Huntington Capital III
% Trust Preferred Securities
(liquidation amount $1,000 per security)
fully and unconditionally guaranteed, on a subordinated basis, by
Huntington Bancshares Incorporated
Underwriting Agreement
_______________, 2007
Goldman, Sachs & Co.,
Morgan Stanley & Co. Incorporated,
As representatives of the several Underwriters
named in Schedule I hereto,
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Morgan
Stanley & Co. Incorporated,
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Huntington Capital III, a statutory trust created under the laws of the State of Delaware (the
“Trust”), and Huntington Bancshares Incorporated, a Maryland corporation (the “Guarantor”), as
sponsor of the Trust and as Guarantor under the guarantee agreement (the “Guarantee”), propose,
subject to the terms and conditions stated herein, to sell to the underwriters named in Schedule I
(the “Underwriters”), [ ] of the Trust’s [ ]% Trust Preferred Securities, liquidation
amount $1,000 per security (the “Trust Preferred Securities”). The proceeds of the sale of the
Trust Preferred Securities and of the common securities of the Trust (the “Trust Common
Securities”) to be sold by the Trust to the Guarantor are to be invested in $[ ]
principal amount of the Guarantor’s [ ]% Junior Subordinated Notes due 2067 (the “Junior
Subordinated Notes”), to be issued pursuant to the Junior Subordinated Indenture, dated as of [ ] (the “Base Indenture”), between the Guarantor and The Bank of New York (the “Indenture
Trustee”), as amended and supplemented by a first supplemental indenture between the Guarantor and
the Indenture Trustee (the “Supplemental Indenture” and, together with the Base Indenture, the
“Indenture”), to be entered into at or before the Time of Delivery.
1. The Guarantor and the Trust jointly and severally represent and warrant to, and
agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405
under the Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-131143)
in respect of the Trust Preferred Securities, the Guarantee and the Junior Subordinated
Notes has been filed with the Securities and Exchange Commission (the “Commission”) not
earlier than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order suspending
the effectiveness of such registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission, and no
notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received
by the Guarantor or the Trust (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission on or
prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus supplement) relating to the
Trust Preferred Securities filed with the Commission pursuant to Rule 424(b) under the Act
is hereinafter called a “Preliminary Prospectus”; the various parts of such registration
statement, including all exhibits thereto but excluding Form T-1 and including any
prospectus supplement relating to the Trust Preferred Securities that is filed with the
Commission and deemed by virtue of Rule 430B to be part of such registration statement,
each as amended at the time such part of the registration statement became effective, are
hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time (as defined in Section
1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final
prospectus relating to the Trust Preferred Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the date of such prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Trust Preferred Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the
date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case
may be; any reference to any amendment to the Registration
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Statement shall be deemed to refer to and include any annual report of the Guarantor
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 “issuer free writing prospectus” as defined in Rule 433 under the Act relating to
the Trust Preferred Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus
or any Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed 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 did 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, in the light of the
circumstances under which they were made, 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 Guarantor by an
Underwriter through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is ___:___m
(Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the
final term sheet prepared and filed pursuant to Section 5(a) hereof, taken together
(collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include
any 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, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a)
hereto does not conflict with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package as of the Applicable
Time, did not include any 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, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information furnished in writing to the
Guarantor by an Underwriter through the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and
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,
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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;
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 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 Guarantor by an Underwriter through the
Representatives expressly for use therein; and no such documents were filed with the
Commission since the Commission’s close of business on the business day immediately prior
to the date of this Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(c) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and 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 each part of the Registration Statement 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 Guarantor by an Underwriter through the Representatives expressly for use therein or
those parts of the Registration Statement which shall constitute a Statement of Eligibility
under the Trust Indenture Act (Form T-1) of The Bank of New York;
(f) Neither the Guarantor nor any of its Significant Subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Pricing 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 Pricing Prospectus; and, since the
respective dates as of which information is given in the Registration Statement and the
Pricing Prospectus, there has not been any material change in the capital stock or long
term debt of the Guarantor or any of its
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Significant Subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs, management,
financial position, stockholders’ equity or results of operations of the Guarantor and its
subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus;
(g) The Guarantor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the Pricing Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; and each significant subsidiary (as
defined in Rule 405 under the Act) of the Guarantor as set forth on Schedule III (each, a
“Significant Subsidiary”) has been duly constituted and is validly existing as a
corporation, limited liability company or business trust, as applicable, in good standing
under the laws of its jurisdiction of incorporation or formation;
(h) The Guarantor is duly registered as a bank holding company and qualified
as a financial holding company under the Bank Holding Company Act of 1956, as amended (the
“BHC Act”);
(i) The Guarantor and each of its subsidiaries are in compliance with all
laws administered by the Board of Governors of the Federal Reserve System (the “Federal
Reserve Board”), the Office of the Comptroller of the Currency (the OCC”), the Federal
Deposit Insurance Corporation (“FDIC”) and any other federal or state bank regulatory
authorities (together with the Federal Reserve Board , the OCC and the FDIC, the “Bank
Regulatory Authorities”) with jurisdiction over the Guarantor or any of its subsidiaries,
except for failures to be so in compliance that would not individually or in the aggregate
have a material adverse effect on the current or future financial position, stockholders’
equity or results of operations of the Guarantor and its subsidiaries or the Trust,
considered as a whole (a “Material Adverse Effect”);
(j) The Guarantor has an authorized capitalization as set forth in the
Pricing Prospectus and all of the issued shares of capital stock of the Guarantor have been
duly and validly authorized and issued and are fully paid and non-assessable; and all of
the issued shares of capital stock of each Significant Subsidiary of the Guarantor that is
a corporation or association have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for directors’ qualifying shares) are owned directly or
indirectly by the Guarantor, free and clear of all liens, encumbrances, equities or claims;
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(k) The Trust has been duly created and is validly existing as a statutory
trust in good standing under the laws of the State of Delaware and, at the Time of
Delivery, will have the power and authority (trust and other) to own its property and
conduct its business as described in the Pricing Prospectus and to execute and deliver and
perform its obligations under this Agreement;
(l) The Trust has conducted and will conduct no business other than the
transactions contemplated by this Agreement and the Amended and Restated Declaration of
Trust in substantially the form previously provided to you and to be entered into at or
before the Time of Delivery among the Guarantor, as Sponsor, The Bank of New York, as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee, and the individuals
named therein, as Administrative Trustees (collectively, the “Trustees,” and such Amended
and Restated Declaration of Trust, the “Declaration of Trust”) and described in the Pricing
Prospectus; the Trust is not, and at the Time of Delivery will not be, a party to or bound
by any agreement or instrument other than this Agreement and the Declaration of Trust; and
the Trust has no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and described in the Pricing Prospectus;
(m) At the Time of Delivery, the Trust Preferred Securities will have been
duly authorized and, when issued, delivered and paid for pursuant to this Agreement, will
have been duly and validly issued and will be fully paid and non-assessable beneficial
interests in the Trust entitled to the benefits of the Declaration of Trust; and the Trust
Preferred Securities will conform in all material respects to the description thereof in
the Pricing Disclosure Package and the Prospectus;
(n) At the Time of Delivery, the Trust Common Securities will have been duly
authorized and will have been duly and validly issued and will be fully paid and
non-assessable beneficial interests in the Trust entitled to the benefits of the
Declaration of Trust and will conform in all material respects to the description thereof
contained in the Pricing Disclosure Package and the Prospectus; the issuance of the Trust
Common Securities is not subject to preemptive or other similar rights; at the Time of
Delivery, all of the issued and outstanding Trust Common Securities will be directly owned
by the Guarantor, free and clear of all liens, encumbrances, equities or claims; and the
Trust Common Securities and the Trust Preferred Securities are the only beneficial
interests in the Trust authorized to be issued by the Trust;
(o) The holders of the Trust Preferred Securities will be entitled to the
same limitation on personal liability that is extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State of
Delaware;
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(p) The Junior Subordinated Notes have been duly authorized, and, when
issued, delivered and paid for at the Time of Delivery as contemplated by the Pricing
Prospectus, will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Guarantor entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and when executed and
delivered by the Guarantor and the Indenture Trustee at the Time of Delivery will
constitute a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles;
(q) Each of the Declaration of Trust and the Guarantee Agreement
(collectively, the “Other Guarantor Transaction Agreements” and, together with this
Agreement, the Indenture and the Junior Subordinated Notes, the “Guarantor Transaction
Agreements”) has been duly authorized by the Guarantor and, when executed and delivered at
the Time of Delivery, will constitute a valid and legally binding instrument of the
Guarantor, enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors’ rights and to general equity
principles; and the Guarantor Transaction Agreements will conform to the descriptions
thereof contained in the Pricing Disclosure Package and the Prospectus;
(r) At the Time of Delivery, the Indenture, the Guarantee Agreement and the
Declaration of Trust each will be duly qualified under the Trust Indenture Act;
(s) This Agreement has been duly authorized, executed and delivered by the
Guarantor and the Trust;
(t) The Guarantor has all power and authority (corporate and other)
necessary to execute and deliver the Guarantor Transaction Agreements and to perform its
obligations thereunder; the execution, delivery and performance of the Guarantor
Transaction Agreements by the Guarantor and compliance with the provisions hereof and
thereof by the Guarantor will not (A) 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 Guarantor or
any of its Significant Subsidiaries is a party or by which the Guarantor or any of its
Significant Subsidiaries is bound or to which any of the property or assets of the
Guarantor or any of its Significant Subsidiaries is subject, (B) result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the Guarantor or
(C) result in the violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Guarantor or any of its
Significant Subsidiaries or any of their properties,
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except where such conflicts, violations or defaults under (A) would not would
individually or in the aggregate have a Material Adverse Effect; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required by the Guarantor in connection with the
transactions contemplated herein 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 purchase and distribution of the Trust Preferred Securities by the Underwriters;
(u) At the Time of Delivery, the Trust will have all power and authority
necessary to execute and deliver this Agreement, the Trust Preferred Securities and the
Trust Common Securities, and to perform its obligations hereunder and thereunder; the
issuance by the Trust of the Trust Preferred Securities and the Trust Common Securities in
accordance with the Declaration of Trust, the purchase by the Trust of the Junior
Subordinated Notes, and the execution and delivery by the Trust of this Agreement and the
performance by it of its obligations thereunder will not result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Trust or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required by the Trust in connection with the transactions
contemplated herein 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 purchase and
distribution of the Trust Preferred Securities by the Underwriters;
(v) Neither the Guarantor nor any of its Significant Subsidiaries is (A) in
violation of its Certificate of Incorporation or (B) By-laws or (C) in default in the
performance or observance of any material obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be bound,
except where such defaults under (B) or (C) would not individually or in the aggregate have
a Material Adverse Effect;
(w) The statements set forth in the Pricing Prospectus and the Prospectus
under the captions “The Trust,” “Description of the Trust Preferred Securities,”
“Description of the Junior Subordinated Notes,” “Description of the Guarantee”,
“Relationship among Trust Preferred Securities, Junior Subordinated Notes and Guarantee”
and “Replacement Capital Covenant”, insofar as they purport to constitute a summary of the
terms of the Trust Preferred Securities, the Junior Subordinated Notes and the Guarantee,
under the caption “Certain United States Federal Income Tax Consequences”, under the
caption “ERISA Considerations,” insofar as
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they purport to describe the provisions of the laws and documents referred to therein,
fairly summarize the matters therein described; the statements under the caption
“Underwriting” fairly present the information called for therein;
(x) Other than as set forth in the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Guarantor or any of its Significant
Subsidiaries or the Trust is a party or of which any property of the Guarantor or any of
its Significant Subsidiaries or the Trust is the subject which, if determined adversely to
the Guarantor or any of its Significant Subsidiaries or the Trust, would individually or in
the aggregate have a Material Adverse Effect; and, to the best of the Guarantor’s
knowledge, no such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(y) Each of the Guarantor and the Trust is not and, after giving effect to
the offering and sale of the Trust Preferred Securities and the application of the proceeds
thereof, will not be an “investment company”, as such term is defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”);
(z) (A) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus),
and (iii) at the time the Guarantor or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Act) made any offer relating to the Trust
Preferred Securities in reliance on the exemption of Rule 163 under the Act, the Guarantor
was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the
earliest time after the filing of the Registration Statement that the Guarantor or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
Act) of the Trust Preferred Securities, the Guarantor was not an “ineligible issuer” as
defined in Rule 405 under the Act;
(aa) Deloitte & Touche LLP, who have certified certain financial statements
of the Guarantor and its subsidiaries, and have audited the Guarantor’s internal control
over financial reporting and management’s assessment thereof are independent public
accountants as required by the Act and the rules and regulations of the Commission
thereunder;
(bb) The Guarantor maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by the Guarantor’s
principal executive officer and principal financial officer, or under their supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance
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with generally accepted accounting principles. The Guarantor’s internal control over
financial reporting were effective as of March 31, 2007 and the Guarantor is not aware of
any material weaknesses in its internal control over financial reporting;
(cc) Since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus, there has been no change in the
Guarantor’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Guarantor’s internal control over financial
reporting; and
(dd) The Guarantor maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures have been designed to ensure
that material information relating to the Guarantor and its subsidiaries is made known to
the Guarantor’s principal executive officer and principal financial officer by others
within those entities; and such disclosure controls and procedures were effective as of
March 31, 2007.
2. (a) Subject to the terms and conditions and in reliance upon the representations
and warranties herein set forth, the Guarantor and the Trust agree that the Trust will sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Trust, at
a purchase price of $[ ] per Trust Preferred Security plus accumulated distributions, if any,
from the date of original issuance, the number of Trust Preferred Securities set forth opposite
such Underwriter’s name in Schedule I.
(b) As compensation to the Underwriters for their commitments hereunder, and in view of the
fact that the proceeds from the sale of the Trust Preferred Securities will be used by the Trust to
purchase the Junior Subordinated Notes, the Guarantor at the Time of Delivery will pay by wire
transfer of immediately available funds to Goldman, Sachs & Co., for the accounts of the several
Underwriters, $[ ] per Trust Preferred Security in respect of the Trust Preferred Securities to be
delivered by the Trust hereunder at the Time of Delivery.
3. Upon the authorization by you of the release of the Trust Preferred Securities,
the several Underwriters propose to offer the Trust Preferred Securities for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Trust Preferred Securities to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Trust Preferred Securities in book-entry form
which will be deposited by or on behalf of the Trust with The Depository Trust Guarantor (“DTC”) or
its designated custodian. The Trust will deliver the Trust Preferred Securities to Goldman, Sachs
& Co., for the account of each Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified
by the Trust to Goldman,
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Sachs & Co. at least forty-eight hours in advance, by causing DTC to credit the Trust
Preferred Securities to the account of Goldman, Sachs & Co. at DTC. The Trust will cause the
certificates representing the Trust Preferred Securities to be made available to Goldman, Sachs &
Co. for checking at least twenty-four hours prior to the Time of Delivery (as defined below) at the
office of DTC or its designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on ___, 2007 or such other
time and date as Goldman, Sachs & Co. and the Guarantor may agree upon in writing. Such time and
date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Trust Preferred Securities
and any additional documents requested by the Underwriters pursuant to Section 8 (k) hereof, will
be delivered at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New
York 10017 (the “Closing Location”), and the Trust Preferred Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at
___p.m., New York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the purposes of this
Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
5. The Trust and the Guarantor jointly and severally agree with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the date of this Agreement; to make no further amendment or any supplement
to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to prepare a final term sheet, containing solely a description
of the Trust Preferred Securities, in a form approved by you and to file such term sheet pursuant
to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other
material required to be filed by the Guarantor or the Trust with the Commission pursuant to Rule
433(d) under the Act; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Guarantor with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus (or in lieu thereof,
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the notice referred to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Trust Preferred Securities; to advise you, promptly after the Guarantor or
the Trust receives notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect
of the Trust Preferred Securities, of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act, of the suspension of the qualification of the Trust Preferred 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 amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus
or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration Statement or filing a new
registration statement, at the Guarantor’s own expense, as may be necessary to permit offers and
sales of the Trust Preferred Securities by the Underwriters (references herein to the Registration
Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus which shall be disapproved by you promptly after reasonable notice
therereof;
(c) Promptly from time to time to take such action as you may reasonably request to qualify
the Trust Preferred Securities for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Trust Preferred Securities and Junior Subordinated Notes, provided that in
connection therewith the Guarantor shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction or to become subject to taxation
is any jurisdiction in which it is not otherwise subject;
(d) The Guarantor will use its reasonable best efforts to furnish to the Underwriters prior to
10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this
Agreement and from time to time, with written and electronic copies of the Prospectus in New York
City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to
the expiration of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Trust Preferred
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Securities 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 (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) 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 you and upon your request to
file such document and to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many written and electronic copies as you may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales
of any of the Trust Preferred Securities at any time nine months or more after the time of issue of
the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Guarantor 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 Guarantor, Rule 158);
(f) During the period beginning from the date of the Prospectus, and continuing to and
including the date 30 days after the date hereof, not to offer, sell, contract to sell, or
otherwise dispose of, directly or indirectly, any Trust Preferred Securities (except for the Trust
Preferred Securities offered hereby,), any other beneficial interests in the assets of the Trust
(other than the Trust Common Securities) or any Junior Subordinated Notes, any securities
(including any security issued by another trust or other limited purpose vehicle) that are
substantially similar to the Trust Preferred Securities, the Junior Subordinated Notes, the
Guarantee, or any securities that are convertible into or exchangeable for or that represent the
right to receive any such substantially similar securities of either the Trust, a similar trust or
the Guarantor, except with your prior written consent;
(g) To pay the required Commission filing fees relating to the Trust Preferred Securities
within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) under the Act;
(h) To use the net proceeds received from the sale of the Trust Preferred Securities or Junior
Subordinated Notes, as the case may be, in the
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manner specified in the Pricing Prospectus under the caption “Use of Proceeds”; and
(i) The Guarantor will issue the Guarantee and the Junior Subordinated Notes concurrently with
the issue and sale of the Trust Preferred Securities as contemplated herein.
6.
(a) (i) The Guarantor and the Trust each represents and agrees that, other than the final
term sheet prepared and filed pursuant to Section 5(a) hereof, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the Trust Preferred
Securities and the Junior Subordinated Notes that would constitute a “free writing prospectus” as
defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the
Guarantor and the Representatives, other than one or more term sheets relating to the
Trust Preferred Securities and Junior Subordinated Notes containing customary information
(which, in their final form, will not be inconsistent with the final term sheet prepared
and filed pursuant to Section 5(a) hereof) and conveyed to purchasers of Trust Preferred
Securities, it has not made and will not make any offer relating to the Trust Preferred
Securities and the Junior Subordinated Notes that would constitute a free writing
prospectus; and
(iii)
any such free writing prospectus the use of which has been consented
to by the Guarantor and the Representatives (including the final term sheet prepared and
filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) or Schedule II(b)
hereto;
(b) Each of the Trust and the Guarantor has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing
with the Commission or retention where required and legending; and
(c) Each of the Trust and the Guarantor agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration Statement, the Pricing
Prospectus or the Prospectus or 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 then prevailing, not misleading, the Guarantor will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will prepare and furnish without charge
to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that this representation and warranty shall not
apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and
in conformity with information furnished in
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writing to the Guarantor by an Underwriter through the Representatives expressly for use
therein.
7. The Guarantor covenants and agrees with the several Underwriters that the
Guarantor will pay or cause to be paid the following: (i) the fees, disbursements and expenses of
the Guarantor’s and the Trust’s counsel and accountants in connection with the registration of the
Trust Preferred Securities and Junior Subordinated Notes under the Act and all other expenses in
connection with the preparation, printing, reproduction and filing of the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof
to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering, purchase, sale and
delivery of the Trust Preferred Securities and the Junior Subordinated Notes; (iii) all expenses in
connection with the qualification of the Trust Preferred Securities and the Junior Subordinated
Notes for offering and sale under state securities laws as provided in Section 5(d) hereof,
including the reasonable fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities
rating services for rating the Trust Preferred Securities; (v) the cost of preparing the Trust
Preferred Securities and the Junior Subordinated Notes; (viii) the fees and expenses of any trustee
and any agent of such trustee and the fees and disbursements of counsel for such trustee; and (ix)
all other costs and expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the
Trust Preferred Securities by them, and any advertising expenses connected with any offers they may
make.
8. The obligations of the Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Guarantor and the Trust herein are, at and as of the Time of Delivery, true and correct, the
condition that the Guarantor and the Trust shall have each performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus 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 5(a) hereof; the final term sheet contemplated by Section
5(a) hereof, and any other material required to be filed by the Guarantor or the Trust pursuant to
Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or
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any part thereof shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission and no notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act shall have been received; no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Simpson Thacher & Bartlett LLP, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to
you, with respect to such matters as the Underwriters may reasonably require, and such counsel
shall have received such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) The Guarantor’s Senior Corporate Counsel or such other internal counsel as shall be
reasonably acceptable to the Underwriters (the “Internal Counsel”), shall have furnished to you
such counsel’s written opinion (a draft of such opinion is attached as Annex II(a) hereto), dated
the Time of Delivery, in form and substance satisfactory to you;
(d) Venable LLP, Maryland counsel for the Guarantor, shall have furnished to you their written
opinion (a draft of such opinion is attached as Annex II(b) hereto), dated the Time of Delivery, in
form and substance satisfactory to you;
(e) Davis Polk & Wardwell, outside counsel for the Guarantor, shall have furnished to you
their written opinion (a draft of such opinion is attached as Annex II(c) hereto), dated the Time
of Delivery, in form and substance satisfactory to you;
(f) Richards, Layton & Finger, special Delaware counsel to the Guarantor and the Trust, shall
have furnished to you their written opinion (a draft of such opinion is attached as Annex II(d)
hereto), dated the Time of Delivery, in form and substance satisfactory to you;
(g) Shearman & Sterling LLP, special tax counsel to the Guarantor and the Trust, shall have
furnished to you their written opinion (a draft of such opinion is attached as Annex II(e) hereto),
dated the Time of Delivery, in form and substance satisfactory to you, to the effect that (i)
subject to the qualifications set forth in the opinion and the Pricing Disclosure Package and the
Prospectus, the statements made in the Pricing Disclosure Package and Prospectus under the caption
“Certain United States Federal Income Tax Consequences” insofar as they purport to constitute
summaries of matters of United States federal tax law and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters described therein in all material
respects, and (ii) subject to the qualifications set forth in the opinion and the Pricing
Disclosure Package and Prospectus, Shearman & Sterling LLP confirms its opinions set
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forth in the discussion in the Pricing Disclosure Package and Prospectus under the caption
“Certain United States Federal Income Tax Consequences”.
(h) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, Deloitte
& Touche LLP shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I
hereto, (the executed copy of the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and a form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement, and as of the Time of Delivery is attached
as Annex I(b) hereto);
(i) (i) Neither the Guarantor nor any of its subsidiaries shall have sustained since the date
of the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus 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 Pricing Prospectus, and
(ii) since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock or long term debt of the Guarantor or any of
its subsidiaries or any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders’ equity or results of operations
of the Guarantor and its subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Trust Preferred Securities on the terms and in the manner
contemplated in the Prospectus;
(j) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Guarantor’s debt securities by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Guarantor’s debt securities;
(k) On or after the Applicable Time 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
or on NASDAQ; (ii) a suspension or material limitation in trading in the Guarantor’s securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or
New York, Ohio or Michigan State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the
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occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner contemplated in the
Prospectus;
(l) The Guarantor shall have complied with the provisions of Section 5(e) hereof with respect
to the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(m) The Guarantor and the Trust shall have furnished or caused to be furnished to you at the
Time of Delivery certificates of officers of the Guarantor and trustees of the Trust satisfactory
to you as to the accuracy of the representations and warranties of the Guarantor and the Trust
herein at and as of such time, as to the performance by the Guarantor and the Trust of all of their
obligations hereunder to be performed at or prior to such time, as to the matters set forth in
subsections (a) and (i) of this Section and as to such other matters as you may reasonably request.
9. (a) The Guarantor and the Trust will, jointly and severally, indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter 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 the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, 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
each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that neither the Guarantor nor the Trust shall 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 the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Guarantor by any
Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless each of the Guarantor and the Trust
against any losses, claims, damages or liabilities to which the Guarantor or the Trust 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 the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, 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 the Registration Statement, the
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Basic Prospectus, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer
Free Writing Prospectus, in reliance upon and in conformity with written information furnished to
the Guarantor by such Underwriter through the Representatives expressly for use therein; and will
reimburse the Guarantor or the Trust for any legal or other expenses reasonably incurred by the
Guarantor or the Trust in connection with investigating or defending any such action or claim as
such expenses are incurred.
(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 satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii)
does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 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
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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 Guarantor and the Trust on the one hand and the
Underwriters on the other from the offering of the Trust Preferred Securities. 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 Guarantor or the Trust on the one hand and the Underwriters 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 Guarantor and the Trust on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Guarantor or the Trust bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the table on the cover
page of the Prospectus. 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 relates to information supplied by the Guarantor or the
Trust on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The
Guarantor and the Trust on the one hand and the Underwriters on the other agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters 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), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Trust Preferred
Securities underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter 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
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Guarantor and the Trust under this Section 9 shall be in addition
to any liability which the Guarantor or the Trust may otherwise
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have and shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act and each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Guarantor and to each person, if any,
who controls the Guarantor within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Trust
Preferred Securities which it has agreed to purchase hereunder, you may in your discretion arrange
for you or another party or other parties to purchase such Trust Preferred Securities on the terms
contained herein. If within thirty six hours after such default by any Underwriter you do not
arrange for the purchase of such Trust Preferred Securities, then the Guarantor shall be entitled
to a further period of thirty six hours within which to procure another party or other parties
satisfactory to you to purchase such Trust Preferred Securities on such terms. In the event that,
within the respective prescribed periods, you notify the Guarantor that you have so arranged for
the purchase of such Trust Preferred Securities, or the Guarantor notifies you that it has so
arranged for the purchase of such Trust Preferred Securities, you or the Guarantor shall have the
right to postpone the Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or
in any other documents or arrangements, and the Guarantor agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party to
this Agreement with respect to such Trust Preferred Securities.
(b) If, after giving effect to any arrangements for the purchase of the Trust Preferred
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor as provided in
subsection (a) above, the aggregate liquidation amount of such Trust Preferred Securities which
remains unpurchased does not exceed one eleventh of the aggregate liquidation amount of all the
Trust Preferred Securities, then the Guarantor shall have the right to require each non-defaulting
Underwriter to purchase the liquidation amount of Trust Preferred Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the liquidation amount of the Trust Preferred Securities
which such Underwriter agreed to purchase hereunder) of the Trust Preferred
Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Trust Preferred
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor as provided in
subsection (a) above, the aggregate liquidation
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amount of Securities which remains unpurchased exceeds one eleventh of the aggregate
liquidation amount of all the Trust Preferred Securities, or if the Guarantor shall not exercise
the right described in subsection (b) above to require non-defaulting Underwriters to purchase the
Trust Preferred Securities of a defaulting Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting Underwriter or the
Guarantor, except for the expenses to be borne by the Guarantor and the Underwriters as provided in
Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other
statements of the Guarantor, the Trust and the several Underwriters, as set forth in this Agreement
or made by or on behalf of them, respectively, 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 Underwriter or any controlling person of any Underwriter, or the Trust, or
the Guarantor, or any officer or director or controlling person of the Guarantor, and shall survive
delivery of and payment for the Trust Preferred Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the
Guarantor nor the Trust shall be under any liability to any Underwriter except as provided in
Sections 7 and 9 hereof; but, if for any other reason, the Trust Preferred Securities are not
delivered by or on behalf of the Trust as provided herein, the Guarantor will reimburse the
Underwriters through you for all out of pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of the Trust Preferred Securities, but the Guarantor and the Trust
shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9
hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by you jointly or by the Representatives on
behalf of you as the representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of Goldman, Sachs & Co., One New York Plaza, 42nd Floor, New York, New York
10004, Attention: Registration Department and Morgan Stanley & Co. Incorporated, 1585 Broadway,
29th Floor, New York, New York 10036 Attention: Investment Banking Division; and if to
the Guarantor shall be delivered or sent by mail, telex or facsimile transmission to the address of
the Guarantor set forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set forth in
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its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will
be supplied to the Guarantor by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Trust, the Guarantor and, to the extent provided in Sections 9 and 11 hereof, the
officers and directors of the Guarantor and each person who controls the Guarantor or any
Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Trust Preferred Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. Time shall be of the essence of this 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.
16. The Guarantor and the Trust each acknowledges and agrees that (i) the purchase
and sale of the Trust Preferred Securities pursuant to this Agreement is an arm’s-length commercial
transaction between the Guarantor and the Trust, on the one hand, and the several Underwriters, on
the other, (ii) in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of the Guarantor or the
Trust, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the
Guarantor or the Trust with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the
Guarantor on other matters) or any other obligation to the Guarantor or the Trust except the
obligations expressly set forth in this Agreement and (iv) each of the Guarantor and the Trust has
consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the
Guarantor and the Trust agrees that it will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Guarantor or the Trust, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Guarantor or the Trust and the Underwriters, or any of them, with
respect to the subject matter hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
19. The Guarantor, the Trust and each of the Underwriters hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
-23-
20. This Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Guarantor and the Trust are
authorized to disclose to any persons the U.S. federal and state income tax treatment and tax
structure of the potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Guarantor or the Trust relating to that treatment and
structure, without the Underwriters, imposing any limitation of any kind. However, any information
relating to the tax treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply with securities
laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that
treatment.
-24-
If the foregoing is in accordance with your understanding, please sign and return to us one
for the Guarantor and each of the Representatives plus one for each counsel counterparts hereof,
and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the Underwriters and the
Guarantor and the Trust. It is understood that your acceptance of this letter on behalf of each of
the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Guarantor for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
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Very truly yours, |
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Huntington Capital III
By: Huntington Bancshares
Incorporated, as Sponsor |
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By: |
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Name: |
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Title: |
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Huntington Bancshares Incorporated |
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By: |
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Name: |
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Title: |
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Accepted as of the date hereof: |
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Goldman, Sachs & Co. |
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By: |
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(Goldman, Sachs & Co.) |
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Morgan Stanley & Co. Incorporated |
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By: |
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Name: |
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-25-
SCHEDULE I
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Number of |
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Trust |
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Preferred |
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Securities to |
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be |
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Purchased |
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Underwriter |
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Goldman, Sachs & Co. |
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Morgan Stanley & Co. Incorporated |
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Total |
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-26-
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
(b) Issuer Free Writing Prospectuses included in the Pricing Disclosure Package:
(c) Additional Documents Incorporated by Reference:
-27-
SCHEDULE III
(1) HNB I LLC.
(2) Huntington LT.
(3) Huntington West, Inc.
(4) Huntington Preferred Capital Holdings, Inc.
(5) Huntington Preferred Capital Inc.
(6) Huntington Capital Financing, LLC.
(7) Huntington Preferred Capital II, Inc.
(8) Huntington National Bank
-28-
ANNEX I
Pursuant to Section 8(f) of the Underwriting Agreement, the accountants shall furnish letters
to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the Guarantor
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 (and, if applicable, prospective financial statements and/or pro
forma financial information) 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, prospective financial statements and/or
condensed financial statements derived from audited financial statements of the Guarantor
for the periods specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
“Representatives”);
(iii) They have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed consolidated statement
of income, consolidated balance sheets and consolidated statements of cash flows included
in the Prospectus and/or included in the Guarantor’s quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representatives; and on the basis of
specified procedures including inquiries of officials of the Guarantor who have
responsibility for financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in the related in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Guarantor for the five most recent
fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Guarantor’s Annual Report
on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in the Guarantor’s
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected captions with
the disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in all
material respects with the disclosure requirements of ItemS-301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) 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 Guarantor and its subsidiaries, inspection of
the minute books of the Guarantor 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 Guarantor 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) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included or incorporated by reference in the Guarantor’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 and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited consolidated
statements of income, consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in the Guarantor’s Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(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
-2-
or incorporated by reference in the Guarantor’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 Guarantor’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,
upon earn outs of performance shares 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 Guarantor and its subsidiaries, or any
decreases in consolidated net current assets or stockholders’ equity or other items
specified by the Representatives, or any increases in any items specified by the
Representatives, 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 revenues or operating
profit or the total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases
-3-
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) 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 (iii) and (vi)
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 Representatives which are derived
from the general accounting records of the Guarantor 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 Representatives or
in documents incorporated by reference in the Prospectus specified by the Representatives,
and have compared certain of such amounts, percentages and financial information with the
accounting records of the Guarantor and its subsidiaries and have found them to be in
agreement.
-4-