Six
Months Months
Ended Ended
June 30, June 30, Years Ended December 31,
-----------------------------------------
1998 1997 1997 1996 1995 1994 1993
--------------------------------------------------------------------
Net Income 5,542 4,882 10,735 8,927 6,669 5,701 4,609
Income tax expense 2,828 2,289 4,766 4,114 2,549 2,205 1,592
-----------------------------------------------------------------------
Pretax earnings 8,370 7,171 15,501 13,041 9,218 7,906 6,201
Interest on borrowed funds 2,274 1,739 3,680 1,930 1,865 1,266 712
Interest on deposits 24,371 19,862 42,868 32,161 26,329 15,511 14,031
-----------------------------------------------------------------------
Total fixed charges 26,645 21,601 46,548 34,091 28,194 16,777 14,743
Earnings for ratio calculation 35,015 28,772 62,049 47,132 37,412 24,683 20,944
Ratio of earnings to fixed charges 1.31 1.33 1.33 1.38 1.33 1.47 1.42
The Company's ratios of earnings to fixed charges (excluding interest on
deposits) for the six months ended June 30, 1998 and 1997 and the five years
ended December 31, 1997 were as follows:
(dollars in thousands) Six Six
Months Months
Ended Ended
June 30, June 30, Years Ended December 31,
-----------------------------------------
1998 1997 1997 1996 1995 1994 1993
----------------------------------------------------------------------
Net Income 5,542 4,882 10,735 8,927 6,669 5,701 4,609
Income tax expense 2,828 2,289 4,766 4,114 2,549 2,205 1,592
------------------------------------------------------------------------
Pretax earnings 8,370 7,171 15,501 13,041 9,218 7,906 6,201
Interest on borrowed funds 2,274 1,739 3,680 1,930 1,865 1,266 712
------------------------------------------------------------------------
Total fixed charges 2,274 1,739 3,680 1,930 1,865 1,266 712
Earnings for ratio calculation 10,644 8,910 19,181 14,971 11,083 9,172 6,913
Ratio of earnings to fixed charges 4.68 5.12 5.21 7.76 5.94 7.24 9.71
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 6, 1998, accompanying the consolidated
financial statements of United Community Banks, Inc. and Subsidiaries contained
in the Registration Statement on Form S-4. We consent to the use of the
aforementioned report in the Registration Statement on Form S-4, and to the use
of our name as it appears under the caption "Experts".
\s\PORTER KEADLE MOORE, LLP
Atlanta, Georgia
September 29, 1998
EXHIBIT 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
UNITED COMMUNITY CAPITAL TRUST
(Exact name of obligor as specified in its charter)
DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
59 HIGHWAY 515
BLAIRSVILLE,GEORGIA 30512
(Address of principal executive offices) (Zip Code)
CAPITAL SECURITIES
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of September, 1998.
THE CHASE MANHATTAN BANK
By
-------------------------------------------
William G. Keenan
Trust Officer
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of September, 1998.
THE CHASE MANHATTAN BANK
By /s/William G. Keenan
---------------------------
William G. Keenan
Trust Officer
- 3 -
EXHIBIT 25.2
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
UNITED COMMUNITY BANKS, INC.
(Exact name of obligor as specified in its charter)
GEORGIA 58-1827304
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
59 HIGHWAY 515
BLAIRSVILLE, GEORGIA 30512
(Address of principal executive offices) (Zip Code)
JUNIOR SUBORDINATED DEBENTURES
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of September, 1998.
THE CHASE MANHATTAN BANK
By
---------------------------
William G. Keenan
Trust Officer
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of September, 1998.
THE CHASE MANHATTAN BANK
By /s/William G. Keenan
------------------------------
William G. Keenan
Trust Officer
- 3 -
EXHIBIT 25.3
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
UNITED COMMUNTIY BANKS, INC.
(Exact name of obligor as specified in its charter)
GEORGIA 58-1827304
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
59 HIGHWAY 515
BLAIRSVILLE, GEORGIA 30512
(Address of principal executive offices) (Zip Code)
CAPITAL SECURITIES GUARANTEE
(UNITED COMMUNITY CAPITAL TRUST)
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of September, 1998.
THE CHASE MANHATTAN BANK
By
-------------------------
William G. Keenan
Trust Officer
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of September, 1998.
THE CHASE MANHATTAN BANK
By /s/William G. Keenan
------------------------------
William G. Keenan
Trust Officer
- 3 -
Exhibit 99.1
LETTER OF TRANSMITTAL
UNITED COMMUNITY CAPITAL TRUST
OFFER TO EXCHANGE ITS
8.125% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
8.125% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS DATED __________, 1998
- ------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ____________, 1998, UNLESS THE OFFER IS EXTENDED.
- ------------------------------------------------------------------------------
The Chase Manhattan Bank
(the "Exchange Agent")
BY REGISTERED OR CERTIFIED MAIL, HAND OR OVERNIGHT DELIVERY:
The Chase Manhattan Bank
55 Water Street
Room 234
North Building
New York, New York 10041
Attention: Carlos Esteves
BY FACSIMILE TRANSMISSION:
(212) 638-7375
(212) 344-9367
CONFIRM BY TELEPHONE:
Carlos Estevez: (212) 638-0828
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned hereby acknowledges receipt of the Prospectus dated
____________, 1998 (the "Prospectus") of United Community Capital Trust (the
"Trust") and this Letter of Transmittal, which together constitute the Trust's
offer (the "Exchange Offer") to exchange up to $21,000,000 aggregate liquidation
amount of its 8.125% Capital Securities (liquidation amount $1,000 per Capital
Security) (the "New Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement on Form S-4 of which the Prospectus is a part, for a like
liquidation amount of its outstanding 8.125% Capital Securities (liquidation
amount $1,000 per Capital Security) (the "Old Capital Securities"), of which
$21,000,000 aggregate liquidation amount is outstanding. The term "Expiration
Date" shall mean 5:00 p.m., New York City time, on ____________, 1998, unless
the Exchange Offer is extended, in which case the term "Expiration Date" means
the latest date and time to which the Exchange Offer is extended. Capitalized
terms used but not defined herein have the meaning given to them in the
Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
This Letter of Transmittal is to be completed by holders of Old Capital
Securities either if (i) Old Capital Securities are to be forwarded herewith or
(ii) tenders of Old Capital Securities are to be made by book-entry transfer to
an account maintained by the Exchange Agent at The Depository Trust Company
("DTC") pursuant to the procedures set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus and an
Agent's Message (as defined herein) is not delivered.
Holders of Old Capital Securities whose certificates (the "Certificates")
for such Old Capital Securities are not immediately available or who cannot
deliver their Certificates and all other required documents to the Exchange
Agent on or prior to the Expiration Date (as defined in the Prospectus) or who
cannot complete the procedures for book-entry transfer on or prior to the
Expiration Date, must tender their Old Capital Securities according to the
guaranteed delivery procedures set forth in "The Exchange Offer--Procedures for
Tendering Old Capital Securities" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
2
ALL TENDERING HOLDERS COMPLETE THIS BOX
- --------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- --------------------------------------------------------------------------------
AGGREGATE
LIQUIDATION
AMOUNT OF OLD LIQUIDATION NUMBER OF
CERTIFICATE CAPITAL AMOUNT OF OLD BENEFICIAL
NAME(S) AND NUMBER(S)* SECURITIES CAPITAL HOLDERS FOR
ADDRESS(ES) OF (ATTACH (ATTACH SECURITIES WHOM OLD
REGISTERED ADDITIONAL ADDITIONAL TENDERED (IF CAPITAL
HOLDER(S) (PLEASE LIST IF LIST IF LESS THAN SECURITIES
FILL IN, IF BLANK) NECESSARY) NECESSARY) ALL)** ARE HELD
- --------------------------------------------------------------------------------
-------------------------------------------------------------
$ $
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
TOTAL AMOUNT
TENDERED $ $
-------------------------------------------------------------
* Need not be completed by book-entry holders. Such holders should check
the appropriate box below and provide the requested information.
** Need not be completed if tendering for exchange all Old Capital Securities
held. Old Capital Securities may be tendered in whole or in part in
Liquidation Amounts of $100,000 and integral multiples of $1,000 in excess
thereof, provided that if any Old Capital Securities are tendered for
exchange in part, the untendered Liquidation Amount thereof must be $100,000
or any integral multiple of $1,000 in excess thereof. All Old Capital
Securities held shall be deemed tendered unless a lesser number is specified
in this column.
- --------------------------------------------------------------------------------
3
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTION (DEFINED IN INSTRUCTION 1)
ONLY)
[ ]CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH DTC, AND COMPLETE THE FOLLOWING:
Name of Tendering Institution___________________________________________
DTC Account Number________________________________________________________
Transaction Code Number___________________________________________________
By crediting the Old Capital Securities to the Exchange Agent's Account at
DTC in accordance with DTC's Automated Tender Offer Program ("ATOP") and by
complying with applicable ATOP procedures with respect to the Exchange Offer,
including transmitting to the Exchange Agent a computer-generated message (an
"Agent's Message") in which the holder of the Old Capital Securities
acknowledges and agrees to be bound by the terms of the Letter of
Transmittal, the participant in DTC confirms on behalf of itself and the
beneficial owners of such Old Capital Securities all provisions of this
Letter of Transmittal applicable to it and such beneficial owner as fully as
if it had completed the information required herein and executed and
transmitted this Letter of Transmittal to the Exchange Agent.
[ ]CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s)__________________________________________
Window Ticket Number (if any)____________________________________________
Date of Execution of Notice of Guaranteed Delivery_______________________
Name of Institution which Guaranteed Delivery____________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution____________________________________________
DTC Account Number_______________________________________________________
Transaction Code Number__________________________________________________
[ ]CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD
CAPITAL SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER
SET FORTH ABOVE.
4
[ ]CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL SECURITIES
FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES
(A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE TEN ADDITIONAL COPIES
OF THE PROSPECTUS AND TEN COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name
------------------------------------------------------------------------
Address
---------------------------------------------------------------------
Area Code and Telephone Number
---------------------------------------------
Contact Person
--------------------------------------------------------------
5
Ladies and Gentlemen:
The undersigned hereby tenders to United Community Capital Trust, a trust
formed under the laws of the State of Delaware (the "Trust"), and United
Community Banks, Inc., a Georgia corporation (the "Company"), the above
described aggregate Liquidation Amount of the Trust's Old Capital Securities in
exchange for a like aggregate Liquidation Amount of the Trust's 8.125% Capital
Securities (the "New Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), upon the terms and
subject to the conditions set forth in the Prospectus dated ____________, 1998
(as the same may be amended or supplemented from time to time, the
"Prospectus'), receipt of which is hereby acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitute the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Capital Securities tendered herewith in accordance with the
terms and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company and the Trust in connection with the Exchange Offer) with respect to the
tendered Old Capital Securities, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest)
subject only to the right of withdrawal described in the Prospectus, to (i)
deliver Certificates for Old Capital Securities to the Company or the Trust
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Trust, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Capital Securities to be issued in exchange for
such Old Capital Securities, (ii) present Certificates for such Old Capital
Securities for transfer, and to transfer the Old Capital Securities on the books
of the Trust, and (iii) receive for the account of the Trust all benefits and
otherwise exercise all rights of beneficial ownership of such Old Capital
Securities, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY, THE TRUST OR THE
EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT
AND TRANSFER OF THE OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED
WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION AGREEMENT. THE
UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old Capital
Securities tendered hereby should be printed in the box entitled "Description of
Old Capital Securities Tendered" above, if they are not already set forth in
such box, as they appear on the Certificates representing such Old Capital
Securities or on the records of DTC, as the case may be. The Certificate
number(s) of any such Certificates and the Liquidation Amount of such Old
Capital Securities should be specified in such box as indicated therein.
If any tendered Old Capital Securities are not exchanged pursuant to the
Exchange Offer for any reason, or if Certificates are submitted for more Old
Capital Securities than are tendered or accepted for exchange, Certificates for
such nonexchanged or nontendered Old Capital Securities will be returned (or, in
the case of Old Capital Securities tendered by book-entry transfer, such Old
Capital Securities will be credited to an account maintained at DTC), without
expense to the tendering holder, promptly following the expiration or
termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities
pursuant to any one of the procedures described in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus and in
the instructions attached hereto will, upon the Company's and the Trust's
acceptance for exchange of such tendered Old Capital Securities, constitute a
binding agreement between the undersigned, the Company and the Trust upon the
terms and subject to the conditions of the Exchange Offer. The undersigned
recognizes that, under certain circumstances set forth in the Prospectus, the
Company and the Trust may not be required to accept for exchange any of the Old
Capital Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Capital
Securities be issued in the name of the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, that such New Capital Securities
be credited to the account indicated above maintained at DTC. If applicable,
substitute Certificates representing Old Capital Securities not exchanged or not
accepted for exchange will be issued to the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, will be credited to the account
indicated above maintained at DTC. Similarly, unless otherwise indicated under
"Special Delivery Instructions" below, please deliver New Capital Securities to
the undersigned at the address shown below the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (1) THE
UNDERSIGNED IS NOT AN "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY OR THE TRUST, (2) ANY NEW CAPITAL SECURITIES TO BE RECEIVED
BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS,
(3) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO
PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF NEW
CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (4) IF THE
UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND DOES
NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF SUCH NEW CAPITAL SECURITIES. BY TENDERING OLD CAPITAL SECURITIES
PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF TRANSMITTAL, A
HOLDER OF OLD CAPITAL SECURITIES THAT IS A BROKER-DEALER REPRESENTS AND AGREES,
CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF THE DIVISION
OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE COMMISSION TO THIRD
PARTIES, THAT (A) SUCH OLD CAPITAL SECURITIES ARE HELD BY SUCH BROKER-DEALER
ONLY AS A NOMINEE, OR (B) SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY IT FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS MEETING THE REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH NEW CAPITAL SECURITIES
(PROVIDED THAT, BY SO ACKNOWLEDGING AND BY DELIVERING THE PROSPECTUS, IT WILL
NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT).
THE COMPANY AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS OF
THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS MAY BE USED IN CONNECTION WITH
RESALES OF NEW CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR OLD CAPITAL
SECURITIES BY A BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR ITS OWN
ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") FOR A PERIOD ENDING 90 DAYS AFTER THE EXPIRATION
DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE
PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH NEW CAPITAL SECURITIES HAVE BEEN
DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN THAT REGARD, EACH
PARTICIPATING BROKER-DEALER, BY TENDERING SUCH OLD CAPITAL SECURITIES AND
EXECUTING THIS LETTER OF TRANSMITTAL OR BY TENDERING THROUGH BOOK-ENTRY TRANSFER
IN LIEU THEREOF, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY OR THE
TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES
ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN
ANY MATERIAL RESPECT OR
7
WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER
TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY REFERENCE THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE
OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION RIGHTS
AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE SALE OF NEW CAPITAL
SECURITIES PURSUANT TO THE PROSPECTUS UNTIL (1) THE COMPANY AND THE TRUST HAVE
AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR OMISSION
AND HAVE FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE
PARTICIPATING BROKER-DEALER OR (2) THE COMPANY OR THE TRUST HAS GIVEN NOTICE
THAT THE SALE OF THE NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
IF THE COMPANY OR THE TRUST GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE NEW
CAPITAL SECURITIES, THEY SHALL EXTEND THE 90-DAY PERIOD REFERRED TO ABOVE DURING
WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN
CONNECTION WITH THE RESALE OF NEW CAPITAL SECURITIES BY THE NUMBER OF DAYS
DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO
AND INCLUDING THE DATE ON WHICH (1) PARTICIPATING BROKER-DEALERS SHALL HAVE
RECEIVED COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO PERMIT
RESALES OF THE NEW CAPITAL SECURITIES OR (2) THE COMPANY OR THE TRUST HAS GIVEN
NOTICE THAT THE SALE OF NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY
BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such Old
Capital Securities for any period from and after the last Distribution date to
which Distributions have been paid or duly provided for on such Old Capital
Securities prior to the original issue date of the New Capital Securities or, if
no such Distributions have been paid or duly provided for, will not receive any
accrued Distributions on such Old Capital Securities, and the undersigned waives
the right to receive any interest on such Old Capital Securities accrued from
and after such Distribution date or, if no such Distributions have been paid or
duly provided for, from and after July 20, 1998.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company or the Trust to be necessary or desirable to
complete the sale, assignment and transfer of the Old Capital Securities
tendered hereby. All authority herein conferred or agreed to be conferred in
this Letter of Transmittal shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
Except as stated in the Prospectus, this tender is irrevocable.
8
- -------------------------------------------------------------------------------
HOLDER(S) SIGN HERE
(SEE ATTACHED INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON THE LAST PAGE)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Old Capital Securities hereby tendered or on the records
of DTC, as the case may be, or by any person(s) authorized to become the
registered holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and other information as may
be required by the Trust to comply with the restrictions on transfer applicable
to the Old Capital Securities). If signature is by an attorney-in-fact,
executor, administrator, trustee, guardian, officer of a corporation or another
acting in a fiduciary capacity or representative capacity, set forth the
signatory's full title. See Instruction 5.
_______________________________________________________________________________
_______________________________________________________________________________
(SIGNATURE(S) OF HOLDER(S))
Dated:_________________, 1998
Name(s):______________________________________________________
______________________________________________________________
(PLEASE TYPE OR PRINT)
Capacity (full title):________________________________________
Address:______________________________________________________
______________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number:_________________
_________________________________________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER(S))
9
- ------------------------------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE ATTACHED INSTRUCTIONS 2 AND 5)
______________________________________________________________________________
(Authorized Signature)
Dated:____________, 1998
Eligible Institution Guaranteeing Signatures:_________________________________
Capacity (full title):________________________________________________________
(Please Print)
Address:______________________________________________________________________
______________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number:_______________________________________________
- -------------------------------------------------------------------------------
10
- ------------------------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6) (SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if New To be completed ONLY if New Capital
Capital Securities or non-tendered or Securities or non-tendered or
non-exchanged Old Capital Securities Notes non-exchanged Old Capital Securities
are to be issued in the name of someone are to be sent to someone other than
other than the registered holder(s) of the registered holder(s) of the Old
the Old Capital Securities whose name(s) Capital Securities whose name(s)
appear(s) above. appear(s) above, or to such registered
holder at an address other than
that above.
Issue: Mail:
[ ] Non-tendered or non-exchanged Old [ ] Non-tendered or non-exchanged Old
Capital Securities and/or: Capital Securities and/or:
[ ] New Capital Securities [ ] New Capital Securities
To: To:
Name________________________________ Name________________________________
_____________________________________ ___________________________________
(PLEASE TYPE OR PRINT) (PLEASE TYPE OR PRINT)
Address:_____________________________ Address:___________________________
_____________________________________ __________________________________
(INCLUDING ZIP CODE) (INCLUDING ZIP CODE)
Area Code and Area Code and
Telephone Number:_____________________ Telephone Number:_________________
_________________________________________ ____________________________________
(TAX IDENTIFICATION OR SOCIAL SECURITY (TAX IDENTIFICATION OR SOCIAL
NUMBER(S)) SECURITY NUMBER(S))
- -------------------------------------------------------------------------------
11
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth under "The
Exchange Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus and an Agent's Message is not delivered. Certificates, or book-entry
confirmation of a book-entry transfer of such Old Capital Securities into the
Exchange Agent's account at DTC, as well as this Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
herein on or prior to the Expiration Date. Tenders by book-entry transfer may
also be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "book-entry confirmation" means a timely confirmation of
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
Participant, which acknowledgment states that such participant has received and
agrees to be bound by, and makes the representations and warranties contained
in, the Letter of Transmittal and that the Trust and the Company may enforce the
Letter of Transmittal against such participant. Old Capital Securities may be
tendered in whole or in part in the Liquidation Amount of $100,000 (100 Capital
Securities) and integral multiples of $1,000 in excess thereof, provided that,
if any Old Capital Securities are tendered for exchange in part, the untendered
Liquidation Amount thereof must be $100,000 (100 Capital Securities) or any
integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose Old
Capital Securities are not immediately available or (ii) who cannot deliver
their Old Capital Securities, this Letter of Transmittal and all other required
documents to the Exchange Agent on or prior to the Expiration Date or (iii) who
cannot complete the procedures for delivery by book-entry transfer on a timely
basis, may tender their Old Capital Securities by properly completing and duly
executing a notice to the Exchange Agent guaranteeing delivery to the Exchange
Agent of either certificates representing the Old Capital Securities or a
book-entry confirmation in compliance with the requirements set forth in the
Prospectus (the "Notice of Guaranteed Delivery"), pursuant to the guaranteed
delivery procedures set forth in the Prospectus under "The Exchange
Offer--Procedures for Tendering Old Capital Securities--Guaranteed Delivery."
Pursuant to such procedures: (i) such tender must be made by or through an
Eligible Institution (as defined below); (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form accompanying
this Letter of Transmittal, must be received by the Exchange Agent on or prior
to the Expiration Date; and (iii) the certificates (or a book-entry
confirmation) representing all tendered Old Capital Securities, in proper form
for transfer, together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof or Agent's Message in lieu thereof), with any
required signature guarantees and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent within three New York Stock
Exchange trading days after the date of execution of such Notice of Guaranteed
Delivery, all as provided in the Prospectus under "The Exchange
Offer--Procedures for Tendering Old Capital Securities--Guaranteed Delivery".
A Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Capital
Securities to be properly tendered pursuant to the guaranteed delivery
procedure, the Exchange Agent must receive a Notice of Guaranteed Delivery on or
prior to the Expiration Date. As used herein and in the Prospectus, "Eligible
Institution" means a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as "an eligible guarantor institution," including (as such terms
are defined therein) (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association.
12
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION OR CERTIFICATES,
THIS LETTER OF TRANSMITTAL, AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION
AND SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY
SERVICE IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Neither the Company nor the Trust will accept any alternative, conditional
or contingent tenders. Each tendering holder, by execution of a Letter of
Transmittal (or facsimile thereof or Agent's Message in lieu thereof), waives
any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i)this Letter of Transmittal is signed by the registered holder(s)
(which term, for purposes of this document, shall include any
Participant in DTC whose name appears on a security position listing as
the owner of the Old Capital Securities) of Old Capital Securities
tendered herewith, unless such holder(s) has completed either the box
entitled "Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account of a firm
that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities Tendered" is inadequate, the Certificate
number(s) and/or the Liquidation Amount of Old Capital Securities and any other
required information should be listed on a separate signed schedule which is
attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the Liquidation Amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 (100 Capital Securities)
or any integral multiple of $1,000 in excess thereof. If less than all the Old
Capital Securities are to be tendered, fill in the Liquidation Amount of Old
Capital Securities that are to be tendered in the box entitled "Liquidation
Amount of Old Capital Securities Tendered." If applicable, new Certificate(s)
for the Old Capital Securities that were not tendered will be sent to the
address designated herein by such holder promptly after the Expiration Date. All
Old Capital Securities represented by Certificates delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to such date, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at one of its addresses set forth above or in the Prospectus on
or prior to such date. Any such notice of withdrawal must specify the name of
the person who tendered the Old Capital Securities to be withdrawn, the
aggregate Liquidation Amount of Old Capital Securities to be withdrawn, and, if
any Certificates for Old Capital Securities have been tendered, the name of the
registered holder of the Old Capital Securities as set forth on any such
Certificates, if different from that of the person who tendered such Old Capital
Securities. If Certificates for the Old Capital Securities have been delivered
or otherwise identified to the Exchange Agent, then prior to the physical
release of such Certificates, the tendering holder must submit the serial
numbers shown on the particular Certificates to be withdrawn and the signature
on the notice of withdrawal must be guaranteed by an Eligible Institution,
except in the case of Old Capital Securities tendered for the account of an
Eligible Institution. If Old Capital Securities have been tendered pursuant to
the procedures for book-entry transfer set forth in the Prospectus under "The
Exchange Offer--Procedures for Tendering Old Capital Securities," the notice of
withdrawal must specify the name and number of
13
the account at DTC to be credited with the withdrawal of Old Capital Securities.
Withdrawals of tenders of Old Capital Securities may not be rescinded. Old
Capital Securities properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent time on
or prior to the Expiration Date by following any of the procedures described
herein.
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company and the
Trust, in their sole discretion, whose determination shall be final and binding
on all parties. Neither the Company, the Trust, any affiliates or assigns of the
Company or the Trust or the Exchange Agent nor any other person shall be under
any duty to give any notification of any irregularities in any notice of
withdrawal or incur any liability for failure to give any such notification. Any
Old Capital Securities which have been tendered but which are withdrawn will be
returned or transferred by book-entry, as the case may be, to the Holder thereof
without cost to such holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Old
Capital Securities tendered hereby, the signature(s) must correspond exactly
with the name(s) as written on the face of the Certificate(s) for such Old
Capital Securities, without alteration, enlargement or any change whatsoever, or
as recorded in DTC's book-entry transfer facility system, as the case may be.
If any Old Capital Securities tendered hereby are owned of record by two
or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Capital Securities are registered in different names
on several Certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal (or facsimiles thereof or Agent's Message
in lieu thereof) as there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Company and the Trust in their sole discretion, of
each such person's authority so to act.
When this Letter of Transmittal is signed by the registered holder(s) of
the Old Capital Securities listed and transmitted hereby, or book-entry transfer
is effectuated by such holder(s), no endorsement(s) of Certificate(s) or
separate bond power(s) are required except if New Capital Securities are to be
issued in the name of a person other than the registered holder(s). If such
exception applies, signature(s) on such Certificate(s) or bond power(s) must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Old Capital Securities listed, the Certificate(s)
must be endorsed or accompanied by appropriate bond powers, signed exactly as
the name(s) of the registered holder(s) appear(s) on the Certificates, and also
must be accompanied by such opinions of counsel, certifications and other
information as the Company or the Trust may require in accordance with the
restrictions on transfer applicable to the Old Capital Securities. In such
event, signatures on such Certificates or bond powers must be guaranteed by an
Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital Securities
are to be issued in the name of a person other than the signer of this Letter of
Transmittal, or if New Capital Securities are to be sent to someone other than
the signer of this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be completed.
Old Capital Securities not exchanged will be returned, if evidenced by
Certificates, by mail or, if tendered by book-entry transfer, by crediting the
account at DTC indicated above in Instruction 4.
7. IRREGULARITIES. The Company and the Trust will determine, in their sole
discretion, all questions as to the form of documents, validity, eligibility
(including time of receipt) and acceptance for exchange of any tender of Old
Capital Securities, which determination shall be final and binding on all
parties. The Company and the
14
Trust reserve the absolute right to reject any and all tenders determined by
either of them not to be in proper form or the acceptance of which, or exchange
for which, may in the view of counsel to the Company and the Trust be unlawful.
The Company and the Trust also reserve the absolute right, subject to applicable
law, to waive any of the conditions of the Exchange Offer set forth in the
Prospectus under "The Exchange Offer--Conditions to the Exchange Offer" or any
conditions or irregularity in any tender of Old Capital Securities of any
particular Holder whether or not similar conditions or irregularities are waived
in the case of other Holders. The Company's and the Trust's interpretation of
the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and binding. No tender of
Old Capital Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. Neither
the Company, the Trust, any affiliates or assigns of the Company, or the Trust,
or the Exchange Agent nor or any other person shall be under any duty to
give notification of any irregularities in tenders or incur any liability for
failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front cover of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and this
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Capital Securities have been lost, destroyed or stolen, the
holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be delivered
to, or are to be issued in the name of, any person other than the holder of the
Old Capital Securities tendered, or if a transfer tax is imposed for any reason
other than the exchange of Old Capital Securities in connection with the
Exchange Offer, then the amount of any such transfer tax (whether imposed on the
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with this Letter of Transmittal, the amount of such transfer taxes
will be billed directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL
OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR
TO THE EXPIRATION DATE.
15
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Old Capital
Securities are accepted for exchange is required by law to provide the Exchange
Agent with such holder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 included herein or otherwise establish a basis for exemption
from backup withholding. If such holder is an individual, the TIN is his social
security number. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service may subject the holder or transferee to a $50 penalty.
In addition, delivery of such holder's New Capital Securities may be subject to
backup withholding. Failure to comply truthfully with the backup withholding
requirements also may result in the imposition of severe criminal and/or civil
fines and penalties.
Certain holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup Withholding and reporting
requirements. Exempt holders should furnish their TIN, write "Exempt" on the
face of the Substitute Form W-9, and sign, date and return the Substitute Form
W-9 to the Exchange Agent. A foreign person, including entities, may qualify as
an exempt recipient by submitting to the Exchange Agent a properly completed
Internal Revenue Service Form W-8, signed under penalties of perjury, attesting
to that holder's foreign status. A Form W-8 can be obtained from the Exchange
Agent. See the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the holder or other transferee. Backup withholding
is not an additional federal income tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to Old Capital
Securities exchanged in the Exchange Offer, the holder is required to provide
the Exchange Agent with either: (i) the holder's correct TIN by completing the
form included herein, certifying that the TIN provided on Substitute Form W-9 is
correct (or that such holder is awaiting a TIN) and that (A) the holder has not
been notified by the Internal Revenue Service that the holder is subject to
backup withholding as, a result of failure to report all interest or dividends
or (B) the Internal Revenue Service has notified the holder that the holder is
no longer subject to backup withholding; or (ii) an adequate basis for
exemption.
NUMBER TO GIVE THE DEPOSITARY
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered holder of
the Old Capital Securities. If the Old Capital Securities are held in more than
one name or are held not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
16
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 9)
PAYOR'S NAME: UNITED COMMUNITY CAPITAL TRUST
- ------------------------------------------------------------------------------------------------------
TIN:_________________________
PART 1--PLEASE PROVIDE YOUR TIN IN (Social Security Number
SUBSTITUTE THE BOX AT RIGHT AND CERTIFY BY or Employer Identification Number)
FORM W-9 SIGNING AND DATING BELOW.
-----------------------------------------------------------------------------
DEPARTMENT OF THE
TREASURY
INTERNAL REVENUE PART 2--TIN Applied For.
SERVICE -----------------------------------------------------------------------------
CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY
THAT:
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION (i) The number shown on this form is my correct
NUMBER ("TIN") AND Taxpayer Identification Number (or I am waiting for a
CERTIFICATION number to be issued to me),
(ii) I am not subject to backup withholding either
because: (a) I am exempt from backup withholding, or
(b) I have not been notified by the Internal Revenue
Service (the "IRS") that I am subject to backup
withholding as a result of a failure to report all
interest or dividends, or (c) the IRS has notified me
that I am no longer subject to backup withholding, and
(iii) any other information provided on this form is
true and correct.
Signature___________________ Date:____________
Name (Please Print____________________
______________________________________________________
You must cross out item (2) above if you have been
notified by the IRS that you are subject to backup
withholding because of underreporting of interest or
dividends on your tax return and you have not been
notified by the IRS that you are no longer subject to
backup withholding.
-----------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN
CERTAIN CIRCUMSTANCES RESULT IN BACKUP WITHHOLDING OF
31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
---------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECKED THE BOX IN PART 2 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a Taxpayer Identification Number by the time of payment, 31%
of all payments made to me on account of the New Capital Securities shall be
retained until I provide a Taxpayer Identification Number to the Exchange Agent
and that, if I do not provide my Taxpayer Identification Number within 60 days,
such retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and 31% of all reportable payments made to me thereafter will
be withheld and remitted to the Internal Revenue Service until I provide a
Taxpayer Idenfication Number.
__________________________________________ _________________________________________________
Signature Date ,1998
___________________________________________
Name (Please print)
- ---------------------------------------------------------------------------------------------------
17
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
8.125% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
UNITED COMMUNITY CAPITAL TRUST
As set forth in the Exchange Offer, this Notice of Guaranteed Delivery, or
one substantially equivalent to this form, must be used to accept the Exchange
Offer (as defined below) if (i) certificates for the Trust's (as defined below)
8.125% Capital Securities (the "Old Capital Securities") are not immediately
available, (ii) Old Capital Securities, the Letter of Transmittal and all other
required documents cannot be delivered to The Chase Manhattan Bank (the
"Exchange Agent") on or prior to the Expiration Date (as defined in the
Prospectus referred to below) or (iii) the procedures for delivery by book-entry
transfer cannot be completed on by the Expiration Date. This Notice of
Guaranteed Delivery may be delivered by hand, overnight courier or mail, or
transmitted by facsimile transmission, to the Exchange Agent. See "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus.
The Chase Manhattan Bank
(the "Exchange Agent")
BY REGISTERED OR CERTIFIED MAIL, HAND OR OVERNIGHT DELIVERY:
The Chase Manhattan Bank
55 Water Street
Room 234
North Building
New York, New York 10041
Attention: Carlos Esteves
FACSIMILE TRANSMISSION
(FOR ELIGIBLE INSTITUTIONS ONLY):
(212) 638-7375
(212) 344-9367
CONFIRM BY TELEPHONE:
Carlos Esteves: (212) 638-0828
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to United Community Capital Trust, a
Delaware statutory business trust (the "Trust"), upon the terms and subject to
the conditions set forth in the Prospectus dated _____________, 1998 (as the
same may be amended or supplemented from time to time, the "Prospectus"), and
the related Letter of Transmittal (which together constitute the "Exchange
Offer"), receipt of which is hereby acknowledged, the aggregate Liquidation
Amount of Old Capital Securities set forth below pursuant to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offer--Procedures for Tendering Old Capital Securities."
Aggregate Liquidation Amount Tendered:_______________________________________
Name(s) of Registered Holder(s):_____________________________________________
Address:_____________________________________________________________________
Area Code and Telephone Number:______________________________________________
Certificate No(s) (if available):_____________________________________________
If Old Capital Securities will be tendered by book-entry transfer, provide the
following information:
Signature:____________________________________________________________________
DTC Account Number:___________________________________________________________
Date:_________________________________________________________________________
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
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GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker or government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Old Capital
Securities tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Old Capital Securities to the Exchange Agent's
account at The Depository Trust Company, pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together with
one or more properly completed and duly executed Letter(s) of Transmittal (or
facsimile thereof or Agent's Message in lieu thereof) and any other required
documents within three business days after the date of execution of this Notice
of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal (or facsimile thereof or Agent's Message in lieu thereof) and the
Old Capital Securities tendered hereby to the Exchange Agent within the time
period set forth above and that failure to do so could result in a financial
loss to the undersigned.
Name of Firm:________________________________ _____________________________________________
Authorized Signature
Address:_____________________________________ Title:_______________________________________
_____________________________________________ Name:________________________________________
Zip Code
Area Code and Telephone Number:________________ Date:________________________________________
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DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE OF GUARANTEED DELIVERY.
ACTUAL SURRENDER OF OLD CAPITAL SECURITIES MUST BE MADE PURSUANT TO, AND BE
ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL
AND ANY OTHER REQUIRED DOCUMENTS.
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Exhibit 99.3
_______________, 1998
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Ladies and Gentlemen:
United Community Capital Trust, a Delaware statutory business trust (the
"Issuer"), proposes to make an offer (the "Exchange Offer") to exchange up to
$21,000,000 aggregate liquidation amount of its 8.125% Capital Securities
(liquidation amount $1,000 per Capital Security) (the "New Capital Securities"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like liquidation amount of its outstanding 8.125%
Capital Securities (liquidation amount of $1,000 per Capital Security) (the "Old
Capital Securities"), of which $21,000,000 aggregate liquidation amount is
outstanding. The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated _______________, 1998 (the
"Prospectus"), a copy of which is attached to this Agreement as Attachment A,
proposed to be distributed to all record holders of the Old Capital Securities.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Prospectus.
The Issuer hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Issuer on or about
_______________, 1998. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Old Capital Securities to accept the Exchange
Offer, and contains certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_______________, 1998 or on such later date or time to which the Issuer or
United Community Banks, Inc. (the "Company") may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set forth in the
Prospectus, the Issuer and the Company expressly reserve the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
The Issuer and the Company expressly reserve the right to amend or
terminate the Exchange Offer, and not to accept for exchange any Old Capital
Securities not theretofore accepted for exchange, upon the occurrence of any of
the conditions of the Exchange Offer specified in the Prospectus under the
caption "Conditions to the Exchange Offer." The Issuer or the Company will give
oral (promptly confirmed in writing) or written notice of any amendment,
termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer" and as
specifically set forth herein and such duties which are necessarily incidental
thereto; provided, however, that in no way will your general duty to act in good
faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Capital
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus or, if you already have established an account with the
Book-Entry Transfer Facility suitable for the Exchange Offer, you will identify
such preexisting account to be used in the Exchange Offer, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Old
Capital Securities by causing the Book-Entry Transfer Facility to transfer such
Old Capital Securities into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal, certificates for
Old Capital Securities and confirmations of book-entry transfers into your
account at the Book-Entry Transfer Facility and any Agent's Message or other
documents delivered or mailed to you by or for holders of the Old Capital
Securities to ascertain whether: (i) the Letters of Transmittal and any such
other documents are fully executed and properly completed in accordance with
instructions set forth therein and (ii) the Old Capital Securities have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Old Capital Securities are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need (i) for
fulfillment of all requirements and (ii) to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Issuer or the Chairman of the Board and Chief
Executive Officer, the Chief Financial Officer, or the Secretary of the Company
(such approval, if given orally, to be confirmed in writing) or any other party
designated by the Issuer or such officer of the Company in writing, you are
authorized to waive any irregularities in connection with any tender of Old
Capital Securities pursuant to the Exchange Offer.
5. Tenders of Old Capital Securities may be made only as set forth in the
section of the Prospectus captioned "The Exchange Offer--Procedures for
Tendering Old Capital Securities" or in the Letter of Transmittal and Old
Capital Securities shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Capital Securities
which the Issuer or any other party designated by the Issuer in writing shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be confirmed in writing).
6. You shall advise the Issuer with respect to any Old Capital Securities
delivered subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are registered in two
or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority to so act is submitted; and
(c) from persons other than the registered holder of Old Capital
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Capital Securities to the transfer agent for split-up and return any
untendered Old Capital Securities to the holder (or to such other person as may
be designated in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Issuer will notify you (such notice if given orally, to be promptly
confirmed in writing) of the Company's and Issuer's acceptance, promptly after
the Expiration Date, of all Old Capital Securities properly tendered and you, on
behalf of the Issuer, will exchange such Old Capital Securities for New Capital
Securities and cause such Old Capital Securities to be canceled. Delivery of New
Capital Securities will be made on behalf of the Issuer by you at the rate of
$1,000 liquidation amount of New Capital Securities for each $1,000 liquidation
amount of the Old Capital Securities tendered promptly after notice (such notice
if given orally, to be promptly confirmed in writing) of acceptance of said Old
Capital Securities by the Issuer; provided, however, that in all cases, Old
Capital Securities tendered pursuant to the Exchange Offer will be exchanged
only after timely receipt by you of certificates for such Old Capital Securities
(or confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility), a properly completed and duly executed Letter of Transmittal
(or facsimile thereof) with any required signature guarantees (or in lieu
thereof an Agent's Message) and any other required document. You shall issue New
Capital Securities only in denominations of $100,000 or any integral multiple of
$1,000 in excess thereof.
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9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Capital Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time on or prior to the Expiration Date.
10. The Company and the Issuer shall not be required to exchange any Old
Capital Securities tendered if any of the conditions set forth in the Exchange
Offer are not met. Notice of any decision by the Company and the Issuer not to
exchange any Old Capital Securities tendered shall be given (such notice, if
given orally, shall be promptly confirmed in writing) by the Company or the
Issuer to you.
11. If, pursuant to the Exchange Offer, the Company or the Issuer does not
accept for exchange all or part of the Old Capital Securities tendered because
of an invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Conditions to the Exchange
Offer" or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted Old
Capital Securities (or effect the appropriate book-entry transfer of the
unaccepted Old Capital Securities), and return any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
12. All certificates for reissued Old Capital Securities or for unaccepted
Old Capital Securities shall be forwarded by (a) first-class mail, return
receipt requested, under a blanket surety bond protecting you, the Issuer and
the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of Old
Capital Securities, and will not be required to and will make no representation
as to the validity, value or genuineness of the Exchange Offer; provided,
however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(b) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity.
(c) shall not be liable to the Company or the Issuer for any action
taken or omitted by you, or any action suffered by you to be taken or omitted,
without negligence, misconduct or bad faith on your part, by reason of or as a
result of the administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, and may reasonably rely on and shall be protected in
acting in good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by the proper
party or parties;
(d) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and the effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or represented by a
proper person or persons;
(e) may rely on and shall be protected in acting upon written or
oral instructions form the Issuer or any officer of the Company with respect to
the Exchange Offer;
(f) shall not advise any person tendering Old Capital Securities
pursuant to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Old Capital
Securities; and
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the written opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith and in
accordance with such written opinion of such counsel.
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15. You shall take such action as may from time to time be requested by
the Company, the Issuer or their counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery, or such other forms as may be
approved from time to time by the Company or the Issuer, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company or the Issuer will furnish you with copies of such documents
at your request. All other requests for information relating to the Exchange
Offer shall be directed to the Chief Financial Officer of the Company at: 59
Highway 515, Blairsville, Georgia 30512; (706) 745-2151.
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Issuer, the Company and Kilpatrick Stockton
LLP, counsel for the Company and the Issuer, and such other person or persons as
they may request, daily, and more frequently if reasonably requested, up to and
including the Expiration Date, as to the principal amount of the Old Capital
Securities which have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received
and items covered by Notices of Guaranteed Delivery. In addition, you will also
inform, and cooperate in making available to, the Company and the Issuer or any
such other person or persons as the Company or the Issuer request from time to
time prior to the Expiration Date of such other information as they, or he
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company, the Issuer and such person as the Company or the
Issuer may request of access to those persons on your staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date, the Company and the Issuer shall have received information in
sufficient detail to enable them to decide whether to extend the Exchange Offer.
You shall prepare a list of persons who failed to tender or whose tenders were
not accepted and the aggregate principal amount of Old Capital Securities not
tendered or Old Capital Securities not accepted and deliver said list to the
Company and the Issuer at least seven days prior to the Expiration Date. You
shall also prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Old Capital Securities accepted and deliver said
list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of $_______ and you shall be entitled to reimbursement of your
expenses (including fees and expenses of your counsel, which fees are expected
under normal circumstances to be not in excess of $5,000) incurred in connection
with the Exchange Offer. The obligations under this Section 18 shall constitute
joint and several obligations of the Issuer and the Company.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them to the extent necessary to perform your duties hereunder. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
20. The Company and the Issuer jointly and severally agree to indemnify
and hold you harmless in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorney's fees, arising out of
or in connection with the acceptance or administration of your duties hereunder,
including, without limitation, in connection with any act, omission, delay or
refusal made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Old Capital Securities
reasonably believed by you in good faith to be authorized, and in delaying or
refusing in good faith to accept any tenders or effect any transfer of Old
Capital Securities; provided, however, that the Company and the Issuer shall not
be liable for indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your negligence, willful breach of this
Agreement, willful misconduct or bad faith. In no case shall the Company and the
Issuer be liable under this indemnity with respect to any claim against you
unless the Company and the Issuer shall be notified by you, by letter or cable
or by facsimile confirmed by letter, of the written assertion of a claim against
you or of any other action commenced against you, promptly after you shall have
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received any such written assertion or written notice of the commencement of any
such action. The Company and the Issuer shall be
5
entitled to participate at their own expense in the defense of any such claim or
other action, and, if the Company and the Issuer so elect, the Company and the
Issuer shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company and the Issuer shall assume the defense of any
such suit, the Company and the Issuer shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you so long as the
Company and the Issuer shall retain counsel reasonably satisfactory to you to
defend such suit. You shall not compromise or settle any such action or claim
without the consent of the Company and the Issuer.
21. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
22. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together
constitute one and the same agreement.
23. In case any provision of this Agreement 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.
24. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
25. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company or the Issuer:
United Community Banks, Inc.
59 Highway 515
Blairsville, Georgia 30512
Phone: (706) 745-2151
Attention: Christopher Bledsoe, Chief Financial Office
With a copy to:
Kilpatrick Stockton LLP
1100 Peachtreet Street, Suite 2800
Atlanta, Georgia 30309-4530
Phone: (404) 815-6570
Attention: Richard R. Cheatham, Esq.
If to the Exchange Agent:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile: (212) 946-8159
Attention: William Keenan, Trust Officer
26. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Paragraphs 18 and 20 shall survive the termination of this Agreement. Except as
provided in Section 17, upon any termination of this Agreement, you shall
promptly deliver to the company any funds or property (including, without
limitation, letters of Transmittal and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this Agreement.
27. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
UNITED COMMUNITY CAPITAL TRUST
By:_______________________________
Name:
Title:
UNITED COMMUNITY BANKS, INC.
By:______________________________
Name:
Title:
Accepted as the date first above written:
THE CHASE MANHATTAN BANK
By:________________________________
Name:
Title:
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