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Exhibit 4(f)
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 31, 1997
Among
HUNTINGTON CAPITAL I,
HUNTINGTON BANCSHARES INCORPORATED
and
MORGAN STANLEY & CO. INCORPORATED
and
Lehman Brothers Inc.,
and
Salomon Brothers Inc
as Initial Purchasers
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TABLE OF CONTENTS
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Page
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1. Definitions..................................................................... 1
2. Securities Subject to This Agreement............................................ 3
3. Registered Exchange Offer....................................................... 3
4. Shelf Registration.............................................................. 5
5. Additional Interest and Additional Distributions Under Certain Circumstances.... 6
6. Registration Procedures......................................................... 7
7. Registration Expenses........................................................... 14
8. Indemnification and Contribution................................................ 15
9. Rule 144A....................................................................... 17
10. Participation in Underwritten Registrations..................................... 17
11. Selection of Underwriters....................................................... 18
12. Miscellaneous................................................................... 18
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This Registration Rights Agreement (this "Agreement") is made
and entered into as of January 31, 1997 by and among Huntington Capital I, a
Delaware statutory business trust (the "Trust"), Huntington Bancshares
Incorporated, a Maryland corporation ("the Company"), and Morgan Stanley & Co.
Incorporated, Lehman Brothers Inc. and Salomon Brothers Inc (together, the
"Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 23, 1997, among the Company, the Trust and the
Initial Purchasers (the "Purchase Agreement"), and any additional purchase
agreement between such parties, in each case which provides for the sale by the
Trust to the Initial Purchasers of the Trust's Floating Rate Capital Securities,
liquidation amount $1,000 per security (the "Capital Securities"). The Company
will be the owner of all of the beneficial ownership interest represented by the
common securities (the "Common Securities") of the Trust. The Capital Securities
and the Common Securities will be guaranteed by a guarantee (the "Guarantee") by
the Company, to the extent of funds held by the Trust. Concurrently with the
issuance of the Capital Securities, the Guarantee and the Common Securities, the
Trust will invest the proceeds of each thereof in the Company's Floating Rate
Junior Subordinated Debentures due 2027 (the "Junior Subordinated Debentures"
and, together with the Capital Securities and the Guarantee, the "Securities").
In order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Trust and the Company have agreed to provide the registration rights set
forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligations to purchase the
Capital Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Additional Interest: as defined in Section 5(a) hereof.
Additional Distributions: as defined in Section 5(a) hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Securities were sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the New Securities to be
issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer
open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by the Company and the
Trust of the New Securities in the same aggregate principal amount as
the aggregate principal amount of Transfer Restricted Securities that
were tendered by Holders thereof pursuant to the Exchange Offer.
Declaration: The Amended and Restated Declaration of Trust,
dated as of January 31, 1997, among The Chase Manhattan Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
and the Regular Trustees named therein, pursuant to which the Capital
Securities are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
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Distribution: As defined in the Declaration.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company and the Trust
under the Securities Act of the New Securities pursuant to a
Registration Statement pursuant to which the Company and the Trust
offer the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Securities in an aggregate
amount equal to the aggregate amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the Prospectus
which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, to certain institutional "accredited investors," as
such term is defined in Rule 501(a)(1), (2), (3) and (7) of Regulation
D under the Securities Act ("Accredited Institutions") and to certain
non-"U.S. persons" in "offshore transactions," as such terms are
defined in Regulation S under the Securities Act.
Guarantee Agreement: The Guarantee Agreement, dated as of
January 31, 1997, between the Company and The Chase Manhattan Bank, as
Guarantee Trustee, pursuant to which the Guarantee is being issued, as
amended or supplemented from time to time in accordance with the terms
thereof.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of January 31, 1997,
between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"), pursuant to which the Junior Subordinated Debentures are to
be issued, as such Indenture is amended or supplemented from time to
time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
NASD: National Association of Securities Dealers, Inc.
New Junior Subordinated Debentures: The Company's Junior
Subordinated Debentures to be issued pursuant to the Indenture in the
Exchange Offer.
New Securities: The Securities to be issued pursuant to the
Indenture, the Declaration and the Guarantee Agreement in the Exchange
Offer.
Person: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
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Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company and the Trust relating to (a) an offering of New Securities
pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement,
in either case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Security, until the
earliest to occur of (a) the date on which such Security has been
exchanged by a person other than a Broker-Dealer for New Securities in
the Exchange Offer, (b) following the exchange by a Broker-Dealer in
the Exchange Offer of such Security for one or more New Securities, the
date on which such New Securities are sold to a purchaser who receives
from such Broker-Dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement,
(c) the date on which such Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (d) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities
Act;
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company and the Trust are sold
to an underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person beneficially owns Transfer Restricted
Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), the Company and the Trust
shall (i) cause to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 150 days after the
Closing Date, a Registration Statement under the Securities Act
relating to the New Securities and the
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Exchange Offer, (ii) use their respective best efforts to cause such
Registration Statement to become effective at the earliest possible
time, but in no event later than 180 days after the Closing Date, (iii)
in connection with the foregoing, file (A) all pre-effective amendments
to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to
Rule 430A under the Securities Act and (C) cause all necessary filings
in connection with the registration and qualification of the New
Securities to be made under the Blue Sky laws of such jurisdictions as
are necessary to permit Consummation of the Exchange Offer, and (iv)
unless the Exchange Offer would not be permitted by applicable law or
Commission policy, the Company will commence the Exchange Offer and use
its best efforts to issue on or prior to 30 business days after the
date on which such Registration Statement was declared effective by the
Commission, New Securities in exchange for all Securities tendered
prior thereto in the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the New Securities to be
offered in exchange for the Transfer Restricted Securities and to
permit resales of New Securities held by Broker-Dealers as contemplated
by Section 3(c) below.
(b) The Company and the Trust shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event
shall such period be less than 20 business days. The Company and the
Trust shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the New
Securities shall be included in the Exchange Offer Registration
Statement. The Company and the Trust shall use their best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable
date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Company and the Trust shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the
Exchange Offer Registration Statement that any Broker-Dealer who holds
Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making activities or
other trading activities (other than Transfer Restricted Securities
acquired directly from the Company and the Trust), may exchange such
Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of
the New Securities received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the
Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of New
Securities held by any such Broker-Dealer except to the extent required
by the Commission as a result of a change in policy announced after the
date of this Agreement.
The Company and the Trust shall use their respective best
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
New Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the
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Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on which the
Exchange Offer Registration Statement is declared effective.
The Company and the Trust shall provide sufficient copies of
the latest version of such Prospectus to Broker-Dealers promptly upon request at
any time during such 180-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the Trust are
not required to file an Exchange Offer Registration Statement or to
consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), (ii) the
Company has received an opinion of counsel, rendered by a law firm
experienced in such matters, to the effect that, as a result of the
consummation of the Exchange Offer there is more than an insubstantial
risk that (x) the Trust would be subject to United States federal
income tax with respect to income received or accrued on the Junior
Subordinated Debentures or New Junior Subordinated Debentures, (y)
interest payable by the Company on such Junior Subordinated Debentures
or New Junior Subordinated Debentures would not be deductible by the
Company, in whole or in part, for United States federal income tax
purposes, or (z) the Trust would be subject to more than a de minimis
amount of other taxes, duties or other governmental charges or (iii)
any Holder of Transfer Restricted Securities shall notify the Company
on or before the 20th business day following the Consummation of the
Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that
such Holder may not resell the New Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and that
the Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder, or (C)
that such Holder is a Broker-Dealer and holds Securities acquired
directly from the Trust or one of its affiliates, then the Trust and
the Company shall use their respective best efforts to:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Securities Act, which may be an
amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement"), on or prior
to the earliest to occur of (1) the 150th day after the date
on which the Trust and the Company determines that they are
not required to file the Exchange Offer Registration Statement
or (2) the 150th day after the date on which the Trust and the
Company receive notice from a Holder of Transfer Restricted
Securities as contemplated by clause (iii) above (such
earliest date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 180th
day after the Shelf Filing Deadline.
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The Trust and the Company shall use their respective best
efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of
Securities by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure
that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period ending
on the third anniversary of the Closing Date.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder
furnishes to the Trust and the Company in writing, within 20
business days after receipt of a request therefor, such
information as the Trust and the Company may reasonably
request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included
therein. No Holder of Transfer Restricted Securities shall be
entitled to Additional Distributions pursuant to Section 5
hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information.
Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Trust and the
Company all information required to be disclosed in order to
make the information previously furnished to the Trust and the
Company by such Holder not materially misleading.
5. Additional Interest and Additional Distributions Under Certain
Circumstances.
(a) If (a) any Registration Statement required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any such Registration Statement has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose (other than for any reason set forth in Section
6(c)(iii)(D) hereof) without being succeeded within five business days by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (a) through (d), a "Registration Default"), additional interest (the
"Additional Interest") shall accrue in respect of the Junior Subordinated
Debentures (including in respect of amounts accruing during any Extension Period
(as defined in the Indenture)) and corresponding additional Distributions (the
"Additional Distributions") shall accrue to each Holder of Capital Securities
(in its capacity as such and not in its capacity as an indirect holder of a pro
rata share of the Junior Subordinated Debentures) commencing upon the occurrence
of such Registration Default in an amount equal to .25% per annum per $1,000
liquidation amount of Capital Securities held by such Holder. The amount of
Additional Interest (and corresponding Additional Distributions) will not exceed
.25% per annum regardless of the number of Registration Defaults. All accrued
Additional Interest (and corresponding Additional Distributions) shall be paid
to Holders by the Trust and the Company in the same manner as interest and
distributions are made pursuant to the Indenture and the Declaration. Following
the cure of all Registration Defaults relating to any particular Transfer
Restricted Securities, the accrual of Additional Interest (and corresponding
Additional Distributions) with respect to such Transfer Restricted Securities
will cease.
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All obligations of the Trust and the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Transfer Restricted Security shall have been satisfied in full.
(b) The Trust and the Company shall notify the Property
Trustee within one business day after each and every date on which an event
occurs in respect of which Additional Distributions are required to be paid (an
"Event Date"). Additional Distributions shall be paid by depositing Additional
Interest with the Property Trustee, in trust, for the benefit of the Holders
thereof, on or before the applicable Interest Payment Date (whether or not any
payment other than Additional Distributions is payable on the Capital
Securities), in immediately available funds in sums sufficient to pay the
Additional Distributions then due to Holders of Transfer Restricted Securities
with respect to which the Property Trustee serves. Each obligation to pay
Additional Interest and Additional Distributions shall be deemed to accrue from
the applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Trust and the Company shall comply with all of
the provisions of Section 6(c) below, shall use their best efforts to
effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods
of distribution thereof, and shall comply with all of the following
provisions:
(i) If in the reasonable opinion of counsel to the
Trust and the Company there is a question as to whether the
Exchange Offer is permitted by applicable law, the Trust and
the Company hereby agree to seek a no-action letter from the
Commission allowing the Trust and the Company to Consummate an
Exchange Offer for such Securities. The Trust and the Company
hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of
Commission policy. The Trust and the Company hereby agree,
however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Trust and the Company setting forth
the legal bases, if any, upon which such counsel has concluded
that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution (which need not be favorable)
by the Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Trust or the Company, prior to the
Consummation thereof, a written representation to the Trust or
the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of
the Trust or the Company, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or
understanding with any person to participate in, a
distribution of the New Securities to be issued in the
Exchange Offer and (C) it is acquiring the New Securities in
its ordinary course of business. In addition, all such Holders
of Transfer Restricted Securities shall otherwise cooperate in
the Company's and the Trust's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in
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a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of
the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction
should be covered by an effective registration statement
containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the
resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from
the Trust or the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Trust shall
provide a supplemental letter to the Commission (A) stating
that the Company and the Trust are registering the Exchange
Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13,
1988), Morgan Stanley and Co., Inc. (available June 5, 1991)
and, if applicable, any no-action letter obtained pursuant to
clause (i) above and (B) including a representation that the
Company and the Trust have not entered into any arrangement or
understanding with any Person to distribute the New Securities
to be received in the Exchange Offer and that, to the best of
the Company's and the Trust's information and belief, based
only on written representations received under clause (ii)
above, that each Holder participating in the Exchange Offer is
acquiring the New Securities in its ordinary course of
business and has no arrangement or understanding with any
Person to participate in the distribution of the New
Securities received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Trust shall comply with all
the provisions of Section 6(c) below and shall use their best efforts
to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and pursuant thereto the Company
and the Trust will as expeditiously as possible prepare and file with
the Commission a Registration Statement relating to the registration on
any appropriate form under the Securities Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus
required to permit resales of Securities by Broker-Dealers), the
Company and the Trust shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or
4 of this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period
required by this
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Agreement, the Company and the Trust shall file promptly an
appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use
their best efforts to cause such amendment to be declared
effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm
such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, and (D) of the existence of any fact
or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading; provided that the Company
shall not be required to disclose the nature or substance of
any such fact or event as long as it is acting in good faith.
If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Trust and the Company
shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to each of the selling or exchanging
Holders and each of the underwriter(s), if any, before filing
with the Commission, copies of any Shelf Registration
Statement or any Prospectus included therein or any amendments
or supplements to any such Shelf Registration Statement or
Prospectus (excluding all
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documents incorporated by reference after the initial filing
of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if
any, for a period of at least five business days, and the
Trust and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (excluding all
documents incorporated by reference) to which a selling Holder
of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably
object within five business days after the receipt thereof. A
selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable,
as proposed to be filed, contains a material misstatement or
omission;
(v) promptly after the filing of any document that is
to be incorporated by reference into a Registration Statement
or Prospectus, provide copies of such document to the selling
Holders and to the underwriter(s), if any, make the Trust's
and the Company's representatives available for discussion of
such document and other customary due diligence matters;
(vi) make available at reasonable times for
inspection by the selling Holders, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial
and other records, pertinent corporate documents and
properties of the Trust and the Company and cause the Trust's
and the Company's officers, directors, managers and employees
to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof
and prior to its effectiveness;
(vii) if requested by any selling Holders under the
Shelf Registration Statement or the underwriter(s), if any,
promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to
the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid
therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the
Trust and the Company are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities
covered by the Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of
a majority in aggregate principal amount of Securities covered
thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated
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by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Trust and the Company hereby consent to the use
of the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(xi) enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to
such extent as may be reasonably requested by any Purchaser or
by any Holder of Transfer Restricted Securities or underwriter
in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and in
connection with an Underwritten Registration, the Trust and
the Company shall:
(A) upon request, furnish to each selling
Holder and each underwriter, if any, in such
substance and scope as they may reasonably request
and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon
the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date
of the effectiveness of the Shelf
Registration Statement, signed by (y) the
Chairman of the Board, its President or a
Vice President and (z) the Chief Financial
Officer of the Company, confirming, as of
the date thereof, such matters as such
parties may reasonably request;
(2) an opinion, dated the date of
the effectiveness of the Shelf Registration
Statement, of counsel for the Company and
the Trust, covering such matters as such
parties may reasonably request, and in any
event including a statement to the effect
that such counsel has participated in
conferences with officers and other
representatives of the Company and the
Trust, representatives of the independent
public accountants for the Company, the
Initial Purchasers' representatives and the
Initial Purchasers' counsel in connection
with the preparation of such Registration
Statement and the related Prospectus and
have considered the matters required to be
stated therein and the statements contained
therein, although such counsel has not
independently verified the accuracy,
completeness or fairness of such statements;
and that such counsel advises that, on the
basis of the foregoing (relying as to
materiality to a large extent upon facts
provided to such counsel by officers and
other representatives of the Company and the
Trust and without independent check or
verification), no facts came to such
counsel's attention that caused such counsel
to believe that the applicable Registration
Statement, at the time such
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Registration Statement or any post-effective
amendment thereto became effective,
contained an untrue statement of a material
fact or omitted to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading, or that the Prospectus contained
in such Registration Statement as of its
date, contained an untrue statement of a
material fact or omitted to state a material
fact necessary in order to make the
statements therein, in light of the
circumstances under which they were made,
not misleading. Without limiting the
foregoing, such counsel may state further
that such counsel assumes no responsibility
for, and has not independently verified, the
accuracy, completeness or fairness of the
financial statements, notes and schedules
and other financial data included in any
Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter,
dated the date of the effectiveness of the
Shelf Registration Statement, from the
Company's independent accountants, in the
customary form and covering matters of the
type customarily covered in comfort letters
by underwriters in connection with primary
underwritten offerings.
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section
8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Company and the Trust pursuant to this
clause (xi), if any.
If at any time the representations and warranties of
the Company contemplated in clause (A)(1) above cease to be
true and correct, the Company shall so advise the Initial
Purchasers and the underwriter(s), if any, and each selling
Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue
Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may reasonably request and do any and all other
acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor the Trust
shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to the service of process in
suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
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(xiii) shall issue, upon the request of any Holder of
Securities covered by the Shelf Registration Statement, New
Securities in the same amount as the Securities surrendered to
the Company and the Trust by such Holder in exchange therefor
or being sold by such Holder; such New Securities to be
registered in the name of such Holder or in the name of the
purchaser(s) of such Securities, as the case may be; in
return, the Securities held by such Holder shall be
surrendered to the Company and the Trust for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends;
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two business
days prior to any sale of Transfer Restricted Securities made
by such underwriter(s);
(xvi) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, as promptly as
is practicable under the circumstances in the good faith
determination of the Company prepare a supplement or
post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted
Securities, the Registration Statement will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading; and any Prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(xvii) provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide certificates for the
Transfer Restricted Securities;
(xviii) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD, and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and
make generally available to its security holders, a
consolidated earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the
option of the Company, Rule 158), as soon as practicable, but
in any event not later than eighteen months after (A) Transfer
Restricted Securities are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, the effective date of the
Registration Statement;
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(xx) cause the Indenture and the Declaration to be
qualified under the TIA not later than the effective date of
the first Registration Statement required by this Agreement,
and, in connection therewith, cooperate with the Trustee and
the Holders of Securities to effect such changes to the
Indenture and the Declaration as may be required for such
Indenture and the Declaration to be so qualified in accordance
with the terms of the TIA; and execute and use their best
efforts to cause the Indenture Trustee, Guarantee Trustee and
the Property Trustee to execute, all documents that may be
required to effect such changes and all other forms and
documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
(xxi) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the
requirements of Section 13(a) and Section 15(d) of the
Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company or the Trust
of the existence of any fact or event of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "Advice") by the Company
or the Trust that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the
Company or the Trust, each Holder will deliver to the Company or the
Trust (at the Company's and the Trust's expense) all copies, other than
permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was
current at the time of receipt of such notice. In the event the Company
or the Trust shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or
4 hereof, as applicable, shall be extended by the number of days during
the period from and including the date of the giving of such notice
pursuant to Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof or shall have received the
Advice.
7. Registration Expenses.
All expenses incident to the Company's and the Trust's
performance of or compliance with this Agreement, other than the
expenses of any Holder, will be borne by the Company and the Trust,
regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
expenses (including filings made by any Purchaser with the NASD (and,
if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the New
Securities to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company
and the Trust; (v) all application and filing fees in connection with
listing Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees
and disbursements of independent certified public
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accountants of the Company and the Trust (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company and the Trust will, in any event, bear their
internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of
any Person, including special experts, retained by the Company or the
Trust.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or Initial Purchaser,
as applicable, who seeks to sell New Securities, the Company and the Trust shall
indemnify and hold harmless each Holder of Transfer Restricted Securities
included within any such Shelf Registration Statement and each participating
Broker-Dealer or Initial Purchaser selling New Securities, and each person, if
any, who controls any such person within the meaning of Section 15 of the
Securities Act (each, a "Participant") from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Securities) to which such Participant or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Participant promptly upon demand for any legal or other expenses reasonably
incurred by such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) the Company and the
Trust shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any such Registration Statement or any prospectus forming part thereof or in any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on behalf of any
Participant specifically for inclusion therein; and provided further that as to
any preliminary Prospectus, the indemnity agreement contained in this Section
8(a) shall not inure to the benefit of any such Participant or any controlling
person of such Participant on account of any loss, claim, damage, liability or
action arising from the sale of the New Securities to any person by that
Participant if (i) that Participant failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act and (ii) the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary Prospectus was corrected in the Prospectus,
unless, in each case, such failure resulted from non-compliance by the Company
and the Trust with Section 6(c). The foregoing indemnity agreement is in
addition to any liability which the Company and the Trust may otherwise have to
any Participant or to any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company and the Trust, each of its directors,
officers, employees or agents and each person, if any, who controls the Company
and the Trust within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company and the Trust or any such director,
officer, employees or agents or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
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liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
Prospectus, Registration Statement or Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company and the Trust by or on behalf of that Participant specifically for
inclusion herein, and shall reimburse the Company and the Trust and any such
director, officer, employees or agents or controlling person for any legal or
other expenses reasonably incurred by the Company and the Trust or any such
director, officer, employees or agents or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Participant may
otherwise have to the Company and the Trust or any such director, officer or
controlling person.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate, in the reasonable judgement
of the indemnified party, because of actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
(i) all Initial Purchasers and those other Participants and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Participants against the Company and the Trust under this Section 8 and (ii) the
Company and the Trust, their directors, their officers, employees or agents and
each person, if any, who controls the Trust and the Company within the meaning
of Section 15 of the Securities Act, and that all such fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate firm for
the Initial Purchasers and such Participants, such firm shall be designated in
writing by Morgan Stanley & Co. Incorporated. In the case of any such separate
firm for the Company and the Trust, and such directors, officers, employees,
agents and control persons of the Company and the Trust, such firm shall be
designated in writing by the Company and the Trust. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
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shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the Trust
and the Company on the one hand and the Participants on the other with respect
to the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Trust
and the Company or the Participants, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Trust and the Participants agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, for purposes
of this Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), no Participant
shall be required to contribute any amount in excess of the amount by which
proceeds received by such Participant from an offering of the Notes exceeds the
amount of any damages which such Participant has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligations to contribute as provided in
this Section 8(d) are several and not joint.
9. Rule 144A.
The Company and the Trust hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, upon request, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities,
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underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company and the Trust agree that monetary
damages (including the Additional Interest and Additional Distributions
contemplated hereby) would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and the Trust will
not on or after the date of this Agreement enter into any agreement
with respect to their securities that is inconsistent with the
registration rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company and the
Trust have not previously entered into any agreement granting any
registration rights with respect to their securities to any Person. The
rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the
Trust's and the Company's securities under any agreement in effect on
the date hereof.
(c) Adjustments Affecting the Notes. Absent the redemption of
the Securities upon the occurence of a Special Event, the Company and
the Trust will not take any action, or permit any change to occur, with
respect to Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless the
Company and the Trust have obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the
rights of other Holders whose securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:
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(i) if to a Holder, at the address set forth on
the records of the Declaration; and
(ii) if to the Company and the Trust:
Huntington Bancshares Incorporated
Huntington Center
Columbus, Ohio 43287
Attention: Judith D. Fisher
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Transfer Restricted
Securities; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer
Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
transaction documents is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration
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rights granted by the Company and the Trust with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
(l) Required Consents. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is
required hereunder, Transfer Restricted Securities held by the Company
or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HUNTINGTON BANCSHARES
INCORPORATED
By: /s/ JUDITH D. FISHER
------------------------------------
Name: Judith D. Fisher
Title: Executive Vice President
HUNTINGTON CAPITAL I
By: /s/ PAUL V. SEBERT
------------------------------------
Name: Paul V. Sebert
Title: Regular Trustee
24
Accepted as of the date thereof
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
Salomon Brothers Inc
By MORGAN STANLEY & CO. INCORPORATED
By: /s/ MICHAEL FUSCO
-------------------------
Name: Michael Fusco
Title: Vice President