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
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
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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").
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(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
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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
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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:
Commission (percentage of
aggregate principal amount
Range of Maturities of Securities sold
----------------------------------------- -----------------------------------
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%
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
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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
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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
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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
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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
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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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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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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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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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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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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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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
- 17 -
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.
- 18 -
(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
- 19 -
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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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 -
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 -
Accepted as of the date hereof:
________________________________
By:_____________________________
Name:
Title:
________________________________
By:_____________________________
Name:
Title:
_______________________________
By:_____________________________
Name:
Title:
- 23 -
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.
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-
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:
[(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
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").
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
(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
(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
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
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:
Settlement
Procedure Time
---------- ----
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
Settlement
Procedure Time
---------- ----
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
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
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
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
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;
(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
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