<PAGE>
EXHIBIT 4.12
================================================================================
Execution Copy
UNITED COMMUNITY BANKS, INC.,
AS ISSUER
AND
MARSHALL & ILSLEY TRUST COMPANY N.A.,
AS TRUSTEE
-------------------------------------
INDENTURE
DATED AS OF SEPTEMBER 24, 2003
-------------------------------------
UP TO $35,000,000
SUBORDINATED STEP-UP NOTES DUE 2015
================================================================================
<PAGE>
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
Trust Indenture
Indenture
Act Section
Section
---------------
---------
<S>
<C>
310(a)(1).........................................................................................
6.10
(a)(2)............................................................................................
6.10
(a)(3)............................................................................................
N.A.
(a)(4)............................................................................................
N.A.
(a)(5)............................................................................................
6.10
(b)...............................................................................................
6.10
(c)...............................................................................................
N.A.
311(a)............................................................................................
6.11
(b)...............................................................................................
6.11
(c)...............................................................................................
N.A.
312(a)............................................................................................
2.07
(b)...............................................................................................
10.03
(c)...............................................................................................
10.03
313
(a)...........................................................................................
6.06
(b)(1)............................................................................................
N.A.
(b)(2)............................................................................................
6.06,6.07
(c)...............................................................................................
6.06,10.02
(d)...............................................................................................
6.06
314(a)............................................................................................
3.03
(b)...............................................................................................
N.A.
(c)(1)............................................................................................
10.04
(c)(2)............................................................................................
10.04
(c)(3)............................................................................................
N.A.
(d)...............................................................................................
N.A.
(e)...............................................................................................
10.05
(f)...............................................................................................
N.A.
315(a)............................................................................................
6.01
(b)...............................................................................................
10.02
(c)...............................................................................................
6.01
(d)...............................................................................................
6.01
(e)...............................................................................................
5.11
316(a)(last
sentence).............................................................................
2.10
(a)(1)(A).........................................................................................
5.05
(a)(1)(B).........................................................................................
5.04
(a)(2)............................................................................................
N.A.
(b)...............................................................................................
5.07
(c)...............................................................................................
2.13
317(a)(1).........................................................................................
5.08
(a)(2)............................................................................................
5.09
(b)...............................................................................................
2.05
</TABLE>
i
<PAGE>
CROSS REFERENCE TABLE*
(CONTINUED)
<TABLE>
<CAPTION>
Trust Indenture
Indenture
Act Section
Section
---------------
---------
<S>
<C>
318(a)............................................................................................
10.01
(b)...............................................................................................
N.A.
(c)...............................................................................................
10.01
</TABLE>
------------------------------
"N.A." means "Not Applicable."
*This Cross Reference Table is not part of
the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S>
<C>
ARTICLE I. DEFINITIONS AND INCORPORATION BY
REFERENCE............................................................
1
Section 1.01
Definitions.......................................................................................
1
Section 1.02 Incorporation by Reference
of Trust Indenture
Act.................................................
7
Section 1.03 Rules of
Construction.............................................................................
7
ARTICLE II. THE
NOTES............................................................................................
7
Section 2.01 Amount of Notes; Ability to
Re-Open
Series........................................................
7
Section 2.02 Form and
Dating...................................................................................
8
Section 2.03 Execution and
Authentication......................................................................
8
Section 2.04 Registrar and Paying
Agent........................................................................
9
Section 2.05 Paying Agent to Hold Money
in
Trust...............................................................
9
Section 2.06 Holder
Lists......................................................................................
9
Section 2.07 Transfer and
Exchange.............................................................................
9
Section 2.08 Replacement of
Notes..............................................................................
15
Section 2.09 Outstanding
Notes.................................................................................
16
Section 2.10 Treasury
Notes....................................................................................
16
Section 2.11 Temporary
Notes...................................................................................
16
Section 2.12
Cancellation......................................................................................
16
Section 2.13 Record
Date.......................................................................................
16
Section 2.14 Defaulted
Interest................................................................................
16
Section 2.15 CUSIP
Numbers.....................................................................................
17
Section 2.16 Redemption;
Prepayment............................................................................
17
ARTICLE III.
COVENANTS...........................................................................................
18
Section 3.01 Payment of the
Notes..............................................................................
18
Section 3.02 Maintenance of Office or
Agency...................................................................
18
Section 3.03
Reports...........................................................................................
18
Section 3.04 Compliance
Certificate............................................................................
19
Section 3.05 Payment of Taxes and Other
Claims.................................................................
19
Section 3.06
[Reserved]........................................................................................
20
Section 3.07 Corporate
Existence...............................................................................
20
Section 3.08 Maintenance of
Properties.........................................................................
20
ARTICLE IV.
SUCCESSORS...........................................................................................
20
Section 4.01 Merger, Consolidation or
Sale of
Assets...........................................................
20
Section 4.02 Successor Corporation
Substituted.................................................................
21
ARTICLE V. DEFAULTS AND
REMEDIES.................................................................................
21
Section 5.01 Events of
Default.................................................................................
21
Section 5.02
Acceleration......................................................................................
22
Section 5.03 Other
Remedies....................................................................................
22
Section 5.04 Waiver of Past Defaults /
Rescission of
Acceleration..............................................
23
Section 5.05 Control by
Majority...............................................................................
23
Section 5.06 Limitation on
Suits...............................................................................
23
Section 5.07 Rights of Holders of Notes
to Receive
Payment.....................................................
23
Section 5.08 Collection Suit by
Trustee........................................................................
23
Section 5.09 Trustee May File Proofs of
Claim..................................................................
24
Section 5.10
Priorities........................................................................................
24
Section 5.11 Undertaking for
Costs.............................................................................
24
</TABLE>
iii
<PAGE>
<TABLE>
<S>
<C>
ARTICLE VI.
TRUSTEE..............................................................................................
25
Section 6.01 Duties of
Trustee.................................................................................
25
Section 6.02 Rights of
Trustee.................................................................................
26
Section 6.03 Individual Rights of
Trustee......................................................................
26
Section 6.04 Trustee's
Disclaimer..............................................................................
26
Section 6.05 Notice of
Defaults................................................................................
27
Section 6.06 Reports by Trustee to
Holders of the
Notes........................................................
27
Section 6.07 Compensation and
Indemnity........................................................................
27
Section 6.08 Replacement of
Trustee............................................................................
28
Section 6.09 Successor Trustee by Merger,
Etc..................................................................
28
Section 6.10 Eligibility;
Disqualification.....................................................................
28
Section 6.11 Preferential Collection of
Claims Against the
Company............................................. 29
ARTICLE VII. LEGAL DEFEASANCE AND COVENANT
DEFEASANCE; SATISFACTION AND DISCHARGE OF
INDENTURE................... 29
Section 7.01 Option to Effect Legal
Defeasance or Covenant
Defeasance.......................................... 29
Section 7.02 Legal Defeasance and
Discharge....................................................................
29
Section 7.03 Covenant
Defeasance...............................................................................
29
Section 7.04 Conditions to Legal or
Covenant
Defeasance........................................................
30
Section 7.05 Deposited Money and
Government Securities to Be Held in Trust; Other Miscellaneous
Provisions..... 31
Section 7.06 Repayment to the
Company..........................................................................
31
Section 7.07
Reinstatement.....................................................................................
31
Section 7.08 Termination of the Company's
Obligations..........................................................
32
ARTICLE VIII. AMENDMENT, SUPPLEMENT AND
WAIVER...................................................................
32
Section 8.01 Without Consent of
Holders........................................................................
32
Section 8.02 With Consent of Holders of
Notes..................................................................
33
Section 8.03 Compliance with Trust
Indenture
Act...............................................................
34
Section 8.04 Revocation and Effect of
Consents.................................................................
34
Section 8.05 Notation on or Exchange of
Notes..................................................................
34
Section 8.06 Trustee to Sign Amendments,
Etc...................................................................
35
ARTICLE IX.
SUBORDINATION........................................................................................
35
Section 9.01 Agreement to
Subordinate..........................................................................
35
Section 9.02 Liquidation; Dissolution;
Bankruptcy..............................................................
35
Section 9.03 Default on Senior
Debt............................................................................
36
Section 9.04 Acceleration of
Notes.............................................................................
37
Section 9.05 When Distribution Must Be
Paid
Over...............................................................
37
Section 9.06 Notice by
Company.................................................................................
37
Section 9.07
Subrogation.......................................................................................
37
Section 9.08 Relative
Rights...................................................................................
37
Section 9.09 Subordination May Not Be
Impaired.................................................................
38
Section 9.10 Distribution or Notice to
Representative..........................................................
38
Section 9.11 Rights of Trustee and Paying
Agent................................................................
38
Section 9.12 Authorization to Effect
Subordination.............................................................
38
Section 9.13
Amendments........................................................................................
38
Section 9.14
Miscellaneous.....................................................................................
38
ARTICLE X.
MISCELLANEOUS.........................................................................................
39
Section 10.01 Trust Indenture Act
Controls....................................................................
39
</TABLE>
iv
<PAGE>
<TABLE>
<S>
<C>
Section 10.02
Notices.........................................................................................
39
Section 10.03 Communication by
Holders of Notes with Other Holders of
Notes................................... 40
Section 10.04 Certificate and
Opinion as to Conditions
Precedent..............................................
40
Section 10.05 Statements Required in
Certificate or
Opinion...................................................
40
Section 10.06 Rules by Trustee and
Agents.....................................................................
40
Section 10.07 No Personal Liability
of Partners, Directors, Officers, Employees, and
Shareholders............. 41
Section 10.08 Governing
Law...................................................................................
41
Section 10.09 No Adverse
Interpretation of Other
Agreements...................................................
41
Section 10.10
Successors......................................................................................
41
Section 10.11 Severability /
Independence of
Covenants........................................................
41
Section 10.12 Counterpart
Originals...........................................................................
41
Section 10.13 Table of Contents,
Headings,
Etc................................................................
41
EXHIBIT
A........................................................................................................
1
EXHIBIT
B........................................................................................................
1
EXHIBIT
C........................................................................................................
1
</TABLE>
v
<PAGE>
THIS INDENTURE, dated as of September 24, 2003, is by and among
UNITED
COMMUNITY BANKS, INC., a Georgia
corporation (the "Company"), and MARSHALL &
ILSLEY TRUST COMPANY, N.A., a national
banking association, as trustee (the
"Trustee").
The Company and
the Trustee hereby agree as follows for the benefit of
each other and for the equal and ratable
benefit of the holders (the "Holders")
of (i) the Notes (as defined in Section
1.01 below) initially issued hereunder
on the Closing Date (the "Original Notes"),
and (ii) any Additional Notes (as
defined in Section 1.01 below) that may be
issued on any Issue Date (all such
Notes in clauses (i) and (ii) being
referred to collectively as the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.
DEFINITIONS.
"Additional Notes" means any Subordinated Step-Up Notes due
2015,
bearing interest at a rate of 6.25% per
annum from the applicable Issue Date
until September 30, 2010 and at a rate of
7.50% per annum thereafter until
maturity, issued under the terms of this
Indenture subsequent to the Closing
Date, which shall be of the same series as,
and have terms identical to, the
Notes issued as of the Closing Date.
"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
purposes of this definition, "control,"
as used with respect to any Person, shall
mean the possession, directly or
indirectly, of the power to direct or cause
the direction of the management or
policies of such Person, whether through
the ownership of voting securities, by
agreement or otherwise; provided, however,
that beneficial ownership of 10% or
more of the Voting Stock of a Person shall
be deemed to be control. For purposes
of this definition, the terms "affiliated,"
"controlling," "controlled by" and
"under common control with" shall have
correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar or
any
successor thereto.
"Bankruptcy Law" means Title 11, U.S. Code or any other
applicable
federal or state bankruptcy, insolvency or
similar law for the relief of
debtors, and any federal or state law
pertaining to the appointment of a
receiver, conservator, liquidator,
assignee, custodian, trustee or similar
official.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3
and Rule 13d-5 under the Exchange Act,
except that in calculating the beneficial
ownership of any particular "person" (as
such term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall
be deemed to have beneficial ownership
of all securities that such "person" has
the right to acquire, whether such
right is currently exercisable or is
exercisable only upon the occurrence of a
subsequent condition.
"Board of Directors" means the board of directors (or other body
having
similar management functions) or any
committee thereof duly authorized to act on
behalf of such board. Except as expressly
forth herein, any reference to the
Board of Directors shall be a reference to
the Board of Directors of the
Company.
"Board Resolution" means, with respect to any Person, a copy of
a
resolution certified by the Secretary or an
Assistant Secretary of such Person
to have been duly adopted by the Board of
Directors of such Person 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 a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof
is to be made, the amount of the liability
in respect of a capital lease that
would at that time be required to be
capitalized on a balance sheet in
accordance with GAAP.
<PAGE>
"Capital Stock" means:
(i) in the
case of a corporation, corporate stock;
(ii)
in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents
(however designated) of corporate stock;
(iii) in
the case of a partnership or limited liability
company, partnership or membership interests (whether general
or
limited); and
(iv)
any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of,
or
distributions of assets of, the issuing Person.
"Certificated Securities" means Notes that are in the form of the
Notes
attached hereto as Exhibit A, and that do
not include the information called for
by footnotes 1 and 5 thereof.
"Claim" means any claim arising from rescission of the purchase or
sale
of the Notes, for damages arising from the
purchase or sale of the Notes or for
reimbursement or contribution on account of
such a claim.
"Closing Date" means the date of this Indenture.
"Continuing Directors" means, as of any date of determination,
any
member of the Board of Directors of the
Company who (i) was a member of such
Board of Directors as of the Closing Date;
or (ii) was nominated for election or
elected to such Board of Directors with the
approval of a majority of the
Continuing Directors who were members of
such Board at the time of such
nomination or election.
"Covenant Defeasance" has the meaning ascribed in Section 7.03 of
this
Indenture.
"Corporate Trust Office" shall be the address of the Trustee
specified
in Section 3.02 hereof or such other
address as to which the Trustee gives
notice to the Company.
"Currency Agreement" means in respect of a Person any foreign
exchange
contract, currency swap agreement, currency
futures or options agreements or
other similar agreement to which such
Person is a party or beneficiary.
"Default" means any event that is, or with the passage of time or
the
giving of notice or both would be, an Event
of Default.
"Depositary" means, with respect to the Notes issuable or issued
in
whole or in part in global form, the Person
specified in Section 2.04 hereof as
the Depositary with respect to the Notes,
until a successor shall have been
appointed and become such pursuant to the
applicable provisions of this
Indenture and, thereafter, "Depositary"
shall mean or include such successor.
"DTC" has the meaning ascribed in Section 2.04 of this
Indenture.
"Equity Interests" means Capital Stock and all warrants, options
or
other rights to acquire Capital Stock (but
excluding any debt security that is
convertible into, or exchangeable for,
Capital Stock).
"Event of Default" has the meaning ascribed in Section 5.01 of
this
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended,
and all rules and regulations of the SEC
promulgated thereunder.
"Existing Indebtedness" means Indebtedness of the Company in
existence
on the Closing Date, until such amounts are
repaid.
2
<PAGE>
"Financing Entity" means any trust (or a trustee of a trust),
partnership, limited liability company, or
other Affiliate of the Company that
is a financing vehicle.
"GAAP"
means generally accepted accounting principles set forth in the
opinions and pronouncements of the
Accounting Principles Board of the American
Institute of Certified Public Accountants
and statements and pronouncements of
the Financial Accounting Standards Board or
in such other statements by such
other entity as have been approved by a
significant segment of the accounting
profession, which are in effect from time
to time.
"Global Note" means a Note that contains the paragraph referred to
in
footnote 1 and the additional schedule
referred to in footnote 5 to the form of
the Note attached hereto as Exhibit A.
"Government Securities" means direct obligations of, or
obligations
guaranteed by, the United States of America
for the payment of which guarantee
or obligations the full faith and credit of
the United States is pledged.
"Guarantee" means a guarantee or other assurance of Indebtedness
of
another Person, whether as an obligor,
guarantor or otherwise, other than by
endorsement of negotiable instruments for
collection in the ordinary course of
business, direct or indirect, and in any
manner including, by way of a pledge of
assets or other security or collateral or
through letters of credit or
reimbursement agreements in respect
thereof, of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under Currency
Agreements and Interest Rate
Agreements.
"Holder," "Noteholder" and "Holder of Note" mean a Person in whose
name
a Note is registered.
"incur" shall mean, with respect to any Indebtedness or other
Obligation, to directly or indirectly,
create, incur, issue, assume, guarantee
or otherwise become directly or indirectly
liable, contingently or otherwise,
with respect to such Indebtedness or other
Obligation.
"Indebtedness" means, with respect to any specified Person, any
Obligations of such Person in respect
of:
(i) borrowed
money;
(ii)
debt securities, bonds, notes, debentures or similar
instruments, letters of credit, securities purchase facilities
and
reimbursement agreements in respect thereof;
(iii)
banker's acceptances;
(iv)
Capital Lease Obligations;
(v) the
deferred and unpaid balance of the purchase price
of any property, all obligations of that Person under any
conditional
sale or title retention agreement, except any such balance that
constitutes an accrued expense or trade payable; or
(vi)
any Hedging Obligations,
if and to the extent any of the preceding
items (other than letters of credit
and Hedging Obligations) would appear as a
liability upon a balance sheet of the
specified Person prepared in accordance
with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of
others secured by a Lien on any
asset of the specified Person (whether or
not such Indebtedness is assumed by
the specified Person) and, to the extent
not otherwise included, the Guarantee
by such Person of any Indebtedness of any
other Person. The incurrence of
Indebtedness Guaranteed by the specified
Person shall, for purposes of this
Indenture, be the incurrence of
Indebtedness by such specified Person.
3
<PAGE>
The amount of any Indebtedness outstanding as of any date shall
be:
(i) the
accreted value thereof, in the case of any
Indebtedness issued with original issue discount;
(ii)
the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of
any
other Indebtedness, and premium, if any; and
(iii) the
amount of Indebtedness of such specified Person
arising by reason of a Guarantee of Indebtedness shall equal
the
outstanding principal amount of the Guaranteed Indebtedness.
"Indenture" means this Indenture, as amended, modified or
supplemented
from time to time.
"Interest Rate Agreement" means in respect of a Person any
interest
rate swap agreement, interest rate cap
agreement, interest rate floor agreement,
interest rate futures or option contracts,
or other financial agreement or
arrangement designed to protect such Person
against fluctuations in interest
rates.
"Issue Date," with respect to any Notes, means the date on which
such
Notes are originally issued.
"Junior Subordinated Debt" means the Company's Trust Preferred
Securities Guarantees and the related
Junior Subordinated Debentures, any
Indebtedness that is subordinate to or on a
parity with any of the foregoing
Indebtedness, and any Indebtedness that is
by its terms subordinate to the
Indebtedness incurred under this
Indenture.
"Junior Subordinated Debentures" means the Company's outstanding
8.125%
junior subordinated deferrable interest
debentures due 2028, 11.295% junior
subordinated notes due 2030, and 10.60%
junior subordinated deferrable interest
debentures due 2030.
"Legal Defeasance" has the meaning ascribed in Section 7.02 of
this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking
institutions in the City of New York or in
the city in which the principal
corporate trust office of the Trustee or at
a place of payment are authorized by
law, regulation or executive order to
remain closed. If a payment date is a
Legal Holiday at a place of payment,
payment may be made at that place on the
next succeeding day that is not a Legal
Holiday, and no interest shall accrue
for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge,
charge, security interest or encumbrance of
any kind in respect of such asset,
whether or not filed, recorded or otherwise
perfected under applicable law,
including any conditional sale or other
title retention agreement, any lease in
the nature thereof, any option or other
agreement to sell or give a security
interest in such asset, and any filing of
or agreement to give any financing
statement under the Uniform Commercial Code
(or equivalent statutes) of any
jurisdiction.
"Note Custodian" means the Trustee, as custodian with respect to
the
Notes in global form, or any successor
entity thereto.
"Notes" means any Subordinated Step-Up Notes due 2015 bearing
interest
at a rate of 6.25% per annum from the
applicable Issue Date until September 30,
2010 and at a rate of 7.50% per annum
thereafter until maturity.
"Obligations" means any obligation, direct or indirect, contingent
or
non-contingent, matured or unmatured, to
pay principal, interest, penalties,
fees, indemnifications, reimbursements,
damages, accounts payable and other
liabilities of any kind whatsoever,
including any guarantee by the Company for
the repayment of Indebtedness, whether or
not evidenced by bonds, debentures,
notes or other written instruments, and any
deferred obligation for the payment
of the purchase price of property or
assets.
4
<PAGE>
"Officer" means, with respect to any Person, the Chief
Executive
Officer, the President, the Chief Financial
Officer, any Vice President whose
principal duties relate to financial
matters, the Treasurer or the Secretary of
such Person.
"Officers' Certificate" means a certificate signed on behalf of
a
Person by two Officers of such Person, one
of whom must be the principal
executive officer, the principal financial
officer or the principal accounting
officer of such Person, which meets the
applicable requirements of Section 10.04
hereof.
"Opinion of Counsel" means a written opinion from legal counsel
that
meets the applicable requirements of
Section 10.04 hereof. Such counsel may be
an employee of or counsel to the Company or
any Subsidiary of the Company.
"Original Notes" means any Notes issued as of the Closing Date.
"Paying Agent" has the meaning ascribed in Section 2.04 of this
Indenture.
"Payment Blockage Notice" has the meaning ascribed in Section 9.03
of
this Indenture.
"Person" means any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust,
limited liability company,
unincorporated organization or government
or agency or political subdivision
thereof (including any subdivision or
ongoing business of any such entity or
substantially all of the assets of any such
entity, subdivision or business).
"Redemption Date" has the meaning ascribed to it in Section 2.16(a)
of
this Indenture.
"Redemption Price" has the meaning ascribed to it in Section
2.16(a) of
this Indenture.
"Registrar" has the meaning ascribed in Section 2.04 of this
Indenture.
"Regulation S Global Note" has the meaning ascribed in Section 2.07
of
this Indenture.
"Representative" means the indenture trustee or other trustee,
agent or
representative in respect of any
Indebtedness; provided, however, that if, and
for so long as, any Indebtedness lacks such
a representative, then the
Representative for such Indebtedness shall
at all times constitute the holders
of a majority in outstanding principal
amount of such Indebtedness in respect of
any Indebtedness.
"Responsible Officer," when used with respect to the Trustee, means
any
officer within the corporate trust
administration department of the Trustee (or
any successor group of the Trustee) or any
other officer of the Trustee
customarily performing functions similar to
those performed by any of the above
designated officers, and also means, with
respect to a particular corporate
trust matter, any other employee to whom
such matter is referred because of his
knowledge of, and familiarity with, the
particular subject and who shall have
direct responsibility for the
administration of this Indenture.
"SEC" means the United States Securities and Exchange Commission
(or
any successor federal regulatory body
having similar jurisdiction).
"Securities Act" means the Securities Act of 1933, as amended, and
all
rules and regulations of the SEC
promulgated thereunder.
"Senior Debt" means
(i) any of the
Company's Indebtedness, including all
Indebtedness outstanding under the $40 million line of credit from
The
Bankers Bank dated as of June 25, 2002,
(ii)
any of the Company's Indebtedness or other
Obligations with respect to commodity contracts, interest rate
and
currency swap agreements, cap, floor and collar agreements,
currency
spot and
5
<PAGE>
forward contracts, and other similar agreements or arrangements
designed
to protect against fluctuations in currency exchange or
interest rates,
(iii) any
guarantees, endorsements (other than by
endorsement of negotiable instruments for collection in the
ordinary
course of business) or other similar Obligations in respect of
Obligations of others of a type described in clauses (i), (ii)
and
(iii), whether or not such Obligation is classified as a liability
on
the balance sheet prepared in accordance with GAAP, and
(iv)
Obligations owed to general creditors of the Company,
in each case whether outstanding on the
date of execution of this Indenture or
thereafter incurred, other than
Subordinated Debt and Junior Subordinated Debt,
including the Company's Trust Preferred
Securities Guarantees and the related
Junior Subordinated Debentures.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act,
as such Regulation was in effect on
the Closing Date.
"Stated Maturity" means, with respect to any installment of
interest or
principal on any series of Indebtedness,
the date on which such payment of
interest or principal was scheduled to be
paid in the original documentation
governing such Indebtedness, and shall not
include any contingent obligations to
repay, redeem or repurchase any such
interest or principal prior to the date
originally scheduled for the payment
thereof.
"Subordinated Debt" means any Debt of the Company (whether
outstanding
on the Closing Date or thereafter incurred)
that is subordinate or junior in
right of payment to Senior Debt pursuant to
a written agreement to that effect,
including the Company's outstanding 6.75%
Subordinated Notes due 2012.
"Subsidiary" means, with respect to any Person:
(i) any
corporation, association or other business entity
of which more than 50% of the Voting Stock is at the time owned
or
controlled, directly or indirectly, by such Person or one or more
of
the other Subsidiaries of that Person (or a combination thereof);
and
(ii)
any partnership (A) the sole general partner or the
managing general partner of which is such Person or a Subsidiary
of
such Person, or (B) the only general partners of which are such
Person
or of one or more Subsidiaries of such Person (or any
combination
thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as in effect on the date on
which this Indenture is qualified
under the TIA, except as provided by
Section 8.03 hereof.
"Transfer Restricted Securities" means securities that bear or
are
required to bear the legend set forth in
Section 2.07 hereof.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the
applicable provisions of this Indenture and
thereafter means the successor serving
hereunder.
"Trust Preferred Securities Guarantees" shall mean the
guarantees
issued by the Company in connection with
the 8.125% capital securities due 2028
issued by United Community Capital Trust,
the 10.60% preferred securities due
2030 issued by United Community Statutory
Trust I, the 11.295% capital
securities due 2030 issued by United
Community Capital Trust II, and any
guarantee now or hereafter entered into by
the Company in respect of any
preferred or preference stock that is by
its terms subordinated to or on a
parity with the Junior Subordinated
Debt.
"Voting Stock" of any Person as of any date means the Capital Stock
of
such Person that is at the time entitled to
vote in the election of the Board of
Directors of such Person.
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"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such
Person all of the outstanding Capital Stock
or other ownership interests of
which (other than directors' qualifying
shares) shall at the time be owned by
such Person and/or by one or more Wholly
Owned Subsidiaries of such Person.
SECTION 1.02
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision
is incorporated by reference in and made a
part of this Indenture. The following
TIA terms used in this Indenture have the
following meanings:
(i) "indenture
securities" means the Notes;
(ii)
"indenture security holder" means a Holder of a Note;
(iii)
"indenture to be qualified" means this Indenture;
(iv)
"indenture trustee" or "institutional trustee" means
the
Trustee; and
(v) "obligors"
on the Notes means the Company and any
successor obligor upon the Notes and not otherwise defined
herein.
All other terms used in this Indenture that are defined by the
TIA,
defined by TIA reference to another statute
or defined by SEC rule under the TIA
and not otherwise defined herein have the
meanings so assigned to them.
SECTION 1.03
RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has
the meaning assigned to it;
(ii)
an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or"
is not exclusive;
(iv)
words in the singular include the plural, and in the
plural include the singular;
(v) provisions
apply to successive events and
transactions;
(vi)
references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement
or
successor sections or rules adopted by the SEC from time to time;
and
(vii) the
terms "include," "included," and "including," and
words of similar meaning, shall be deemed to be without
limitation,
whether by enumeration or otherwise.
ARTICLE II
THE NOTES
SECTION 2.01
AMOUNT OF NOTES; ABILITY TO RE-OPEN SERIES.
The aggregate principal amount of Notes that may be authenticated
and
delivered under this Indenture shall be
limited to $35,000,000. The series of
Notes issued at the Closing Date, which
shall be the only series of Notes
authorized for issuance under this
Indenture, may be re-opened at any time and
from time to time, and Additional Notes may
be issued under, and as part of,
that series.
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With respect to any Additional Notes issued after the Closing
Date
(except for Notes authenticated and
delivered upon registration of transfer of,
or in exchange for, or in lieu of, other
Notes pursuant to Sections 2.07, 2.08,
2.09 or 2.11 of this Indenture), there
shall be:
(i)
established in or pursuant to a Board Resolution; and
(ii)
(A) set forth or determined in the manner provided in
an Officers' Certificate; or (B) established in one or more
indentures
supplemental hereto, prior to the issuance of such Additional
Notes:
(1) the
aggregate principal amount of such
Additional Notes that may be authenticated and delivered under
this Indenture, which, together with any other Notes
outstanding under this Indenture, shall be limited to a total
of $35,000,000 in aggregate principal amount;
(2) the issue
price and issuance date of such
Additional Notes, including the date from which interest on
such Additional Notes shall accrue; and
(3) if
applicable, that such Additional Notes
shall be issuable in whole or in part in the form of one or
more Global Notes and, in such case, the respective
depositaries for such Global Notes, the form of any legend or
legends which shall be borne by such Global Notes in addition
to or in lieu of those set forth in Exhibit A hereto and any
circumstances in addition to or in lieu of those set forth in
Section 2.07 hereof in which any such Global Note may be
exchanged in whole or in part for Additional Notes registered,
or any transfer of such Global Note in whole or in part may be
registered, in the name or names of Persons other than the
depositary for such Global Note or a nominee thereof.
If any of the terms of any Additional Notes are established by
action
taken pursuant to a Board Resolution, such
Board Resolution shall be delivered
to the Trustee at or prior to the delivery
of the Officers' Certificate or the
indenture supplemental hereto setting forth
the terms of the Additional Notes.
SECTION 2.02
FORM AND DATING.
The Original Notes (and any Additional Notes) and the Trustee's
certificate of authentication shall be
substantially in the form of Exhibit A
hereto, the terms of which are incorporated
in and made part of this Indenture.
The Notes may have notations, legends or
endorsements required by law, stock
exchange rule, agreements to which the
Company is subject or usage. Each Note
shall be dated the date of its
authentication. The Notes shall be issued
initially in denominations of $1,000 and
integral multiples thereof. Each Global
Note shall represent such of the
outstanding Notes as shall be specified therein
and each shall provide that it shall
represent the aggregate amount of
outstanding Notes from time to time
endorsed thereon and that the aggregate
amount of outstanding Notes represented
thereby may from time to time be reduced
or increased, as appropriate, to reflect
exchanges and other transactions. Any
endorsement of a Global Note to reflect the
amount of any increase or decrease
in the amount of outstanding Notes
represented thereby shall be made by the
Trustee or the Note Custodian, at the
direction of the Trustee, in accordance
with instructions given by the Holder
thereof as required by Section 2.07
hereof.
SECTION 2.03
EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes by manual or
facsimile
signature. If an Officer whose signature is
on a Note no longer holds that
office at the time a Note is authenticated,
the Note shall nevertheless be
valid. A Note shall not be valid until
authenticated by the manual signature of
the Trustee. The signature shall be
conclusive evidence that the Note has been
authenticated under this Indenture. The
form of the Trustee's certificate of
authentication to be borne by the Notes
shall be substantially as set forth in
Exhibit A attached hereto. The Trustee
shall, upon a written order of the
Company signed by two Officers of the
Company directing the Trustee to
authenticate the Notes and certifying that
all conditions precedent to the
issuance of the Notes contained herein have
been complied with, authenticate:
(i) Notes for
original issue on the Closing Date up to
the aggregate principal amount of $35,000,000; and
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(ii)
subject to the terms of this Indenture, Additional
Notes in an
aggregate principal amount that, together with the
aggregate principal amount of all other Notes then outstanding,
shall
not exceed $35,000,000.
Each Note shall be dated the date of its authentication. The
Trustee
may appoint an authenticating agent
acceptable to the Company to authenticate
the Notes. Unless limited by the terms of
such appointment, an authenticating
agent may authenticate Notes whenever the
Trustee may do so. Each reference in
this Indenture to authentication by the
Trustee includes authentication by such
agent. An authenticating agent has the same
rights as an Agent to deal with the
Company or Affiliates of the Company.
SECTION 2.04
REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Notes may
be
presented for registration of transfer or
for exchange (a "Registrar"); and (ii)
an office or agency where Notes may be
presented for payment (a "Paying Agent").
The Registrar shall keep a register of the
Notes and of their transfer and
exchange. The Company may appoint one or
more co-registrars and one or more
additional paying agents. The term
"Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional
paying agent. The Company may change
any Paying Agent, Registrar or co-registrar
without prior notice to any Holder.
The Company or any of its Subsidiaries may
act as Paying Agent, Registrar or
co-registrar. The Company shall enter into
an appropriate agency agreement with
any Agent not a party to this Indenture,
which shall incorporate the provisions
of the TIA. Such agreement shall implement
the provisions of this Indenture that
relate to such Agent. The Company shall
notify the Trustee of the name and
address of any such Agent. If the Company
fails to maintain a Registrar or
Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate
compensation in accordance with
Section 6.07 hereof. The Company initially
appoints The Depository Trust Company
("DTC") to act as Depositary with respect
to the Global Notes. The Company
initially appoints the Trustee to act as
the Registrar and Paying Agent and to
act as Note Custodian with respect to the
Global Notes.
SECTION 2.05
PAYING AGENT TO HOLD MONEY IN TRUST.
The Company will require each Paying Agent other than the Trustee
to
agree in writing that the Paying Agent
shall hold in trust for the benefit of
the Holders or the Trustee all money held
by the Paying Agent for the payment of
principal of, premium, if any, or interest,
if any, on the Notes, and will
promptly notify the Trustee of any Default
by the Company in making any such
payment. While any such Default continues,
the Trustee may require a Paying
Agent to pay all such money held by it to
the Trustee. The Company at any time
may require a Paying Agent to pay all such
money held by it to the Trustee and
to account for any funds disbursed by it
prior to such time. Upon payment over
to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary)
shall have no further liability for the
money delivered to the Trustee. If the
Company or a Subsidiary acts as Paying
Agent, such Person shall segregate and
hold in a separate trust fund for the
benefit of the Holders all money held by
such Person as Paying Agent. Upon any
bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall
serve as Paying Agent.
SECTION 2.06
HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably
practicable the most recent list available
to it of the names and addresses of
all Holders and shall otherwise comply with
TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall
furnish to the Trustee, at least seven
Business Days before each interest payment
date and at such other times as the
Trustee may request in writing, a list in
such form and as of such date as the
Trustee may reasonably require of the names
and addresses of the Holders,
including the aggregate principal amount of
Notes held by each thereof, and the
Company shall otherwise comply with TIA
Section 312(a).
SECTION 2.07
TRANSFER AND EXCHANGE.
(a) Transfer
and Exchange of Certificated Securities. When
Certificated Securities are presented by a
Holder to the Registrar with a
request (i) to register the transfer of the
Certificated Securities; or (ii) to
exchange such Certificated Securities for
an equal principal amount of
Certificated Securities of other
authorized
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denominations, then the Registrar shall
register the transfer or make the
exchange as requested if its requirements
for such transactions are met;
provided, however, that the Certificated
Securities presented or surrendered for
register of transfer or exchange:
(A) shall be
duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar
duly
executed by such Holder or by his attorney, duly authorized in
writing;
and
(B) in the
case of a Certificated Security that is a
Transfer Restricted Security, such request shall be accompanied by
the
following additional information and documents, as applicable:
(1) if such
Transfer Restricted Security is
being delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification
to that effect from such Holder (in substantially the form of
Exhibit B attached hereto); or
(2) if such
Transfer Restricted Security is
being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or pursuant to an
exemption from registration in accordance with Rule 144 under
the Securities Act, or pursuant to an exemption from
registration in accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form of Exhibit
B (or, if pursuant to Rule 904, Exhibit C) attached hereto).
(b) Transfer
of a Certificated Security for a Beneficial Interest
in a Global Note. A Certificated Security
may not be exchanged for a beneficial
interest in a Global Note except upon
satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a
Certificated Security, duly endorsed or
accompanied by appropriate instruments of
transfer, in form satisfactory to the
Trustee, together with:
(i) if such
Certificated Security is a Transfer
Restricted Security, a certification from the Holder thereof
(in
substantially the form of Exhibit B hereto) to the effect that
such
Certificated Security is being transferred by such Holder
either:
(A) to a
"qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act, or
(B) based upon
an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the Company,
the Trustee and to the Registrar, pursuant to another
exemption from the registration requirements of the Securities
Act provided by Rule 144 under the Securities Act; and
(ii)
whether or not such Certificated Security is a
Transfer Restricted Security, written instructions from the
Holder
thereof directing the Trustee to make, or to direct the Note
Custodian
to make,
an endorsement on the Global Note to reflect an increase in
the aggregate principal amount of the Notes represented by the
Global
Note, in which case the Trustee shall cancel such Certificated
Security
in accordance with Section 2.12 hereof and cause, or direct the
Note
Custodian to cause, in accordance with the standing instructions
and
procedures existing between the Depositary and the Note Custodian,
the
aggregate principal amount of Notes represented by the Global Note
to
be increased accordingly. If no Global Notes are then outstanding,
then
the Company shall issue and, upon receipt of an authentication
order in
accordance with Section 2.03 hereof, the Trustee shall
authenticate, a
new Global Note in the appropriate principal amount.
(c) Transfer
and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial
interests therein shall be effected
through the Depositary, in accordance with
this Indenture and the procedures of
the Depositary therefor, which shall
include restrictions on transfer comparable
to those set forth herein to the extent
required by the Securities Act.
Notwithstanding any other provision of this
Indenture (other than the provisions
set forth in subsection (e) of this Section
2.07), a Global Note may not be
transferred as a whole except by the
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<PAGE>
Depositary to the Depositary or another
nominee of the Depositary or by the
Depositary or any such nominee to a
successor Depositary or a nominee of such
successor Depositary.
(d) Transfer
of a Beneficial Interest in a Global Note for a
Certificated Security.
(i) Any Person
having a beneficial interest in a Global
Note may upon request exchange such beneficial interest for a
Certificated Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary for
the
Depositary, from the Depositary or its nominee on behalf of any
Person
having a beneficial interest in a Global Note, and, in the case of
a
Transfer Restricted Security, the following additional information
and
documents (all of which may be submitted by facsimile):
(A) if such
beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification to that effect; or
(B) if such
beneficial interest is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from the transferor (in substantially the form of
Exhibit B (or, if pursuant to Rule 904, Exhibit C) attached
hereto);
in which case the Trustee or the Note Custodian, at the direction
of
the Trustee, shall, in accordance with the standing instructions
and
procedures existing between the Depositary and the Note
Custodian,
cause the aggregate principal amount of Global Notes to be
reduced
accordingly and, following such reduction, the Company shall
execute
and the Trustee shall authenticate and deliver to the transferee,
a
Certificated Security in the appropriate principal amount.
(ii)
Certificated Securities issued in exchange for a
beneficial interest in a Global Note pursuant to this Section
2.07(d)
shall be registered in such names and in such authorized
denominations
as the Depositary, pursuant to instructions from its direct or
indirect
participants or otherwise, shall instruct the Trustee. The
Trustee
shall deliver such Certificated Securities to the Persons in
whose
names such Notes are so registered.
(e)
Authentication of Certificated Securities in Absence
of Depositary. If at any time:
(i) the
Depositary for the Notes notifies the
Company that the Depositary is unwilling or unable to continue
as
Depositary for the Global Notes or has ceased to be a clearing
agency
registered under the Exchange Act and, in either case, a
successor
Depositary for the Global Notes is not appointed by the Company
within
90 days after delivery of such notice; or
(ii)
the Company, at its sole discretion,
notifies the Trustee in writing it elects to cause the issuance
of
Certificated Securities under this Indenture,
THEN THE COMPANY SHALL EXECUTE, AND THE
TRUSTEE SHALL, UPON RECEIPT OF AN
AUTHENTICATION ORDER IN ACCORDANCE WITH
SECTION 2.03 HEREOF, AUTHENTICATE AND
DELIVER, CERTIFICATED SECURITIES IN AN
AGGREGATE PRINCIPAL AMOUNT EQUAL TO THE
PRINCIPAL AMOUNT OF THE GLOBAL NOTES IN
EXCHANGE FOR SUCH GLOBAL NOTES.
(f)
Legends.
(i) Except as
permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate
evidencing Global Notes and Certificated
Securities (and all Notes issued in
exchange therefor or substitution thereof)
shall bear legends in substantially the
following form:
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<PAGE>
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(A) REPRESENTS
THAT (1) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB") OR (2) IT HAS ACQUIRED THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT;
(B) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (1) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (2) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (3) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S OF THE
SECURITIES ACT, (4) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (5) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY), OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION;
(C) AGREES
THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; AND
(D)
ACKNOWLEDGES AND AGREES THAT THE COMPANY AND
THE TRUSTEE HAVE RESERVED THE RIGHT, PRIOR TO ANY SUCH OFFER,
SALE, PLEDGE OR OTHER TRANSFER (I) PURSUANT TO CLAUSE (B)(3)
PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO RULE 904 OF REGULATION S, OR (II) PURSUANT TO
CLAUSE (B)(4) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE
UNDER RULE 144, TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND
TO REQUIRE THAT A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THIS NOTE BE COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION
S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING."
(ii)
Each Note sold in reliance on Regulation S of the
Securities Act shall bear the following
additional legend on the face thereof:
"PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE
PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),
THIS
12
<PAGE>
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED
WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR
THE
ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION
S),
EXCEPT TO A PERSON REASONABLY BELIEVED TO BE A QIB IN A
TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A AND THE INDENTURE REFERRED
TO
HEREIN."
(iii) Each
Global Note (other than a Regulation S Global
Note, which shall, subject to applicable procedures, bear a
substantially similar legend with respect to the rights of
Euroclear
System or Clearstream Banking, S.A., as applicable) shall also bear
the
following legend on the face thereof:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY
ANY
SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF
A
SUCCESSOR DEPOSITARY, OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR
A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL
NOTE
SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF
CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE, AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR
TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(iv)
Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted
Security represented by a Global
Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the Securities
Act:
(A) in the
case of any Transfer Restricted
Security that is a Certificated Security, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted
Security for a Certificated Security that does not bear the
legend set forth in paragraph (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the
case of any Transfer Restricted
Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the legend
set forth in (i) above, but shall continue to be subject to
the provisions of Section 2.07(c) hereof; provided, however,
that with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Note for a
Certificated Security that does not bear the legend set forth
in paragraph (i) above, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule 144
(such certification to be substantially in the form of Exhibit
B attached hereto).
(v) Any
Additional Notes sold in a registered offering
shall not be required to bear the legend set forth in paragraph
(i)
above.
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(g) General
Provisions Relating to Transfers and Exchanges.
(i) To permit
registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Certificated Securities and Global Notes at the Registrar's
request.
(ii)
No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may
require
payment of a sum sufficient to cover any transfer tax or
similar
governmental charge payable in connection therewith (other than
any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Section 8.05 hereof).
(iii) All
Certificated Securities and Global Notes issued
upon any registration of transfer or exchange of Certificated
Securities or Global Notes shall be the valid obligations of
the
Company, evidencing the same debt, and entitled to the same
benefits
under this Indenture, as the Certificated Security or Global
Notes
surrendered upon such registration of transfer or exchange.
(iv)
The Company shall not be required to register the
transfer of or to exchange a Note between a record date and the
next
succeeding interest payment date.
(v) Prior to
due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may
deem
and treat the Person in whose name any Note is registered as
the
absolute owner of such Note for the purpose of receiving payment
of
principal of, premium, if any, interest, if any, on such Note,
and
neither the Trustee, any Agent nor the Company shall be affected
by
notice to the contrary.
(vi)
The Trustee shall authenticate Certificated
Securities and Global Notes in accordance with the provisions
of
Section 2.03 hereof.
(vii) Each Holder of a Note
agrees to indemnify the Trustee
against any liability that may result from the transfer, exchange
or
assignment of such Holder's Note in violation of any provision of
this
Indenture and/or applicable United States federal or state
securities
law.
(viii) The
Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on
transfer imposed under this Indenture or under applicable law
with
respect to any transfer of any interest in any Note (including
any
transfers between or among Depositary participants or beneficial
owners
of interests in any Global Note) other than to require delivery of
such
certificates and other documentation or evidence as are
expressly
required by the terms of this Indenture, and to examine the same
to
determine substantial compliance as to form with the express
requirements hereof.
(ix)
Notwithstanding the foregoing, neither the Trustee
nor the Registrar shall authorize any transfer or exchange
prohibited
by the redemption provisions of Section 2.16 of this Indenture.
(h)
Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in Global Notes
have been exchanged for Certificated
Securities, or are repurchased or canceled,
all Global Notes shall be returned
to or retained and canceled by the Trustee
in accordance with Section 2.12
hereof. At any time prior to such
cancellation, if any beneficial interest in a
Global Note is exchanged for Certificated
Securities, or any Global Note is
repurchased or canceled, the principal
amount of Notes represented by such
Global Note shall be reduced accordingly
and an endorsement shall be made on
such Global Note, by the Trustee or the
Note Custodian, at the direction of the
Trustee, to reflect such reduction.
(i) Transfer
to Non-U.S. Persons. The following additional
provisions shall apply with respect to the
registration of any proposed transfer
of a Transfer Restricted Security to any
"non-U.S. person" (as defined in
Regulation S of the Securities Act):
(i) the
Registrar shall register the transfer of any
Transfer Restricted Security if:
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(A) the
requested transfer is after the second
anniversary of the Issue Date with respect to such Transfer
Restricted Security; provided, however, that neither the
Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any
time on or prior to the second anniversary of the Issue Date
with respect to such Transfer Restricted Security and such
transfer can otherwise be lawfully made under the Securities
Act without registering such Transfer Restricted Security
thereunder; or
(B) the
proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit C
hereto;
(ii)
if the Notes to be transferred consist of
Certificated Securities that, after transfer, are to be evidenced
by an
interest in a Global Note sold in reliance on Regulation S under
the
Securities Act (a "Regulation S Global Note") upon receipt by
the
Registrar of:
(A) written
instructions given in accordance
with the Depositary's and the Registrar's procedures, and
(B) the
appropriate certificate, if any,
required by clause (B) of paragraph (i) above, together with
any required legal opinions and certifications,
the Registrar shall register the transfer and reflect on its books
and
records the date and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount
of
Certificated Securities to be transferred, and the Trustee shall
cancel
the Certificated Securities so transferred;
(iii) if
the Notes to be transferred consist of a transfer
of an interest in a Global Note, upon receipt by the Registrar
of:
(A)
written
instructions given in accordance
with the Depositary's and the Registrar's procedures, and
(B) the
appropriate certificate, if any,
required by clause (B) of paragraph (i) above, together with
any required legal opinions and certifications,
the Registrar shall register the transfer and reflect on its books
and
records the date and (1) a decrease in the principal amount of
the
Global
Note from which such interests are to be transferred in an
amount equal to the principal amount of the Notes to be transferred
and
(2) an increase in the principal amount of the Regulation S Global
Note
in an amount equal to the principal amount of the Global Note to
be
transferred; and
(iv)
until the 41st day after the Issue Date of such
Transfer Restricted Security (the "Restricted Period"), an owner of
a
beneficial interest in the Regulation S Global Note may not
transfer
such interest to a transferee that is a U.S. person or for the
account
or benefit of a U.S. person within the meaning of Rule 902(o) of
the
Securities Act. During the Restricted Period, all beneficial
interests
in the Regulation S Global Note shall be transferred only
through
Euroclear System or Clearstream Banking, S.A., either directly if
the
transferor and transferee are participants in such systems, or
indirectly through organizations that are participants.
SECTION 2.08 REPLACEMENT OF NOTES.
If any mutilated Note is surrendered to the Trustee, the Note
Custodian, the Depositary or the Company,
and the Trustee receives evidence to
its satisfaction of the destruction, loss
or theft of any Note, then the Company
shall issue and the Trustee, upon the
written order of the Company signed by two
Officers of the Company, shall authenticate
a replacement Note if the Trustee's
requirements for replacements of Notes are
met. An indemnity bond must be
supplied by the Holder that is sufficient
in the judgment of the Trustee and the
Company to protect the Company, the
Trustee, any Agent and any authenticating
agent from any loss that any of them may
suffer if a Note
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<PAGE>
is replaced. The Company and the Trustee
may charge for their expenses in
replacing a Note. Every replacement Note is
an additional obligation of the
Company and shall be entitled to all of the
benefits of this Indenture equally
and proportionately with all other Notes
duly issued hereunder.
SECTION 2.09 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated
by
the Trustee except for those canceled by
it, those delivered to it for
cancellation, those redeemed pursuant to
Section 2.16 hereof, those reductions
in the interest in a Global Note effected
by the Trustee in accordance with the
provisions hereof, and those described in
this Section as not outstanding. If a
Note is replaced pursuant to Section 2.08
hereof, then it ceases to be
outstanding unless the Trustee receives
proof satisfactory to it that the
replaced Note is held by a bona fide
purchaser; provided, however, that the
aggregate principal amount of the Notes
shall not increase by reason of this
Section 2.09 or Section 2.08 hereof. If the
principal amount of any Note is
considered paid under Section 3.01 hereof,
then it ceases to be outstanding and
interest on it ceases to accrue. Subject to
Section 2.10 hereof, a Note does not
cease to be outstanding because the Company
or an Affiliate of the Company holds
the Note. If the Paying Agent (other than
the Company or a Subsidiary thereof)
holds, on a maturity date, money sufficient
to pay Notes payable on that date,
then on and after that date such Notes
shall be deemed to be no longer
outstanding and shall cease to accrue
interest.
SECTION 2.10 TREASURY NOTES.
In determining whether the Holders of the required principal amount
of
Notes have concurred in any direction,
waiver or consent, Notes owned by the
Company or by any Affiliate thereof shall
be considered as though not
outstanding, except that for the purposes
of determining whether the Trustee
shall be protected in relying on any such
direction, waiver or consent, only
Notes that a Responsible Officer actually
knows to be so owned shall be so
considered.
SECTION 2.11 TEMPORARY NOTES.
Until Certificated Securities are ready for delivery, the Company
may
prepare and the Trustee shall authenticate
temporary Notes upon a written order
of the Company signed by two Officers of
the Company directing the Trustee to
authenticate the Notes and certifying that
all conditions precedent to the
issuance of the Notes contained herein have
been complied with. Temporary Notes
shall be substantially in the form of
Certificated Securities but may have
variations that the Company and the Trustee
consider appropriate for temporary
Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable
delay, the Company shall prepare and the
Trustee shall authenticate Certificated
Securities in exchange for temporary Notes.
Holders of temporary Notes shall be
entitled to all of the benefits of this
Indenture.
SECTION 2.12 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying
Agent shall forward to the Trustee any
Notes surrendered to them for registration
of transfer, exchange or payment. The
Trustee and no one else shall cancel all
Notes surrendered for registration of
transfer, exchange, payment, replacement or
cancellation and shall return
canceled Notes to the Company. The Company
may not issue new Notes to replace
Notes that the Company has paid or redeemed
or that have been delivered to the
Trustee for cancellation.
SECTION 2.13 RECORD DATE.
The record date for purposes of determining the identity of Holders
of
the Notes entitled to vote or consent to
any action by vote or consent
authorized or permitted under this
Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14 DEFAULTED INTEREST.
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If the Company defaults in a payment of interest on the Notes, it
shall
pay the defaulted interest in any lawful
manner plus, to the extent lawful,
interest payable on the defaulted interest,
to the Persons who are Holders on a
subsequent special record date, which date
shall be at the earliest practicable
date but in all events at least five
Business Days prior to the payment date, in
each case at the rate provided in the Notes
and in Section 3.01 hereof. The
Company shall notify the Trustee in writing
of the amount of defaulted interest
proposed to be paid on each Note and the
date of the proposed payment. The
Company shall, with the consent of the
Trustee, fix or cause to be fixed each
such special record date and payment date.
At least 15 days before the special
record date, the Company (or, upon the
written request of the Company, the
Trustee in the name and at the expense of
the Company) shall mail or cause to be
mailed to the Holders a notice that states
the special record date, the related
payment date and the amount of such
interest to be paid.
SECTION 2.15 CUSIP NUMBERS.
The Company in issuing the Notes may use CUSIP numbers (if then
generally in use), and, if so, the Trustee
shall use CUSIP numbers in notices
and other correspondence as a convenience
to Holders; provided, however, that
any such notice may state that no
representation is made as to the correctness
of such numbers either as printed on the
Notes or as contained in any notice and
that reliance may be placed only on the
other identification numbers printed on
the Notes, and any such notice shall not be
affected by any defect in or
omission of such numbers. The Company shall
promptly notify the Trustee of any
change in the CUSIP numbers.
SECTION 2.16 OPTIONAL REDEMPTION.
(a) THE
COMPANY MAY, AT ITS OPTION, REDEEM THE NOTES IN WHOLE BUT
NOT IN PART ON SEPTEMBER 30, 2010 OR ON
SEPTEMBER 30 OF EACH YEAR THEREAFTER
THROUGH SEPTEMBER 30, 2014 (EACH, A
"REDEMPTION DATE") PRIOR TO THE MATURITY OF
THE NOTES, AT A REDEMPTION PRICE EQUAL TO
100% OF THE PRINCIPAL AMOUNT THEN
OUTSTANDING WITH RESPECT TO THE NOTES SO
REDEEMED, PLUS ALL ACCRUED AND UNPAID
INTEREST ON SUCH PRINCIPAL AMOUNT (THE
"REDEMPTION PRICE"). IF ANY REDEMPTION
DATE IS NOT A BUSINESS DAY, THEN THE
REDEMPTION SHALL OCCUR ON THE NEXT
IMMEDIATELY SUCCEEDING BUSINESS DAY.
(b)
Except as
provided in this Section 2.16 and elsewhere in this
Indenture, the Company shall have no
obligation or right to redeem the Notes
prior to maturity.
(c) If the
Company elects to redeem the Notes pursuant to the
optional redemption provisions of this
Section 2.16, then it shall furnish to
the Trustee at least 45 days but not more
than 60 days before a Redemption Date,
a notice identifying the Notes to be
redeemed and stating: (i) the Redemption
Date; (ii) the Redemption Price; (iii) the
name and address of the Paying Agent;
(iv) that the Notes must be surrendered to
the Paying Agent to collect the
Redemption Price; (v) that, unless the
Company defaults in paying the Redemption
Price, interest on the Notes ceases to
accrue on and after the Redemption Date;
and (vi) that no representation is made as
to the correctness or accuracy of the
CUSIP number, if any, listed in such notice
or printed on the Notes.
(d) At least
30 days but not more than 60 days before any
Redemption Date, the Trustee shall, in the
Company's name and at the Company's
expense, mail, by first class mail, a
notice of redemption to each Holder.
(e) Once
notice of redemption is mailed in accordance with Section
2.16(d), the principal amount of each Note
called for redemption shall mature
and become irrevocably due and payable
o
