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Exhibit 4(c)
AMENDED AND RESTATED DECLARATION OF TRUST
HUNTINGTON CAPITAL I
Dated as of January 31, 1997
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TABLE OF CONTENTS
Page
ARTICLE 1
INTERPRETATION AND DEFINITIONS ............. 1
Section 1.1 Interpretation and Definitions ........................... 1
Affiliate ............................................................. 2
Authorized Officer .................................................... 2
Business Day .......................................................... 2
Business Trust Act .................................................... 2
Capital Security ...................................................... 2
Capital Security Beneficial Owner ..................................... 2
Capital Security Certificate .......................................... 2
Cedel ................................................................. 2
Certificate ........................................................... 2
Certificate of Trust .................................................. 3
Closing Date .......................................................... 3
Code .................................................................. 3
Commission ............................................................ 3
Common Securities Holder .............................................. 3
Common Security ....................................................... 3
Common Security Certificate ........................................... 3
Corporate Trust Office ................................................ 3
Covered Person ........................................................ 3
Custodian ............................................................. 3
Debenture Issuer ...................................................... 3
Debenture Issuer Indemnified Person ................................... 3
Debenture Trustee ..................................................... 3
Debentures ............................................................ 4
Delaware Trustee ...................................................... 4
Depositary ............................................................ 4
Direct Action ......................................................... 4
Distribution .......................................................... 4
DTC ................................................................... 4
DWAC .................................................................. 4
Euroclear ............................................................. 4
Exchange Act .......................................................... 4
Federal Reserve ....................................................... 4
Fiduciary Indemnified Person .......................................... 4
Fiscal Year ........................................................... 4
Global Security ....................................................... 4
Guarantee ............................................................. 4
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Page
Holder ................................................................ 4
Indemnified Person .................................................... 5
Indenture ............................................................. 5
Indenture Event of Default ............................................ 5
Initial Purchasers .................................................... 5
Institutional Accredited Investor ..................................... 5
Investment Company .................................................... 5
Investment Company Act ................................................ 5
Investment Company Event .............................................. 5
Legal Action .......................................................... 5
List of Holders ....................................................... 5
Luxembourg Paying and Transfer Agent .................................. 5
Majority in Liquidation Amount ........................................ 5
Officers' Certificate ................................................. 6
Paying Agent .......................................................... 6
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AMENDED AND RESTATED DECLARATION OF TRUST
OF HUNTINGTON CAPITAL I
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated as
of January 31, 1997 between HUNTINGTON BANCSHARES INCORPORATED, a Maryland
corporation, as Sponsor, and Milton D. Baughman, Beth A. Russell and Paul V.
Sebert, as the initial Regular Trustees, THE CHASE MANHATTAN BANK, a New York
banking corporation, as the initial Property Trustee and CHASE MANHATTAN BANK
DELAWARE as the initial Delaware Trustee, not in their individual capacities but
solely as Trustees, and the holders, from time to time, of undivided beneficial
ownership interests in the assets of the Trust to be issued pursuant to this
Declaration.
WHEREAS, the Delaware Trustee and the Sponsor established Huntington
Capital I (the "Trust"), a business trust under the Business Trust Act (as
defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of January 23, 1997 (the "Original Declaration")
and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary
of State of the State of Delaware on January 24, 1997; and
WHEREAS, the sole purpose of the Trust shall be to issue and sell
certain securities representing undivided beneficial ownership interests in the
assets of the Trust, to invest the proceeds from such sales in the Debentures
issued by the Debenture Issuer and to engage in only those activities necessary
or incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration.
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act, the Trustees
hereby declare that all assets contributed to the Trust be held in trust for the
benefit of the Holders, from time to time, of the Securities representing
undivided beneficial ownership interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
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(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa and
a reference to any masculine form of a term shall include the feminine form of a
term, as applicable.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means the Chairman of the Board, a
Vice Chairman of the Board, the Chief Executive Officer, the President, a Vice
President, the principal financial officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in the City of New York or the City of Columbus
are authorized or required by law or executive order to remain closed or a day
on which the Corporate Trust Office of the Property Trustee is closed for
business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Section 3801, et seq., as it may be amended from time to time, or any
successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Beneficial Owner" means, with respect to any
beneficial interest in a Global Security, ownership and transfers of which shall
be maintained and made through book entries by a Depositary, a Person who is the
beneficial owner of such beneficial interest, as reflected on the books of the
Depositary, or on the books of a Person maintaining an account with such
Depositary (as a direct or indirect participant, in each case in accordance with
the rules of such Depositary).
"Capital Security Certificate" means a certificate representing a
Capital Security.
"Cedel" means Cedel Bank, societe anonymne.
"Certificate" means a Common Security Certificate or a Capital Security
Certificate.
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"Certificate of Trust" has the meaning specified in the recitals
hereto.
"Closing Date" means the date or dates on which the Capital Securities
are issued and sold.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities Holder" means Huntington Bancshares Incorporated in
its capacity as purchaser and holder of all of the Common Securities issued by
the Trust.
"Common Security" has the meaning specified in Section 7.1
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security.
"Corporate Trust Office" means the office of the Property Trustee at
which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Declaration is located at 450 West 33rd Street, New York, New
York 10001, Attention: Global Trust Services.
"Covered Person" means (a) any trustee, officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Custodian" means The Chase Manhattan Bank.
"Debenture Issuer" means Huntington Bancshares Incorporated in its
capacity as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee or any Affiliate thereof; or (d) any officer, employee or agent
of the Trust or its Affiliates.
"Debenture Trustee" means The Chase Manhattan Bank, in its capacity as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
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"Debentures" means the Securities (as defined in the Indenture) to be
issued by the Debenture Issuer and to be held by the Property Trustee.
"Delaware Trustee" has the meaning set forth in Section 6.2.
"Depositary" means, with respect to Securities issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as Depositary for such
Securities.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 7.2.
"DTC" means The Depository Trust Company, the initial Depositary.
"DWAC" means Deposit and Withdrawal At Custodian Service.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Indenture the Federal Reserve is not existing and performing the duties
now assigned to it, then the body performing such duties at such time.
"Fiduciary Indemnified Person" has the meaning set forth in Section
9.4(b).
"Fiscal Year" has the meaning set forth in Section 10.1.
"Global Security" has the meaning set forth in Section 7.11.
"Guarantee" means the guarantee agreement of the Sponsor in respect of
the Capital Securities and the Common Securities.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act; provided, however, that in determining whether the
Holders of the requisite liquidation amount of Capital Securities have voted on
any matter provided for in this Declaration, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Capital
Securities remain in the form of one or more Global Securities, the term
"Holders" shall mean the holder of the Global Security acting at the direction
of the beneficial owners of the Capital Securities.
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"Indemnified Person" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of January 31, 1997, between
the Debenture Issuer and the Debenture Trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Initial Purchasers" means Morgan Stanley & Co. Incorporated, Lehman
Brothers Inc. and Salomon Brothers Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as the term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Investment Company" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of an opinion
of counsel, rendered by a law firm experienced in such matters, to the effect
that, as a result of the occurrence of a change in law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), the Trust is or will be considered an "investment company"
that is required to be registered under the Investment Company Act, which Change
in 1940 Act Law becomes effective on or after the Closing Date.
"Legal Action" has the meaning set forth in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Luxembourg Paying and Transfer Agent" shall have the meaning set forth
in Section 3.6.
"Majority in Liquidation Amount" means, except as provided in the terms
of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities, voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
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"Officers' Certificate" means, with respect to any Person (other than
Regular Trustees who are natural persons), a certificate signed by two
Authorized Officers of such Person on behalf of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(c) a statement as to whether, in the opinion of each such officer and
on behalf of such Person, such condition or covenant has been complied with;
provided, that the term "Officers' Certificate", when used with reference to
Regular Trustees who are natural persons shall mean a certificate signed by two
of the Regular Trustees which otherwise satisfies the foregoing requirements.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(a).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"PORTAL" has the meaning specified in Section 3.6
"Private Placement Legend" has the meaning specified in Section 314 of
the Indenture.
"Property Account" has the meaning specified in Section 3.8(c).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A under the Securities Act.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
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"Redemption Price" has the meaning specified in Section 7.3(a).
"Registration Rights Agreement" means the Registration Rights Agreement
dated the date hereof between the Sponsor, the Trust and the Initial Purchasers
for the benefit of themselves and the Holders as the same may be amended from
time to time in accordance with the terms thereof.
"Regular Trustee" means any Trustee other than the Property Trustee and
the Delaware Trustee.
"Regulation S" means Regulation S under the Securities Act and any
successor regulation thereto.
"Regulation S Global Security" means any Global Security or Securities
evidencing Securities that are to be traded pursuant to Regulation S.
"Regulatory Capital Event" means that the Debenture Issuer shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve or (b) any official or administrative pronouncement or action or
judicial decision for interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the date of original issuance of the Capital Securities, the Capital
Securities do not constitute, or within 90 days of the date thereof, will not
constitute Tier 1 capital (or its then equivalent); provided, however, that the
distribution of the Debentures in connection with the liquidation of the Trust
by the Debenture Issuer shall not in and of itself constitute a Regulatory
Capital Event unless such liquidation shall have occurred in connection with a
Tax Event or an Investment Company Event.
"Related Party" means, with respect to the Sponsor, any direct or
wholly owned subsidiary of the Sponsor.
"Responsible Officer", when used with respect to the Property Trustee,
means any officer within the Corporate Trust Office, including any
Vice-President, any Assistant Vice-President, the Secretary, any Assistant
Secretary or any other officer of the Property Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Restricted Global Security" means any Global Security or Securities
evidencing Securities that are to be sold pursuant to Rule 144A.
"Restricted Period" shall mean the period prior to or on the fortieth
day after the later of the commencement of the offering of the Capital
Securities and the Closing Date.
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"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or any
successor rule thereunder.
"Securities" means the Common Securities and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event.
"Sponsor" means Huntington Bancshares Incorporated, a Maryland
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section
6.6(b).
"Successor Entity" has the meaning specified in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning specified in Section
6.6(b).
"Successor Security" has the meaning specified in Section 3.15(b)(i)b.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Debenture Issuer of an opinion of
counsel, rendered by a law firm experienced in such matters, to the effect that,
as a result of any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
adopted or which proposed change, pronouncement or decision is announced or
which action is taken on or after the Closing Date, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to the United States federal income tax with respect to
income received or accrued on the Debentures, (ii) interest payable by the
Debenture Issuer on such Debentures is not, or within 90 days of the date of
such opinion, will not be deductible by the Debenture Issuer, in whole or in
part, for United States federal income tax purposes, or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to more than a de
minimus amount of other taxes, duties or other governmental charges.
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"10% in Liquidation Amount" means, except as provided in the terms of
the Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Capital Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trustees' Authorization Certificate" means a written certificate
signed by two of the Regular Trustees for the purpose of establishing the terms
and form of the Capital Securities and the Common Securities as determined by
the Regular Trustees.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
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(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial ownership interests in the
assets of the Trust.
Section 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee with a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders"), (i) not later than June 30 and December 31 of
each year and current as of such date, and (ii) at any other time, within 30
days of receipt by the Trust of a written request from the Property Trustee for
a List of Holders as of a date no more than 15 days before such List of Holders
is given to the Property Trustee; provided that neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained in Lists
of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may, but shall not
be obligated to, destroy any List of Holders previously given to it on receipt
of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing in the year of the
first anniversary of the issuance of the Capital Securities), the Property
Trustee shall provide to the Holders of the Capital Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act
and an Officer's Certificate as to its compliance with all
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conditions and covenants under this Declaration on an annual basis on or before
120 days after the end of each fiscal year of the Sponsor.
Section 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) shall be given in the form of an Officers' Certificate.
Section 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Capital
Securities may, by vote or written consent, on behalf of the Holders of all of
the Capital Securities, waive any past Trust Enforcement Event in respect of the
Capital Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust Enforcement Event
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Trust Enforcement
Event under the Declaration may only be waived by the vote or
written consent of the Holders of at least the proportion in
liquidation amount of the Capital Securities that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Trust Enforcement Event with respect
to the Capital Securities arising therefrom shall be deemed to have been cured,
for every purpose of this Declaration and the Capital Securities, but no such
waiver shall extend to any subsequent or other Trust Enforcement Event with
respect to the Capital Securities or impair any right consequent thereon. Any
waiver by the Holders of the Capital Securities of a Trust Enforcement Event
with respect to the Capital Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such Trust Enforcement
Event with respect to the Common Securities for all purposes of this Declaration
without any further act, vote, or consent of the Holders of the Common
Securities.
(b) The Holders of a Majority in Liquidation Amount of the Capital
Securities will have the right to direct the time, method and place of
conducting any proceeding of any remedy available to the Property Trustee or to
direct the exercise of any trust or power
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conferred upon the Property Trustee, including the right to direct the Property
Trustee to exercise the remedies available to it as Holder of the Debentures.
(c) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Trust
Enforcement Event under the Declaration as provided below in this
Section 2.6(c), the Trust Enforcement Event under the Declaration
shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived
under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Trust Enforcement Event
under the Declaration as provided below in this Section 2.6(c),
the Trust Enforcement Event under the Declaration may only be
waived by the vote or written consent of the Holders of at least
the proportion in liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Capital Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Capital Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Capital Securities and only the Holders of the Capital Securities will have
the right to direct the Property Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(c),
upon such waiver, any such default shall cease to exist and any Trust
Enforcement Event with respect to the Common Securities arising therefrom shall
be deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other Trust Enforcement Event with
respect to the Common Securities or impair any right consequent thereon.
(d) A waiver of an Indenture Event of Default by the Property Trustee
at the direction of the Holders of the Capital Securities constitutes a waiver
of the corresponding Trust Enforcement Event with respect to the Capital
Securities under this Declaration. The foregoing provisions of this Section
2.6(d) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
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Section 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence of
a Trust Enforcement Event, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities actually known to a Responsible Officer of the Property Trustee,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Indenture Event of Default, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein); provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of the Debentures, the Property Trustee shall be fully
protected in withholding such notice if and so long as a Responsible Officer of
the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of this Declaration shall
have actual knowledge.
ARTICLE 3
ORGANIZATION
Section 3.1 Name and Organization.
The Trust hereby continued is named "Huntington Capital I" as such name
may be modified from time to time by the Regular Trustees following written
notice to the Holders of Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 3.2 Office.
The address of the principal executive office of the Trust is c/o
Huntington Bancshares Incorporated, Huntington Center, 41 South High Street,
Columbus, Ohio 43287, Attn: Judith D. Fisher. On 10 Business Days' written
notice to the Holders of Securities, the Regular Trustees may designate another
principal office.
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Section 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell the Securities and use the gross proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, mortgage,
pledge any of its assets or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified as a grantor trust for
United States federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor, the
Holders of the Capital Securities or Common Securities or the Capital Security
Beneficial Owners will take any position which is contrary to the classification
of the Trust as a grantor trust for United States federal income tax purposes.
Section 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6(b); and
(c) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
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Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Account or as otherwise provided in this Declaration, legal title
to all assets of the Trust shall be vested in the Trust. The Holders shall not
have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial ownership interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the power, duty and authority to cause
the Trust to engage in the following activities, subject to the limitations and
restrictions of applicable laws:
(a) to establish the terms and form of the Capital Securities and the
Common Securities in the manner specified in Section 7.1 and issue and sell the
Capital Securities and the Common Securities in accordance with this
Declaration; provided, that there shall be no interests in the Trust other than
the Securities, and no more than one series of Common Securities and one series
of Capital Securities;
(b) in connection with the issue and sale of the Capital Securities, at
the direction of the Sponsor, to:
(i) if deemed necessary or desirable by the Sponsor, execute and file
an application, prepared by the Sponsor, to the Luxembourg Stock
Exchange or other foreign national stock exchange for listing of
any Capital Securities, the Guarantee and the Debentures;
(ii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary, in order to
qualify or register all or part of the Capital Securities in any
State in which the Sponsor has determined to qualify or register
such Capital Securities for sale;
(iii) execute and file an application, prepared by the Sponsor, to the
Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market and if and at such time determined by the
Sponsor, to The New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any Capital
Securities;
(iv) execute and deliver letters or documents to, or instruments with,
DTC relating to the Capital Securities;
(v) execute and enter into a purchase agreement and other related
agreements providing for the sale of the Capital Securities to the
Initial Purchasers; and
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(vi) execute and enter into the Registration Rights Agreement.
(c) to acquire the Debentures with the proceeds of the sale of the
Capital Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Capital Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event; provided that the Regular Trustees shall
consult with the Sponsor and the Property Trustee before taking or refraining
from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(j) to act as, or appoint another Person to act as, registrar, paying
agent and transfer agent for the Securities; provided, however, that at all
times and for so long as the Capital Securities are listed on the Luxembourg
Stock Exchange, and the Luxembourg Stock Exchange so requires, there shall be a
transfer agent and paying agent for the Securities in Luxembourg (the
"Luxembourg Transfer and Paying Agent");
(k) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election to defer payments
of interest on the Debentures by extending the interest payment period under the
Debentures as authorized by the Indenture;
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(l) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(m) to take any action, not inconsistent with applicable law, that the
Regular Trustees determine in their discretion to be necessary or desirable in
carrying out the purposes and functions of the Trust as set out in Section 3.3
or the activities of the Trust as set out in this Section 3.6, including, but
not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for United
States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes.
(n) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust;
(o) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing; and
No provision of this Declaration shall be construed to relieve a
Regular Trustee from liability for his own negligent action, his own negligent
failure to act, or his own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and after the
curing or waiving of such Trust Enforcement Event that may have
occurred:
(A) the duties and obligations of the Regular Trustees shall be
determined solely by the express provisions of this
Declaration and the Regular Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this
Declaration against the Regular Trustees; and
(B) in the absence of bad faith on the part of a Regular Trustee,
such Regular Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon
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any certificates or opinions furnished to such Regular
Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to such Regular Trustee, such
Regular Trustee shall be under a duty to examine the same to
determine whether or not they substantially conform to the
requirements of this Declaration;
(ii) a Regular Trustee shall not be liable for any error of judgment
made in good faith unless it shall be proved that such Regular
Trustee was negligent in ascertaining the pertinent facts;
(iii) no provision of this Declaration shall require a Regular Trustee
to expend or risk his own funds or otherwise incur personal
financial liability in the performance of any of his duties or in
the exercise of any of his rights or powers, if he shall have
reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to him under the terms of
this Declaration or indemnity reasonably satisfactory to such
Regular Trustee against such risk or liability is not reasonably
assured to him;
(iv) a Regular Trustee shall not be responsible for monitoring the
compliance by the Property Trustee or the Sponsor with their
respective duties under this Declaration, nor shall such Regular
Trustee be liable for any default or misconduct of the Property
Trustee or the Sponsor;
(v) a Regular Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
him to be genuine and to have been signed, sent or presented by
the proper party or parties;
(vi) a Regular Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing
or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(vii) the Regular Trustees may consult with counsel or other experts of
their selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope
of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by them hereunder in good faith and in
accordance with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include
any of its employees. The Regular Trustees shall have the right at
any time to seek instructions concerning the administration of
this Declaration from any court of
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competent jurisdiction;
(viii) the Regular Trustees shall be under no obligation to exercise any
of the rights or powers vested in them by this Declaration at the
request or direction of any Holder, unless such Holder shall have
provided to the Regular Trustees security and indemnity,
reasonably satisfactory to the Regular Trustees, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by them in complying with such
request or direction, including such reasonable advances as may be
requested by them;
(ix) a Regular Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but he, in his
discretion, may make such further inquiry or investigation into
such facts or matters as he may see fit;
(x) a Regular Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and such Regular
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by
him hereunder;
(xi) any action taken by a Regular Trustee or his agents hereunder
shall bind the Trust and the Holders of the Securities, and the
signature of such Regular Trustee or his agents alone shall be
sufficient and effective to perform any such action and no third
party shall be required to inquire as to the authority of such
Regular Trustee to so act or as to his compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by such Regular Trustee's or his agent's
taking such action;
(xii) except as otherwise expressly provided by this Declaration, a
Regular Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this
Declaration; and
(xiii) a Regular Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Declaration.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3 and subject to the limitations and restrictions
of applicable law, and the Regular Trustees shall have no power to, and shall
not, take any action that is inconsistent with the purposes and
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functions of the Trust set forth in Section 3.3 or that is inconsistent with or
in contravention of any applicable law.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than the Debentures (and any interest or
proceeds received thereon) and the Guarantee (and the proceeds
received thereon or with respect thereto);
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets;
(vi) possess any power or otherwise act in such a way as to vary the
terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Declaration or by the terms of
the Securities);
(vii) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the
Securities; or
(viii) other than as provided in this Declaration or by the terms of
the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Debenture Trustee
with respect to the Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the Debentures
shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures
where such consent shall be required unless, in each case, the
Trust shall have received (A) the prior approval of the Majority
in Liquidation Amount of the Capital
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Securities; provided, however, that where a consent or action
under the Indenture would require the consent or act of the
holders of more than a majority of the aggregate liquidation
amount of Debentures affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the
Capital Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to
give such consent to take such action and (B) an opinion of
counsel to the effect that such modification will not cause more
than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the Investment
Company Act, or the Trust will not be classified as a grantor
trust for United States federal income tax purposes; or
(ix) take any action inconsistent with the status of the Trust as a
grantor trust for United States federal income tax purposes; or
(x) revoke any action previously authorized or approved by a vote of
the Holders of the Capital Securities except pursuant to a
subsequent vote of the Holders of the Capital Securities.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the Trust
and the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 6.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders
of the Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Property Trustee, deposit
such funds into the Property Account and make payments to the
Holders of the Capital Securities and Holders of the Common
Securities from the Property Account in accordance with Section
7.2. Funds in the Property Account shall be held uninvested until
disbursed in accordance with this Declaration. The Property
Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness
is at least equal to the rating assigned to the Capital Securities
by a "nationally recognized statistical rating
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organization", as that term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Capital Securities and
the Common Securities to the extent the Debentures are redeemed or
mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in
such ministerial activities as so directed and as shall be
necessary or appropriate to effect the distribution of the
Debentures to Holders of Securities upon the occurrence of a
Special Event.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms of
this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
provided, however, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest or principal (or premium, if any) on the Debentures on the date
such interest or principal (or premium, if any) is otherwise payable (or in the
case of redemption, on the redemption date), then a Holder of Capital Securities
may directly institute a proceeding for enforcement of payment to such Holder of
the principal of (or premium, if any) or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
Security of such Holder (a "Direct Action"), on or after the respective due date
specified in the Debentures. In connection with such Direct Action, the rights
of the Holders of the Common Securities will be subrogated to the rights of such
Holder of Capital Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Capital Securities in such Direct Action; provided,
however, that no Holder of the Common Securities may exercise any such right of
subrogation so long as an Trust Enforcement Event with respect to the Capital
Securities has occurred and is continuing. Except as provided in the preceding
sentences, the Holders of Capital Securities will not be able to exercise
directly any other remedy available to the Holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities;
(ii) a Successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 6.6; or
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(iii) the Property Trustee has resigned in accordance with Section 6.6.
(g) Subject to such limitations as are necessary to insure compliance
with Section 3.3, the Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if a Trust Enforcement Event actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act;
provided, however, that at all times and so long as the Capital Securities are
listed on the Luxembourg Stock Exchange, and the Luxembourg Stock Exchange so
requires, the Property Trustee will authorize a Paying Agent in Luxembourg to
act as a Paying Agent and who will also cause the rate of Distributions, amount
of Distributions, the payment dates for each Distribution and the Extension
Period, if any, or any other information required by the Luxembourg Stock
Exchange, to be provided to the Luxembourg Stock Exchange and published in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxembourg Wort) as soon as possible after the determination thereof. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee. In the event the Capital Securities do not remain in the form
of one or more Global Securities, the Property Trustee and, at all times and so
long as the Capital Securities are listed on the Luxembourg Stock Exchange and
such exchange so requires, an entity designated as the Luxembourg Transfer and
Paying Agent, will act as Paying Agents. The Property Trustee may designate
additional or substitute Paying Agents at any time, subject to the requirements
of the Luxembourg Stock Exchange.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3 and subject to the limitations and restrictions
of applicable law, and the Property Trustee shall have no power to, and shall
not, take any action that is inconsistent with the purposes and functions of the
Trust set out in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section
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2.6) of which a Responsible Officer of the Property Trustee has actual
knowledge, the Property Trustee shall exercise such of the rights and powers
vested in it by this Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and after the
curing or waiving of all such Trust Enforcement Events that may
have occurred:
a. the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
b. in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they
substantially conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it without negligence, in
good faith in accordance with the direction of the Holders of not
less than a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee
under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or
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powers, if it shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to
it under the terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe-keeping and physical preservation of the Debentures and the
Property Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its
own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Declaration
and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the
Sponsor in writing. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by
law;
(viii) the Property Trustee shall not be responsible for monitoring the
compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Property
Trustee be liable for any default or misconduct of the Regular
Trustees or the Sponsor; and
(ix) The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing
with the Debenture Issuer.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced
by an Officers' Certificate
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(or, with respect to the establishment of the terms and form of
the Securities by the Regular Trustees, by a Trustees'
Authorization Certificate);
(iii) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered
by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing
or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its choice or
other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope
of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include
any of its employees. The Property Trustee shall have the right at
any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the
request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee security and indemnity,
reasonably satisfactory to the Property Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Property Trustee's agents, nominees or custodians)
and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as
may be requested by the Property Trustee; provided that, nothing
contained in this Section 3.10(a) shall be taken to relieve the
Property Trustee, upon the occurrence of an Indenture Event of
Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
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(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third
party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request
instructions from the Holders of the Securities, the Regular
Trustees or the Sponsor which instructions may only be given by
the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property Trustee
under the terms of the Securities in respect of such remedy, right
or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in
accordance with such instructions;
(xi) if no Trust Enforcement Event has occurred and is continuing and
the Property Trustee is required to decide between alternative
causes of action, construe ambiguous provisions in their
Declaration or is unsure of the application of any provision of
their Declaration, and the matter is not one on which Holders of
Capital Securities are entitled under the Declaration to vote,
then the Property Trustee may, but shall be under no duty to, take
such action as is directed by the Sponsor and will have no
liability except for its own bad faith, negligence or willful
misconduct;
(xii) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this
Declaration;
(xiii) the Property Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it without negligence, in good
faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this
Declaration; and
(xiv) the Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or
any predecessor
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Trustee, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
(b) No provision of this Declaration shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
Section 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is authorized
to execute on behalf of the Trust any documents that the Regular Trustees have
the power and authority to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
Section 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions of
Article 8 hereof.
Section 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
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(b) The Trust may, at the request of the Sponsor, with the consent of
Holders of at least a Majority in Liquidation Amount of the Capital Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust
organized as such under the laws of any State; provided that:
(i) if the Trust is not the successor, such successor entity (the
"Successor Entity") either:
a. expressly assumes all of the obligations of the Trust under
the Securities; or
b. substitutes for the Capital Securities other securities
having substantially the same terms as the Capital Securities
(the "Successor Securities") so long as the Successor
Securities rank the same as the Capital Securities rank in
priority with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of such Successor Entity
that possesses the same powers and duties as the Property Trustee
as the holder of the Debentures;
(iii) the Capital Securities or any Successor Securities are listed, or
any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with any other
organization on which the Capital Securities are then listed or
quoted, if any;
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Capital Securities (including
any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Capital
Securities (including any Successor Securities) in any material
respect;
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease the Sponsor has received an opinion
of independent counsel to the Trust experienced in such matters to
the effect that:
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a. such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in
any material respect;
b. following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust
nor the Successor Entity will be required to register as an
Investment Company; and
c. following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will
continue to be classified as a grantor trust for United
States federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee owns all of
the Common Securities and guarantees the obligations of such
Successor Entity under the Successor Securities at least to the
extent provided by the Guarantee; and
(ix) such Successor Entity expressly assumes all of the obligations of
the Trust with respect to the Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into any other entity, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance transfer or lease would cause the
Trust or Successor Entity to be classified as other than a grantor trust for
United States federal income tax purposes and each Holder of the Securities not
to be treated as owning an undivided beneficial ownership interest in the
Debentures.
Section 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities (or, if the Securities are
original issue discount Securities, such portion of the liquidation amount as
may be specified in the terms of such Securities) and to file such other papers
or documents as may be necessary or advisable in
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order to have the claims of the Property Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
Section 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to do any
and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(b) to prepare any filing by the Trust of an application to Luxembourg
Stock Exchange or other foreign national stock exchange for listing, if such
filing is determined to be necessary or desirable by the Sponsor;
(c) to prepare for filing and cause the filing by the Trust, as may be
appropriate, of an application to the PORTAL, The New York Stock Exchange, Inc.
or any other national stock exchange or the Nasdaq National Market for listing
or quotation upon notice of issuance of any Capital Securities;
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(d) to negotiate the terms of and execute and deliver a purchase
agreement and other related agreements providing for the sale of the Capital
Securities to the Initial Purchasers; and
(e) to negotiate the terms of the Registration Rights Agreement.
Section 4.2 Compensation, Indemnification and Expenses of the Trustee.
Pursuant to Sections 607 and 1009 of the Indenture, the Sponsor, in its
capacity as Debenture Issuer, agrees:
(1) to pay to the Trustees from time to time such compensation as the
Debenture Issuer and the Trustees shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) to reimburse the Trustees upon their request for all reasonable
expenses, disbursements and advances incurred or made by the Trustees in
accordance with any provision of the Indenture (including the compensation
and the expenses and disbursements of its agent and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Property Trustee and the Delaware Trustee and
their respective officers, directors, employees and authorized agents for,
and to hold each of them harmless against, any loss, liability or expense
including taxes (other than taxes based upon, measured by or determined by
the income of any Trustee) incurred without negligence or bad faith on the
part of the Property Trustee, the Delaware Trustee or their respective
officers, directors, employees and authorized agents, as the case may be,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending any
of them against any claim or liability in connection with the exercise or
performance of any of their respective powers or duties hereunder; the
provisions of this Section 4.2 shall survive the resignation or removal of
the Delaware Trustee or the Property Trustee or the termination of this
Declaration.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
Section 5.1 Debenture Issuer's Purchase of Common Securities.
On the Closing Date the Debenture Issuer will purchase all of the
Common Securities issued by the Trust, for an amount at least equal to 3% of the
capital of the Trust, at the same time as the Capital Securities are sold.
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Section 5.2 Covenants of the Common Securities Holder.
For so long as the Capital Securities remain outstanding, the Common
Securities Holder will covenant (i) to maintain directly 100% ownership of the
Common Securities, (ii) to cause the Trust to remain a statutory business trust
and not to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this Declaration, (iii) to use its commercially reasonable efforts
to ensure that the Trust will not be an investment company for purposes of the
Investment Company Act, and (iv) to take no action which would be reasonably
likely to cause the Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal income tax
purposes.
ARTICLE 6
TRUSTEES
Section 6.1 Number of Trustees.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that (1) the Delaware Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law; (2) at least
one Regular Trustee is an employee or officer of, or is affiliated with, the
Sponsor; and (3) one Trustee shall be the Property Trustee for so long as this
Declaration is required to qualify as an indenture under the Trust Indenture
Act, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
Section 6.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law,
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provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
Section 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor or any Person involved in the
organization or operation of the Sponsor;
(ii) not offer or provide credit or credit enhancement to the Trust;
and
(iii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or other Person
permitted by the Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to
exercise corporate trust owners, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
6.3(a)(iii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee shall promptly resign in the
manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
Obliger referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee, the Indenture, the Debentures and the Securities
shall be deemed to be specifically described in this Declaration for purposes of
clause (i) of the first provision contained in Section 310(b) of the Trust
Indenture Act.
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Section 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
Section 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
Milton D. Baughman, Beth A. Russell and Paul V. Sebert, the business
address of all of whom is c/o Huntington Bancshares Incorporated, Huntington
Center, 41 South High Street, Columbus, Ohio 43287.
Section 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time except, if a Trust Enforcement Event has occurred and
is continuing:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of a
Majority in Liquidation Amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
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(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
a. until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
b. until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Property Trustee,
as the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as
the case may be, shall have been appointed and accepted appointment as provided
in this Section 6.6 within 30 days after delivery to the Sponsor and the Trust
of an instrument of resignation or removal, the resigning or removed Property
Trustee or Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as applicable. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(g) Upon the resignation or removal of the Property Trustee, such
Property Trustee shall be paid all amounts due and owing.
Section 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. The vacancy shall be
filled with a Trustee appointed in accordance with Section 6.6.
Section 6.8 Effect of Vacancies.
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The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 6.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
Section 6.9 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including making governmental filings.
(b) The Regular Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 6.10 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee, the Delaware Trustee
or a Regular Trustee, if a legal entity, as the case may be, may be merged or
converted or with which either may be consolidated, or any corporation resulting
from an merger, conversion or consolidation to which the Property Trustee, the
Delaware Trustee or a Regular Trustee, if a legal entity, as the case may be,
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the such Trustee shall be the successor of such
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE 7
THE SECURITIES
Section 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue a class of
capital securities representing undivided beneficial ownership interests in the
assets of the Trust (the "Capital Securities"), and a class of common securities
representing undivided beneficial ownership interests in the assets of the Trust
(the "Common Securities"). The aggregate liquidation amount of Capital
Securities and Common Securities that may be issued by the Trust is unlimited;
provided that the Common Securities outstanding at any time must have an
aggregate liquidation amount with respect to the assets of the Trust equal to at
least 3% of the
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assets of the Trust; and provided further that after the initial issuance of
Capital Securities and Common Securities, the Trust may not issue additional
Capital Securities or Common Securities unless the Trustees have received an
opinion of counsel to the effect that the issuance of such securities will not
affect the Trust's status as a grantor trust for United States federal income
tax purposes.
(i) Capital Securities. The Capital Securities of the Trust have a
liquidation amount with respect to the assets of the Trust of
$1,000 per Capital Security. The Capital Security Certificates
evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
(ii) Common Securities. The Common Securities of the Trust have a
liquidation amount with respect to the assets of the Trust of
$1,000 per Common Security. The Common Security Certificates
evidencing the Common Securities shall be substantially in the
form of Exhibit A-2 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
The Trust shall issue no securities or other interests in the assets of
the Trust other than the Capital Securities and the Common Securities.
(b) Payment of Distributions on, and payments of the Redemption Price
upon a redemption of, the Capital Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Capital Securities and Common Securities; provided, however, that if on any date
on which amounts payable on Distribution or redemption an Indenture Event of
Default shall have occurred and be continuing, no payment of any Distribution,
or Redemption Price on, any of the Common Securities, and no other payment on
account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Capital Securities for all
Distribution periods terminating on or prior thereto, or in the case of amounts
payable on redemption the full amount of the Redemption Price for all of the
outstanding Capital Securities then called for redemption, shall have been made
or provided for, and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions on, or payments of
the Redemption Price upon a redemption of, the Capital Securities then due and
payable. The Trust shall issue no securities or other interests in the assets of
the Trust other than the Capital Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any Regular Trustee. In case a Regular Trustee of the Trust who shall have
signed any of the Certificates shall cease to be such Regular Trustee before the
Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the
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Trust by such persons who, at the actual date of execution of such Certificate,
shall be the Regular Trustees of the Trust, although at the date of the
execution and delivery of the Declaration any such person was not such a Regular
Trustee. Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be required
to comply with any law or with any rule or regulation of any stock exchange on
which Securities may be listed, or to conform to usage.
A Capital Security Certificate shall not be valid until authenticated
by the manual signature of an authorized officer of the Property Trustee. Such
signature shall be conclusive evidence that the Certificate has been
authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Certificates. An authenticating agent may authenticate
Certificates whenever the Property Trustee may do so. Each reference in this
Declaration to authentication by the Property Trustee includes authentication by
such agent. An authenticating agent has the same rights as the Property Trustee
to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(f) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the terms of the Securities, the Guarantee,
the Indenture and the Debentures.
(g) The Securities shall have no preemptive rights.
Section 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive cumulative cash
Distributions at a variable per annum rate on the stated liquidation amount of
$1,000 per Security equal to the variable per annum rate on the Debentures
calculated on the basis of the actual number of days elapsed in a year
consisting of twelve 30-day months. For any period shorter than a full 90-day
quarterly period, distributions will be computed on the basis of the actual
number of days elapsed in such 90-day quarterly period. Subject to Section
7.1(b), Distributions shall be made on the Capital Securities and the Common
Securities on a Pro Rata
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basis. Distributions on the Securities shall, from the date of original issue,
accrue and be cumulative and shall be payable quarterly only to the extent that
the Trust has funds available for the payment of such Distributions in the
Property Account. Distributions not paid on the scheduled payment date will
accumulate and compound quarterly at the rate payable on the Debentures, to the
extent permitted by applicable law ("Compounded Distributions"). "Distributions"
shall mean ordinary cumulative distributions together with any Compounded
Distributions. If and to the extent that the Debenture Issuer makes a payment of
interest (including Additional Interest (as defined in the Indenture)), premium
and/or principal on the Debentures held by the Property Trustee (the amount of
any such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, to make a Pro Rata
distribution (a "Distribution") of the Payment Amount to Holders, subject to the
terms of Section 7.1(b).
(b) Distributions on the Securities will be cumulative, will accrue
from the date of initial issuance and will be payable quarterly in arrears on
the last day of January, April, July and October, commencing April 30, 1997,
when, as and if available for payment, by the Property Trustee, except as
otherwise described below. If Distributions are not paid when scheduled, the
accrued Distributions shall be paid to the Holders of record of Securities as
they appear on the books and records of the Trust on the record date as
determined under Section 7.2(c).
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which relevant record date shall be the fifteenth day of the month
of the relevant payment dates. In the event that any date on which distributions
are payable on the Securities is not a Business Day, payment of the distribution
payable on such date will be made on the next succeeding day which is a Business
Day (without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
Section 7.3 Redemption of Securities; Distribution of Debentures.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures, the proceeds from such repayment or redemption shall be
simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Debentures so repaid or redeemed for an amount equal to the redemption
price paid by the Debenture Issuer in respect of such Debentures plus an amount
equal to accrued and unpaid Distributions thereon through the date of the
redemption or such lesser amount as shall be received by the Trust in respect of
the Debentures so repaid or redeemed (the "Redemption Price"). Holders will be
given not less than 30 or more than 60 days notice of such redemption.
(b) If, at any time, a Special Event shall occur and be continuing, the
Sponsor may elect to, unless the Debentures are redeemed, within 90 days
following the occurrence of such Special Event cause the dissolution of the
Trust upon not less than 30 nor more than 60
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days' notice and, after satisfaction of creditors, if any, cause the Debentures
to be distributed to the holders of the Common Securities and the Capital
Securities in liquidation of the Trust.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Capital Securities and the Common Securities
will no longer be deemed to be outstanding and (ii) certificates representing
Securities will be deemed to represent the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid distributions equal to accrued and unpaid distributions on, such
Securities until such certificates are presented to the Sponsor or its agent for
transfer or reissuance.
Section 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail, and, if required by the Luxembourg Stock
Exchange, by publication in a leading newspaper having general circulation in
Luxembourg, to each Holder of Securities to be redeemed or exchanged not fewer
than 30 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 7.4, a Redemption/Distribution Notice shall be deemed to be given on the
later of the date of any publication in Luxembourg, if required, and the seventh
day after such notice is first mailed by first-class mail, postage prepaid, to
Holders of Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution Notice
or in the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any other
Holder.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Capital Securities will be redeemed Pro Rata and
the Capital Securities to be redeemed will be redeemed as described below. The
Trust may not redeem the Securities in part unless all accrued and unpaid
interest has been paid in full on all Securities then outstanding plus accrued
but unpaid interest to the date of redemption. For all purposes of this
Declaration, unless the context otherwise requires, all provisions relating to
the redemption of Capital Securities shall relate, in the case of any Capital
Security redeemed or to be redeemed only in part, to the portion of the
aggregate liquidation amount of Capital Securities which has been or is to be
redeemed.
(c) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 7.4 (which notice will be
irrevocable), then (A) by 12:00 noon, New York City time, on the redemption date
with respect to Global Securities, the Property Trustee, to the extent funds are
available, will deposit irrevocably with the DTC (in the case of book-entry form
Capital Securities) or its nominee (or successor Clearing Agency or its nominee)
funds sufficient to pay the applicable Redemption Price with respect to the
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Capital Securities held in DTC and will give the DTC irrevocable instructions
and authority to pay the Redemption Price to the Holders of the Capital
Securities held through DTC, and (B) with respect to Capital Securities and
Common Securities issued in definitive form, the Property Trustee, to the extent
funds are available, will irrevocably deposit with the paying agent for such
Capital Securities and Common Securities funds sufficient to pay the relevant
Redemption Price to the Holders and will give the paying agent irrevocable
instructions and authority to pay the Redemption Price to such Holders upon
surrender of their certificates evidencing the Capital Securities or Common
Securities. If a Redemption/Distribution Notice shall have been given and funds
deposited as required, then immediately prior to the close of business on the
date of such deposit, distributions will cease to accrue on the Securities so
called for redemption and all rights of Holders of such Securities will cease,
except the right of the Holders of such Securities to receive the Redemption
Price, but without interest on such Redemption Price. If any date fixed for
redemption of Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of any Securities is improperly
withheld or refused and not paid either by the Property Trustee or by the
Sponsor as guarantor pursuant to the Guarantee, Distributions on such Securities
will continue to accrue at the then applicable rate from the original redemption
date to the actual date of payment, in which case the actual payment date will
be considered the date fixed for redemption for purposes of calculating the
Redemption Price. For these purposes, the applicable Redemption Price shall not
include Distributions which are being paid to Holders who were Holders on a
relevant record date. Upon satisfaction of the foregoing conditions, then
immediately prior to the close of business on the date of such deposit or
payment, all rights of Holders of such Debentures so called for redemption will
cease, except the right of the Holders to receive the Redemption Price, but
without interest on such Redemption Price, and from and after the date fixed for
redemption, such Debentures will not accrue distributions or bear interest.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer or exchange of any Securities
that have been called for redemption, except in the case of any Securities being
redeemed in part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States Federal securities laws), the Debenture Issuer or its
subsidiaries may at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or by private agreement.
Section 7.5 Voting Rights of Capital Securities.
(a) Except as provided under this Article VII and as otherwise required
by the Business Trust Act, the Trust Indenture Act and other applicable law, the
Holders of the Capital Securities will have no voting rights.
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(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d) below, the Holders
of a Majority in Liquidation Amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or to direct the exercise of any trust or
power conferred upon the Property Trustee under the Declaration, including the
right to direct the Property Trustee, as Holder of the Debentures, to (i)
exercise the remedies available to it under the Indenture as a Holder of the
Debentures or (ii) consent to any amendment or modification of the Indenture or
the Debentures where such consent shall be required; provided, however, that
where a consent or action under the Indenture would require the consent or act
of the Holders of more than a majority in aggregate principal amount of
Debentures affected thereby, only the Holders of the percentage of the aggregate
stated liquidation amount of the Capital Securities which is at least equal to
the percentage required under the Indenture may direct the Property Trustee to
give such consent to take such action.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of record of Capital Securities has made a written
request, such Holder of record of Capital Securities may, to the extent
permitted by applicable law, institute a legal proceeding directly against the
Debenture Issuer to enforce the Property Trustee's rights under the Indenture
without first instituting any legal proceeding against the Property Trustee or
any other person or entity. Notwithstanding the foregoing, if a Trust
Enforcement Event has occurred and is continuing and such event is attributable
to the failure of the Debenture Issuer to make any required payment when due
under the Indenture, then a Holder of Capital Securities may directly institute
a proceeding against the Debenture Issuer for enforcement of such payment under
the Indenture.
(d) The Property Trustee shall notify all Holders of the Capital
Securities of any written notice of any Indenture Event of Default received from
the Debenture Issuer with respect to the Debentures. Such notice shall state
that such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clause 7.5(b)(i) and (ii) above unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that as a result of such action, the Trust will not fail to be classified
as a grantor trust for United States federal income tax purposes and each Holder
will be treated as owning an undivided beneficial ownership interest in the
Debentures.
(e) In the event the consent of the Property Trustee, as the Holder of
the Debentures, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee shall request the direction
of the Holders of the Securities with respect to such amendment or modification
and shall vote with respect to such amendment or modification as directed by a
Majority in Liquidation Amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the Holders of more than a majority in aggregate principal amount
of the Debentures, the Property Trustee may only give such consent at the
direction of the Holders of at least the same proportion in aggregate stated
liquidation amount of the
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Securities. The Property Trustee shall not take any such action in accordance
with the directions of the Holders of the Securities unless the Property Trustee
has obtained an opinion of tax counsel to the effect that, as a result of such
action, the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes and each Holder will be treated as
owning an undivided beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of Holders of Capital Securities
may be given at a separate meeting of Holders of Capital Securities convened for
such purpose, at a meeting of all of the Holders of Securities or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Capital Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Capital Securities. Each such notice will include a
statement setting forth the following information: (i) the date of such meeting
or the date by which such action is to be taken; (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought; and
(iii) instructions for the delivery of proxies or consents.
(h) No vote or consent of the Holders of Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or distribute
Debentures in accordance with the Declaration.
(i) Notwithstanding that Holders of Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Securities that are owned at such time by the Debenture Issuer or any Trustee or
any entity directly or indirectly controlled by, or under direct or indirect
common control with, the Debenture Issuer or any Trustee, shall not be entitled
to vote or consent and shall, for purposes of such vote or consent, be treated
as if such Securities were not outstanding, provided, however that persons
otherwise eligible to vote to whom the Debenture Issuer or any Trustee or any of
their subsidiaries have pledged Capital Securities may vote or consent with
respect to such pledged Capital Securities under any of the circumstances
described herein.
(j) Holders of the Capital Securities will have no rights to appoint or
remove the Trustees, who may be appointed, removed or replaced solely by the
Debenture Issuer, as the Holder of all of the Common Securities.
Section 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b) or this Section 7.6 or as
otherwise required by the Business Trust Act, the Trust Indenture Act or other
applicable law or provided by the Declaration, the Holders of the Common
Securities will have no voting rights.
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(b) The Holders of the Common Securities are entitled, in accordance
with Article 6 of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after all Trust
Enforcement Events with respect to the Capital Securities have been cured,
waived, or otherwise eliminated and subject to the requirement of the Property
Trustee obtaining a tax opinion in certain circumstances set forth in this
paragraph (c), the Holders of a Majority in liquidation amount of the Common
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as Holder of
the Debentures, to (i) exercise the remedies available to it under the Indenture
as a Holder of the Debentures, or (ii) consent to any amendment or modification
of the Indenture or the Debentures where such consent shall be required;
provided, however, that where a consent or action under the Indenture would
require the consent or act of the Holders of more than a majority in aggregate
principal amount of Debentures affected thereby, only the Holders of the
percentage of the aggregate stated liquidation amount of the Common Securities
which is at least equal to the percentage required under the Indenture may
direct the Property Trustee to have such consent or take such action. Except
with respect to directing the time, method, and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any of
the actions described in clause 7.6(c)(i) and (ii) above unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that,
as a result of such action, for United States federal income tax purposes the
Trust will not fail to be classified as a grantor trust and each Holder will be
treated as owning an undivided beneficial interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of record of Common Securities has made a written
request, such Holder of record of Common Securities may, to the extent permitted
by applicable law, directly institute a legal proceeding directly against the
Debenture Issuer, as sponsor of the Trust, to enforce the Property Trustee's
rights under the Debentures without first instituting any legal proceeding
against the Property Trustee or any other person or entity.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common Securities
may be given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter on
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of Common Securities. Each such notice will include a statement
setting forth the following information: (i) the date of such meeting or the
date by which such action is to be taken; (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought; and (iii) instructions
for the delivery of proxies or consents.
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(g) No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
Debentures in accordance with the Declaration and the terms of the Securities.
Section 7.7 Paying Agent.
In the event that any Capital Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, City of New York,
State of New York and in Luxembourg, at all times and so long as any Capital
Securities are listed on the Luxembourg Stock Exchange and such exchange so
requires, an office or agency where the Capital Securities may be presented for
payment (each a "Paying Agent"). The Trust may appoint the Paying Agents and may
appoint additional Paying Agents in such other locations as it shall determine.
The term "Paying Agent" includes any additional Paying Agents. The Trust may
change any Paying Agent without prior notice to the Holders. The Trust shall
notify the Property Trustee of the name and address of any Paying Agent not a
party to this Declaration. If the Trust fails to appoint or maintain another
entity as Paying Agent, the Property Trustee shall act as such; provided,
however, that at all times and so long as any Capital Securities are listed on
the Luxembourg Stock Exchange and such exchange so requires, the Property
Trustee shall designate and maintain a paying agent in Luxembourg. The Trust or
any of its Affiliates may act as a Paying Agent. The Chase Manhattan Bank and
Chase Manhattan Bank Luxembourg, S.A. shall initially act as Paying Agents for
the Capital Securities and The Chase Manhattan Bank will act as initial Paying
Agent for the Common Securities. In the event the Property Trustee shall no
longer be the Paying Agent, the Regular Trustees shall appoint a successor
(which shall be a bank or trust company acceptable to the Regular Trustees and
Debenture Issuer) to act as Paying Agent. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Property Trustee and
the Debenture Issuer.
Section 7.8 Transfer of Securities.
(a) The Trust shall cause to be kept at the Corporate Trust Office of
the Property Trustee a register (the register maintained in such office being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Capital Securities and of transfers of Capital Securities. The
Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Capital Securities and transfers of Capital Securities as herein
provided.
(b) Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall
execute, upon receipt of an order to authenticate, and the Property Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like aggregate principal amount.
(c) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities
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are so surrendered for exchange, the Trust shall execute, and the Property
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Trust duly executed, by the Holder thereof or his attorney duly authorized
in writing.
(e) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Trust may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities.
(f) If the Securities are to be redeemed in part, the Trust shall not
be required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 7.4 and ending at the close of business on the day of
such mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Section 7.9 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them, the Sponsor and the
Trust harmless, then, in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, any Regular Trustee on behalf of the
Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 7.9, the Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
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Section 7.10 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 7.11 Global Securities.
If the Trust shall establish that the Capital Securities are to be
issued in global form (each, a "Global Security"), then a Regular Trustee on
behalf of the Trust shall execute, upon receipt of an order to authenticate, and
the Property Trustee shall authenticate and deliver one or more Global
Securities that (i) shall represent and shall be denominated in an amount equal
to the aggregate liquidation amount of all of the Capital Securities to be
issued in the form of Global Securities and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Security or Capital
Securities or the nominee of such Depositary, and (iii) shall be delivered by
the Property Trustee to such Depositary or pursuant to such Depositary's
instructions. Global Securities shall bear a legend substantially to the
following effect:
"This Capital Security is a Global Security within the meaning of the
Declaration hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. Notwithstanding the provisions of
Section 7.8 of the Declaration, unless and until it is exchanged in whole or in
part for Capital Securities in definitive registered form, a Global Security
representing all or a part of the Capital Securities may not be transferred in
the manner provided in Section 7.8 of the Declaration except as a whole by the
Depositary to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Every Capital Security delivered upon registration or transfer of,
or in exchange for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited circumstances described
above. Unless this certificate is presented by an authorized representative of
DTC to the Trust or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is to be made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein."
Definitive Capital Securities issued in exchange for all or a part of a
Global Security pursuant to this Section 7.11 shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Property Trustee. Upon execution and
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authentication, the Property Trustee shall deliver such definitive Capital
Securities to the persons in whose names such definitive Capital Securities are
so registered.
At such time as all interests in Global Securities have been redeemed,
repurchased or canceled, such Global Securities shall be, upon receipt thereof,
canceled by the Property Trustee in accordance with its standing procedures in
effect from time to time and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in Global
Securities is exchanged for definitive Capital Securities, redeemed, canceled or
transferred to a transferee who receives definitive Capital Securities therefor
or any definitive Capital Security is exchanged or transferred for part of
Global Securities, the principal amount of such Global Securities shall, in
accordance with the standing procedures in effect from time to time and
instructions existing between the Depositary and the Custodian, be reduced or
increased, as the case may be, and an endorsement shall be made on such Global
Securities by the Property Trustee or the Custodian, at the direction of the
Property Trustee, to reflect such reduction or increase.
The Trust and the Property Trustee may for all purposes, including the
making of payments due on the Capital Securities, deal with the Depositary as
the authorized representative of the Holders for the purposes of exercising the
rights of Holders hereunder. The rights of the owner of any beneficial interest
in a Global Security shall be limited to those established by law and agreements
between such owners and depositary participants or Euroclear and Cedel; provided
that no such agreement shall give any rights to any person against the Trust or
the Property Trustee without the written consent of the parties so affected.
Multiple requests and directions from and votes of the Depositary as holder of
Capital Securities in global form with respect to any particular matter shall
not be deemed inconsistent to the extent they do not represent an amount of
Capital Securities in excess of those held in the name of the Depositary or its
nominee.
If at any time the Depositary for any Capital Securities represented by
one or more Global Securities notifies the Trust that it is unwilling or unable
to continue as Depositary for such Capital Securities or if at any time the
Depositary for such Capital Securities shall no longer be eligible under this
Section 7.11, the Trust shall appoint a successor Depositary with respect to
such Capital Securities. If a successor Depositary for such Capital Securities
is not appointed by the Trust within 90 days after the Trust receives such
notice or becomes aware of such ineligibility, the Trust's election that such
Capital Securities be represented by one or more Global Securities shall no
longer be effective and a Regular Trustee on behalf of the Trust shall execute,
and the Property Trustee will authenticate and deliver Capital Securities in
definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Capital Securities representing such Capital Securities in exchange for such
Global Security or Capital Securities.
The Trust may at any time and in its sole discretion determine that the
Capital Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security or Capital Securities. In such event
a Regular Trustee on behalf of the Trust shall execute, and the Property
Trustee, shall authenticate and deliver, Capital Securities
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in definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Capital Securities representing such Capital Securities, in exchange for such
Global Security or Capital Securities.
Notwithstanding any other provisions of this Declaration, Global
Securities may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Interests of beneficial owners in Global Security may be transferred or
exchanged for definitive Capital Securities and definitive Capital Securities
may be transferred or exchange for Global Securities in accordance with rules of
the Depositary.
Any Capital Security in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Declaration as may be required by the
Custodian, the Depositary or by the National Association of Securities Dealers,
Inc. in order for the Capital Securities to be tradeable on the PORTAL Market or
as may be required for the Capital Securities to be tradeable on any other
market developed for trading of securities pursuant to Rule 144A or required to
comply with any applicable law or any regulation thereunder or with Regulation S
or with the rules and regulations of any securities exchange upon which the
Capital Securities may be listed or traded or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Capital Securities are subject.
Section 7.12 Restrictive Legend.
(a) Each Global Security and definitive Capital Security that
constitutes a Restricted Security shall bear the following legend (the "Private
Placement Legend") on the face thereof until three years after the later of the
date of original issue and the last date on which the Sponsor or any affiliate
of the Sponsor was the owner of such Capital Securities (or any predecessor
thereto) (the "Resale Restriction Termination Date"), unless otherwise agreed by
the Trust and the Holder thereof:
"THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY
STATE SECURITIES LAWS AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A, REGULATION S OR ANOTHER EXEMPTION THEREUNDER. THE
HOLDER OF THIS CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS,
ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE
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TRUST THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR
OTHERWISE TRANSFER THIS CAPITAL SECURITY PRIOR TO THE LATER OF THE DATE
WHICH IS THREE YEARS AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE LAST
DATE ON WHICH THE TRUST OR ANY AFFILIATE OF THE TRUST WAS THE OWNER OF SUCH
RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE TRUST, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D)
OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR,"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE
JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THIS CAPITAL SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (II) ABOVE. ANY OFFER, SALE OR OTHER DISPOSITION
PURSUANT TO THE FOREGOING CLAUSES (II)(D), (E) AND (F) IS SUBJECT TO THE
RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND THE PROPERTY TRUSTEE FOR
SUCH CAPITAL SECURITIES TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO THEM IN FORM AND
SUBSTANCE."
Any Capital Security (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon satisfaction of the requirements of
Section 7.12(b) and surrender of such Capital Security for exchange to the
Capital Security Registrar in accordance with the provisions of this Section
7.12(a), be exchanged for a new Capital Security or Capital Securities, of like
tenor and aggregate liquidation amount, which shall not bear the restrictive
legend required by this Section 7.12(a).
(b) Upon any sale or transfer of any Restricted Security (including any
interest in a Global Security) (i) that is effected pursuant to an effective
registration statement under
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the Securities Act or (ii) in connection with which the Property Trustee
receives certificates and other information (including an opinion of counsel, if
requested) reasonably acceptable to the Sponsor to the effect that such security
will no longer be subject to the resale restrictions under federal and state
securities laws, then (A) in the case of a Restricted Security in definitive
form, the Capital Security registrar or co-registrar shall permit the holder
thereof to exchange such Restricted Security for a security that does not bear
the legend set forth in Section 7.12(a), and shall rescind any such restrictions
on transfer and (B) in the case of Restricted Securities represented by a Global
Security, such Capital Security shall no longer be subject to the restrictions
contained in the legend set forth in Section 7.12(a) (but still subject to the
other provisions hereof). In addition, any Capital Security (or security issued
in exchange or substitution therefor) as to which the restrictions on transfer
described in the legend set forth in Section 7.12(a) have expired by their
terms, may, upon surrender thereof (in accordance with the terms of this
Indenture) together with such certifications and other information (including an
opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Sponsor, addressed to
the Sponsor and the Property Trustee and in a form acceptable to the Sponsor, to
the effect that the transfer of such Restricted Security has been made in
compliance with Rule 144 or such successor provision) acceptable to the Sponsor
and the Property Trustee as either of them may reasonably require, be exchanged
for a new Capital Security or Capital Securities of like tenor and aggregate
liquidation amount, which shall not bear the restrictive legends set forth in
Section 7.12(a). Notwithstanding anything to the contrary, the Property Trustee
may conclusively rely upon the completed certificate set forth in the
certificate evidencing the Capital Securities.
Section 7.13 Special Transfer Provisions.
(a) At any time at the request of the beneficial Holder of a Capital
Security in global form, such beneficial holder shall be entitled to obtain a
definitive Capital Security upon written request to the Property Trustee in
accordance with the standing instructions and procedures existing between the
Depositary and the Property Trustee for the issuance thereof. Any transfer of a
beneficial interest in a Capital Security in global form which cannot be
effected through book-entry settlement must be effected by the delivery to the
transferee (or its nominee) of a definitive Capital Security or Securities
registered in the name of the transferee (or its nominee) on the books
maintained by the Security Registrar. With respect to any such transfer, the
Property Trustee will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Property Trustee, the
aggregate liquidation amount of the Global Security to be reduced and, following
such reduction, the Property Trustee will cause definitive Capital Securities
(which have been executed and delivered to it as a Regular Trustee) in the
appropriate aggregate liquidation amount in the name of such transferee (or its
nominee) and bearing such restrictive legends as may be required by this
Declaration to be delivered. In connection with any such transfer, the Property
Trustee may request such representations and agreements relating to the
restrictions on transfer of such Capital Securities from such transferee (or
such transferee's nominee) as the Property Trustee may reasonably require.
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(b) So long as the Capital Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
definitive Capital Security to a QIB in accordance with Rule 144A, unless
otherwise requested by the transferor, and upon receipt of the definitive
Capital Security being so transferred, together with a certification from the
transferor that the transferor reasonably believes the transferee is a QIB (or
other evidence satisfactory to the Property Trustee), the Property Trustee shall
make an endorsement on the Restricted Global Security to reflect an increase in
the aggregate liquidation amount of the Restricted Global Security, and the
Property Trustee shall cancel such definitive Capital Security and cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Property Trustees, the aggregate liquidation amount of
Capital Securities represented by the Restricted Global Security to be increased
accordingly.
(c) So long as the Capital Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
definitive Capital Security in accordance with Regulation S, if requested by the
transferor, and upon receipt of the definitive Capital Security or Capital
Securities being so transferred, together with a certification from the
transferor that the transfer was made in accordance with Rule 903 or 904 of
Regulation S or Rule 144 under the Securities Act (or other evidence
satisfactory to the Property Trustee), the Property Trustee shall make or direct
the Custodian to make, an endorsement on the Regulation S Global Security to
reflect an increase in the aggregate liquidation amount of the Capital
Securities represented by the Regulation S Global Security, the Property Trustee
shall cancel such definitive Capital Security or Capital Securities and cause,
or direct the Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Property Trustee, the
aggregate liquidation amount of Capital Securities represented by the Regulation
S Global Security to be increased accordingly. Notwithstanding anything to the
contrary, the Property Trustee may conclusively rely upon the completed
certificate set forth in the certificate evidencing the Capital Securities.
(d) If a holder of a beneficial interest in the Restricted Global
Security wishes at any time to exchange its interest in the Restricted Global
Security for an interest in the Regulation S Global Security, or to transfer its
interest in the Restricted Global Security to a person who wishes to take
delivery thereof in the form of an interest in the Regulation S Global Security,
such holder may, subject to the rules and procedures of the Depositary and to
the requirements set forth in the following sentence, exchange or cause the
exchange or transfer or cause the transfer of such interest for an equivalent
beneficial interest in the Regulation S Global Security. Upon receipt by the
Property Trustee of (1) instructions given in accordance with the Depositary's
procedures from or on behalf of a holder of a beneficial interest in the
Restricted Global Security, directing the Property Trustee (via DWAC), as
transfer agent, to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest in
the Restricted Global Security to be exchanged or transferred, (2) a written
order in accordance with the Depositary's procedures containing information
regarding the Euroclear or Cedel account to be credited with such increase and
the name of such account, and (3) a certificate given by the holder of such
beneficial interest stating that the exchange or transfer of such interest has
been made pursuant to and in accordance with Rule 903 or Rule 904 of Regulation
S or Rule 144 under the Securities Act, the Property Trustee, as transfer agent,
shall promptly deliver appropriate
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instructions to the Depositary (via DWAC), its nominee, or the custodian for the
Depositary, as the case may be, to reduce or reflect on its records a reduction
of the Restricted Global Security by the aggregate liquidation amount of the
beneficial interest in such Restricted Global Security to be so exchanged or
transferred from the relevant participant, and the Property Trustee, as transfer
agent, shall promptly deliver appropriate instructions (via DWAC) to the
Depositary, its nominee, or the custodian for the Depositary, as the case may
be, concurrently with such reduction, to increase or reflect on its records an
increase of the liquidation amount of such Regulation S Global Security by the
aggregate liquidation amount of the beneficial interest in such Restricted
Global Security to be so exchanged or transferred, and to credit or cause to be
credited to the account of the person specified in such instructions (who may be
Morgan Guaranty Trust Company of New York, Brussels office, as operator of
Euroclear or Cedel or another agent member of Euroclear or Cedel, or both, as
the case may be, acting for and on behalf of them) a beneficial interest in such
Regulation S Global Security equal to the reduction in the liquidation amount of
such Restricted Global Security. Notwithstanding anything to the contrary, the
Property Trustee may conclusively rely upon the completed certificate set forth
in the certificate evidencing the Capital Securities.
(e) If a holder of a beneficial interest in the Regulation S Global
Security wishes at any time to exchange its interest in the Regulation S Global
Security for an interest in the Restricted Global Security, or to transfer its
interest in the Regulation S Global Security to a person who wishes to take
delivery thereof in the form of an interest in the Restricted Global Security,
such holder may, subject to the rules and procedures of Euroclear or Cedel and
the Depositary, as the case may be, and to the requirements set forth in the
following sentence, exchange or cause the exchange or transfer or cause the
transfer of such interest for an equivalent beneficial interest in such
Restricted Global Security. Upon receipt by the Property Trustee, as transfer
agent of (l) instructions given in accordance with the procedures of Euroclear
or Cedel and the Depositary, as the case may be, from or on behalf of a
beneficial owner of an interest in the Regulation S Global Security directing
the Property Trustee, as transfer agent, to credit or cause to be credited a
beneficial interest in the Restricted Global Security in an amount equal to the
beneficial interest in the Regulation S Global Security to be exchanged or
transferred, (2) a written order given in accordance with the procedures of
Euroclear or Cedel and the Depositary, as the case may be, containing
information regarding the account with the Depositary to be credited with such
increase and the name of such account, and (3) prior to the expiration of the
Restricted Period, a certificate given by the holder of such beneficial interest
and stating that the person transferring such interest in such Regulation S
Global Security reasonably believes that the person acquiring such interest in
the Restricted Global Security is a QIB and is obtaining such beneficial
interest in a transaction meeting the requirements of Rule 144A and any
applicable securities laws of any state of the United States or any other
jurisdiction (or other evidence satisfactory to the Property Trustee), the
Property Trustee, as transfer agent, shall promptly deliver (via DWAC)
appropriate instructions to the Depositary, its nominee, or the custodian for
the Depositary, as the case may be, to reduce or reflect on its records a
reduction of the Regulation S Global Security by the aggregate liquidation
amount of the beneficial interest in such Regulation S Global Security to be
exchanged or transferred, and the Property Trustee , as transfer agent, shall
promptly deliver (via DWAC) appropriate instructions to the Depositary, its
nominee, or the custodian for the Depositary, as the case may be, concurrently
with such reduction, to increase or reflect
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on its records an increase of the liquidation amount of the Restricted Global
Security by the aggregate liquidation amount of the beneficial interest in the
Regulation S Global Security to be so exchanged or transferred, and to credit or
cause to be credited to the account of the person specified in such instructions
a beneficial interest in the Restricted Global Security equal to the reduction
in the liquidation amount of the Regulation S Global Security. After the
expiration of the Restricted Period, the certification requirement set forth in
clause (3) of the second sentence of this Section 7.13 will no longer apply to
such exchanges and transfers. Notwithstanding anything to the contrary, the
Property Trustee may conclusively rely upon the completed certificate set forth
in the certificate evidencing the Capital Securities.
(f) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions and other
procedures applicable to beneficial interests in such other Global Security for
as long as it remains such an interest.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) January 31, 2052, the expiration time of the Trust;
(ii) any liquidation, insolvency or similar proceeding with respect to
the Holder of the Common Securities or the Sponsor or all or
substantially all of their property;
(iii) the entry of a decree of judicial dissolution of the Sponsor or
the Trust;
(iv) the time when all of the Securities shall have matured or been
called for redemption and the amounts then due shall have been
paid to the Holders in accordance with the terms of the
Securities;
(v) upon the election of the Sponsor, following the occurrence and
continuation of a Special Event pursuant to which the Trust shall
have been dissolved in accordance with the terms of the
Securities, and all of the Debentures shall have been distributed
to the Holders of Securities in exchange for all of the
Securities; or
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(vi) an election by a Majority in Liquidation Amount of the Common
Securities provided such action is taken before the issuance of
any Securities.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a) and upon completion of the winding up of the Trust, the
Trustees shall terminate the Trust by filing a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article 9 shall survive the
termination of the Trust.
Section 8.2 Liquidation Distribution Upon Termination and Dissolution
of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a "Liquidation"), the
Holders of the Capital Securities on the date of the Liquidation will be
entitled to receive, out of the assets of the Trust available for distribution
to Holders of Securities after satisfaction of the Trusts' liabilities and
creditors, distributions in cash or other immediately available funds in an
amount equal to the aggregate of the stated liquidation amount of $1,000 per
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless, in connection with
such Liquidation, Debentures in an aggregate principal amount equal to the
aggregate liquidation amount of, with an interest rate identical to the interest
rate of, and accrued and unpaid distributions equal to accrued and unpaid
distributions on, such Securities shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis. The Holders of
the Common Securities will be entitled to receive distributions upon any such
Liquidation Pro Rata with the Holders of the Capital Securities except that if
an Indenture Event of Default has occurred and is continuing, the Capital
Securities shall have a preference over the Common Securities with regard to
such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee
and the terms of the Securities, the Sponsor and the Holder of the Common
Securities:
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(i) shall not be personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders
of the Securities which shall be made solely from assets of the
Trust; and
(ii) shall not be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
Section 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable or any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
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(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in
a manner that is, or provide terms that are, fair and reasonable
to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
Section 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Debenture Issuer Indemnified Person against
expenses (including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Debenture Issuer Indemnified Person did not
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act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent permitted
by law, any Debenture Issuer Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Debenture Issuer Indemnified Person
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such Debenture Issuer Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of this Section
9.4(a) (unless ordered by a court) shall be made by the Debenture Issuer only as
authorized in the specific case upon a determination that indemnification of the
Debenture Issuer Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (i) and (ii).
Such determination shall be made (1) by the Regular Trustees by a majority vote
of a quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a Debenture
Issuer Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 9.4(a) shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Debenture Issuer Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (i) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (ii) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written opinion
or (iii) the Common Security Holder of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Debenture Issuer Indemnified Person acted in
bad faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any criminal
proceeding, that such Debenture Issuer Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any
advance be
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made in instances where the Regular Trustees, independent legal counsel or
Common Security Holder reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Capital Security Holders.
(v) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer or Capital
Security Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 9.4(a) shall be deemed to be
provided by a contract between the Debenture Issuer and each Debenture Issuer
Indemnified Person who serves in such capacity at any time while this Section
9.4(a) is in effect. Any repeal or modification of this Section 9.4(a) shall not
affect any rights or obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Debenture Issuer Indemnified
Person against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such liability
under the provisions of this Section 9.4(a).
(vii) For purposes of this Section 9.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.4(a) with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 9.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Debenture
Issuer Indemnified Person and shall inure to the benefit of the heirs, executors
and administrators of such a person. The obligation to indemnify as set forth in
this Section 9.4(a) shall survive the satisfaction and discharge of this
Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property Trustee,
(ii) the Delaware Trustee, (iii) an Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any
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claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in this
Section 9.4(a) shall survive the satisfaction and discharge of this Declaration.
Section 9.5 Outside Businesses.
Any Covered Person, the Sponsor and any Trustee may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or any Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor and any Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment or other opportunity. Any
Covered Person and any Trustee may engage or be interested in any financial or
other transaction with the Sponsor or any Affiliate of the Sponsor, or may act
as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
Section 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
Section 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles. The
Trust shall use the accrual method of accounting for United States federal
income tax purposes.
(b) The Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders of Securities, an annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall
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endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority, an annual United States federal income tax
return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
Section 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
Section 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
Section 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by (i) the Regular Trustees (or, if
there are more than two Regular Trustees, a majority of the Regular Trustees)
and (ii) by the Property Trustee if the amendment affects the
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rights, powers, duties, obligations or immunities of the Property Trustee; (iii)
by the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee; and (iv) the Sponsor.
(b) No amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from
each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration (including the
terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property
Trustee, the Property Trustee shall have first received:
a. an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the
Securities); and
b. an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(iii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a grantor
trust for United States federal income tax purposes;
b. reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act;
or
c. cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that remain
outstanding, if the amendment would (i) adversely affect the powers, preferences
or special rights of the Securities, whether by way of amendment to the
Declaration or otherwise or (ii) result in the dissolution, winding-up or
termination of the Trust other than pursuant to the terms of this Declaration
or, (iii) change the amount or timing of any distribution of the Securities or
otherwise adversely affect the amount of any distribution required to be made in
respect of the Securities as of a specified date or (iv) restrict the right of a
Holder of Securities to institute suit for the enforcement of any such payment
on or after such date, then the Holders of the Securities voting together as a
single class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of at
least a Majority in Liquidation Amount of the Securities affected thereby;
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provided that, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Capital Securities or the Common Securities,
then only the affected class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in Liquidation Amount of such class of Securities.
(d) Section 7.8 and this Section 11.1 shall not be amended without the
consent of all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the Holders
of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article 6
to increase or decrease the number of, and appoint and remove Trustees shall not
be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended by
the holders of a majority of the Common Securities and the Regular Trustees,
without the consent of the Holders of the Securities:
(i) to cure any ambiguity, correct or supplement any provisions in
this Declaration that may be inconsistent with any other
provision, or to make any other provisions with respect to matters
or questions arising under this Declaration that shall not be
inconsistent with the other provisions of this Declaration;
(ii) to modify, eliminate or add to any provisions of this Declaration
to such extent as shall be necessary to ensure that the Trust will
be classified as a grantor trust and will not be taxable as a
corporation for United States federal income tax purposes at all
times that any Securities are outstanding or to ensure that the
Trust will not be required to register as an "investment company"
under the Investment Company Act; or
(iii) to conform to any change in Rule 3a-7 under the Investment
Company Act or written change in interpretation or application of
such Rule 3a-7 by any legislative body, court, government agency
or regulatory authority which amendment does not have a material
adverse effect on the rights, preferences or privileges of the
Holders.
provided, however, that such action shall not adversely affect in any material
respect the interests of any Holder of Capital Securities or Common Securities,
and any amendments of this Declaration shall become effective when notice
thereof is given to the Holders of Capital Securities and Common Securities.
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(h) The issuance of a Trustees' Authorization Certificate by the
Regular Trustees for purposes of establishing the terms and form of the
Securities as contemplated by Section 8.1 shall not be deemed an amendment of
this Declaration subject to the provisions of this Section 11.1.
(i) Notwithstanding any provision of this Declaration, the right of any
Holder of Trust Securities to receive payment of Distributions and other
payments upon redemption or otherwise, on or after their respective due dates,
or to institute a suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder. For the protection and enforcement of the foregoing provision, each and
every Holder of Trust Securities shall be entitled to such relief as can be
given either at law or equity.
Section 11.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the Capital Securities
are listed or admitted for trading, if any. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is
permitted or required under this Declaration or the rules of any
stock exchange on which the Capital Securities are listed or
admitted for trading, if any, such vote, consent or approval may
be given at a meeting of the Holders of Securities. Any action
that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the
action so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation amount
that would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to vote
thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of
Securities entitled to vote who have
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not consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Security Holders for the
purpose of taking any action without a meeting shall be returned
to the Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting,
or voting or participating at a meeting. No proxy shall be valid
after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at
the pleasure of the Holder of Securities executing such proxy.
Except as otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to
proxies, and judicial interpretations thereunder, as if the Trust
were a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) consistent with the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing
rules of any stock exchange on which the Capital Securities are
then listed for trading, otherwise provides, the Regular Trustees,
in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of
the time, place or purpose of any meeting at which any matter is
to be voted on by any Holders of Securities, waiver of any such
notice, action by consent without a meeting, the establishment of
a record date, quorum requirements, voting in person or by proxy
or any other matter with respect to the exercise of any such right
to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
Section 12.1 Representations and Warranties of the Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
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(a) the Property Trustee is a corporation or bank duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the Property Trustee of
this Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the articles
of association or incorporation, as the case may be, or the by-laws (or other
similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Property Trustee of this Declaration.
Section 12.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2 and has the power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of, this Declaration and, if it
is not a natural person, is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration. This Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law); and
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(c) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is require for the execution,
delivery or performance by the Delaware Trustee of this Declaration.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Notices.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of
the Securities):
c/o Huntington Bancshares Incorporated
Huntington Center
41 South High Street
Columbus, Ohio 43287
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Regular Trustees, the Property Trustee and the Holders of the Securities):
Chase Manhattan Bank Delaware
801 Delaware Avenue, 13th Floor
Wilmington, DE 19801
(c) if given to the Property Trustee, at its Corporate Trust Office (or
such other address as the Property Trustee may give notice of to the Regular
Trustees, the Delaware Trustee and the Holders of the Securities):
The Chase Manhattan Bank
450 W. 33rd Street, 15th Floor
New York, NY 10001-2697
(d) if given to the Sponsor, at the mailing address set forth below (or
such other address as the Sponsor may give notice of to the Property Trustee,
the Delaware Trustee and the Trust):
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Huntington Bancshares Incorporated
Huntington Center
41 South High Street
Columbus, Ohio 43287
Attn: Judith D. Fisher
(e) if given to any Holder, at the address set forth on the books and
records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or on the seventh day after being mailed by
first class mail, postage prepaid except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver. If so required by
the Luxembourg Stock Exchange, notice to any holder shall also be given by
publication in a leading newspaper having general circulation in Luxembourg and,
in the event notice is also mailed, notice shall be deemed to have been given on
the later of the date of publication and the seventh day after being mailed.
Section 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
without regard to the principles of conflict of laws.
Section 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Declaration shall be interpreted in a manner consistent with such
classification.
Section 13.4 Headings.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
Section 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
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Section 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 13.7 Counterparts.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
Section 13.8 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Declaration or in any suit against any Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorney's fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 13.8 does not apply to a suit by a Trustee, a suit by a
Holder to enforce its right to payment or a suit by Holders of more than 10% in
Liquidation Amount of the then outstanding Securities.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
HUNTINGTON BANCSHARES
INCORPORATED,
as Sponsor and Common Securities Holder
BY: /s/ JUDITH D. FISHER
-------------------------------------
Name: Judith D. Fisher
Title: Executive Vice President
THE CHASE MANHATTAN BANK,
as Property Trustee
BY: /s/ TIMOTHY E. BURKE
-------------------------------------
Name: Timothy E. Burke
Title: Second Vice President
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
BY: /s/ JOHN J. CASHIN
-------------------------------------
Name: John J. Cashin
Title: Senior Trust Officer
Milton D. Baughman, as Regular Trustee
By: /s/ MILTON D. BAUGHMAN
-------------------------------------
Name: Milton D. Baughman
Title: Regular Trustee
Beth A. Russell, as Regular Trustee
By: /s/ BETH A. RUSSELL
-------------------------------------
Name: Beth A. Russell
Title: Regular Trustee
Paul V. Sebert, as Regular Trustee
By: /s/ PAUL V. SEBERT
-------------------------------------
Name: Paul V. Sebert
Title: Regular Trustee
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EXHIBIT A-1
THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A, REGULATION S OR ANOTHER EXEMPTION THEREUNDER. THE HOLDER
OF THIS CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT HAS ACQUIRED A "RESTRICTED"
SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL
NOT OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY PRIOR TO THE LATER
OF THE DATE WHICH IS THREE YEARS AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND
THE LAST DATE ON WHICH THE TRUST OR ANY AFFILIATE OF THE TRUST WAS THE OWNER OF
SUCH RESTRICTED SECURITIES (OR ANY PREDECESSOR) EXCEPT (A) TO THE TRUST, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE
UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR," WITHIN THE
MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS CAPITAL SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (II) ABOVE. ANY OFFER, SALE OR OTHER DISPOSITION
PURSUANT TO THE FOREGOING CLAUSES (II)(D), (E) AND (F) IS SUBJECT TO THE RIGHT
OF THE ISSUER OF THIS CAPITAL SECURITY AND THE PROPERTY TRUSTEE FOR SUCH CAPITAL
SECURITIES TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR
OTHER INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
This Capital Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This
A-1-1
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Capital Security is exchangeable for Capital Securities registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Capital
Security (other than a transfer of this Capital Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Capital Security Certificate is presented by an authorized
representative of the Depositary to Huntington Capital I or its agent for
registration of transfer, exchange or payment, and any Capital Security
Certificate issued is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
CERTIFICATE NO. CUSIP NO.
AGGREGATE LIQUIDATION AMOUNT OF CAPITAL SECURITIES: $[__],000,000
Certificate Evidencing Capital Securities
of
Huntington Capital I
Floating Rate Capital Securities
(liquidation amount $1,000 per Capital Security)
HUNTINGTON CAPITAL I, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of capital securities in the aggregate
liquidation amount of $[__],000,000 of the Trust representing undivided
beneficial interests in the assets of the Trust designated the Floating Rate
Capital Securities (liquidation amount $1,000 per Capital Security) (the
"Capital Securities"). The Capital Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer as provided in
the Declaration (as defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust,
dated as of January 31, 1997 (as the same may be amended from time to time (the
"Declaration"), among Huntington Bancshares Incorporated, as Sponsor (the
"Company"), Milton D. Baughman, Beth A. Russell and Paul V. Sebert, as Regular
Trustees, The Chase Manhattan Bank, as Property Trustee, and Chase Manhattan
Bank Delaware, as Delaware Trustee. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Guarantee to the extent described therein. The
Sponsor will provide a copy of the Declaration, the Guarantee and the Indenture
to a Holder without charge upon written request to the Sponsor at its principal
place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
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By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Capital Securities
as evidence of undivided indirect beneficial interests in the Debentures.
This Capital Security shall be governed by and interpreted in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Trust has executed this certificate this 31st
day of January, 1997.
HUNTINGTON CAPITAL I
By:___________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
THE CHASE MANHATTAN BANK
By:___________________________
Authorized Signatory
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In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) three years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Capital Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date"), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of which
letter can be obtained from the Trustee); or
(4) ___ outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933, as
amended; or
(5) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(6) ___ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (3), (4), (5)
or (7) is checked, the Company or the Trustee may require, prior to registering
any such transfer of the Securities, in its sole discretion, such written legal
opinions, certifications (including an investment letter in the case of box (3)
or (4)) and other information as the Trustee or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended.
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If none of the foregoing boxes is checked, the Trustee or Security Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 315 of the Indenture shall have
been satisfied.
Dated: ______________________
Signed:_________________________________________________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:____________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ____________
_________________________________________________________________________
NOTICE: To be executed by an executive officer
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EXHIBIT A-2
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. NUMBER OF COMMON SECURITIES:
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
HUNTINGTON CAPITAL I
COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Huntington Capital I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Huntington
Bancshares Incorporated (the "Holder") is the registered owner of common
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust designated the Floating Rate Common Securities (liquidation
amount $1,000 per Common Security) (the "Common Securities"). The Common
Securities are not transferable and any attempted transfer thereof shall be
void. The designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Common Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of January 31, 1997 (as the same may
be amended from time to time, the "Declaration"), among Huntington Bancshares
Incorporated, as Sponsor, Milton D. Baughman, Beth A. Russell and Paul V.
Sebert, as Regular Trustees, The Chase Manhattan Bank, as Property Trustee and
Chase Manhattan Bank Delaware, as Delaware Trustee. The Holder is entitled to
the benefits of the Guarantee to the extent described therein. Capitalized terms
used herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration, the Guarantee
and the Indenture to a Holder without charge upon written request to the Sponsor
at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of an undivided indirect beneficial interest in the Debentures.
This Common Security shall be governed by and interpreted in
accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
HUNTINGTON CAPITAL I
By:____________________________________
Name:
Title: