As filed with the Securities and Exchange Commission on April 21, 2015
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File No. 333-__________
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Georgia
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58-1807304
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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United Community Banks, Inc.
125 Highway 515 East
Blairsville, Georgia 30512
(706) 781-2765
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Jimmy C. Tallent
125 Highway 515 East
Blairsville, Georgia 30512
(706) 781-2765
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(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o
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(Do not check if smaller reporting company)
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Title of Each Class of Securities
to be Registered (1)
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Amount to be
Registered
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Proposed Maximum
Offering Price per
Unit
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Proposed Maximum
Aggregate Offering Price
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Amount of
Registration
Fee
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Common Stock
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(2)
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(2)
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(2)
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(2)
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Preferred Stock
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(2)
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(2)
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(2)
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(2)
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Debt Securities
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(2)
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(2)
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(2)
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(2)
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Warrants
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(2)
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(2)
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(2)
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(2)
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Total
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$300,000,000 (3)
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(2)
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$300,000,000 (3)
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$34,860 (4)
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(1)
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An indeterminate aggregate principal amount or number of securities is being registered that may be offered or sold hereunder from time to time. Common stock, preferred stock and debt securities may be issued upon the exercise of warrants and may be issued in exchange for or upon conversion of, as the case may be, the securities registered hereunder. Securities being registered hereunder may be sold separately or as units with other securities registered hereunder.
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(2)
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Not specified as to each class of securities being registered pursuant to General Instruction II.D. to Form S-3 and Rule 457(o) under the Securities Act of 1933, as amended.
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(3)
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The proposed maximum aggregate offering price has been estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) of the Securities Act of 1933, as amended. The maximum aggregate public offering price of the Common Stock, Preferred Stock, Debt Securities and Warrants registered hereby will not exceed $300,000,000. Pursuant to Rule 415(a)(6) under the Securities Act of 1933, the securities registered pursuant to this Registration Statement include $247,302,400 of unsold securities of the registrant previously registered pursuant to Registration Statement on Form S-3 (File No. 333-180752), which became effective on April 25, 2012. The unsold securities will be deemed terminated as of the date of effectiveness of this Registration Statement.
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(4)
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Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended. Exclusive of accrued interest, if any, on the debt securities. Pursuant to Rule 457(p) under the Securities Act of 1933, $6,124 of this amount is being paid with the filing of this Registration Statement; the balance is paid by offset of $28,736 of the filing fee paid with the Registration Statement on Form S-3 (File No. 333-180752).
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shares of common stock, $1.00 par value per share;
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shares of preferred stock, $1.00 par value per share, in one or more series, which may be convertible into or exchangeable for common stock or debt securities;
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debt securities, which may be senior or subordinated and may be convertible into or exchangeable for common stock or preferred stock;
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warrants to purchase our common stock or preferred stock; and
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any combination of the foregoing securities.
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Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. An investment in securities of United Community Banks, Inc. is not insured by the Federal Deposit Insurance Corporation or any other government agency.
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5
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7
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shares of common stock, $1.00 par value per share;
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shares of preferred stock, $1.00 par value per share, in one or more series, which may be convertible into or exchangeable for common stock or debt securities;
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debt securities, which may be senior or subordinated and may be convertible into or exchangeable for common stock or preferred stock;
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warrants to purchase our common stock or preferred stock; and
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any combination of the foregoing securities.
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1 |
2 |
3 |
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the condition of the general business and economic environment;
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the results of our internal credit stress tests may not accurately predict the impact on our financial condition if the economy were to deteriorate;
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our ability to maintain profitability;
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our ability to fully realize the balance of our net deferred tax asset, including net operating loss carryforwards;
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the risk that we may be required to increase the valuation allowance on our net deferred tax asset in future periods;
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the condition of the banking system and financial markets;
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our ability to raise capital;
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our ability to maintain liquidity or access other sources of funding;
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changes in the cost and availability of funding;
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the success of the local economies in which we operate;
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our lack of geographic diversification;
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our concentrations of residential and commercial construction and development loans and commercial real estate loans are subject to unique risks that could adversely affect our earnings;
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changes in prevailing interest rates may negatively affect our net income and the value of our assets and other interest rate risks;
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our accounting and reporting policies;
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our ability to maintain effective internal controls over financial reporting and disclosure controls and procedures;
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if our allowance for loan losses is not sufficient to cover actual loan losses;
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losses due to fraudulent and negligent conduct of our loan customers, third party service providers or employees;
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risks related to our communications and information systems, including risks with respect to cybersecurity breaches;
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our reliance on third parties to provide key components of our business infrastructure and services required to operate our business;
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competition from financial institutions and other financial service providers;
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risks with respect to our ability to successfully expand and complete acquisitions and integrate businesses and operations that are acquired;
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if the conditions in the stock market, the public debt market and other capital markets deteriorate;
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the impact of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and related regulations;
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changes in laws and regulations or failures to comply with such laws and regulations;
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changes in regulatory capital and other requirements;
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the costs and effects of litigation, examinations, investigations, or similar matters, or adverse facts and developments related thereto, including possible dilution;
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regulatory or judicial proceedings, board resolutions, informal memorandums of understanding or formal enforcement actions imposed by regulators that may occur; and
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changes in tax laws, regulations and interpretations or challenges to our income tax provision.
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4 |
Year Ended December 31,
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2014
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2013
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2012
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2011
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2010
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Including Interest on Deposits
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4.95
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x
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1.35
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x
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1.29
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x
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(1.94)
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x
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(2.84
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)x
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Excluding Interest on Deposits
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8.09
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x
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1.50
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x
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1.50
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x
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(5.95)
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x
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(11.82
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)x
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Fixed charges consist of interest expensed and capitalized, amortized premiums, discounts and capitalized expenses related to indebtedness, an estimate of the interest with rental expense, pre-tax earnings required to pay dividends on preferred stock and pre-tax accretion.
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7 |
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the title of the debt securities;
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the price or prices, expressed as a percentage of the principal amount, at which we will sell the debt securities;
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whether the debt securities will be senior or subordinated;
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any subordination provisions, if different from those described below under “Subordinated Debt Securities”;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which we will pay the principal on the debt securities;
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the rate or rates, which may be fixed or variable, per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
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9 |
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the place or places where principal of, premium and interest on the debt securities will be payable;
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the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities;
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the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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any addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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any other terms of the debt securities, which may modify or delete any provision of the indenture as it applies to that series;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; and
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any other specific terms of such debt securities.
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we are the surviving corporation or the successor person (if other than United) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture;
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immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, shall have occurred and be continuing under the indenture; and
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certain other conditions are met.
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of that default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of or premium on any debt security of that series when due and payable;
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default in the deposit of any sinking fund payment, when and as due in respect of any debt security of that series;
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or we and the trustee receive written notice from the holders of not less than a majority in principal amount of the outstanding debt securities of that series as provided in the indenture;
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certain events of bankruptcy, insolvency or reorganization of our company; and
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any other event of default provided with respect to debt securities of that series that is described in the applicable prospectus supplement accompanying this prospectus.
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that holder has previously given to the trustee written notice of a continuing event of default with respect to debt securities of that series; and
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the holders of at least a majority in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
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13 |
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reduce the amount of debt securities whose holders must consent to an amendment or waiver;
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration of maturity;
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waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration);
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make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security;
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adversely affect the right to convert any debt security;
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or
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waive a redemption payment with respect to any debt security.
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants that may be set forth in the applicable prospectus supplement; and
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any omission to comply with those covenants will not constitute a default or an event of default with respect to the debt securities of that series, or covenant defeasance.
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depositing with the trustee money or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, foreign government obligations, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of our independent public accountants to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
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a default in the payment of the principal, premium, if any, interest, rent or other obligations in respect of designated senior indebtedness occurs and is continuing beyond any applicable period of grace (called a “payment default”); or
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a default other than a payment default on any designated senior indebtedness occurs and is continuing that permits holders of designated senior indebtedness to accelerate its maturity, and the trustee receives a notice of such default (called a “payment blockage notice”) from us or any other person permitted to give such notice under the indenture (called a “non-payment default”).
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in the case of a payment default, upon the date on which such default is cured or waived or ceases to exist; and
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in the case of a non-payment default, the earlier of the date on which such nonpayment default is cured or waived or ceases to exist and 179 days after the date on which the payment blockage notice is received by the trustee, if the maturity of the designated senior indebtedness has not been accelerated.
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indebtedness that expressly provides that it shall not be senior in right of payment to subordinated debt securities or expressly provides that it is on the same basis or junior to subordinated debt securities; and
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our indebtedness to any of our majority-owned subsidiaries.
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17 |
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the offering price;
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the title of the warrants;
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the designation and terms of any related debt securities with which the warrants are to be issued and the number of the warrants offered with each debt security;
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the date, if any, on and after which the holder of the warrants can transfer them separately from the related debt securities;
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the date on which the right to exercise the warrants will commence and the date on which this right will expire; and
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whether the warrant certificates representing the warrants will be issued in registered or bearer form, and if registered, where they are transferred and registered.
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18 |
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2014;
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our Proxy Statement for the 2015 Annual Meeting;
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our Current Reports on Form 8-K filed on January 28, 2015, January 28, 2015 and February 10, 2015;
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all other reports filed by United pursuant to Sections 13(a) or 15(d) of the Exchange Act since December 31, 2014; and
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all documents filed after the filing of this registration statement but prior to the effectiveness of the registration statement, and all documents filed after the date of the effectiveness of the registration statement and prior to the termination of the offering hereunder pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except to the extent that any information contained in such filings is deemed “furnished” in accordance with SEC rules (unless otherwise indicated therein)).
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19 |
20 |
SEC registration fee
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$ | 6,124 | ||
Legal fees and expenses
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15,000 | |||
Printing
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10,000 | |||
Fees of accountants
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4,000 | |||
Fees of trustee
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7,500 | |||
Fees of warrant agent
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7,500 | |||
Blue sky fees and expenses
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5,000 | |||
Rating agency fees
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7,500 | |||
Miscellaneous
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37,376 | |||
Total
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$ | 100,000 |
II-1 |
Exhibit No.
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Exhibit
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1.1
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Underwriting Agreement.*
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3.1
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Restated Articles of Incorporation of United Community Banks, Inc., as amended (incorporated herein by reference to Exhibit 3.1 to United Community Banks, Inc.’s Quarterly Report on Form 10-Q/A for the period ended June 30, 2011, filed with the SEC on August 9, 2011).
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3.2
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Amended and Restated Bylaws of United Community Banks, Inc., as amended (incorporated herein by reference to Exhibit 3.2 to United Community Banks, Inc.’s Quarterly Report on Form 10-Q for the period ended March 31, 2011, filed with the SEC on May 4, 2011).
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4.1
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See Exhibits 3.1 and 3.2 for provisions of the Restated Articles of Incorporation of United Community Banks, Inc., as amended, and the Amended and Restated Bylaws, as amended, of United Community Banks, Inc., which define the rights of security holders.
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4.2
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Form of Indenture for Senior Indebtedness.
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4.3
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Form of Indenture for Subordinated Indebtedness.
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4.4
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Form of Note.*
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4.5
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Form of Warrant.*
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5.1
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Opinion and Consent of Troutman Sanders LLP.
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8.1
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Tax Opinion and Consent of Troutman Sanders LLP.*
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12.1
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Computation of Ratio of Earnings to Fixed Charges.
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23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Porter Keadle Moore, LLC.
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23.2
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Consent of Troutman Sanders LLP (included as part of Exhibits 5.1 and 8.1).
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24.1
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Power of Attorney (included on the Signature Page to the Registration Statement).
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25.1
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Statement of Eligibility of Form T-1 of Trustee.*
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II-2 |
(A)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(B)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or
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II-3 |
II-4 |
II-5 |
UNITED COMMUNITY BANKS, INC.
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By:
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/s/ Jimmy C. Tallent
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Jimmy C. Tallent
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Chairman and Chief Executive Officer
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(Principal Executive Officer)
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Signature
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Title
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/s/ Jimmy C. Tallent
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Chairman and Chief Executive Officer
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Jimmy C. Tallent
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(Principal Executive Officer)
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/s/ Rex S. Schuette
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Executive Vice President and Chief Financial Officer
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Rex S. Schuette
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(Principal Financial Officer)
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/s/ Alan H. Kumler
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Senior Vice President, Chief Accounting
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Alan H. Kumler
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Officer (Principal Accounting Officer)
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/s/ H. Lynn Harton
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President, Chief Operating Officer
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H. Lynn Harton
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and Director
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/s/ W.C. Nelson, Jr.
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Lead Independent Director
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W.C. Nelson, Jr.
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/s/ Robert H. Blalock
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Director
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Robert H. Blalock
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/s/ Clifford V. Brokaw
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Director
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Clifford V. Brokaw
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/s/ L. Cathy Cox
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Director
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L. Cathy Cox
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/s/ Steven J. Goldstein
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Director
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Steven J. Goldstein
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/s/ Thomas A. Richlovsky
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Director
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Thomas A. Richlovsky
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/s/ Tim Wallis
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Director
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Tim Wallis
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Exhibit
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Description of Exhibit
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4.2
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Form of Indenture for Senior Indebtedness.
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4.3
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Form of Indenture for Subordinated Indebtedness.
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5.1
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Opinion and Consent of Troutman Sanders LLP.
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12.1
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Computation of Ratio of Earnings to Fixed Charges.
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23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Porter Keadle Moore, LLC.
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30 | |||
30
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30
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31
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31
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33
|
Trust Indenture
Act Section
|
Indenture
Section
|
||||
Section 310
|
(a)(1)
|
7.10
|
|||
(a)(2)
|
7.10
|
||||
(a)(3)
|
N/A
|
||||
(a)(4)
|
N/A
|
||||
(a)(5)
|
7.10
|
||||
(b)
|
7.10
|
||||
Section 311
|
(a)
|
7.11
|
|||
(b)
|
7.11
|
||||
(c)
|
N/A
|
||||
Section 312
|
(a)
|
2.6
|
|||
(b)
|
10.3
|
||||
(c)
|
10.3
|
||||
Section 313
|
(a)
|
7.6
|
|||
(b)(1)
|
7.6
|
||||
(b)(2)
|
7.6
|
||||
(c)(1)
|
7.6
|
||||
(d)
|
7.6
|
||||
Section 314
|
(a)
|
4.2, 10.5
|
|||
(b)
|
N/A
|
||||
(c)(1)
|
10.4
|
||||
(c)(2)
|
10.4
|
||||
(c)(3)
|
N/A
|
||||
(d)
|
N/A
|
(e)
|
10.5
|
||||
(f)
|
N/A
|
||||
Section 315
|
(a)
|
7.1
|
|||
(b)
|
7.5
|
||||
(c)
|
7.1
|
||||
(d)
|
7.1
|
||||
(e)
|
6.14
|
||||
Section 316
|
(a)
|
2.10
|
|||
(a)(1)(A)
|
6.12
|
||||
(a)(1)(B)
|
6.13
|
||||
(b)
|
6.8
|
||||
Section 317
|
(a)(1)
|
6.3
|
|||
(a)(2)
|
6.4
|
||||
(b)
|
2.5
|
||||
Section 318
|
(a)
|
10.1
|
*
|
This Cross Reference Table shall not, for any purpose, be deemed to be part of the Indenture.
|
Term
|
Defined in Section
|
|||
“Bankruptcy Law”
|
6.1
|
|||
“Custodian”
|
6.1
|
|||
“Event of Default”
|
6.1
|
|||
“Legal Holiday”
|
10.7
|
|||
“mandatory sinking fund payment”
|
11.1
|
|||
“optional sinking fund payment”
|
11.1
|
|||
“Paying Agent”
|
2.4
|
|||
“Registrar”
|
2.4
|
|||
“Service Agent”
|
2.4
|
|||
“successor person”
|
5.1
|
|
(a)
|
a term has the meaning assigned to it;
|
|
(b)
|
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
|
|
(c)
|
references to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting principles in effect as of the time when and for the period as to which such accounting principles are to be applied;
|
|
(d)
|
“or” is not exclusive;
|
|
(e)
|
words in the singular include the plural, and in the plural include the singular; and
|
|
(f)
|
provisions apply to successive events and transactions.
|
|
(a)
|
the redemption date;
|
|
(b)
|
the redemption price;
|
|
(c)
|
the name and address of the Paying Agent;
|
|
(d)
|
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
|
|
(e)
|
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;
|
|
(f)
|
the CUSIP number, if any; and
|
|
(g)
|
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
|
|
(a)
|
the Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under this Indenture; and
|
|
(b)
|
immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
|
|
(a)
|
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or
|
|
(b)
|
default in the payment of principal of any Security of that Series at its Maturity; or
|
|
(c)
|
default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or
|
|
(d)
|
default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which the consequences of nonperformance or breach are addressed elsewhere in this Section 6.1 and other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than a majority in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
|
|
(e)
|
the Company pursuant to or within the meaning of any Bankruptcy Law:
|
|
(i)
|
commences a voluntary case,
|
|
(ii)
|
consents to the entry of an order for relief against it in an involuntary case,
|
|
(iii)
|
consents to the appointment of a Custodian of it or for all or substantially all of its property,
|
|
(iv)
|
makes a general assignment for the benefit of its creditors, or
|
|
(v)
|
generally is unable to pay its debts as the same become due; or
|
|
(f)
|
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
|
|
(i)
|
is for relief against the Company in an involuntary case,
|
|
(ii)
|
appoints a Custodian of the Company or for all or substantially all of its property, or
|
|
(iii)
|
orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or
|
(g)
|
|
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.2.18.
|
|
(a)
|
default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
|
|
(b)
|
default is made in the payment of principal of any Security at the Maturity thereof, or
|
|
(c)
|
default is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
|
|
(a)
|
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
|
|
(b)
|
the Holders of at least a majority in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
|
|
(c)
|
such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
|
|
(d)
|
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
|
|
(e)
|
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series;
|
|
(a)
|
such direction shall not be in conflict with any rule of law or with this Indenture,
|
|
(b)
|
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
|
|
(c)
|
subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
|
|
(a)
|
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
|
|
(b)
|
Except during the continuance of an Event of Default:
|
|
(i)
|
The Trustee need perform only those duties that are specifically set forth in this Indenture and no others.
|
|
(ii)
|
In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture.
|
|
(c)
|
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
|
|
(i)
|
This paragraph does not limit the effect of paragraph (b) of this Section.
|
|
(ii)
|
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.
|
|
(iii)
|
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
|
|
(d)
|
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
|
|
(e)
|
The Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity satisfactory to it against any loss, liability or expense.
|
|
(f)
|
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
|
|
(g)
|
No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
|
|
(h)
|
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee.
|
|
(a)
|
The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
|
|
(b)
|
Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate.
|
|
(c)
|
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository.
|
|
(d)
|
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith.
|
|
(e)
|
The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance thereon.
|
|
(f)
|
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
|
|
(g)
|
The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance thereon.
|
|
(h)
|
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
|
|
(i)
|
The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
|
|
(a)
|
the Trustee fails to comply with Section 7.10;
|
|
(b)
|
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
|
|
(c)
|
a Custodian or public officer takes charge of the Trustee or its property; or
|
|
(d)
|
the Trustee becomes incapable of acting.
|
|
(a)
|
either:
|
|
(i)
|
all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
|
|
(ii)
|
all such Securities not theretofore delivered to the Trustee for cancellation (1) have become due and payable, or (2) will become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
|
|
(b)
|
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
|
|
(c)
|
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
|
|
(a)
|
Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4.
|
|
(b)
|
The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
|
|
(c)
|
The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
|
|
(a)
|
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
|
|
(b)
|
the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3, and 8.5; and
|
|
(c)
|
the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied:
|
|
(d)
|
the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
|
|
(e)
|
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
|
|
(f)
|
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
|
(g)
|
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
|
|
(h)
|
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
|
|
(i)
|
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with.
|
|
(a)
|
With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
|
|
(b)
|
Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
|
|
(c)
|
No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
|
(d)
|
The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred; and
|
|
(e)
|
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
|
|
(a)
|
to cure any ambiguity, defect or inconsistency;
|
|
(b)
|
to comply with Article V;
|
|
(c)
|
to provide for uncertificated Securities in addition to or in place of certificated Securities;
|
|
(d)
|
to make any change that does not adversely affect the rights of any Securityholder;
|
|
(e)
|
to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
|
|
(f)
|
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or
|
|
(g)
|
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
|
|
(a)
|
reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver;
|
|
(b)
|
reduce the rate of or extend the time for payment of interest (including default interest) on any Security;
|
|
(c)
|
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
|
|
(d)
|
reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
|
|
(e)
|
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration);
|
|
(f)
|
make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security
|
|
(g)
|
make any change in Sections 6.8, 6.13, or 9.3 (this sentence); or
|
|
(h)
|
waive a redemption payment with respect to any Security.
|
Attention:
|
||||
Telephone:
|
( )
|
|||
Facsimile:
|
( )
|
|
(a)
|
an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
|
|
(b)
|
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
|
|
(a)
|
a statement that the person making such certificate or opinion has read such covenant or condition;
|
|
(b)
|
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
|
|
(c)
|
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
|
|
(d)
|
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
|
Attest:
|
||
UNITED COMMUNITY BANKS, INC.
|
||
By:
|
||
Name:
|
||
Its:
|
Attest:
|
||
[TRUSTEE]
|
||
By:
|
||
Name:
|
||
Its:
|
1
|
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1
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1
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5
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34
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1
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6
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9
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11
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11 | |||
11
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11
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12
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12
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25
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25
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25
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25
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25
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25
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26
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26
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28
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28
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29
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29
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29
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29
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29
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30
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30
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30
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31
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31
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31
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31
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31
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32
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32
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32
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32
|
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32
|
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32
|
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33
|
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33
|
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33
|
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33
|
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33
|
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33
|
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33
|
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33
|
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33
|
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34
|
|||
34
|
|||
34
|
|||
34
|
Trust Indenture
Act Section
|
Indenture
Section
|
||||
Section 310
|
(a)(1)
|
7.10
|
|||
(a)(2)
|
7.10
|
||||
(a)(3)
|
N/A
|
||||
(a)(4)
|
N/A
|
||||
(a)(5)
|
7.10
|
||||
(b)
|
7.10
|
||||
Section 311
|
(a)
|
7.11
|
|||
(b)
|
7.11
|
||||
(c)
|
N/A
|
||||
Section 312
|
(a)
|
2.6
|
|||
(b)
|
10.3
|
||||
(c)
|
10.3
|
||||
Section 313
|
(a)
|
7.6
|
|||
(b)(1)
|
7.6
|
||||
(b)(2)
|
7.6
|
||||
(c)(1)
|
7.6
|
||||
(d)
|
7.6
|
||||
Section 314
|
(a)
|
4.2, 10.5
|
|||
(b)
|
N/A
|
||||
(c)(1)
|
10.4
|
||||
(c)(2)
|
10.4
|
(c)(3)
|
N/A
|
||||
(d)
|
N/A
|
||||
(e)
|
10.5
|
||||
(f)
|
N/A
|
||||
Section 315
|
(a)
|
7.1
|
|||
(b)
|
7.5
|
||||
(c)
|
7.1
|
||||
(d)
|
7.1
|
||||
(e)
|
6.14
|
||||
Section 316
|
(a)
|
2.10
|
|||
(a)(1)(A)
|
6.12
|
||||
(a)(1)(B)
|
6.13
|
||||
(b)
|
6.8
|
||||
Section 317
|
(a)(1)
|
6.3
|
|||
(a)(2)
|
6.4
|
||||
(b)
|
2.5
|
||||
Section 318
|
(a)
|
10.1
|
*
|
This Cross Reference Table shall not, for any purpose, be deemed to be part of the Indenture.
|
Term
|
Defined in Section
|
|||
“Bankruptcy Law”
|
6.1
|
|||
“Custodian”
|
6.1
|
|||
“Event of Default”
|
6.1
|
|||
“Legal Holiday”
|
10.7
|
|||
“mandatory sinking fund payment”
|
11.1
|
|||
“optional sinking fund payment”
|
11.1
|
|||
“Paying Agent”
|
2.4
|
|||
“Payment Blockage Date”
|
12.2
|
|||
“Registrar”
|
2.4
|
|||
“Service Agent”
|
2.4
|
|||
“successor person”
|
5.1
|
|
(a)
|
a term has the meaning assigned to it;
|
|
(b)
|
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
|
|
(c)
|
references to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting principles in effect as of the time when and for the period as to which such accounting principles are to be applied;
|
|
(d)
|
“or” is not exclusive;
|
|
(e)
|
words in the singular include the plural, and in the plural include the singular; and
|
|
(f)
|
provisions apply to successive events and transactions.
|
|
(a)
|
the redemption date;
|
|
(b)
|
the redemption price;
|
|
(c)
|
the name and address of the Paying Agent;
|
|
(d)
|
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
|
|
(e)
|
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;
|
|
(f)
|
the CUSIP number, if any; and
|
|
(g)
|
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
|
|
(a)
|
the Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under this Indenture; and
|
|
(b)
|
immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
|
|
(a)
|
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or
|
|
(b)
|
default in the payment of principal of any Security of that Series at its Maturity; or
|
|
(c)
|
default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or
|
|
(d)
|
default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which the consequences of nonperformance or breach are addressed elsewhere in this Section 6.1 and other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than a majority in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
|
|
(e)
|
the Company pursuant to or within the meaning of any Bankruptcy Law:
|
|
(i)
|
commences a voluntary case,
|
|
(ii)
|
consents to the entry of an order for relief against it in an involuntary case,
|
|
(iii)
|
consents to the appointment of a Custodian of it or for all or substantially all of its property,
|
|
(iv)
|
makes a general assignment for the benefit of its creditors, or
|
|
(v)
|
generally is unable to pay its debts as the same become due; or
|
|
(f)
|
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
|
|
(i)
|
is for relief against the Company in an involuntary case,
|
|
(ii)
|
appoints a Custodian of the Company or for all or substantially all of its property, or
|
|
(iii)
|
orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or
|
|
(g)
|
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.2.18.
|
|
(a)
|
default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
|
|
(b)
|
default is made in the payment of principal of any Security at the Maturity thereof, or
|
|
(c)
|
default is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
|
|
(a)
|
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
|
|
(b)
|
the Holders of at least a majority in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
|
|
(c)
|
such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
|
|
(d)
|
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
|
|
(e)
|
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series;
|
|
(a)
|
such direction shall not be in conflict with any rule of law or with this Indenture,
|
|
(b)
|
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
|
|
(c)
|
subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
|
|
(a)
|
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
|
|
(b)
|
Except during the continuance of an Event of Default:
|
|
(i)
|
The Trustee need perform only those duties that are specifically set forth in this Indenture and no others.
|
|
(ii)
|
In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture.
|
|
(c)
|
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
|
|
(i)
|
This paragraph does not limit the effect of paragraph (b) of this Section.
|
|
(ii)
|
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.
|
|
(iii)
|
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
|
|
(d)
|
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
|
|
(e)
|
The Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity satisfactory to it against any loss, liability or expense.
|
|
(f)
|
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
|
|
(g)
|
No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
|
|
(h)
|
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee.
|
|
(a)
|
The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
|
|
(b)
|
Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate.
|
|
(c)
|
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository.
|
|
(d)
|
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith.
|
|
(e)
|
The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance thereon.
|
|
(f)
|
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
|
|
(g)
|
The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith and in reliance thereon.
|
|
(h)
|
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
|
|
(i)
|
The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
|
|
(a)
|
the Trustee fails to comply with Section 7.10;
|
|
(b)
|
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
|
|
(c)
|
a Custodian or public officer takes charge of the Trustee or its property; or
|
|
(d)
|
the Trustee becomes incapable of acting.
|
|
(a)
|
either:
|
|
(i)
|
all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
|
|
(ii)
|
all such Securities not theretofore delivered to the Trustee for cancellation (1) have become due and payable, or(2) will become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
|
|
(b)
|
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
|
|
(c)
|
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
|
|
(a)
|
Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4.
|
|
(b)
|
The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
|
|
(c)
|
The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
|
|
(a)
|
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
|
|
(b)
|
the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3, and 8.5; and
|
|
(c)
|
the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied:
|
|
(d)
|
the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
|
|
(e)
|
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
|
|
(f)
|
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
|
(g)
|
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
|
|
(h)
|
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
|
|
(i)
|
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with.
|
|
(a)
|
With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
|
|
(b)
|
Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
|
|
(c)
|
No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
|
(d)
|
The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred; and
|
|
(e)
|
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
|
|
(a)
|
to cure any ambiguity, defect or inconsistency;
|
|
(b)
|
to comply with Article V;
|
|
(c)
|
to provide for uncertificated Securities in addition to or in place of certificated Securities;
|
|
(d)
|
to make any change that does not adversely affect the rights of any Securityholder;
|
|
(e)
|
to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
|
|
(f)
|
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or
|
|
(g)
|
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
|
|
(a)
|
reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver;
|
|
(b)
|
reduce the rate of or extend the time for payment of interest (including default interest) on any Security;
|
|
(c)
|
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
|
|
(d)
|
reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
|
|
(e)
|
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration);
|
|
(f)
|
make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
|
|
(g)
|
make any change in Sections 6.8, 6.13, or 9.3 (this sentence); or
|
|
(h)
|
waive a redemption payment with respect to any Security.
|
Attention:
|
||||
Telephone:
|
( )
|
|||
Facsimile:
|
( )
|
|
(a)
|
an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
|
|
(b)
|
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
|
|
(a)
|
a statement that the person making such certificate or opinion has read such covenant or condition;
|
|
(b)
|
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
|
|
(c)
|
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
|
|
(d)
|
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
|
|
(a)
|
a default in the payment of principal, premium, interest, rent or other obligations due on any Senior Indebtedness occurs and is continuing (or, in the case of Senior Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness), unless and until such default shall have been cured or waived or shall have ceased to exist; or
|
|
(b)
|
a default, other than a payment default, on a Designated Senior Indebtedness occurs and is continuing that then permits holders of such Designated Senior Indebtedness to accelerate its maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a Representative or the Company.
|
|
(1)
|
the date upon which the default is cured or waived or ceases to exist, or
|
|
(2)
|
in the case of a default referred to in clause (ii) above, 179 days pass after notice is received if the maturity of such Designated Senior Indebtedness has not been accelerated, unless this Article XII otherwise prohibits the payment or distribution at the time of such payment or distribution.
|
Attest:
|
||
UNITED COMMUNITY BANKS, INC.
|
||
By:
|
||
Name:
|
||
Its:
|
||
Attest:
|
||
[TRUSTEE]
|
||
By:
|
||
Name:
|
||
Its:
|
Exhibit 5.1
TROUTMAN
SANDERS LLP
Attorneys
at Law
Bank
of America Plaza
600
Peachtree Street NE, Suite 5200
Atlanta,
Georgia 30308-2216
404.885.3000
telephone
404.885.3900 facsimile
troutmansanders.com
|
April 21, 2015
United Community Banks, Inc.
125 Highway 515 East
Blairsville, Georgia 30512
Re: | United Community Banks, Inc. |
Registration Statement on Form S-3 (File No. 333-________) |
Ladies and Gentlemen:
We have acted as counsel to United Community Banks, Inc. (the “Company”), a Georgia corporation, in connection with the Registration Statement on Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended.
The Registration Statement includes a prospectus (the “Prospectus”) that provides that it will be supplemented in the future by one or more supplements to the Prospectus (each, a “Prospectus Supplement”). The Prospectus, as supplemented by one or more Prospectus Supplements, relates to the issuance by the Company of up to an aggregate of $300,000,000 of its (i) shares of common stock, $1.00 par value per share (“Common Stock”), (ii) shares of preferred stock, $1.00 par value per share, in one or more series, which may be convertible into or exchangeable for common stock or debt securities (collectively, the “Preferred Stock”), (iii) debt securities, in one or more series, which may be senior, senior subordinated or subordinated and may be convertible into or exchangeable for common stock or preferred stock (collectively, "Debt Securities"), (iv) warrants to purchase Common Stock or Preferred Stock (“Warrants”), and (v) any combination of the foregoing securities. The Common Stock, Preferred Stock, Debt Securities and Warrants are collectively referred to as the "Securities".
The Debt Securities may be issued pursuant to an indenture between the Company and a financial institution to be identified therein as trustee (the “Trustee”) in the forms attached as Exhibits 4.2 and 4.3 to the Registration Statement, as such indentures may be supplemented from time to time (collectively, the “Indenture”). The Warrants may be issued pursuant to a warrant agreement (the terms and conditions of which will be set forth in a Prospectus Supplement(s) relating to an issuance of Warrants), between the Company and a financial institution to be identified therein as warrant agent (the “Warrant Agent”), as such warrant agreement may be supplemented from time to time (collectively, the “Warrant Agreement”).
United Community Banks, Inc.
April 21, 2015
Page 2
We have examined the Registration Statement and the Indenture. We have also examined originals, or duplicates or conformed copies, of such documents, corporate records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary for purposes of the opinions hereinafter set forth. As to questions of fact material to this opinion letter, we have relied upon certificates or comparable documents of public officials and upon oral or written statements and representations of officers and representatives of the Company.
During the course of such examination and review, and in connection with furnishing the opinions set forth below, we have assumed the accuracy and completeness of all documents and records that we have reviewed, the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed or reproduced copies. We are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization and issuance of the Securities, and, for the purposes of this opinion letter, have assumed such future proceedings will be timely completed in the manner presently proposed.
To the extent that the obligations of the Company under Debt Securities may be dependent upon such matters, we assume for purposes of this opinion letter that (i) the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) the Trustee is duly qualified to engage in the activities contemplated by the Indenture; (iii) the Indenture has been duly authorized, executed and delivered by the Trustee and constitutes the legally valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms; (iv) the Trustee is in compliance, generally and with respect to acting as a trustee under the Indenture, with all applicable laws and regulations; and (v) the Trustee has the requisite organizational and legal power and authority to execute and deliver and to perform its obligations under the Indenture.
To the extent that the obligations of the Company under Warrants may be dependent upon such matters, we assume for purposes of this opinion letter that (i) the Warrant Agent is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) the Warrant Agent is duly qualified to engage in the activities contemplated by the Warrant Agreement; (iii) the Warrant Agreement has been duly authorized, executed and delivered by the Warrant Agent and constitutes the legally valid and binding obligation of the Warrant Agent, enforceable against the Warrant Agent in accordance with its terms; (iv) the Warrant Agent is in compliance, generally and with respect to acting as a trustee under the Warrant Agreement, with all applicable laws and regulations; and (v) the Warrant Agent has the requisite organizational and legal power and authority to execute and deliver and to perform its obligations under the Warrant Agreement.
United Community Banks, Inc.
April 21, 2015
Page 3
Based upon the foregoing, and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
1. The Company has the authority pursuant to its Amended and Restated Articles of Incorporation (“Articles”) to issue up to an aggregate of 100,000,000 shares of Common Stock. When (i) the Board of Directors of the Company has adopted a resolution in form and content as required by applicable law authorizing the issuance of shares of Common Stock (with such shares, together with all shares previously issued or reserved for issuance and not duly and lawfully retired, not exceeding an aggregate of 100,000,000 shares), (ii) the Registration Statement and any required post-effective amendments thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and (iii) such shares are issued and delivered and payment of legal consideration in excess of the par value thereof is received in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and by such resolution, such shares of Common Stock will be validly issued, fully paid and nonassessable.
2. The Company has the authority pursuant to its Articles to issue up to an aggregate of 10,000,000 shares of Preferred Stock. When (i) a series of Preferred Stock has been duly established in accordance with the terms of the Articles and applicable law, (ii) when the Board of Directors of the Company has adopted a resolution in form and content as required by applicable law authorizing the issuance of shares of Preferred Stock (with such shares, together with all shares previously issued or reserved for issuance and not duly and lawfully retired, not exceeding an aggregate of 10,000,000 shares), (iii) the Registration Statement and any required post-effective amendments thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and (iv) such shares are issued and delivered and payment of legal consideration in excess of the par value thereof is received in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and by such resolutions, shares of such series of Preferred Stock will be validly issued, fully paid and nonassessable.
3. When (i) the Indenture has been duly executed and delivered by the Company and the Trustee, (ii) the Debt Securities have been duly established in accordance with the Indenture (including, without limitation, the adoption by the Board of Directors of the Company, or a duly formed committee thereof, of a resolution duly authorizing the issuance and delivery of the Debt Securities), duly authenticated by the Trustee and duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms and provisions of the Indenture and as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (iii) the Registration Statement and any required post-effective amendments thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and assuming that the (x) terms of the Debt Securities as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), (y) Debt Securities as executed and delivered do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (z) Debt Securities as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, the Debt Securities will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
United Community Banks, Inc.
April 21, 2015
Page 4
4. When (i) the Warrant Agreement has been duly executed and delivered by the Company and the Warrant Agent, (ii) the Warrants have been established in accordance with the Warrant Agreement (including, without limitation, the adoption by the Board of Directors of the Company, or a duly formed committee thereof, of a resolution duly authorizing the issuance and delivery of the Warrants), duly authenticated by the Warrant Agent and duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms and provisions of the Warrant Agreement and as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (iii) the Registration Statement and any required post-effective amendments thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act, and assuming that the (x) terms of the Warrants executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), (y) Warrants as executed and delivered do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company, and (z) Warrants as executed and delivered comply with all requirements and restrictions, if any, applicable to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, the Warrants will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
The opinions provided above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors (including, without limitation, the effect of statutory or other laws regarding preferential transferees); (ii) the effect of general equitable principles (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding at law or in equity, and the discretion of the court before which any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy; and (iv) the unenforceability of any provision requiring the payment of attorneys’ fees, where such payment is contrary to law or public policy.
We express no opinion as to (i) the effectiveness (A) of any waiver (whether or not stated as such) under Section 4.4 of the Indenture, or otherwise, or any consent thereunder relating to, any unknown future rights or the rights of any party thereto existing, or duties owing to it, as a matter of law; (B) of any waiver (whether or not stated as such) contained in the Indenture of rights of any party, or duties owing to it, that is broadly or vaguely stated or does not describe the right or duty purportedly waived with reasonable specificity; (C) of any provisions of the Indenture or Warrant Agreement that may be construed as penalties or forfeitures; or (D) of any covenants (other than covenants relating to the payment of principal, interest, premium, indemnities and expenses) in the Indenture or Warrant Agreement to the extent they are construed to be independent requirements as distinguished from conditions to the declaration or occurrence of a default or any event of default; or (ii) the validity, binding effect or enforceability of any provision of the Indenture or Warrant Agreement related to choice of governing law to the extent that the validity, binding effect or enforceability of any such provision is to be determined by any court other than a court of the State of New York or State of Georgia or a federal district court sitting in the State of New York or State of Georgia, in each case, applying the choice of law principles of the State of New York or the State of Georgia, respectively.
United Community Banks, Inc.
April 21, 2015
Page 5
Our examination of matters of law in connection with the opinions expressed herein has been limited to, and accordingly our opinions expressed herein are limited to, the laws of the State of New York and the laws of the State of Georgia. We express no opinion with respect to the laws of any other jurisdiction.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur that could affect the opinions contained herein.
This opinion letter is being furnished in accordance with the requirements of Item 16 of Form S-3 and Item 601(b)(5) of the Commission’s Regulation S-K. We hereby consent to the reference to our name under the caption “Legal Matters” in the Prospectus constituting a part of the Registration Statement, and any amendments or supplements thereto, and further consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement.
Sincerely, | ||
TROUTMAN SANDERS LLP | ||
/s/ Troutman Sanders LLP |
UNITED COMMUNITY BANKS, INC.
|
|||||||||||||||||||||
RATIO OF EARNINGS TO FIXED CHARGES (Regulation S-K 503(d))
|
|||||||||||||||||||||
12/31/14
|
12/31/13
|
12/31/12
|
12/31/11
|
12/31/10
|
|||||||||||||||||
EARNINGS
|
|||||||||||||||||||||
|
107,070 | 34,952 | 34,906 | (230,729 | ) | (432,292 | ) | ||||||||||||||
|
Fixed Charges
|
26,936 | 47,044 | 57,786 | 84,637 | 116,686 | |||||||||||||||
|
Amortization of Capitalized Interest
|
- | - | - | - | - | |||||||||||||||
|
Capitalized Interest
|
- | - | - | - | - | |||||||||||||||
|
Preferred Series A Dividends (pre-tax equivalent)
|
- | (20 | ) | (20 | ) | (20 | ) | (20 | ) | |||||||||||
|
Preferred Series B Dividends (pre-tax equivalent)
|
(245 | ) | (16,002 | ) | (16,100 | ) | (16,000 | ) | (15,850 | ) | ||||||||||
|
Preferred Series D Dividends (pre-tax equivalent)
|
(431 | ) | (2,562 | ) | (2,569 | ) | (2,192 | ) | - | |||||||||||
Total Earnings
|
133,331 | 63,413 | 74,002 | (164,304 | ) | (331,476 | ) | ||||||||||||||
Interest on Deposits
|
11,925 | 14,566 | 23,814 | 48,802 | 81,732 | ||||||||||||||||
Total Earnings Excluding Deposit Interest
|
121,406 | 48,847 | 50,188 | (213,106 | ) | (413,208 | ) | ||||||||||||||
FIXED CHARGES
|
|||||||||||||||||||||
|
25,549 | 27,680 | 37,909 | 65,638 | 100,070 | ||||||||||||||||
|
Interest Capitalized
|
- | - | - | - | - | |||||||||||||||
|
Interest Included in Rental Expense
|
712 | 781 | 767 | 749 | 745 | |||||||||||||||
|
Preferred Series A Dividends (pre-tax equivalent)
|
- | 20 | 20 | 20 | 20 | |||||||||||||||
|
Preferred Series B Dividends (pre-tax equivalent)
|
245 | 16,002 | 16,100 | 16,000 | 15,850 | |||||||||||||||
|
Preferred Series D Dividends (pre-tax equivalent)
|
431 | 2,562 | 2,569 | 2,192 | - | |||||||||||||||
Total Fixed Charges
|
26,936 | 47,044 | 57,366 | 84,599 | 116,685 | ||||||||||||||||
Interest on Deposits
|
11,925 | 14,566 | 23,814 | 48,802 | 81,732 | ||||||||||||||||
Total Fixed Charges Excluding Deposit Interest
|
15,011 | 32,478 | 33,552 | 35,797 | 34,953 | ||||||||||||||||
RATIO OF EARNINGS TO FIXED CHARGES
|
|||||||||||||||||||||
Including Interest on Deposits
|
4.95 | x | 1.35 | x | 1.29 | x | (1.94 | ) x | (2.84 | ) x | |||||||||||
Excluding Interest on Deposits
|
8.09 | x | 1.50 | x | 1.50 | x | (5.95 | ) x | (11.82 | ) x | |||||||||||
DEFICIENCY (503(d) 1(A)) with deposit interest
|
- | - | - | 248,903 | 448,161 | ||||||||||||||||
DEFICIENCY (503(d) 1(A)) without deposit interest
|
- | - | - | 248,903 | 448,161 |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S -3 of our report dated February 27, 2015 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in United Community Banks, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2014. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
Atlanta, Georgia
April 21, 2015
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of United Community Banks, Inc. of our report dated March 1, 2013, relating to our audit of the consolidated financial statements included in the Annual Report on Form 10-K of United Community Banks, Inc. for the year ended December 31, 2014. We also consent to the reference to our Firm under the caption “Experts” in this Registration Statement.
Atlanta, Georgia
April 21, 2015
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