<PAGE> 1
As filed with the Securities and Exchange Commission on October 3, 1995
Registration No. 33-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
HUNTINGTON BANCSHARES INCORPORATED
(Exact name of Registrant as specified in its charter)
Maryland 31-0724920
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
41 South High Street
Columbus, Ohio 43287
(614) 480-8300
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
--------------------
Ralph K. Frasier, Esq.
Secretary and General Counsel
Huntington Bancshares Incorporated
41 South High Street
Columbus, Ohio 43287
(614) 480-4647
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copies to:
Mary Beth M. Clary, Esq. Lee Meyerson, Esq.
Porter, Wright, Morris & Arthur Simpson Thacher & Bartlett
41 South High Street 425 Lexington Avenue
Columbus, Ohio 43215 New York, New York 10017
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered* Per Unit** Price** Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities...................... $750,000,000 100% $750,000,000 $258,621
===============================================================================================================
<FN>
* Or, if any Debt Securities are issued at original issue discount, such greater
amount as shall result in aggregate proceeds to the Registrant of $750,000,000.
** Estimated solely for the purpose of determining the registration fee.
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
PROSPECTUS
HUNTINGTON BANCSHARES INCORPORATED
DEBT SECURITIES
_______________
Huntington Bancshares Incorporated (the "Company") may from time to
time offer its debt securities consisting of debentures, notes, and/or other
unsecured evidences of indebtedness in one or more series (the "Debt
Securities") in an aggregate principal amount not to exceed $750,000,000. The
Debt Securities may be offered as one or more separate series in amounts, at
prices, and on terms to be determined at the time of sale. The accompanying
Prospectus Supplement sets forth with regard to the series of Debt Securities
in respect of which this Prospectus is being delivered (the "Offered
Securities") the specific designation, aggregate principal amount, maturity,
rate, if any (which may be fixed or variable), times of payment of any
interest, any terms for redemption at the option of the Company or the holder,
any terms for sinking fund payments, any listing on a securities exchange, the
initial public offering price, and any other terms in connection with the
offering and sale of such Debt Securities.
All or a portion of the Debt Securities of any series may be issuable
in permanent registered global form which will be exchangeable only under
certain conditions for definitive Debt Securities.
The Company may sell Debt Securities to or through underwriters or
dealers, and also may sell Debt Securities directly to other purchasers or
through agents. The accompanying Prospectus Supplement sets forth the names of
any underwriters, dealers, or agents involved in the sale of the Offered
Securities, the principal amounts, if any, to be purchased by underwriters, and
the compensation, if any, of such underwriters, dealers, or agents.
_______________
THESE SECURITIES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS
OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
The date of this Prospectus is ____________________.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements, and other information can be inspected and copied at the
public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 or at the Commission's regional offices located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511; and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
upon payment of the fees prescribed by the rules and regulations of the
Commission.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Debt Securities offered hereby. This Prospectus
does not contain all the information set forth in the Registration Statement,
certain parts of which are omitted from this Prospectus in accordance with the
rules and regulations of the Commission. For further information, reference is
made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994; the Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1995, and June 30, 1995; the Company's Current Reports
on Form 8-K, dated January 11, 1995, April 12, 1995, April 28, 1995, July 12,
1995, and August 16, 1995; and the Company's Report on Form 10-C, dated August
4, 1995, in connection with the Company's 5% stock dividend paid on July 31,
1995, filed with the Commission pursuant to Section 13 of the Exchange Act, are
incorporated herein by reference.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act after the date hereof and prior to the
completion of the offering of the Debt Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed to constitute a part of this Prospectus except as so
modified or superseded.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the information incorporated herein by reference, other
than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Written or oral requests
should be directed to Jacque Thurston, Investor Relations Officer, Huntington
Bancshares Incorporated, Huntington Center, 41 South High Street, Columbus,
Ohio 43287, telephone number 614-480-3878.
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<PAGE> 4
THE COMPANY
Huntington Bancshares Incorporated, incorporated under Maryland law in
1966, is a multi-state bank holding company headquartered in Columbus, Ohio.
At June 30, 1995, the Company had total assets of approximately $19.4 billion
and total deposits of approximately $12.5 billion (see "Selected Consolidated
Financial Information"). The Company's subsidiaries conduct a full-service
commercial and consumer banking business, engage in mortgage banking, lease
financing, trust services, discount brokerage services, underwriting credit
life and disability insurance, and issuing commercial paper guaranteed by the
Company, and provide other financial products and services. At August 31,
1995, the Company had 178 banking offices located in Ohio, 16 banking offices
located in Northern Kentucky, 25 banking offices located in Indiana, 42 banking
offices in Michigan, 48 banking offices in West Virginia, 5 banking offices in
Western Pennsylvania, 18 banking offices in Florida, and one foreign office in
the Cayman Islands. The Huntington Mortgage Company, a wholly owned subsidiary
of the Company, has loan origination offices throughout the Midwest and the
East Coast.
During the first eight months of 1995, the Company completed
acquisitions of three financial institutions: Security National Corporation, a
bank holding company with assets of $189 million, located in Maitland, Florida;
Reliance Bank of Florida, a Florida state bank with assets of $98 million,
located in Melbourne, Florida; and First Seminole, a Florida state bank with
assets of $51 million, located in Lake Mary, Florida. These banks now operate
under one charter as The Huntington National Bank of Florida. The Company has
also announced the pending acquisition of Peoples Bank of Lakeland, a Florida
state bank with assets of $534 million, located in Lakeland, Florida. As of
the date of this Prospectus, the Company had no other significant acquisitions
pending; however, the Company continues to explore other opportunities to
acquire banking and non-banking companies, both interstate and intrastate.
The Company is a legal entity separate and distinct from its banking
subsidiaries and other affiliates. The principal source of the Company's
income is earnings from its subsidiary banks and the principal source of the
Company's cash flow is dividends from its subsidiary banks. There are various
legal limitations on the ability of the Company's banking subsidiaries to
finance or otherwise supply funds to the Company or certain of its affiliates
through dividends or extensions of credit. A more complete description of
these restrictions is contained in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994. See "Incorporation of Documents by
Reference."
The Company's principal executive offices are located at the Huntington
Center, 41 South High Street, Columbus, Ohio 43287 (telephone 614-480-8300).
USE OF PROCEEDS
Except as otherwise provided in the accompanying Prospectus Supplement,
the net proceeds from the sale of the Debt Securities will be added to the
general funds of the Company to be used from time to time for the repayment of
existing indebtedness, the repurchase of the Company's stock, investments in,
or extensions of credit to, the Company's subsidiaries, the financing of
possible acquisitions, or other general corporate purposes. Pending such
application, the net proceeds may be temporarily invested or applied to the
reduction of short-term indebtedness.
Although the Company continually monitors and investigates suitable
acquisition opportunities, the Company has no material written or oral
acquisition plans, agreements, or other understandings with any specific
entities, except as otherwise described in this Prospectus.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's historical consolidated
ratios of earnings to fixed charges for the five years ended December 31, 1994,
and for the six months ended June 30, 1995 and 1994.
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Year Ended December 31,
----------------- --------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges:
Excluding interest on deposits . . . . . . . . . . 2.17 3.78 3.01 3.68 3.18 2.72 1.82
Including interest on deposits . . . . . . . . . . 1.50 1.96 1.77 1.80 1.45 1.28 1.17
</TABLE>
The ratio of earnings to fixed charges has been computed by dividing
income before income taxes and fixed charges by fixed charges. Fixed charges
excluding interest on deposits consist of interest on indebtedness and
one-third of net rental expense (which is deemed representative of the
interest factor). Fixed charges including interest on deposits consist of
the foregoing items plus interest on deposits.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the
"Indenture") between the Company and The Chase Manhattan Bank (National
Association), as Trustee (the "Trustee"). A copy of the form of the Indenture
is filed as an exhibit to the Registration Statement of which this Prospectus
is a part. See "Available Information." Specific terms of Offered Securities
sold in each offering will be described in the Prospectus Supplement relating
thereto which accompanies this Prospectus. The following summaries of certain
provisions of the Indenture and the Debt Securities do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Indenture, including the definition therein of
certain terms and, in the case of any particular Offered Securities, the
description of the terms thereof in the accompanying Prospectus Supplement.
Wherever particular Sections or defined or capitalized terms used in the
Indenture are referred to herein or in a Prospectus Supplement, it is intended
that such Sections or defined or capitalized terms are incorporated by
reference herein or therein, as the case may be.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued from time to time in one or more separate series. (Section 3.1)
Debt Securities issued at different times in different offerings may constitute
part of a single series.
The Indenture does not limit or prohibit the incurrence of additional
indebtedness by the Company, or the issuance of additional indebtedness by its
subsidiaries, nor does the Indenture contain provisions which would protect the
Holders of, or owners of beneficial interests in, the Debt Securities against a
sudden decline in credit quality resulting from takeovers, recapitalizations,
or other similar restructurings. Such transactions, however, may require
regulatory approval and/or be subject to regulatory restrictions.
The Prospectus Supplement will set forth the price or prices at which
the Offered Securities will be issued and will describe the following terms of
the Offered Securities: (1) the title of the Offered Securities; (2) any limit
on the aggregate principal amount of the Offered Securities; (3) the date or
dates on which the Offered Securities will mature; (4) the rate or rates per
annum at which the Offered Securities will bear interest, if any, or the manner
in which such rates will be determined, and the date from which such interest,
if any, will accrue; (5) the Interest Payment Dates on which such interest (if
any) on the Offered Securities will be payable and the Regular Record Dates for
such Interest Payment Dates; (6) whether the Offered Securities will be
represented in whole or in part by one or more Global
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Securities; (7) any mandatory or optional sinking fund or analogous provisions;
(8) any additions to, or modifications or deletions of, any Events of Default
or covenants and the remedies with respect thereto provided for with respect to
the Offered Securities; (9) any redemption terms; (10) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Securities payable upon acceleration of the maturity thereof; and (11) any
other specific terms of the Offered Securities.
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities (bearing no interest or interest at a rate below the
prevailing market rate at the time of issuance) to be offered and sold at a
discount below their stated principal amount. (Section 3.1) United States
federal income tax consequences and other special considerations applicable to
any such discounted Debt Securities or to other Debt Securities offered and
sold at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the relevant Prospectus
Supplement.
The Debt Securities will be unsecured and will rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company. (Section 3.1)
The Company is a bank holding company and a legal entity separate and distinct
from its affiliate banks and its non-bank subsidiaries. Therefore, the right
of the Company and hence the right of the creditors of the Company (including
the Holders of Debt Securities) to participate in any distribution of the
assets of any subsidiary upon its liquidation or reorganization or otherwise is
necessarily subject to the prior claims of creditors of such subsidiary, except
to the extent that claims of the Company as a creditor of such subsidiary may
be recognized. There is no restriction in the Indenture against subsidiaries
of the Company incurring unsecured or certain secured indebtedness or issuing
unsecured or certain secured securities. The principal activity of the Company
is to own the capital stock of, manage, and supervise its affiliate banks, each
of which is held by the Company as a direct or indirect wholly owned
subsidiary. The primary sources of the Company's revenues are dividends and
fees from its affiliate banks. The ability of the Company to make payments of
principal and interest on the Debt Securities will be dependent upon the
payment to it by its subsidiaries of dividends, fees, loans, or advances. As
more fully set forth in the notes to the Company's consolidated financial
statements, such payments by the Company's subsidiaries are subject to legal
and contractual restrictions.
Unless otherwise specified in the Prospectus Supplement, principal of,
and premium and interest, if any, on, the Offered Securities will be payable at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, the City of New York, and the Offered Securities may be
surrendered for transfer or exchange at that office or agency; provided that
payment of interest, if any, may be made at the option of the Company by check
mailed to the address of the person entitled thereto as it appears in the
register for the Offered Securities on the Regular Record Date for such
interest. (Sections 3.1 and 10.2) The office of the Trustee in the Borough of
Manhattan, the City of New York, will initially be designated such office or
agency.
FORM, EXCHANGE & TRANSFER
The Debt Securities will be denominated in U.S. dollars and, unless
otherwise specified in the Prospectus Supplement, will be issued only in fully
registered form without coupons, in minimum denominations of $1,000 and any
integral multiples thereof. (Section 3.1) At the option of the Holder,
subject to the terms of the Indenture and the limitations applicable to Global
Securities, Debt Securities of each series will be exchangeable for other Debt
Securities of the same series of any authorized denominations and of a like
tenor and aggregate principal amount. (Sections 3.2 and 3.5)
Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with the form of
transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose. The Company has appointed the Trustee as Security Registrar. No
service charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
3.5)
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If Debt Securities of any series are to be redeemed in part, the
Company will not be required (i) to issue, register the transfer of, or
exchange any Debt Security of any series during a period beginning at the
opening of business 15 days before the date of the mailing of a notice of
redemption of any Debt Securities of that series selected for redemption and
ending at the close of business on the date of such mailing, or (ii) to
register the transfer of or exchange any Debt Security so selected for
redemption in whole or in part, except the unredeemed portion of Debt
Securities being redeemed in part. (Section 3.5) Debt Securities may also be
represented by one or more Global Securities. See "--Global Securities."
All moneys paid by the Company to the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of principal of or any
premium or interest on any Debt Security which remain unclaimed for two years
after such principal, premium, or interest shall have become due and payable
must be repaid to the Company, upon request, and thereafter the Holder of such
Debt Security shall look only to the Company for payment thereof. (Section
10.3)
GLOBAL SECURITIES
If indicated on the applicable Prospectus Supplement, any Offered
Securities may be issued in the form of one or more Global Securities
registered in the name of the Depository or a nominee thereof. Unless
otherwise provided in the applicable Prospectus Supplement, if the Offered
Securities are to be issued in global form, the Depository will be The
Depository Trust Company or its nominee and the following provisions will apply
to the depository arrangements. (Section 3.1)
Except as described herein or in the applicable Prospectus Supplement,
Offered Securities in definitive form will not be issued in exchange for any
Global Security. A Global Security may not be transferred by the Depository to
any person other than a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any nominee to a successor of the Depository or a nominee of such
successor unless (i) the Depository has notified the Company that it is
unwilling or unable to continue as Depository for such Global Security or has
ceased to be qualified to act as such as required by the Indenture and a
successor is not appointed by the Company within 90 days, (ii) there shall have
occurred and be continuing an Event of Default with respect to the Debt
Securities represented by such Global Security, or (iii) there shall exist such
circumstances, if any, in addition to or in lieu of those described above as may
be described in the applicable Prospectus Supplement. (Sections 2.2 and 3.5)
Upon the occurrence of any of the foregoing events, the Company will issue Debt
Securities in definitive form upon registration of transfer of, or in exchange
for, such Global Security. In addition, the Company may at any time and in its
sole discretion determine that any Debt Securities represented by a Global
Security shall no longer be represented by a Global Security and, in such event,
will issue Debt Securities in definitive form in exchange for the entire
principal amount of such Global Security. All securities issued in exchange for
a Global Security or any portion thereof will be registered in such names as the
Depository may direct. (Section 3.5)
Ownership of beneficial interests in a Global Security will be limited
to persons that have accounts with the Depository or its nominee
("Participants") or persons that may hold interests through Participants. The
Company expects that upon the issuance of a Global Security, the Depository
will credit on its book-entry registration and transfer system the
Participants' accounts with the respective principal amounts of the Offered
Securities represented by such Global Security. The accounts to be credited
will be designated by the underwriters or agents engaging in the distribution
of the Offered Securities or by the Company if the Company engages in direct
sales. Ownership of beneficial interests in each Global Security will be shown
on, and the transfer of such ownership interests will be effected only through,
records maintained by the Depository or its nominee (with respect to interests
of Participants) and on the records of Participants (with respect to interests
of persons held through Participants). The laws of some states may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to own,
transfer, or pledge beneficial interests in a Global Security.
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<PAGE> 8
So long as the Depository or its nominee is the registered owner of a
Global Security, the Depository or its nominee, as the case may be, will be
considered the sole owner or Holder of the Offered Securities represented by
such Global Security for all purposes under the Indenture. (Section 3.8)
Accordingly, each person owning a beneficial interest in a Global Security must
rely on the procedures of the Depository and, if such person is not a
Participant, on the procedures of the Participant through which such person
owns its interest, to exercise any rights of a Holder under the Indenture, and
these procedures may change from time to time. The Company understands that
under existing industry practices, in the event the Company requests any action
of Holders or an owner of a beneficial interest in a Global Security desires to
take any action which a Holder is entitled to take under the Indenture, the
Depository would authorize the Participants holding the relevant beneficial
interests to take such action, and such Participants would authorize beneficial
owners owning through such Participants to take such action or would otherwise
act upon the instructions of beneficial owners owning through them.
Payment of principal of, and any premium or interest on, any Debt
Securities represented by a Global Security will be made to the Depository or
its nominee, as the registered owner of such Global Security. The Company
expects that upon receipt of any payment of principal of, or interest on, a
Global Security, the Depository will immediately credit Participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Security as shown on the records of the
Depository. Payments by Participants to owners of beneficial interests in
such Global Security held through such Participants will be the responsibility
of such Participants, governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers registered in "street name." None of the Company, the Trustee, any
Paying Agent, or any other agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in any such Global
Security or for maintaining, supervising, or reviewing any records relating to
such beneficial ownership interests. (Section 3.8)
The Depository has advised the Company as follows: it is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. The Depository
was created to hold securities for Participants and to facilitate the clearance
and settlement of securities transactions between Participants in such
securities through electronic book-entry changes in accounts of Participants,
thereby eliminating the need for physical transfer and delivery of
certificates. Participants include securities brokers and dealers, banks and
trust companies, clearing corporations, and certain other organizations. The
Depository is owned by a number of its Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the National Association
of Securities Dealers, Inc. Access to the Depository's system is also available
to others such as banks, brokers, dealers, and trust companies that clear
through or maintain a custodial relationship with a Participant, either
directly or indirectly ("Indirect Participants"). The Rules applicable to the
Depository and its participants are on file within the Commission.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER, OR LEASE
The Indenture provides that the Company may not consolidate with or
merge into, or convey, transfer, or lease its properties and assets
substantially as an entirety to, any person (a "successor person"), and may not
permit any person to merge into, or convey, transfer, or lease its properties
and assets substantially as an entirety to, the Company, unless (i) the
successor person (if any) is a corporation, organized and validly existing
under the laws of the United States of America, any state thereof, or the
District of Columbia, and expressly assumes by a supplemental indenture the
Company's obligations on the Debt Securities and under the Indenture, (ii)
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 happened and be continuing, and (iii) certain other
conditions are met. Notwithstanding the foregoing, the Company may, without
the consent of any Holder of the Debt Securities of any series, convey or
transfer its assets substantially as an entirety to any person in connection
with a transfer that is assisted by a federal bank regulatory authority and in
such case the Company's obligations under the Indenture need not be assumed by
the entity acquiring such assets. (Section 8.1)
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<PAGE> 9
EVENTS OF DEFAULT
Unless otherwise provided in the applicable Prospectus Supplement, an
Event of Default with respect to the Debt Securities of any series is defined
in the Indenture as any one of the following events: (a) default for 30 days in
the payment of any interest upon any Debt Security of such series when it
becomes due and payable; (b) default in the payment of the principal of (or
premium, if any) on any Debt Security of such series at its maturity; (c)
default in the deposit of any sinking fund or analogous payment, when and as
due by the terms of the Debt Securities of such series; (d) default in the
performance or breach of any other covenant or warranty of the Company in the
Indenture (other than a covenant or warranty included in the Indenture solely
for the benefit of Debt Securities of another series) which continues for 90
days after the Holders of at least 25% in principal amount of Outstanding Debt
Securities of such series have given written notice as provided in the
Indenture; and (e) certain events of bankruptcy, insolvency, or reorganization
of the Company. Different Events of Default may be prescribed for the benefit
of the Holders of a particular series of Debt Securities and will be described
in the applicable Prospectus Supplement or Pricing Supplement relating thereto.
(Sections 3.1 and 5.1)
If an Event of Default due to a default in the payment of the principal
of, or the premium or interest, if any, on, or in the deposit of any sinking
fund payment with respect to, any series of Debt Securities shall have occurred
and be continuing, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Debt Securities of such series
may declare the principal of all Debt Securities of such series and the
interest, if any, accrued thereon to be due and payable immediately. If an
Event of Default due to a default in the observance or performance of any other
covenant or agreement of the Company contained in the Indenture and applicable
to the Outstanding Debt Securities of one or more (but less than all) series
shall have occurred and be continuing, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of the affected series (voting as one class) may declare the principal of all
Debt Securities of each such affected series and the interest, if any, accrued
thereon to be due and payable immediately. If an Event of Default due to a
default in the observance or performance of any other covenant or agreement of
the Company contained in the Indenture applicable to all Outstanding Debt
Securities shall have occurred and be continuing, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of all Outstanding
Debt Securities (voting as one class) may declare the principal of all Debt
Securities and the interest, if any, accrued thereon to be due and payable
immediately. If an Event of Default due to certain acts of bankruptcy,
insolvency, or reorganization of the Company shall have occurred and be
continuing, the principal and interest on all Outstanding Debt Securities shall
thereby become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Upon certain conditions,
any such declarations may be rescinded and annulled if all Events of Default,
other than the nonpayment of accelerated principal, with respect to the
Outstanding Debt Securities of all such affected series shall have been cured
or waived as provided in the Indenture by the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of the affected
series (voting as one class, except in the case of Events of Default described
in clauses (a), (b), and (c) of the preceding paragraph, as to which each
series so affected will vote as a separate class). Reference is made to the
applicable Prospectus Supplement relating to any series of Original Issue
Discount Securities for the particular provisions relating to the acceleration
of a portion of the principal amount thereof upon the occurrence and
continuance of an Event of Default with respect thereto. (Section 5.2)
The Indenture provides that, subject to the duty of the Trustee during
the continuance of an Event of Default with respect to the Debt Securities of
any series to act with the required standard of care, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at
the request or direction of any of the Holders of such Debt 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 any such request or direction. (Section 6.3) Subject to
certain limitations, the Holders of a majority in principal amount of the
Outstanding Debt Securities of any series will have the right to direct the
time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of such series. (Section 5.12) The Indenture
provides that no Holder may institute any action against the Company under the
Indenture (except actions for payment of overdue principal, premium, or
interest) unless such Holder previously shall have given to the Trustee written
notice of default and continuance thereof and unless the
8
<PAGE> 10
Holders of not less than 25% in aggregate principal amount of the Outstanding
Debt Securities of the affected series shall have requested the Trustee to
institute such action and shall have offered the Trustee reasonable indemnity
against the costs, expenses, and liabilities which may be incurred by it in
compliance with such request, the Trustee shall not have instituted such action
within 60 days of such notice, request, and offer of indemnity and the Trustee
shall not have received direction inconsistent with such request by the Holders
of a majority in aggregate principal amount of the Debt Securities of the
affected series. (Sections 5.7 and 5.8)
The Company is required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Sections 1.2 and 10.4)
The Trustee may withhold notice to Holders of Debt Securities of any series of
any default (except in payment of principal, premium, or interest on such Debt
Securities) if it in good faith determines that it is in the interests of such
Holders to do so. (Section 6.2)
DEFEASANCE AND COVENANT DEFEASANCE
DEFEASANCE AND DISCHARGE. Unless otherwise provided in the applicable
Prospectus Supplement, the Company may, at its option and at any time, be
discharged from all its obligations with respect to any Offered Securities
(except for certain obligations to exchange or register the transfer of Debt
Securities, to replace stolen, lost, or mutilated Debt Securities, to maintain
paying agencies, and to hold moneys for payment in trust) upon the deposit in
trust for the benefit of the Holders of such Offered Securities of (a) money,
(b) certain U.S. Government Obligations, or (c) a combination thereof, in each
case subject to certain requirements which, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of, and any premium and
interest on, such Offered Securities on their stated maturity in accordance
with the terms of the Indenture and such Offered Securities. Such defeasance
or discharge may occur only if, among other things, the Company has delivered
to the Trustee an Opinion of Counsel to the effect that the Company has
received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case
to the effect that Holders of such Offered Securities will not recognize gain
or loss for federal income tax purposes as a result of such defeasance and will
be subject to federal income tax on the same amount, in the same manner, and at
the same times as would have been the case if such defeasance was not to occur.
(Sections 13.1, 13.2, and 13.4)
DEFEASANCE OF CERTAIN COVENANTS. Unless otherwise provided in the
applicable Prospectus Supplement, the Company may, at its option and at any
time, omit to comply with certain restrictive covenants in the Indenture, as
well as any other restrictive covenants applicable to the Offered Securities
that may be described in the applicable Prospectus Supplement, whereafter the
occurrence of certain Events of Default, which are described above in clause
(d) (with respect to any such restrictive covenants) and clause (e) under
"Events of Default" (as well as any other Events of Default that may be
described in the applicable Prospectus Supplement), will be deemed not to be or
result in an Event of Default, in each case with respect to any Offered
Securities. The Company, in order to exercise such option with respect to any
Offered Securities, will be required to deposit in trust for the benefit of the
Holders of such Offered Securities (a) money, (b) certain U.S. Government
Obligations, or (c) a combination thereof, in each case subject to certain
requirements which, through the payment of principal and interest in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of, and any premium and interest on, such
Offered Securities on their stated maturity in accordance with the terms of the
Indenture and such Offered Securities. The Company will also be required,
among other things, to deliver to the Trustee an Opinion of Counsel to the
effect that Holders of such Offered Securities will not recognize gain or loss
for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amount, in the same manner, and at
the same times as would have been the case if such defeasance was not to occur.
In the event the Company exercises this option with respect to any Offered
Securities and such Offered Securities were declared due and payable because of
the occurrence of any Event of Default other than any Event of Default caused
by failing to comply with the covenants which are defeased, and the amount of
money and U.S. Government Obligations so deposited in trust would be sufficient
to pay amounts due on such Offered Securities at the time of their stated
maturity but may not be sufficient to pay amounts
9
<PAGE> 11
due on such Offered Securities upon any acceleration resulting from such Event
of Default, the Company would remain liable for such payments. (Sections 13.1,
13.3, and 13.4)
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with the provisions described above by
reason of any order or judgment of any court or governmental authority
enjoining, restraining, or otherwise prohibiting such application, the
Company's obligations under the Indenture and the Debt Securities shall be
revived and reinstated as though no deposit had occurred pursuant to such
provisions until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance therewith;
provided, however, that if the Company has made any payment of principal (and
premium, if any) or interest on any Debt Securities because of the
reinstatement of its obligations, the Company shall be entitled, at its
election, (a) to receive from the Trustee or Paying Agent, as applicable, that
portion of such money or U.S. Government Obligations equal to the amount of
such payment, or (b) to be subrogated to the rights of the Holders of such Debt
Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent. (Section 13.6)
MODIFICATION AND WAIVER
The Indenture provides that the Company and the Trustee may enter into
a supplemental indenture to amend the Indenture or any Debt Securities without
the consent of any Holder of any Debt Security: (1) to evidence the succession
of another Person to the Company and the assumption by such successor of the
Company's covenants in the Indenture and any Debt Securities; (2) to add to the
covenants of the Company further covenants for the benefit of the Holders of
any Debt Securities; (3) to add to, change, or eliminate any of the provisions
of the Indenture, provided, however, that any such addition, change, or
elimination (i) does not apply to any Debt Security created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor modify the rights of the Holder of any such Debt Security with
respect to such provision, or (ii) becomes effective only when there is no such
Debt Security Outstanding; (4) to add to or change any of the provisions of the
Indenture necessary to permit or facilitate the issuance of Debt Securities in
bearer or uncertificated form; (5) to establish the form or terms of Debt
Securities of any series in certain circumstances; (6) to secure any Debt
Securities; (7) to evidence and provide for the acceptance of appointment by a
successor trustee or to add to or change any of the provisions of the Indenture
necessary to provide for or facilitate the administration of the trust by more
than one Trustee; (8) to cure any ambiguity, defect, or inconsistency or to
make such other provision in regard to matters or questions arising under the
Indenture which do not adversely affect the interests of the Holders of the
Debt Securities of any series in any material respect; (9) to add any
additional Events of Default for the benefit of the Holders of any Debt
Securities; or (10) to comply with any requirements of the Commission in
connection with qualifying the Indenture under The Trust Indenture Act.
(Section 9.1)
In addition to the foregoing, modifications and amendments of the
Indenture with respect to Debt Securities of any series may be made by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of Outstanding Debt Securities of such series, provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby, (a) change the
stated maturity date of the principal of, or any installment of interest on,
any Debt Security, (b) reduce the principal amount of, or any premium or
interest on, any Debt Security, (c) reduce the amount of principal of any Debt
Securities payable upon the acceleration of the maturity thereof, (d) change
the place of payment of principal of, or premium or interest on, any Debt
Security, (e) impair the right to institute suit for the enforcement of any
such payment on or with respect to any Debt Security when due, or (f) reduce
the percentage of the principal amount of Outstanding Debt Securities of any
series the consent of whose Holders is required for modification or amendment
of the Indenture or for any waiver of compliance with the provisions of the
Indenture or defaults and their consequences. (Section 9.2)
The Holders of a majority in principal amount of Outstanding Debt
Securities of a series may, on behalf of all Holders of Debt Securities of such
series, waive, insofar as the Debt Securities of such series are concerned,
compliance by the Company with certain restrictive provisions of the Indenture
if such waiver is given before the time for such
10
<PAGE> 12
compliance. (Section 10.8) The Holders of a majority in principal amount of
the Outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of such series, waive any past default under the Indenture with
respect to the Debt Securities of such series except a default in the payment
of principal of, or any premium or interest on, such Debt Securities, or in
respect of a provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security affected
thereby. (Section 5.13)
The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
of Debt Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver, or other action, or to vote
on any action, authorized or permitted to be given or taken by Holders of Debt
Securities of such series. (Section 1.4)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and construed
in accordance with the laws of the State of Ohio.
INFORMATION CONCERNING THE TRUSTEE
The Company and its subsidiaries conduct banking and other transactions
with the Trustee in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities through agents, to or through
underwriters, and through dealers, and also may sell the Debt Securities
directly to other purchasers.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
In connection with the sale of the Debt Securities, underwriters or
agents may receive compensation from the Company or from purchasers of the Debt
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell the Debt Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions, or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters, dealers,
and agents that participate in the distribution of the Debt Securities may be
deemed to be underwriters, and any discounts or commissions received by them
from the Company and any profit on the resale of the Debt Securities by them
may be deemed to be underwriting discounts and commissions, under the
Securities Act. Such underwriters or agents will be identified, and any such
compensation received by the Company will be described, in the accompanying
Prospectus Supplement.
Under agreements which may be entered into by the Company,
underwriters, dealers, and agents who participate in the distribution of the
Debt Securities may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act.
Offers to purchase Debt Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to institutional
investors or others. The terms of any such sales will be described in the
accompanying Prospectus Supplement.
11
<PAGE> 13
In the event that the Debt Securities of any series are not listed on a
national securities exchange, certain broker-dealers may make a market in the
Debt Securities of such series, but will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given that any broker-dealer will make a market in the Debt Securities or as to
the liquidity of or the trading market for the Debt Securities. The
accompanying Prospectus Supplement will state, if known, whether or not any
broker-dealer intends to make a market in any Offered Securities. If no such
determination has been made, the Prospectus Supplement will so state.
Certain of the underwriters, dealers, or agents and their associates
may be engaged in transactions with and perform services for the Company in the
ordinary course of business.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the Company
by Porter, Wright, Morris & Arthur, Columbus, Ohio, and for any underwriters,
dealers, or agents by Simpson Thacher & Bartlett (a partnership which includes
professional corporations), New York, New York. Members of Porter, Wright,
Morris & Arthur who have participated in the preparation of this document
beneficially own an aggregate of 15,919 shares of the Company's common stock,
without par value.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
S.E.C. Filing Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258,621
Trustee Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,000*
Printing and Engraving Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000*
Fees of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000*
Fees of Independent Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000*
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000*
Rating Agency Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,379*
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 675,000*
<FN>
______________
*Estimated.
</TABLE>
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation, as amended, provide that it
shall indemnify its directors to the full extent of the general laws of the
State of Maryland now or hereafter in force, including the advance of expenses
to directors subject to procedures provided by such laws; its officers to the
same extent it shall indemnify its directors; and its officers who are not
directors to such further extent as shall be authorized by the Board of
Directors and be consistent with law.
Section 2-418 of the Maryland general corporation law provides, in
substance, that a corporation may indemnify any director made a party to any
proceeding by reason of service in that capacity against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by the director in
connection with the proceeding, unless it is proved that the act or omission of
the director was material to the cause of action adjudicated in the proceeding
and was committed in bad faith or was the result of active and deliberate
dishonesty; or the director actually received an improper personal benefit in
money, property or services; or, in the case of any criminal proceeding, the
director had reasonable cause to believe that the act or omission was unlawful.
Notwithstanding the above, a director may not be indemnified in respect of any
proceeding, by or in the right of the corporation, in which such director shall
have been adjudged liable to the corporation or in respect of any proceeding
charging improper receipt of a personal benefit.
Termination of any proceeding by judgment, order or settlement does not
create a presumption that the director did not meet the requisite standard of
conduct. Termination of any proceeding by conviction, or plea of nolo
contendere or its equivalent, or entry of an order of probation prior to
judgment, creates a rebuttable presumption that the director did not meet the
requisite standard of conduct. Indemnification is not permitted unless
authorized for a specific proceeding, after a determination that
indemnification is permissible because the requisite standard of conduct has
been met (1) by a majority of a quorum of directors not at the time parties to
the proceeding (or a majority of a committee of two or more such directors
designated by the full board); (2) by special legal counsel selected by the
board of directors; or (3) by the stockholders.
The reasonable expenses incurred by a director who is a party to a
proceeding may be paid or reimbursed by the corporation in advance of the final
disposition of the proceeding upon receipt by the corporation of both a written
affirmation by the director of his good faith belief that the standard of
conduct necessary for indemnification by the
II-1
<PAGE> 15
corporation has been met, and a written undertaking by or on behalf of the
director to repay the amount if it shall be ultimately determined that the
standard of conduct has not been met.
The indemnification and advancement of expenses provided or authorized
by Section 2-418 are not exclusive of any other rights to which a director may
be entitled both as to action in his official capacity and as to action in
another capacity while holding such office.
Pursuant to Section 2-418, a corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or who, while serving in such capacity, is or was
at the request of the corporation serving as a director, officer, partner,
trustee, employee or agent of another corporation or legal entity or of an
employee benefit plan, against liability asserted against and incurred by such
person in any such capacity or arising out of such person's position, whether
or not the corporation would have the power to indemnify against liability
under Section 2-418. A corporation may provide similar protection, including a
trust fund, letter of credit or surety bond, which is not inconsistent with
Section 2-418. A subsidiary or an affiliate of the corporation may provide the
insurance or similar protection.
Subject to certain exceptions, the directors and officers of the
Registrant and its affiliates are insured to the extent of 100% of loss up to a
maximum of $35,000,000 (subject to certain deductibles) in each policy year
because of any claim or claims made against them by reason of their wrongful
acts while acting in their capacities as such directors or officers and up to a
maximum of $10,000,000 (subject to certain deductibles) in each policy year
because of any claim or claims made against them by reason of their wrongful
acts while acting in their capacities as fiduciaries in the administration of
certain of the Registrant's employee benefit programs. The Registrant is
insured, subject to certain retentions and exceptions, to the extent it shall
have indemnified the directors and officers for such loss.
Item 16. EXHIBITS.
Reference is made to the information contained in the Exhibit Index
filed as part of this Registration Statement.
Item 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
II-2
<PAGE> 16
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement, shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on October 2, 1995.
HUNTINGTON BANCSHARES INCORPORATED
By: /s/ RALPH K. FRASIER
_______________________________________________
Ralph K. Frasier, General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Frank Wobst* Chairman and Chief )
__________________ Executive Officer )
(principal executive officer) )
)
)
Zuheir Sofia* President, Treasurer, and Director )
__________________ )
Zuheir Sofia )
)
)
W. Lee Hoskins* Vice Chairman and Director )
__________________ )
W. Lee Hoskins )
)
)
Gerald R. Williams* Executive Vice President ) October 2, 1995
__________________ and Chief Financial Officer )
Gerald R. Williams (principal financial officer) )
)
)
John D. Van Fleet* Senior Vice President and )
__________________ Corporate Controller )
John D. Van Fleet (principal accounting officer) )
)
)
Don M. Casto III* Director )
____________________ )
Don Monroe Casto III )
)
)
Don Conrad* Director )
__________________ )
Don Conrad )
II-4
<PAGE> 18
)
)
John B. Gerlach* Director )
________________________ )
John B. Gerlach )
)
)
Wm. J. Lhota* Director )
________________________ )
Wm. J. Lhota )
)
)
Gerald E. Mayo* Director )
________________________ )
Gerald E. Mayo )
)
)
George A. Skestos* Director )
________________________ )
George A. Skestos )
)
) October 2, 1995
Lewis R. Smoot, Sr.* Director )
________________________ )
Lewis R. Smoot, Sr. )
)
)
Timothy P. Smucker* Director )
________________________ )
Timothy P. Smucker )
)
)
William J. Williams* Director )
________________________ )
William J. Williams )
*By: /s/ RALPH K. FRASIER
_______________________________________
Ralph K. Frasier, attorney-in-fact
for each of the persons indicated
II-5
<PAGE> 19
Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HUNTINGTON BANCSHARES INCORPORATED
EXHIBITS
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
<S> <C>
1 Form of Distribution Agreement
4 Indenture, dated March 25, 1994, between Huntington Bancshares
Incorporated and The Chase Manhattan Bank, as Trustee.
5 Opinion of Porter, Wright, Morris & Arthur
12 Statement regarding computation of ratios
23(a) Consent of Porter, Wright, Morris & Arthur (included in Exhibit
5 filed herewith)
23(b) Consent of Ernst & Young LLP
24 Power of Attorney
25 Form T-1 Statement of Eligibility and Qualification of Trustee
</TABLE>
<PAGE> 1
EXHIBIT 1
FORM OF
HUNTINGTON BANCSHARES INCORPORATED
$750,000,000
MEDIUM-TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
__________, 1995
[NAME(S) AND ADDRESS(ES)
OF AGENT(S)]
Dear Sirs:
Huntington Bancshares Incorporated, a Maryland corporation (the
"Company"), proposes to issue and sell from time to time its Medium-Term Notes,
Series B (the "Securities") in an aggregate amount up to $750,000,000 and
agrees with each of you (individually, an "Agent", and collectively, the
"Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof, and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof.
The Securities will be issued under an indenture, dated as of March
25, 1994 (the "Indenture"), between the Company and The Chase Manhattan Bank
(National Association), as Trustee (the "Trustee"). The Securities shall have
the maturity ranges, interest rates, if any, redemption provisions, and other
terms set forth in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and the terms
and rights thereof established, from time to time by the Company in accordance
with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) A registration statement on Form S-3 (No. 33-_____)
for the registration of $750,000,000 aggregate principal amount of
debt securities of the Company, including the Securities, under the
Securities Act of 1933, as amended (the "Act") has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to such Agent,
excluding exhibits to such registration statement but including all
documents incorporated by reference in the prospectus contained
therein, have been declared effective by the Commission in such form.
No other document with respect to such
<PAGE> 2
registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission; and no stop order suspending the effectiveness of such
registration statement has been issued, and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, being hereinafter called
a "Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Form T-1 and, if applicable,
including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act, each
as amended at the time such part of the registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus (including, if applicable, any prospectus supplement)
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus, including
any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"), shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated therein by reference; any reference to any amendment
to the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as
amended or supplemented (including by the applicable Pricing
Supplement filed in accordance with Section 4(a) hereof) in relation
to Securities sold pursuant to this Agreement, in the form filed with
the Commission pursuant to Rule 424(b) under the Act and in accordance
with Section 4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing).
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, or any further amendment or supplement thereto, when such
documents become effective or are filed with
-2-
<PAGE> 3
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in
the Prospectus as amended or supplemented to relate to a particular
issuance of Securities.
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities.
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood, or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order, or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material adverse
change, or any development involving a prospective material adverse
change, in the consolidated shareholders' equity or long-term debt of
the Company and its subsidiaries or affecting the general affairs,
management, financial position, or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC
Act").
- 3 -
<PAGE> 4
(f) The Company has an authorized capitalization as set
forth or incorporated by reference in its Annual Report on Form 10-K,
which has been incorporated by reference in the Prospectus, and all of
the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable.
(g) The Securities have been duly authorized, and, when
issued and delivered pursuant to this Agreement and any Terms
Agreement, will have been duly executed, authenticated, issued, and
delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which
is substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization, and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture
conforms and the Securities of any particular issuance of Securities
will conform to the descriptions thereof contained in the Prospectus
as amended or supplemented to relate to such issuance of Securities.
(h) The issue and sale of the Securities, the compliance
by the Company with all of the provisions of the Securities, the
Indenture, this Agreement, and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the
provisions of the Articles of Restatement of Charter, as amended, or
the By-Laws of the Company or any statute or any order, rule, or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration, or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities, or the consummation by the Company
of the other transactions contemplated by this Agreement, any Terms
Agreement, or the Indenture, except such as have been, or will have
been prior to the Commencement Date (as defined in Section 3 hereof),
obtained under the Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations, or qualifications as may be
required under state securities or Blue Sky laws in connection with
the solicitation by such Agent of offers to purchase Securities from
the Company and with purchases of Securities by such Agent as
principal, as the case may be, in each case in the manner contemplated
hereby.
(i) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject, which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate
- 4 -
<PAGE> 5
have a material adverse effect on the consolidated financial position,
shareholders' equity, or results of operations of the Company and its
subsidiaries, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(j) Immediately after any sale of Securities by the
Company hereunder or under any Terms Agreement, the aggregate amount
of Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of
the Company (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration Statement.
2. (a) On the basis of the representations and warranties,
and subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit and receive offers to purchase the Securities
from the Company upon the terms and conditions set forth in the Prospectus as
amended or supplemented from time to time. So long as this Agreement shall
remain in effect with respect to any Agent, the Company shall not, without the
consent of such Agent, solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of 9 months to 30
years except pursuant to this Agreement, any Terms Agreement, the Distribution
Agreement, dated as of March 25, 1994, among the Company, Goldman, Sachs & Co.,
CS First Boston Corporation, and Smith Barney Shearson Inc., relating to the
Company's Medium Term Notes, Series A, or except pursuant to a private
placement not constituting a public offering under the Act or except in
connection with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of medium-term debt
securities; provided, that the Company reserves the right to sell, and may
solicit and accept offers to purchase, Securities directly on its own behalf or
indirectly through its subsidiaries, and, in the case of any such sale not
resulting from a solicitation made by any Agent, no commission will be payable
from the Company with respect to such sale; and provided, further, that if from
time to time the Company is approached by a prospective agent offering to
solicit a specific purchase of Securities, the Company may engage such agent
with respect to such specific purchase, provided that (i) such agent is engaged
on terms substantially similar to the applicable terms of this Agreement, and
(ii) the Agents are given notice of such purchase, including the terms thereof
and a copy of the written agreement setting forth the terms of the engagement
of such agent by the Company, as soon as practicable after the Company and such
agent agree to such purchase. These provisions shall not limit Section 4(f)
hereof or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities, and the payment
in each case therefor shall be as set forth in the Administrative Procedures
attached hereto as Annex II as they may be amended from time to time by written
agreement between the Agents and the Company (the "Administrative Procedures").
The provisions of the Administrative Procedures shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms Agreement.
Each Agent and the Company agree to
- 5 -
<PAGE> 6
perform the respective duties and obligations specifically provided to be
performed by each of them in the Administrative Procedures. The Company will
furnish to the Trustee a copy of the Administrative Procedures as from time to
time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As soon as
practicable, but in any event not later than one business day in New York City,
after receipt of notice from the Company, the Agents will suspend solicitation
of offers to purchase Securities from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission (which may
be in the form of a discount), at the time of settlement of any sale of a
Security by the Company as a result of a solicitation made by such Agent, in an
amount equal to the following applicable percentage of the principal amount of
such Security sold or in such other amount as the Company and such Agent shall
agree:
<TABLE>
<CAPTION>
Commission (percentage of
aggregate principal amount
Range of Maturities of Securities sold
----------------------------------------- -----------------------------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
20 years to 30 years .750%
</TABLE>
Securities may also be sold by the Agents to or through dealers
who may resell to investors. The Agents may pay all or part of their discount
or commission to such dealers.
(b) Each sale of Securities to any Agent as principal shall
be made in accordance with the terms of this Agreement and (unless the Company
and such Agent shall otherwise agree) a Terms Agreement which will provide for
the sale of such Securities to, and the purchase thereof by, such Agent. A
Terms Agreement may also specify certain provisions relating to the reoffering
of such Securities by such Agent. The commitment of any Agent to purchase
Securities as principal, whether pursuant to any Terms Agreement or otherwise,
shall be deemed to have been made on the
- 6 -
<PAGE> 7
basis of the representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Securities to be purchased by
any Agent pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and default by, underwriters
acting together with such Agent in the reoffering of the Securities, and the
time, date, and place of delivery of and payment for such Securities. Such
Terms Agreement shall also specify any requirements for opinions of counsel,
accountants' letters, and officers' certificates pursuant to Section 4 hereof.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to the
issue and delivery of such Securities and payment therefor shall be as set
forth in the Administrative Procedures. For each sale of Securities to an
Agent as principal that is not made pursuant to a Terms Agreement, the Company
agrees to pay such Agent a commission (or grant an equivalent discount) as
provided in section 2(a) hereof and in accordance with the schedule set forth
therein.
Each time and date of delivery of and payment for Securities to
be purchased by an Agent as principal, whether set forth in a Terms Agreement
or in accordance with the Administrative Procedures, is referred to herein as a
"Time of Delivery".
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, New York, at 11:00 a.m., New York City time, on the date of this
Agreement, which date and time of such delivery may be postponed by agreement
between the Agents and the Company but in no event shall be later than the day
prior to the date on which solicitation of offers to purchase Securities is
commenced or on which any Terms Agreement is executed (such time and date being
referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i)(A) To make no amendment or supplement to the
Registration Statement or the Prospectus (excluding any document
incorporated therein by reference) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice
thereof, or (B) to make no amendment or supplement to the Registration
Statement or the Prospectus after the date of any Terms Agreement or
other agreement by an Agent to purchase Securities as principal and
prior to the related Time of Delivery which shall be disapproved by any
Agent party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof; (ii) to prepare, with respect
to any Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a
form previously approved by such Agent and to file such Pricing
Supplement pursuant to Rule 424(b) under the Act not later than the
close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used; (iii) to make no
amendment or supplement to the Registration Statement or Prospectus,
other than any document incorporated therein by reference or any Pricing
Supplement, at any
- 7 -
<PAGE> 8
time prior to having afforded each Agent a reasonable opportunity to
review and comment thereon, (iv) to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14, or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and
during such same period to advise such Agent, promptly after the Company
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or
by such Agent) has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or Prospectus or
for additional information; and (v) in the event of the issuance of any
such stop order or of any such order preventing or suspending the use of
any such prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such
Agent may reasonably request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions in the United
States as such Agent may request and to comply with such laws so as to
permit the continuance of sales and dealings therein for as long as may
be necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedures), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference therein,
all in such quantities as such Agent may reasonably request from time to
time; and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities (including
Securities purchased from the Company by such Agent as principal) and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act, or
the Trust Indenture Act, to notify such Agent and request such Agent, in
its capacity as agent of the Company, to suspend solicitation of offers
to purchase Securities from the Company (and, if so notified, such Agent
shall cease such
- 8 -
<PAGE> 9
solicitations as soon as practicable, but in any event not later than
one business day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus as then amended
or supplemented to correct such statement or omission or effect such
compliance, to so advise such Agent promptly by telephone (with
confirmation in writing) and to prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or supplemented that will
correct such statement or omission or effect such compliance; provided,
however, that if during such same period such Agent continues to own
Securities purchased from the Company by such Agent as principal or such
Agent is otherwise required to deliver a prospectus in respect of
transactions in the Securities, the Company shall promptly prepare and
file with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c)) a consolidated earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish
to such Agent copies of all reports or other communications (financial
or other) furnished generally to stockholders, and deliver to such Agent
(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as such Agent may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to
the Commission);
(f) That, from the date of any Terms Agreement with such
Agent or other agreement by such Agent to purchase Securities as
principal and continuing to and including the earlier of (i) the
termination of the trading restrictions for the Securities purchased
thereunder, and (ii) the related Time of Delivery, not to offer, sell,
contract to sell, or otherwise dispose of any debt securities of the
Company which both mature 9 months or more after such Time of Delivery
and are substantially similar to the Securities, without the prior
written consent of such Agent;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the representations and
warranties of the Company contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or of
such Terms Agreement, as the case may be, as
- 9 -
<PAGE> 10
though made at and as of such date, and an undertaking that such
representations and warranties will be true and correct as of the
settlement date for the Securities relating to such acceptance or as of
the Time of Delivery relating to such sale, as the case may be, as
though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented relating to such Securities);
(h) That reasonably in advance of each time the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by a document incorporated therein by reference
or by a Pricing Supplement), and each time the Company files its Annual
Report on Form 10-K with the Commission under the Exchange Act, and each
time the Company sells Securities to such Agent as principal pursuant to
a Terms Agreement and such Terms Agreement specifies the delivery of an
opinion or opinions by Simpson Thacher & Bartlett, counsel to the
Agents, as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish to such counsel such papers
and information as they may reasonably request to enable them to furnish
to such Agent the opinion or opinions referred to in Section 6(b)
hereof;
(i) That (A) each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a document
incorporated therein by reference or by a Pricing Supplement), each time
the Company files its Annual Report on Form 10-K with the Commission
under the Exchange Act and each time the Company sells Securities to
such Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion under this Section 4(i)
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished forthwith
to such Agent a written opinion of Porter, Wright, Morris & Arthur,
counsel for the Company, or other counsel for the Company satisfactory
to such Agent, dated the date of such amendment, supplement, filing, or
Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent may rely on
the opinion of such counsel referred to in Section 6(c) hereof which was
last furnished to such Agent to the same extent as though it were dated
the date of such letter authorizing reliance (except that the statements
in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date
and, in the case of any Annual Report on Form 10-K, shall also refer to
and include any proxy statement of the Company that is incorporated by
reference therein) or, in lieu of such opinion, an opinion of the same
tenor as the opinion of such counsel referred to in Section 6(c) hereof
but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date, and (B) each time the
Registration Statement or the Prospectus shall be amended or
supplemented by the filing by the Company of a document under the Act or
the Exchange Act that is incorporated by reference into the Prospectus
(other than the filing of an Annual Report on Form 10-K, a proxy
statement on Schedule 14A, or a Report on Form 10-C), the Company shall
furnish or cause to be furnished forthwith to such Agent a written
opinion of the General Counsel of the Company or other counsel for the
Company satisfactory to such Agent, dated
- 10 -
<PAGE> 11
the date of such amendment, supplement, or filing, in form satisfactory
to such Agent, of the same tenor as the opinion of counsel referred to
in Section 6(c) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date;
(j) That (A) each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a document
incorporated therein by reference) to set forth financial information
included in or derived from the Company's consolidated financial
statements or accounting records, and each time the Company files its
Annual Report on Form 10-K with the Commission under the Exchange Act,
and each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, and (B) if so
requested by any of the Agents not later than 135 days after the filing
thereof, each time the Company files a document with the Commission
under the Exchange Act that is incorporated by reference in the
Registration Statement or Prospectus (other than a proxy statement on
Schedule 14A or a Report on Form 10-C) and that sets forth financial
information included in or derived from the Company's consolidated
financial statements or accounting records, then in any such case the
Company shall cause the independent certified public accountants who
have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement forthwith to furnish such Agent a letter, dated the date of
such amendment, supplement, filing, Time of Delivery relating to such
sale, or request by such Agent, as the case may be, in form satisfactory
to such Agent, of the same tenor as the letter referred to in Section
6(d) hereof but modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of
the Company, to the extent such financial statements and other
information are available as of a date not more than five days prior to
the date of such letter; provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as true
and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or
other matter made in the letter referred to in Section 6(d) hereof which
was last furnished to such Agent; and provided further, however, that no
Agent shall request a letter under clause (B) above unless after the
Commencement Date, there shall have occurred a downgrading in the rating
accorded the Company's debt securities by Standard & Poor's Corporation
or Moody's Investors Services, Inc., and since the date of the last
letter delivered by the independent certified public accountants
pursuant to this Section 4(j) the Company shall have filed one or more
documents with the Commission under the Exchange Act that are
incorporated by reference in the Registration Statement or the
Prospectus and that set forth financial information included in or
derived from the Company's consolidated financial statements or
accounting records;
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the Exchange
Act is incorporated by reference into the Prospectus, and each time the
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<PAGE> 12
Company sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this
Section 4(k) as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate, dated the date of such
supplement, amendment, filing, or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officers of
the Company as shall be satisfactory to such Agent, to the effect that
the statements contained in the certificate referred to in Section 6(g)
hereof which was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu of
such certificate, certificates of the same tenor as the certificates
referred to in said Section 6(g) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and
(l) To offer to any person who has agreed to purchase
Securities as the result of an offer to purchase solicited by such Agent
the right to refuse to purchase and pay for such Securities if, on the
related settlement date fixed pursuant to the Administrative Procedures,
any condition set forth in Section 6(a), 6(e), or 6(f) hereof shall not
have been satisfied (it being understood that the judgment of such
person with respect to the impracticability or inadvisability of such
purchase of Securities shall be substituted, for purposes of this
Section 4(1), for the respective judgments of an Agent with respect to
certain matters referred to in such Sections 6(a), 6(e), and 6(f), and
that such Agent shall have no duty or obligation whatsoever to exercise
the judgment permitted under such Sections 6(a), 6(e), and 6(f) on
behalf of any such person).
5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements, and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing, and filing of the
Registration Statement, any Preliminary Prospectus, the Prospectus, and any
Pricing Supplements and all other amendments and supplements thereto, and the
mailing and delivering of copies thereof to such Agent; (ii) the fees,
disbursements, and expenses of one counsel for the Agents in connection with
the establishment of the program contemplated hereby, any opinions to be
rendered by such counsel hereunder and the transactions contemplated hereunder;
(iii) the cost of printing, producing, or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky, and Legal Investment Memoranda, and any
other documents in connection with the offering, purchase, sale, and delivery
of the Securities; (iv) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including fees and disbursements of counsel for the Agents
in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (v) any fees charged by securities rating services
for rating the Securities; (vi) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (vii) the cost of preparing the Securities; (viii) the
fees and expenses of any Trustee and any agent of any Trustee and any transfer
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<PAGE> 13
or paying agent of the Company and the fees and disbursements of counsel for
any Trustee or such agent in connection with any Indenture and the Securities;
(ix) any advertising expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such advertising expenses have
been approved in advance by the Company; and (x) all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. Except as provided in
Sections 7 and 8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any
time ("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of
such Solicitation Time or Time of Delivery, as the case may be, the condition
that prior to such Solicitation Time or Time of Delivery, as the case may be,
the Company shall have performed all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to
such Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing Supplement)
with respect to such Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof; (ii) no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of such Agent;
(b) Simpson Thacher & Bartlett, counsel to the Agents,
shall have furnished to such Agent (i) such opinion or opinions, dated
the Commencement Date, with respect to the incorporation of the Company,
the validity of the Indenture, the Securities, the Registration
Statement, the Prospectus as amended or supplemented, and other related
matters as such Agent may reasonably request, and (ii) if and to the
extent requested by such Agent, with respect to each applicable date
referred to in Section 4(h) hereof that is on or prior to the
commencement of such Solicitation Time or Time of Delivery, as the case
may be, an opinion or opinions, dated such applicable date, to the
effect that such Agent may rely on the opinion or opinions which were
last furnished to such Agent pursuant to this Section 6(b) to the same
extent as though it or they were dated the date of such letter
authorizing reliance (except that the statements in such last opinion or
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in
lieu of such an opinion or opinions, an opinion or opinions of the same
tenor as the opinion
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<PAGE> 14
or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and in each case such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(c) Porter, Wright, Morris & Arthur, counsel for the
Company, or other counsel for the Company satisfactory to such Agent,
shall have furnished to such Agent their written opinions, dated the
Commencement Date and each applicable date referred to in Section 4(i)
hereof that is on or prior to the commencement of such Solicitation Time
or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented, and is duly registered as a bank holding
company under the BHC Act;
(ii) The Company has an authorized capitalization as
set forth or incorporated by reference in its Annual Report on
Form 10-K, which has been incorporated by reference in the
Prospectus as amended or supplemented; and all of the issued
shares of capital stock of The Huntington National Bank, a
national banking association, have been duly and validly
authorized and issued and are fully paid and non-assessable
(subject to the provisions of 12 U.S.C. Section 55) and to the
best knowledge of such counsel are beneficially owned, directly
or indirectly, by the Company, subject to no security interest,
other encumbrance, or adverse claim (except as otherwise stated
in the Registration Statement);
(iii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject, which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the consolidated financial position, shareholders'
equity, or results of operations of the Company and its
subsidiaries; and to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) This Agreement and any applicable Terms
Agreement have been duly authorized, executed, and delivered by
the Company;
(v) The Securities have been duly authorized and,
when the terms of a particular Security and of its issuance and
sale have been duly established by all necessary corporate
action in conformity with the Indenture and such Security has
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<PAGE> 15
been duly completed, executed, authenticated, issued, and
delivered by the Company against payment as contemplated by this
Agreement, it will constitute a valid and legally binding
obligation of the Company entitled to the benefits provided by
the Indenture; and the Indenture conforms and the Securities
will conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(vi) The Indenture has been duly authorized,
executed, and delivered by the parties thereto and constitutes a
valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement, and any applicable
Terms Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, or other agreement or instrument known to
such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject, nor will such action result in any
violation of the provisions of the Articles of Restatement of
Charter, as amended, of the Company or the By-Laws of the
Company or any statute or any order, rule, or regulation known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its properties,
except for such violations and defaults as would not have a
material adverse effect on the financial position, results of
operations, business, or prospects of the Company and its
subsidiaries, taken as a whole;
(viii) No consent, approval, authorization, order,
registration, or qualification of or with any court or
governmental agency or body is required for the solicitation of
offers to purchase Securities, the issue and sale of the
Securities, or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations, or
qualifications as may be required under state securities or Blue
Sky laws in connection with the solicitation by the Agents of
offers to purchase Securities from the Company and with
purchases of Securities by an Agent as principal, as the case
may be, in each case in the manner contemplated hereby;
(ix) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission,
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<PAGE> 16
as the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and
(x) The Registration Statement and the Prospectus
as amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date of
such opinion (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; and they do not know of any
amendment to the Registration Statement required to be filed or
any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to
be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required.
In rendering such opinion, such counsel shall state that (A)
they have no reason to believe that any documents incorporated
by reference in the Prospectus (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion), when they became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and in the case of other
documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading, and (B) they have no reason to believe that, as of
the Commencement Date, the Registration Statement or any further
amendment or supplement thereto made by the Company prior to the
date of such opinion (other than the financial statements and
related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of the date of such opinion, the Prospectus as amended
or supplemented or any further amendment or supplement thereto
made by the Company prior to the date of such opinion (other
than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not
misleading.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to the
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<PAGE> 17
commencement of such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have certified
the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to such Agent a letter, dated the Commencement Date or such
applicable date, as the case may be, in form and substance satisfactory
to such Agent, to the effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented any loss or interference with its business from
fire, explosion, flood, or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order, or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, and (ii) since the respective
dates as of which information is given in the Prospectus as amended or
supplemented there shall not have been any change or any development
involving a prospective change in the consolidated shareholders' equity
or long-term debt of the Company and its subsidiaries or in or
affecting the general affairs, management, financial position,
shareholders' equity, or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of such Agent so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the purchase
by such Agent of Securities from the Company as principal, as the case
may be, on the terms and in the manner contemplated in the Prospectus as
amended or supplemented;
(f) There shall not have occurred any of the following: (i)
a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York or Ohio declared by either Federal or New
York State authorities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration of a national emergency
or war if the effect of any such event specified in this clause (iii) in
the judgment of such Agent makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase Securities or the
purchase of Securities from the Company as principal, pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented; (iv) any downgrading in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization", as the term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act; or (v) any such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities;
(g) The Company shall have furnished or caused to be
furnished to such Agent certificates of officers of the Company dated
the Commencement Date and each applicable date referred to in Section
4(k) hereof that is on or prior to such Solicitation Time or Time of
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<PAGE> 18
Delivery, as the case may be, in such form and executed by such officers
of the Company as shall be satisfactory to such Agent, as to the
accuracy of the representations and warranties of the Company herein at
and as of the Commencement Date or such applicable date, as the case may
be, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to the matters set forth in
subsections (a) and (e) of this Section 6, and as to such other matters
as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages, or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented, or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse such Agent for
any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented, or any
other prospectus relating to the Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages, or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented, or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented, or any other
prospectus relating to the Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
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<PAGE> 19
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party. After
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnified party shall have the right to
participate in such action or proceeding and to retain its own counsel but the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses or any other expenses subsequently incurred
by such indemnified party in connection with the defense thereof, other than
reasonable costs of investigation, unless (i) the indemnifying party has agreed
to pay such fees and expenses, (ii) the indemnifying party shall have failed to
employ counsel reasonably satisfactory to the indemnified party in a timely
manner, or (iii) the indemnified party shall have been advised by counsel that
there exists actual or potential conflicting interests between the indemnifying
party and the indemnified party, including situations in which there are one or
more legal defenses available to the indemnified party that are different from
or additional to those available to the indemnified party, provided, however,
that the indemnifying party shall not, in connection with any one such action
or proceeding or separate but substantially similar actions or proceedings
arising out of the same general allegations, be liable for the fees and
expenses of more than one separate firm of attorneys at any time for all
indemnified parties, except to the extent that local counsel, in addition to
its regular counsel, is required in order to effectively defend against such
action or proceeding.
(d) If the indemnification provided for in this Section 7
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages, or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and each Agent on
the other from the offering of the Securities to which such loss, claim,
damage, or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
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<PAGE> 20
discounts received by such Agent in respect thereof. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading relates to information supplied by
the Company on the one hand or by such Agent on the other and the parties'
relative intent, knowledge, access to information, and opportunity to correct
or prevent such statement or omission. The Company and each Agent agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by per capita allocation (even if all Agents were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to contribute
any amount in excess of the amount by which the total public offering price at
which the Securities purchased by or through it were sold exceeds the amount of
any damages which such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each of the
Agents under this subsection (d) to contribute are several in proportion to the
respective purchases made by or through it to which such loss, claim, damage,
or liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the obligations of each
Agent under this Section 7 shall be in addition to any liability which such
Agent may otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on
its obligation to deliver Securities to a purchaser whose offer it has
accepted, the Company shall (i) hold each Agent harmless against any loss,
claim, or damage arising from or as a result of such default by the Company,
and (ii) notwithstanding such default, pay to the
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<PAGE> 21
Agent that solicited such offer any commission to which it would be entitled in
connection with such sale.
9. The respective indemnities, agreements, representations,
warranties, and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Agent or any controlling person of any Agent, or
the Company, or any officer or director or any controlling person of the
Company, and shall survive each delivery of and payment for any of the
Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated
at any time by the Company as to any Agent or by any Agent as to such Agent
upon the giving of written notice of such suspension or termination to such
Agent or the Company, as the case may be. In the event of such suspension or
termination with respect to any Agent, (x) this Agreement shall remain in full
force and effect with respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall remain in full force and
effect with respect to the rights and obligations of any party which have
previously accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time of such
suspension or termination, and (z) in any event, this Agreement shall remain in
full force and effect insofar as the fourth paragraph of Section 2(a), Section
4(d), Section 4(e), Section 7, Section 8, and Section 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedures, all statements, requests, notices, and advices
hereunder shall be in writing, or by telephone if promptly confirmed in
writing, and if to ______________________ shall be sufficient in all respects
when delivered or sent by telex, facsimile transmission or registered mail to
___________________________________________, Attention: _________________, and
if to _______________, shall be sufficient in all respects when delivered or
sent by telex, facsimile transmission or registered mail to
_______________________________, Facsimile Transmission No. _____________,
Attention: _______________, and if to ____________________, shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to ________________________________, Facsimile
Transmission No. ___________, Attention: ___________________, and if to the
Company shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to 41 South High Street, Columbus, Ohio 43287,
Facsimile Transmission No. (614) 480-5485, Attention: General Counsel and
Corporate Secretary.
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Section 7, Section 8, and Section 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective personal representatives, successors, and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities
through or from any Agent hereunder shall be deemed a successor or assign by
reason merely of such purchase.
- 21 -
<PAGE> 22
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
HUNTINGTON BANCSHARES INCORPORATED
By:_______________________________
Zuheir Sofia
President, Chief Operating Officer, and Treasurer
- 22 -
<PAGE> 23
Accepted as of the date hereof:
________________________________
By:_____________________________
Name:
Title:
________________________________
By:_____________________________
Name:
Title:
_______________________________
By:_____________________________
Name:
Title:
- 23 -
<PAGE> 24
ANNEX I
HUNTINGTON BANCSHARES INCORPORATED
Medium-Term Notes
Terms Agreement
_____ , 19__
[NAME(S) AND ADDRESS(ES) OF AGENT(S)]
Dear Sirs:
Huntington Bancshares Incorporated (the "Company") proposes, subject to
the terms and conditions stated herein and in the Distribution Agreement, dated
____, 1995 (the "Distribution Agreement"), between the Company on the
one hand and [Name(s) of Agent(s)] (the "Agents") on the other, to issue and
sell to [Name(s) of Agent(s)] the securities specified in the Schedule hereto
(the "Purchased Securities"). Each of the provisions of the Distribution
Agreement not specifically related to the solicitation by the Agents, as agents
of the Company, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Nothing contained herein or in the Distribution Agreement shall make any
party hereto an agent of the Company or make such party subject to the
provisions therein relating to the solicitation of offers to purchase securities
from the Company, solely by virtue of its execution of this Terms Agreement.
Each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Name(s) of Agent(s)] and [Name(s) of Agent(s)] agree[s] to
purchase from the Company the Purchased Securities, at the time and place, in
the principal amount, and at the purchase price set forth in the Schedule
hereto.
<PAGE> 25
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon acceptance hereof by you this
letter, including those provisions of the Distribution Agreement incorporated
herein by reference, shall constitute a binding agreement between you and the
Company.
HUNTINGTON BANCSHARES INCORPORATED
By:__________________________
Name:________________________
Title:_______________________
Accepted:
[Name(s) of Agent(s)]
By:______________________
Name:____________________
Title:___________________
-2-
<PAGE> 26
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes
Aggregate Principal Amount:
[Price to Public:]
Purchase Price by [Name(s) of Agent(s)]:
% of the principal amount of the Purchased Securities
[, plus accrued interest from to (and accrued amortization,
if any, from to )]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order to the
Company, in [[New York Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of , 19 between the Company and as Trustee
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
<PAGE> 27
[(1) The opinion of counsel to the Agents referred to in Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Section 4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I - 2
<PAGE> 28
ANNEX II
Huntington Bancshares Incorporated
Administrative Procedures
These Administrative Procedures relate to the Securities defined in the
Distribution Agreement, dated __________, 1995 (the "Distribution Agreement"),
between Huntington Bancshares Incorporated (the "Company") and [Name(s) of
Agent(s)] (together, the "Agents"), to which these Administrative Procedures are
attached as Annex II. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement, the Prospectus
as amended or supplemented, or the Indenture.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase securities and
the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by a global security (a "Global Security") delivered to the Trustee,
as agent for The Depository Trust Company (the "Depositary") and recorded in the
book-entry system maintained by the Depositary (a "Book-Entry Security"). An
owner of a Book-Entry Security will not be entitled to receive a certificate
representing such a Security, except as provided in the Indenture.
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth below.
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control, and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date hereof and a Medium-Term Note Certificate Agreement between the Trustee and
the Depositary, dated as of _______ (the "Certificate Agreement"), and its
obligations as a participant in the Depositary, including the Depositary's
Same-Day Funds Settlement System ("SDFS").
<PAGE> 29
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Selling Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent
or Purchasing Agent, as the case may be, will communicate promptly, but in no
event later than the time set forth under "Settlement Procedure Timetable",
below, the following details of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Maturity Date;
(4) Issue Price;
(5) Selling Agent's commission or Purchasing Agent's discount or
commission, as the case may be;
II - 2
<PAGE> 30
(6) Net Proceeds to the Company;
(7) Settlement Date;
(8) If a redeemable Book-Entry Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of the
Redemption Commencement Date;
(iv) Repayment Date,
(v) Initial Repayment Percentage (% of par), and
(vi) Amount (% of par) that the Repayment Percentage
shall decline (but not below par) on each anniversary
of the Repayment Date;
(9) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(10) Name, address, and taxpayer identification number of the
registered owner(s);
(11) Denomination of certificates to be delivered at settlement; and
(12) Book-Entry Security.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, the Company will communicate such Sale Information to the
Trustee by facsimile transmission or other acceptable written means. The Company
will assign a CUSIP number to the Global Security from a list of CUSIP numbers
previously obtained by the Company representing such Book-Entry Security and
then advise the Trustee and the Selling Agent or Purchasing Agent, as the case
may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation and Moody's Investors Services,
Inc.:
II - 3
<PAGE> 31
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of the Participant account maintained by the Depositary
on behalf of the Selling Agent or Purchasing Agent, as the case
may be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (which in the case of Floating Rate
Securities which reset weekly shall be the date five calendar
days immediately preceding the applicable Interest Payment Date
and in the case of all other Book-Entry Securities shall be the
Regular Record Date, as defined in the Security) and, if
calculable at that time, the amount of interest payable on such
Interest Payment Date;
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i) debit
such Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account, and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated, and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security, and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
II - 4
<PAGE> 32
H. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to
the account of the Company maintained at The Huntington National Bank, Columbus,
Ohio, or such other account as the Company may have previously specified to the
Trustee, funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as of
that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to
the purchaser either by transmitting to the participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the receipt of
the Sale Information, or if the Company and the purchaser agree to settlement on
the Business Day following the date of acceptance, not later than noon, New York
City time, on such date. The Company will arrange to have the Pricing Supplement
filed with the Commission not later than the close of business of the Commission
on the fifth Business Day following the date on which such Pricing Supplement is
first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security or its agent a written confirmation of the sale and delivery and
payment instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including the
Pricing Supplement) in relation to such Book-Entry Security prior to or together
with the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
II - 5
<PAGE> 33
Date of Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute "settlement"
with respect to such Book Entry Security. All orders accepted by the Company
will be settled on the fifth Business Day pursuant to the timetable for
settlement set forth below unless the Company and the purchaser agree to
settlement on another day which shall be no earlier than the next Business Day.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent, as agent,
and accepted by the Company for settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------- ----
<S> <C>
A 10:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
</TABLE>
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------- ----
<S> <C>
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
</TABLE>
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A", "B", and "C" shall be completed as soon as
practicable but not later than 10:00 a.m., 12:00 noon and 2:00 p.m.,
respectively, on the first Business Day after the sale date. If the initial
interest rate for a Floating Rate Book-Entry Security has not been determined at
the time that Settlement Procedure "A" is completed, Settlement Procedures "B"
and "C" shall be completed as soon as such rate has been determined but no later
than 2:00 p.m. on the second Business Day before the settlement date. Settlement
Procedure "H" is subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events specified in the SDFS
operating procedures in effect on the settlement date.
II - 6
<PAGE> 34
If settlement of a Book-Entry Security is rescheduled or cancelled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "cancelled", make appropriate entries in the Trustee's
records and send such cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be cancelled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book- Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
II - 7
<PAGE> 35
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D" for the authentication and issuance of
a Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
II - 8
<PAGE> 36
ANNEX III
Accountants' Letter
Pursuant to Section 4(j) and Section 6(d), as the case may be, of
the Distribution Agreement, the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them
and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related published rules
and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma
financial information, and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the Agents;
(iii) on the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of the Company
and its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets, and consolidated
statements of changes in financial position included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to
Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets, and
consolidated statements of changes in financial position
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
<PAGE> 37
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, and upon conversions of convertible securities, in each
case which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the Prospectus)
or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decrease in consolidated
total assets or other items specified by the Agents, or any
increases in any items specified by the Agents, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except
in each case for changes, increases, or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E),
there were any decreases in consolidated net income or net
interest income or other items specified by the Agents, or any
increases in any items specified by the Agents, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
III - 2
<PAGE> 38
Agents, except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(iv) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries,
and other procedures referred to in paragraphs (ii) and (iii)
above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages,
and financial information specified by the Agents which are derived
from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Agents or
in documents incorporated by reference in the Prospectus specified
by the Agents, and have compared certain of such amounts,
percentages, and financial information with the accounting records
of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex III to the Prospectus shall be
deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as defined in the Distribution
Agreement as of the Commencement Date referred to in Section 6(d)
thereof and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) as of the date of
the amendment, supplement, incorporation, or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such
letter under Section 4(j) thereof.
III - 3
<PAGE> 1
EXHIBIT 4
================================================================
HUNTINGTON BANCSHARES INCORPORATED, ISSUER
AND
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Trustee
---------------
DEBT SECURITIES
---------------
INDENTURE
Dated as of March 25, 1994
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RECITALS OF THE COMPANY 1
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions 1
Section 1.2 Compliance Certificates and Opinions 8
Section 1.3 Form of Documents Delivered to Trustee 8
Section 1.4 Acts of Holders; Record Dates 9
Section 1.5 Notices, Etc., to Trustee and Company 11
Section 1.6 Notice to Holders; Waiver 11
Section 1.7 Conflict with Trust Indenture Act 11
Section 1.8 Effect of Headings and Table of Contents 12
Section 1.9 Successors and Assigns 12
Section 1.10 Separability Clause 12
Section 1.11 Benefits of Indenture 12
Section 1.12 Governing Law 12
Section 1.13 Legal Holidays 12
ARTICLE II
Security Forms
Section 2.1 Forms Generally 13
Section 2.2 Form of Legend for Global Securities 13
Section 2.3 Form of Trustee's Certificate of
Authentication 14
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series 14
Section 3.2 Denominations 17
Section 3.3 Execution, Authentication, Delivery
and Dating 17
Section 3.4 Temporary Securities 20
Section 3.5 Registration, Registration of
Transfer and Exchange 21
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Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities 23
Section 3.7 Payment of Interest; Interest
Rights Preserved 24
Section 3.8 Persons Deemed Owners 25
Section 3.9 Cancellation 26
Section 3.10 Computation of Interest 26
Section 3.11 CUSIP Numbers 26
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture 27
Section 4.2 Application of Trust Money 28
ARTICLE V
Remedies
Section 5.1 Events of Default 28
Section 5.2 Acceleration of Maturity;
Rescission and Annulment 30
Section 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee 32
Section 5.4 Trustee May File Proofs of Claim 33
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities 33
Section 5.6 Application of Money Collected 34
Section 5.7 Limitation on Suits 34
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest 35
Section 5.9 Restoration of Rights and Remedies 35
Section 5.10 Rights and Remedies Cumulative 35
Section 5.11 Delay or Omission Not Waiver 36
Section 5.12 Control by Holders 36
Section 5.13 Waiver of Past Defaults 36
Section 5.14 Undertaking for Costs 37
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities 37
Section 6.2 Notice of Defaults 38
Section 6.3 Certain Rights of Trustee 38
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Section 6.4 Not Responsible for Recitals
or Issuance of Securities 39
Section 6.5 May Hold Securities 39
Section 6.6 Money Held in Trust 40
Section 6.7 Compensation and Reimbursement 40
Section 6.8 Disqualification; Conflicting Interests 41
Section 6.9 Corporate Trustee Required; Eligibility 41
Section 6.10 Resignation and Removal;
Appointment of Successor 41
Section 6.11 Acceptance of Appointment by Successor 43
Section 6.12 Merger, Conversion, Consolidation
or Succession to Business 44
Section 6.13 Preferential Collection of Claims
Against Company 45
Section 6.14 Appointment of Authenticating Agent 45
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names
and Addresses of Holders 47
Section 7.2 Preservation of Information;
Communications to Holders 47
Section 7.3 Reports by Trustee 48
Section 7.4 Reports by Company 48
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc.,
Only on Certain Terms 48
Section 8.2 Successor Substituted 49
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without
Consent of Holders 50
Section 9.2 Supplemental Indentures With
Consent of Holders 51
Section 9.3 Execution of Supplemental Indentures 52
Section 9.4 Effect of Supplemental Indentures 53
Section 9.5 Conformity With Trust Indenture Act 53
Section 9.6 Reference in Securities to
Supplemental Indentures 53
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ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium
and Interest 53
Section 10.2 Maintenance of Office or Agency 54
Section 10.3 Money for Securities Payments
to Be Held in Trust 54
Section 10.4 Statement by Officers as to Default 55
Section 10.5 Existence 56
Section 10.6 Maintenance of Properties 56
Section 10.7 Payment of Taxes and Other Claims 56
Section 10.8 Waiver of Certain Covenants 57
Section 10.9 Calculation of Original Issue Discount 57
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article 57
Section 11.2 Election to Redeem; Notice to Trustee 57
Section 11.3 Selection by Trustee of Securities
to Be Redeemed 58
Section 11.4 Notice of Redemption 59
Section 11.5 Deposit of Redemption Price 59
Section 11.6 Securities Payable on Redemption Date 60
Section 11.7 Securities Redeemed in Part 60
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article 60
Section 12.2 Satisfaction of Sinking Fund
Payments with Securities 61
Section 12.3 Redemption of Securities for
Sinking Fund 61
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance 62
Section 13.2 Defeasance and Discharge 62
Section 13.3 Covenant Defeasance 63
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Section 13.4 Conditions to Defeasance or Covenant
Defeasance 63
Section 13.5 Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions 66
Section 13.6 Reinstatement 66
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HUNTINGTON BANCSHARES INCORPORATED
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
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Trust Indenture Indenture
Act Section Section
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Section 310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.8
6.10
6.13
Section 311 (a) 6.13
(b) 6.13
Section 312 (a) 7.1
(b) 7.2(a)
(c) 7.2(b)
Section 313 (a) 7.3(a)
(b) 7.3(a)
(c) 7.3(a)
(d) 7.3(b)
Section 314 (a) 7.4
(a)(4) 1.2
10.4
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
Section 315 (a) 6.1
(b) 6.2
(c) 6.1
(d) 6.1
(d)(1) 6.1
(d)(2) 6.1
(d)(3) 6.1
(e) 5.14
Section 316 (a)(1)(A) 5.2
5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) 1.4(c)
Section 317 (a)(1) 5.3
(a)(2) 5.4
(b) 10.3
Section 318 (a) 1.7
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NOTE: This shall not, for any purpose, be deemed to be part of the Indenture.
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INDENTURE, dated as of March 25, 1994, between HUNTINGTON BANCSHARES
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Maryland (herein called the "Company"), having its principal office at
Huntington Center, 41 South High Street, Columbus, Ohio 43215 and THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting
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principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of
such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4(a).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Officer" means any officer of the Company designated by or
pursuant to a resolution of the Board of Directors to take certain actions as
specified in this Indenture.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or by action of an Authorized Officer designated as
such pursuant to a resolution of the Board of Directors, and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument
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such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office as of the date hereof is located at 4 Chase MetroTech Center, 3rd
Floor, Brooklyn, New York 11245.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 13.2.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 3.1, which Person shall be a clearing agency registered
under the Exchange Act.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended now
or in the future and any successor statute thereto.
"Global Security" means a Security bearing the legend prescribed in
Section 2.2 evidencing all or part of a series of Securities, authenticated and
delivered to the Depositary for such series or its nominee, and registered in
the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
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"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President, the Chief Financial
Officer or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the
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Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
(iv) Securities which have been defeased pursuant to Section 13.2
hereof; and
(v) Securities not deemed outstanding pursuant to Section 11.3.;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
maturity thereof pursuant to Section 5.2, (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
Section 3.1, and (iii) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
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"Periodic Offering" means an offering of Securities of any series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
thereof and the redemption provisions, if any, with respect thereto are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred
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because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939, as so amended.
"U.S. Government Obligation" has the meaning specified in Section 13.4.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president (but shall not include any assistant vice president),
whether or not designated by a number
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or a word or words added before or after the title "vice president".
"Wholly Owned Subsidiary" means any Subsidiary all of whose outstanding
voting stock (other than directors' qualifying shares) shall at the time be
owned by the Company or one or more of its Wholly Owned Subsidiaries.
Section 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion (other than the Officers' Certificate
delivered under Section 10.4 hereof) with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such
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Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by Holders
of Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders
of one or more series of Securities, only the Holders of Securities of such
series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
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Section 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company, Attention: Corporate Secretary.
Section 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under
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<PAGE> 19
such Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to the conflicts
of law rules of such State.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities, other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment
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<PAGE> 20
with the same force and effect as if made on the Interest Payment Date, or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue with respect to the payment due on such date for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
The Securities of each series shall be in substantially such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities, if any, shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2 Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or registered or exchanged for Securities registered in the name of,
any Person other than the Depositary or a nominee thereof or a successor
of such Depositary or a nominee of such successor
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<PAGE> 21
and no such transfer may be registered, except in the limited
circumstances described in the Indenture. Every Security authenticated
and delivered upon registration of transfer of, or in exchange for or in
lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances."
Section 2.3 Form of Trustee's Certificate of
Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:_____________________ THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
As Trustee
By
-------------------------
Authorized Representative
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such series
shall rank pari passu with all other unsecured and unsubordinated debt of the
Company. There shall be established in or pursuant to a Board Resolution and,
subject to Section 3.3, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6, or 11.7
and except for any Securities which, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder);
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<PAGE> 22
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal (and premium, if
any) of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable on
any Interest Payment Date;
(6) the place or places in addition to the Borough of Manhattan,
The City of New York, where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company and,
if other than by a Board Resolution, the manner in which any election by
the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provision or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and integral multiples
thereof in excess thereof, the denominations in which Securities of the
series shall be issuable;
(10) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or formula, the manner in which such amounts shall
be determined;
(11) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2;
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<PAGE> 23
(12) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such date
for any purpose thereunder or hereunder, including the principal amount
thereof which shall be due and payable upon any Maturity other than the
Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in
which such amount deemed to be the principal amount shall be
determined);
(13) the application, if any, of either or both of Section 13.2
and Section 13.3 to the Securities of the series (including, in the case
of Section 13.3, the covenants and any Events of Default not specified
therein that are subject thereto) and, if other than by a Board
Resolution, the manner in which any election pursuant to such Sections
by the Company shall be evidenced;
(14) whether the Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary or Depositaries for such Global Security or
Global Securities (if other than The Depository Trust Company), and
any circumstances other than those set forth in Section 3.5 in which any
such Global Security may be transferred to, and registered and exchanged
for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which
any such transfer may be registered;
(15) any Authenticating Agents, Paying Agents, or any other
agents with respect to the Securities of the series.
(16) any other covenant or warranty included for the benefit of
Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included in
this Indenture for the benefit of Securities of all series (including
any covenant contained in Article X hereof), or any provision that any
covenant or warranty included in this Indenture for the benefit of
Securities of all series (including any covenant contained in Article X
hereof) shall not be for the benefit of Securities of such series, or
any change to or combination of the provisions of any such covenant or
warranty included in this Indenture for the benefit of Securities of all
series (including any covenants contained in Article X hereof) which
applies to the Securities of such series;
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<PAGE> 24
(17) any addition to, deletion from or change in the Events of
Default which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section
5.2;
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.1(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 3.3) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the Securities of any series,
at the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiples thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
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<PAGE> 25
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with the documents
referred to below in this Section 3.3, for the authentication and delivery of
such Securities, and the Trustee shall authenticate and deliver such Securities
to or upon the order of the Company (contained in the Company Order) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by a Company Order. If so provided in or
pursuant to the Board Resolution or supplemental indenture establishing the
Securities of any series, the maturity date, original issue date, interest rate
and any other terms of any or all of the Securities of such series may be
determined by or pursuant to such Company Order and procedures. If provided
for in such procedures, such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(a) a Company Order requesting such authentication and setting forth
delivery instructions if the Securities are not to be delivered to
the Company, provided that, with respect to Securities of a series
subject to a Periodic Offering, (i) such Company Order may be
delivered by the Company to the Trustee at any time prior to the
delivery to the Trustee of the Securities of such series for
authentication and delivery, (ii) the Trustee shall authenticate
and deliver the Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant
to a Company Order or pursuant to such procedures acceptable to
the Trustee as may be specified from time to time by a Company
Order, and (iii) if so provided in or pursuant to the Board
Resolution or supplemental indenture establishing the Securities
of such series, the maturity date, original issue date, interest
rate and any other terms of any or all of the Securities of
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<PAGE> 26
such series may be determined by a Company Order or pursuant to
such procedures;
(b) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 3.1 by or
pursuant to which the forms and terms of the Securities of such
series were established;
(c) an Officers' Certificate setting forth the form or forms and the
terms of the Securities of such series, stating that such form or
forms and terms have been established pursuant to Sections 2.1 and
3.1 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(d) an Opinion of Counsel, substantially to the effect that:
(i) the form of the Securities of such series has been duly
authorized and established in conformity with the provisions of
this Indenture;
(ii) the terms of the Securities of such series (or the manner
of determining such terms) have been established by or pursuant to
Board Resolution, duly authorized and an Officers' Certificate or
a supplemental indenture in accordance with the provisions of this
Indenture; and
(iii) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be
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<PAGE> 27
originally issued at one time, it shall not be necessary to deliver the above
specified documents at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to
be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal
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amount and tenor. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other
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<PAGE> 29
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 3.1, if at any time the Depositary for the Securities
of a series represented by a Global Security or Global Securities notifies the
Company that it is unwilling or unable to continue as a Depositary for the
Securities of such series or if at any time the Depositary for Securities of a
series shall no longer be registered or in good standing under the Exchange Act
or other applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company will execute, and the Trustee, upon Company
Request, will authenticate and deliver, securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security or Global Securities representing Securities of such series in
exchange for such Global Security or Global Securities.
In the event that (i) the Company at any time and in its sole discretion
determines that the Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Global Securities or (ii) there shall have occurred and be continuing an Event
of Default or an event which, with the giving of notice or lapse of time or
both, would constitute an Event of Default with respect to the Securities of
any series, the Company will execute, and the Trustee, upon Company Request,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Global Securities representing such series in exchange for such
Global Security or Global Securities.
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<PAGE> 30
Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in the preceding two paragraphs or
such other conditions as may be specified as contemplated by Section 3.1 for
such series, such Global Security may be exchanged for Securities registered in
the names of, and the transfer of such Global Security may be registered to,
such Persons (including Persons other than the Depositary with respect to such
series and its nominees) as such Depositary shall direct. Notwithstanding any
other provision of this Indenture, any Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any Global
Security shall also be a Global Security and shall bear the legend specified in
section 2.2 except for any Security authenticated and delivered in exchange
for, or upon registration of transfer of, a Global Security pursuant to the
preceding sentence.
Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the
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<PAGE> 31
Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest;
Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the
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Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 3.7) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security registered
in the name of a Depositary or a nominee thereof shall have any rights under
this Indenture with respect to such Global Security, and such Depositary or
nominee, as the case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the owner of such Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any
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written certification, proxy or other authorization furnished by a Depositary
or a nominee thereof pursuant hereto. Further, none of the Company, the
Trustee, any Paying Agent or any other agent of the Company or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in any such
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section 3.9 Cancellation.
All Securities surrendered for payment, conversion, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be promptly
disposed of by the Trustee in accordance with its ordinary procedures.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
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ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either:
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation (other than Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.6), for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations
(if any) of the Trustee to any Authenticating Agent under Section 6.14 and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
Remedies
Section 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default, whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
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Security of that series when it becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of all or any part of the principal
of (or premium, if any, on) the Securities of that series at its
Maturity; or
(3) default in the deposit of any sinking fund or analogous
payment, when and as due by the terms of the Securities of that series;
or
(4) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty which has expressly been included in this Indenture solely for
the benefit of a series of Securities other than that series), and
continuance of such default or breach for a period of 90 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 at least
25% 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
(5) the entry by a court or a governmental authority having
jurisdiction in the premises of (A) a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company, under any applicable federal or state law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or substantially all of its
assets, or ordering the winding up or liquidation of the affairs of the
Company, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by
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it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or substantially all of its
assets, or to an order for the winding up or liquidation of the affairs
of the Company; or
(7) any other Event of Default as provided in Section 3.1 with
respect to Securities of that series.
Section 5.2 Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default specified in Sections 5.1(1), (2) or (3), shall
have occurred and be continuing with respect to the Securities of any series at
the time Outstanding, then and in each every such case, unless the principal of
all of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding, by notice in writing
to the Company (and to the Trustee if given by such Holders), may declare the
entire principal of all the Securities of such series then Outstanding and the
interest accrued thereon to become due and payable immediately, and upon any
such declaration the same shall become immediately due and payable.
If an Event of Default specified in Sections 5.1(4) or 5.1(7) (if the
Event of Default under either clause is with respect to less than all series of
the Securities then Outstanding) shall have occurred and be continuing with
respect to the Securities of one or more series, then, and in each and every
such case, unless the principal of all of the Securities of such series shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities of all series
effected thereby then Outstanding (voting as one class), by notice in writing
to the Company (and to the Trustee if given by such Holders), may declare the
entire principal of all the Securities of all such effected series then
Outstanding and the interest accrued thereon to be due and payable immediately,
and upon any such declaration the same shall become immediately due and
payable.
If an Event of Default described in Sections 5.1(4) or 5.1(7) (if the
Event of Default under either Section is with respect to all series of
Securities then Outstanding) shall have occurred and be continuing, then, in
each and every such case, unless the principal of all the Securities of all
series
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shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding (voting as one class), by notice in writing to the Company (and to
the Trustee if given by such Holders), may declare the entire principal of all
the Securities then Outstanding and interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
If an Event of Default specified in Sections 5.1(5) or 5.1(6) with
respect to Securities of any series then Outstanding shall have occurred and be
continuing, then, in each and every such case, the principal amount and
interest, if any, on all of the Securities of all series then Outstanding shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders.
At any time after such a declaration of acceleration with respect to
Securities of one or more series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of all series affected thereby (voting as one class,
except in the case of Events of Default described in subsections (1), (2) and
(3) of Section 5.1, as to which each series so affected will vote as a separate
class), by written notice to the Company and the Trustee may waive all defaults
with respect to all series affected thereby, and may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of all series
affected thereby, (B) the principal of (and premium, if any, on) any Securities
of all series affected thereby which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and (D) all sums paid or advanced by
the Trustee hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of all series
affected thereby other than the non-payment of the principal of Securities of
the series affected thereby which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair any
right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled as
provided above, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such acceleration,
and the payment of such portion of the principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any,
thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.
Section 5.3 Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
or analogous obligation when the same becomes due pursuant to the terms of any
Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such
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proceeding to judgment or final decree and may enforce the same against the
Company or any other obligor upon such Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
6.7.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, the Trustee may vote on behalf of the Holders for the election of a
trustee in bankruptcy or similar official and may be a member of a creditors,
or other similar committee.
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee
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without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any premium
and interest, respectively.
Section 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 3.7) any
interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date), and to
institute suit for the enforcement of any such payment and such rights shall
not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to
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the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default (1) in the payment of the
principal of or any premium or interest on any Security of such series, or (2)
in respect of a covenant or provision hereof
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which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Securities
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys, fees
and expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Securities on or after the Stated
Maturity or Maturities expressed in such Securities (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or
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affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default known to it as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified
in Section 5.1(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof;
and, provided, further, that except in the case of default in the payment of
the principal of or the interest on any of the Securities of such series, or in
the payment of any sinking fund installment or analogous payment on such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) 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
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any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, 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, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
Section 6.4 Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in
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its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder;
(4) to secure the Company's obligations under this Section, the
Trustee shall have a lien prior to the Securities upon all money or property
held or collected by the Trustee in its capacity as Trustee, except for such
money and property which is held in trust to pay principal (and premium, if
any) or interest on particular Securities;
(5) when the Trustee incurs any expenses or renders any services after
the occurrence of an Event of Default specified
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in Section 5.1(5) or (6), such expenses and the compensation for such services
are intended to constitute expenses of administration under the United States
Bankruptcy Code (Title 11 of the United States Code) or any similar Federal or
State law for the relief of debtors; and
(6) the provisions of this Section 6.7 shall survive the termination
of this Indenture.
Section 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
Section 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section (and to the extent permitted by the Trust Indenture Act), the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the
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occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
1.6. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall
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be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees cotrustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.12 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the
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Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13 Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents (which may be an
affiliate of the Company) with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange,
registration of transfer or partial redemption or conversion thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent
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shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Unless the Authenticating Agent has been appointed by the Trustee at the
request of the Company, the Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), As Trustee
By:
-------------------------------
As Authenticating Agent
By:
-------------------------------
Authorized Representative
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee
Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 30 and December 31 in each year, a
list for each series, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of such series as of the
preceding June 15 or December 15, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, that if and so long as the Trustee shall be the Security Registrar
for such series, such lists shall not be required to be furnished.
Section 7.2 Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or
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under the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
To the extent that any such report is required by the Trust Indenture Act with
respect to any 12-month period, such report shall cover the 12 month period
ending January 15 and shall be transmitted (in accordance with the Trust
Indenture Act) by the next succeeding March 15.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange.
Section 7.4 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc.,
Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and
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assets substantially as an entirety to any Person, and the Company shall not
permit any Person to consolidate with or merge into the Company or convey,
transfer or lease its properties and assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, shall be organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such 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 happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with;
provided, however, the Company may, without the consent of the Holder or
Holders of any series of Securities, convey or transfer its assets
substantially as an entirety to any Person in connection with a transfer that
is assisted or sponsored by a federal bank regulatory authority, and in such
case the Company's obligations under the Indenture need not be assumed by the
entity acquiring such assets.
Section 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially
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as an entirety in accordance with Section 8.1, the successor Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities,
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provided that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (B)
modify the rights of the Holder of any such Security with respect to such
provision or (ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(9) to comply with any requirements of the Commission in connection with
qualifying this Indenture under the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (10) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect.
Section 9.2 Supplemental Indentures With
Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture entered into pursuant to this Section 9.2
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or
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reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any Place of Payment where
any Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with the provisions of this Indenture or defaults
hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.8, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby, provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes
in this Section, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to
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Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.5 Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
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Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 10.3 Money for Securities Payments to
Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure to act.
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The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate (one of the signers of which shall be the principal executive
officer, principal
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financial officer or principal accounting officer of the Company), stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge. The Company will deliver to the Trustee written
notice of the occurrence of any Event of Default within ten Business Days of
the Company becoming aware of any such Event of Default.
Section 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 10.6 Maintenance of Properties.
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 10.7 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company
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shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings and for which
adequate provision is made.
Section 10.8 Waiver of Certain Covenants.
The Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth
in Sections 10.5 to 10.7, inclusive, or in any covenant provided pursuant to
Section 3.1(16) or 9.1(2) for the benefit of the Holders of such series, if
before the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 10.9 Calculation of Original Issue Discount.
If the Company has Outstanding any Original Issue Discount Securities, and
upon written request of the Trustee, the Company shall file with the Trustee
within a reasonable time after the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section
3.1 for such Securities.
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In case of any redemption at the election of the Company, the Company shall, at
least 60 calendar days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.3 Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed or such series is comprised of a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized
denomination for Securities of that series. If less than all of the Securities
of such series and of a specified tenor are to be redeemed (unless such series
is comprised of a single Security), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. The provisions of the
preceding paragraph and this paragraph shall not apply with respect to the
redemption of a series of Securities comprised of a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) of such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed
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or to be redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be redeemed,
and that on or after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in authorized
denominations for an aggregate principal amount equal to the unredeemed portion
thereof will be issued,
(4) that on the Redemption Date the Redemption Price and accrued
interest, if any, will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price and accrued interest, if any,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) the CUSIP numbers, if any, of the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be
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an Interest Payment Date) accrued interest on, all the Securities which are to
be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
Section 12.2 Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of a
series which theretofore have been redeemed by the Company either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, or have been otherwise acquired by the Company as permitted
by such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 12.3 Redemption of Securities
for Sinking Fund.
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and the basis for such credit and will also deliver to
the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 11.3 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 11.4.
Such notice having been duly given, the redemption of such Securities
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shall be made upon the terms and in the manner stated in Sections 11.6 and
11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article;
Company's Option to Effect
Defeasance or Covenant
Defeasance.
If, pursuant to Section 3.1, provision is made for either or both of (a)
Defeasance of the Securities of a series under Section 13.2 or (b) Covenant
Defeasance of the Securities of a series under Section 13.3, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article XIII, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution or in any
other manner specified as contemplated by Section 3.1, at any time, with
respect to the Securities of such series, elect to have either Section 13.2 (if
applicable) or Section 13.3 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below
in this Article XIII.
Section 13.2 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "Defeasance"). For this purpose, such Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture, insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series
to receive, solely from the trust fund described in Section 13.4 as more fully
set forth in such Section, payments of the principal of (and premium, if any)
and interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2
and 10.3 and such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in respect of the
Trustee hereunder, and (D) this Article XIII. Subject to compliance with this
Article XIII, the Company may
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exercise its option under this Section 13.2 notwithstanding the prior exercise
of its option under Section 13.3 with respect to the Securities of such series.
Following a Defeasance, payment of the Securities of such series may not be
accelerated because of an Event of Default.
Section 13.3 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this Section
and after the date the conditions set forth below are satisfied ("Covenant
Defeasance"), (1) the Company shall be released from its obligations under any
covenant applicable to such Securities that is determined pursuant to Section
3.1 to be subject to this provision, and (2) the occurrence of an event
specified in Section 5.1(4) (with respect to any Section applicable to such
Securities that are specified pursuant to Section 3.1 as being subject to this
provision), Section 5.1(5) or (6) or determined pursuant to Section 3.1 to be
subject to this provision shall not be deemed to be or result in an Event of
Default. For this purpose, such Covenant Defeasance means that, with respect
to the Outstanding Securities of such series, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Article whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 13.4 Conditions to Defeasance
or Covenant Defeasance.
The following shall be the conditions precedent to application of either
Section 13.2 or Section 13.3 to the Outstanding Securities of such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 6.9 and agrees to comply with the provisions of the
Indenture applicable to it as if it were the Trustee hereunder), 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, (A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (C) a combination thereof, in each
case sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants
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expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee as hereinbefore provided) to pay and discharge, the
principal of (and premium, if any) and interest on the Outstanding Securities
of such series on the Maturity of such principal, any premium or interest
and any mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the due dates thereof. Before such a
deposit, the Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with Article
XI, which shall be given effect in applying the foregoing. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged, or (y) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing (A) on the date of such deposit or
(B) insofar as subsections 5.1(5) and (6) are concerned, at any time during the
period ending on the 120th day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference period
applicable to the Company under federal or state law in respect of such deposit
(it being understood that the condition in this Clause (B) shall not be deemed
satisfied until the expiration of such period).
(3) Such Defeasance or Covenant Defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 6.8 or for purposes of the Trust Indenture Act with respect
to any securities of
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the Company or (B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such Defeasance or Covenant Defeasance shall 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.
(5) Such Defeasance or Covenant Defeasance shall not cause any Securities
of such series then listed on any registered national securities exchange under
the Securities Exchange Act of 1934, as amended, to be delisted.
(6) In the case of an election under Section 13.2, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date 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 shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such 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 Defeasance had not occurred.
(7) In the case of an election under Section 13.3, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such 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 Covenant
Defeasance had not occurred.
(8) Such Defeasance or Covenant Defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 3.1.
(9) 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 either the Defeasance under Section 13.2 or
the Covenant Defeasance under Section 13.3 (as the case may be) have been
complied with.
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Section 13.5 Deposited Money and
U.S. Government Obligations
to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
and Section 13.6, the Trustee and any such other qualifying trustee are
referred to collectively as the "Trustee") pursuant to Section 13.4 in respect
of the Outstanding Securities of such series shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything herein to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 13.4 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance.
Section 13.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 13.5 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article XIII until such time as the
Trustee or Paying Agent is permitted to apply all such money and U.S.
Government Obligations in accordance with Section 13.5; provided, however, that
if the Company makes any payment of principal of (and
- 66 -
<PAGE> 74
premium, if any) or interest on any such Security following the reinstatement
of its obligations, the Company shall be entitled, at its election, (a) to
receive from the Trustee or Paying Agent, as applicable, that portion of such
money or U.S. Government Obligations equal to the amount of such payment, or
(b) to be subrogated to the rights of the Holders of such Securities to receive
such payment from the money and U.S. Government Obligations held by the Trustee
or the Paying Agent.
--------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HUNTINGTON BANCSHARES INCORPORATED
By /s/ ZUHEIR SOFIA
----------------------------
Zuheir Sofia, President,
Chief Operating Officer
and Treasurer
Attest:
By /s/ RALPH K. FRASIER
-----------------------
Ralph K. Frasier,
Secretary
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
As Trustee
By /s/ ALBERT P. MARI, JR.
----------------------------
Title: Second Vice President
Attest:
By /s/ TIMOTHY E. BURKE
----------------------------
Title: Second Vice President
- 67 -
<PAGE> 75
STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN )
On the 25th day of March 1994, before me personally came Zuheir Sofia, to
me known, who, being by me duly sworn, did depose and say that he is President,
Chief Operating Officer and Treasurer of Huntington Bancshares Incorporated, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Patricia S. Callahan
------------------------------
Patricia S. Callahan
Notary Public, State of Ohio
My Commission Expires July 5, 1995
- 68 -
<PAGE> 76
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of March 1994, before me personally came Albert P. Mari,
Jr., to me known, who, being by me duly sworn, did depose and say that he is
Second Vice President of THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ MARGARET M. PRICE
------------------------------
Margaret M. Price
Notary Public, State of New York
No. 24-4980599
Qualified in King's County
Commission Expires April 22, 1995
- 69 -
<PAGE> 1
EXHIBIT 5
Porter, Wright, Morris & Arthur
Attorneys At Law
41 South High Street
Columbus, Ohio 43215-3406
October 3, 1995
Huntington Bancshares Incorporated
41 South High Street
Columbus, Ohio 43287
Gentlemen:
With respect to the Registration Statement on Form S-3 (the
"Registration Statement") being filed by Huntington Bancshares Incorporated (the
"Company") with the Securities and Exchange Commission relating to the
registration of debt securities (the "Debt Securities"), we advise you as
follows:
We are counsel for the Company and have participated in the preparation
of the Registration Statement. We have reviewed the Company's Articles of
Restatement of Charter, as amended to date, the corporate action taken to date
in connection with the Registration Statement, and such other documents and
authorities as we deem relevant for the purpose of this opinion.
We understand that the Debt Securities may be issued from time to time
pursuant to the Indenture, dated March 25, 1994, between Huntington Bancshares
Incorporated and The Chase Manhattan Bank, as Trustee (the "Indenture"). The
Indenture has been qualified under the Trust Indenture Act of 1939 and has been
filed as an exhibit to the Registration Statement.
Based upon the foregoing, we are of the opinion that, upon the taking
of appropriate definitive action by the Board of Directors of the Company or a
duly-constituted committee of such Board with respect to the issuance and sale
of the Debt Securities, the Debt Securities will be duly authorized and, when
duly executed, authenticated, and issued pursuant to the Indenture and delivered
against payment therefor, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture.
The opinions set forth above are qualified to the extent obligations of
the Company may be limited by bankruptcy, insolvency, reorganization, or other
similar laws relating to or affecting creditors' rights generally, and by
general equitable principles.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the prospectus included in the Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE> 1
Exhibit 12
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Six months ended
June 30, For the years ended December 31,
-------------------- ----------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
--------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income taxes $177,422 $202,583 $366,474 $363,791 $233,435 $190,118 $135,063
Fixed charges 151,765 72,825 182,321 135,751 107,018 110,411 165,029
Income before income taxes and fixed
charges, excluding interest on deposits 329,187 275,408 548,795 499,542 340,453 300,529 300,092
Interest on deposits 201,658 137,627 294,780 317,545 409,798 560,576 626,443
Income before income taxes and fixed
charges, including interest on deposits $530,845 $413,035 $843,575 $817,087 $750,251 $861,105 $926,535
Fixed charges:
Interest on long-term debt $45,134 $22,550 $62,245 $33,122 $22,081 $18,167 $17,836
Interest on short-term borrowings 99,709 43,696 106,646 89,444 72,967 81,175 136,480
Interest factor of rental expense
(.33 occupancy) 6,922 6,579 13,430 13,185 11,970 11,069 10,713
Total fixed charges excluding
interest on deposits 151,765 72,825 182,321 135,751 107,018 110,411 165,029
Interest on deposits 201,658 137,627 294,780 317,545 409,798 560,576 626,443
Total fixed charges including
interest on deposits $353,423 $210,452 $477,101 $453,296 $516,816 $670,987 $791,472
RATIO OF EARNINGS TO
FIXED CHARGES:
Excluding interest on deposits 2.17 3.78 3.01 3.68 3.18 2.72 1.82
Including interest on deposits 1.50 1.96 1.77 1.80 1.45 1.28 1.17
</TABLE>
<PAGE> 1
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of Huntington
Bancshares Incorporated for the registration of up to $750,000,000 of debt
securities and to the incorporation by reference therein of our report dated
January 11, 1995 with respect to the consolidated financial statements of
Huntington Bancshares Incorporated, incorporated by reference in its Annual
Report on Form 10-K for the year ended December 31, 1994, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young
Columbus, Ohio
October 3, 1995
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
Each of the undersigned officers and directors of Huntington Bancshares
Incorporated (the "Corporation") hereby appoints Zuheir Sofia, Ralph K. Frasier,
and Gerald R. Williams as his attorneys or any of them, with power to act
without the other, as his attorney, to sign, in his name and on his behalf and
in any and all capacities stated below, and to cause to be filed with the
Securities and Exchange Commission (the "Commission"), the Corporation's
Registration Statement on the appropriate form (the "Registration Statement")
for the purpose of registering under the Securities Act of 1933, as amended,
unsecured notes to mature not less than nine months or more than thirty years
from their date of issue, to be issued and sold from time to time in one or more
series, resulting in proceeds to the Corporation in an aggregate principal
amount not to exceed $750 million (or such greater amount as shall result in
aggregate proceeds of $750 million if any such notes are sold at an original
issue discount), and any and all amendments, including post-effective
amendments, to the Registration Statement, hereby granting unto such attorneys
and each of them full power and authority to do and perform in the name and on
behalf of the undersigned, and in any and all such capacities, every act and
thing whatsoever necessary to be done in and about the premises as fully as the
undersigned could or might do in person, hereby granting to each such
attorney-in-fact full power of substitution and revocation, and hereby ratifying
all that any such attorney-in-fact or his substitute may do by virtue hereof.
IN WITNESS WHEREOF, the undersigned have signed these presents this
18th day of September, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/Frank Wobst Chairman and Chief Executive Officer
- ------------------------- (principal executive officer)
Frank Wobst
/s/Zuheir Sofia President, Treasurer, and Director
- -------------------------
Zuheir Sofia
/s/W. Lee Hoskins Vice Chairman and Director
- -------------------------
W. Lee Hoskins
/s/Gerald R. Williams Executive Vice President and Chief
- ------------------------- Financial Officer (principal financial
Gerald R. Williams officer)
</TABLE>
1
<PAGE> 2
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/John D. Van Fleet Senior Vice President and Corporate
- ------------------------- Controller (principal accounting officer)
John D. Van Fleet
/s/Don M. Casto, III Director
- -------------------------
Don M. Casto, III
/s/Don Conrad Director
- -------------------------
Don Conrad
/s/John B. Gerlach Director
- -------------------------
John B. Gerlach
/s/Wm. J. Lhota Director
- -------------------------
Wm. J. Lhota
/s/Gerald E. Mayo Director
- -------------------------
Gerald E. Mayo
/s/George A. Skestos Director
- -------------------------
George A. Skestos
/s/Lewis R. Smoot, Sr. Director
- -------------------------
Lewis R. Smoot, Sr.
/s/Timothy P. Smucker Director
- -------------------------
Timothy P. Smucker
/s/William J. Williams Director
- -------------------------
William J. Williams
</TABLE>
2
<PAGE> 1
Exhibit 25
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305(b)(2))
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ________
-------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
-------------------
HUNTINGTON BANCSHARES INCORPORATED
(Exact name of obligor as specified in its charter)
MARYLAND
(State or other jurisdiction of incorporation or organization)
31-0724920
(I.R.S. Employer Identification No.)
41 SOUTH HIGH STREET
COLUMBUS, OHIO
(Address of principal executive offices)
43287
(Zip Code)
-------------------
DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee
directly or indirectly controlling, controlled by, or
under common control with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect. (See Exhibit T-1 (Item 12), Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which
documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit
T-1 (Item 16) (25.1), Registration No. 33-60809.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor
is in default. (Not applicable).
*6. -- The consents of United States institutional trustees required
by Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
- ------------
* The Exhibits thus designated are incorporated herein by reference. Following
the description of such Exhibits is a reference to the copy of the Exhibit
heretofore filed with the Securities and Exchange Commission, to which there
have been no amendments or changes.
___________________
1.
<PAGE> 3
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 22nd day September, 1995.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: Timothy E. Burke
--------------------------
Second Vice President
_________________
2
<PAGE> 4
EXHIBIT 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of business on June 30,
1995, published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
ASSETS THOUSANDS
OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................................. $ 4,279,000
Interest-bearing balances ...................................................................... 6,752,000
Held to maturity securities ...................................................................... 1,779,000
Available-for-sale securities .................................................................... 4,607,000
Federal funds sold and securities purchased under agreements to resell in domestic offices of
the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold ............................................................................. 1,307,000
Securities purchased under agreements to resell ................................................ 207,000
Loans and lease financing receivable:
Loans and leases, net of unearned income ....................................................... $ 55,234,000
LESS: Allowance for loan and lease losses ...................................................... 1,095,000
LESS: Allocated transfer risk reserve .......................................................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve ............................... 54,139,000
Trading assets ................................................................................... 13,459,000
Premises and fixed assets (including capitalized leases) ......................................... 1,824,000
Other real estate owned .......................................................................... 413,000
Investments in unconsolidated subsidiaries and associated companies .............................. 33,000
Customers' liabilities to this bank on acceptances outstanding ................................... 1,141,000
Intangible assets ................................................................................ 934,000
Other assets ..................................................................................... 6,947,000
-----------
TOTAL ASSETS ..................................................................................... $97,821,000
===========
LIABILITIES
Deposits:
In domestic offices ............................................................................. $30,648,000
Noninterest-bearing ........................................................................... $ 11,207,000
Interest-bearing .............................................................................. 19,441,000
------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs ................................... 35,397,000
Noninterest-bearing ........................................................................... $ 3,024,000
Interest-bearing .............................................................................. 32,373,000
------------
Federal funds purchased and securities sold under agreements to repurchase in domestic offices of
the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased ......................................................................... 1,781,000
Securities sold under agreements to repurchase .................................................. 217,000
Demand notes issued to the U.S. Treasury .......................................................... 25,000
Trading liabilities ............................................................................... 10,479,000
Other borrowed money:
With original maturity of one year or less ...................................................... 2,050,000
With original maturity of more than one year .................................................... 433,000
Mortgage indebtedness and obligations under capitalized leases .................................... 40,000
Bank's liability on acceptances executed and outstanding .......................................... 1,148,000
Subordinated notes and debentures ................................................................. 1,960,000
Other liabilities ................................................................................. 6,239,000
-----------
TOTAL LIABILITIES ................................................................................. 90,417,000
-----------
Limited-life preferred stock and related surplus .................................................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................................................... 0
Common stock ...................................................................................... 921,000
Surplus ........................................................................................... 4,869,000
Undividend profits and capital reserves ........................................................... 1,650,000
Net realized holding gains (losses) on available-for-sale securities .............................. (47,000)
Cumulative foreign currency translation adjustments ............................................... 11,000
-----------
TOTAL EQUITY CAPITAL .............................................................................. 7,404,000
-----------
TOTAL LIABILTIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL ............................................................................ $97,821,000
===========
<FN>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of may knowledge and belief.
(Signed) Lester J. Stephens, Jr.
</TABLE>
<PAGE> 5
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Richard I. Boyle Directors
(Signed) Donald H. Trautlein
