1
Exhibit 1.1
PNC Funding Corp, Issuer
and
PNC Bank Corp., Guarantor
Underwriting Agreement
New York, New York
[date]
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
PNC Funding Corp, a Pennsylvania corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (together with the guarantees mentioned below, the
"Securities") to be guaranteed by PNC Bank Corp., a Pennsylvania Corporation
(the "Guarantor"), and to be issued under an indenture dated as of December 1,
1991, among the Company, the Guarantor and The Chase Manhattan Bank (formerly
known as Chemical Bank, successor by merger to Manufacturers Hanover Trust
Company), as trustee (the "Trustee"), as amended by a Supplemental Indenture
dated as of February 15, 1993, among the Company, the Guarantor and the Trustee
(as amended, the "Indenture"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives," as used herein, shall each be
deemed to refer to such firm or firms.
1. Representations and Warranties. The Company and the Guarantor
represent and warrant to, and agree with, each Underwriter as set forth below
in this Section 1. Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
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the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company and the Guarantor meet the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act") and have
filed with the Securities and Exchange Commission (the "Commission")
a registration statement (the file number of which is set forth in
Schedule I hereto), on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company and the Guarantor may have filed one or more
amendments thereto, and may have used a Preliminary Final Prospectus,
each of which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, accordingly, it is not
necessary that any further information with respect to the Securities
and the offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus have been included in an
amendment to such registration statement prior to the Effective Date.
The Company and the Guarantor will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement relating
to the Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(ii) The Company and the Guarantor meet the requirements for the
use of Form S-3 under
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the Act and have filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on such
Form, including a basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company and the
Guarantor may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company and the Guarantor will next file with
the Commission either (x) a final prospectus supplement relating to
the Securities in accordance with Rules 430A and 424(b)(1) or (4), or
(y) prior to the effectiveness of such registration statement, an
amendment to such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Company and the
Guarantor included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Final Prospectus with respect to the Securities and the offering
thereof. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the
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Securities Exchange Act of 1934 (the "Exchange Act") and the respective
rules thereunder; on the Effective Date, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective
Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did not
or will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company and the Guarantor make no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company or the Guarantor by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation of
the Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean
any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
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prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
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the result that, pursuant to Rules 415 and 430A, all information (other
than Rule 430A Information) with respect to the securities so offered must
be included in such registration statement at the effective date thereof.
A "Delayed Offering" shall mean an offering of securities pursuant to Rule
415 which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to, and the Guarantor agrees to cause the Company to, sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the number of shares of the Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, the respective
principal amounts of Securities to be purchased by the Underwriters shall be as
set forth in Schedule II hereto less the respective amounts of Contract
Securities determined as provided below. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company and the
Guarantor may authorize or approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay, and the
Guarantor will cause the Company to pay, to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed
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Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into, and the
Guarantor will cause the Company to enter into, Delayed Delivery Contracts in
all cases where sales of Contract Securities arranged by the Underwriters have
been approved by the Company but, except as the Company may otherwise agree,
each such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the aggregate principal
amount of Contract Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal amount set forth in Schedule
II hereto, except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal amount set forth
in Schedule II hereto less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and
time may be postponed by agreement among the Representatives, the Company and
the Guarantor or as provided in Section 8 hereof (such date and time of
delivery and payment for the Underwriters' Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer of
immediately available funds. Delivery of the Underwriters' Securities shall be
made at such location in The City of New York as the Representatives shall
reasonably
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designate at least one business day in advance of the Closing Date and payment
for the Securities shall be made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Securities shall be registered in such names
(including the nominee for any depositary which will hold Securities to be
established for "book entry" issuance and transfer) and in such denominations
as the Representatives may request not less than two full business days in
advance of the Closing Date.
The Company and the Guarantor agree to have the Underwriters'
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 p.m. on the business
day prior to the Closing Date.
4. Agreements. The Company and the Guarantor jointly and severally
agree with the several Underwriters that:
(a) The Company and the Guarantor will use their best efforts to
cause the Registration Statement, if not effective at the Execution Time,
and any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company and the Guarantor will not
file any amendment to the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Company and the Guarantor have furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company and the Guarantor will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Company and the
Guarantor will promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the Securities, any amendment to the Registration
Statement shall have been filed or
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become effective, (iv) of any request by the Commission for any amendment
of the Registration Statement or supplement to the Final Prospectus or for
any additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company or the Guarantor of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company and the Guarantor will use their best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company and the Guarantor promptly will prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or effect such compliance.
(c) As soon as practicable, the Guarantor will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Guarantor and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company and the Guarantor will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto
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as the Representatives may reasonably request. The Company and the
Guarantor will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company and the Guarantor will use their best efforts to
arrange for the qualification of the Securities for sale under the laws of
such jurisdictions as the Representatives may designate, will maintain
such qualifications in effect so long as required for the distribution of
the Securities and will arrange for the determination of the legality of
the Securities for purchase by institutional investors; provided, however,
that neither the Company nor the Guarantor shall be required to qualify to
do business in any jurisdiction where it is not now qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where they are not now subject.
(f) Until the business day following the Closing Date, the Company
and the Guarantor will not, without the consent of the Representatives,
offer, sell or contract to sell, or announce the offering of, any debt
securities covered by the Registration Statement or any other registration
statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Company and the Guarantor contained herein as of
the Execution Time and the Closing Date, to the accuracy in all material
respects of the statements of the Company and the Guarantor made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Company and the Guarantor of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m.
New York City
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time on such date or (ii) 12:00 Noon on the business day following the day
on which the public offering price was determined, if such determination
occurred after 3:00 p.m. New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company and the Guarantor shall have furnished to the
Representatives the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Counsel of
the Guarantor, dated the Closing Date, to the effect that:
(i) Each of the Company and the Guarantor is a corporation
validly organized and presently subsisting under the laws of the
Commonwealth of Pennsylvania with all requisite corporate power and
authority to own its properties and conduct its business as described
in the Final Prospectus, except for such power and authority the
absence of which would not have a material adverse effect on the
Guarantor or the Company, as the case may be; and the Guarantor is
duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended;
(ii) PNC Bank, National Association ("PNC Bank, N.A.") is a
national banking organization validly existing in good standing under
the laws of the United States, with all requisite corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Final Prospectus, except for such power
and authority the absence of which would not have a material adverse
effect on PNC Bank, N.A.;
(iii) all the outstanding shares of capital stock of PNC Bank,
N.A. have been duly and validly authorized and issued and (except as
provided in 12 U.S.C. Section 55) are fully paid and nonassessable,
and, except as otherwise set forth in the Final Prospectus, all
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outstanding shares of capital stock of PNC Bank, N.A. are owned by
the Guarantor either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, any other security interests, claims,
liens or encumbrances;
(iv) the Guarantor's authorized equity capitalization, if set
forth in the Final Prospectus, is as set forth in the Final
Prospectus; the Securities conform in all material respects to the
description thereof contained in the Final Prospectus; and, if the
Securities are to be listed on any stock exchange, authorization
therefor has been given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company and the
Guarantor have filed a preliminary listing application and all
required supporting documents with respect to the Securities with
such stock exchange and nothing has caused such counsel to believe
that the Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(v) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
receivership, readjustment of debt, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or general equitable principles
(whether considered in a proceeding in equity or at law); and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the
case of any Contract Securities, will constitute legal, valid and
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binding obligations of the Company and the Guarantor entitled to the
benefits of the Indenture;
(vi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Guarantor or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described in
the Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus
describing any legal proceedings or material contracts or agreements
relating to the Guarantor or any of its subsidiaries fairly summarize
such matters in all material respects;
(vii) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
or incorporated therein, and that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of that Act and
the Exchange Act and the respective rules thereunder; and nothing has
come to the attention of such counsel that has caused such
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counsel to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading except that such counsel does not express any
opinion or belief as to the financial statements or schedules or
other data of a statistical or financial nature included or
incorporated therein or as to that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act; or
(viii) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company and the
Guarantor;
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriters and such other approvals (specified in such opinion)
as have been obtained;
(x) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of any Delayed Delivery
Contracts will (A) violate the charter or by-laws of the Company or
the Guarantor, or (B) violate, result in a breach of, or constitute a
default under the terms of any material indenture or other material
agreement or instrument known to such counsel and to which the
Company, the Guarantor or PNC Bank, N.A. is a party or bound, or (C)
violate
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any material order or regulation known to such counsel to be
applicable to the Company, the Guarantor or PNC Bank, N.A. of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company, or the Guarantor or
PNC Bank, N.A.; and
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel will opine only as to matters involving
the application of the laws of the Commonwealth of Pennsylvania or the United
States and may rely (A) as to matters involving the application of laws of any
jurisdiction other than the Commonwealth of Pennsylvania or the United States,
to the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are reasonably
satisfactory to counsel for the Underwriters, except that it will not be
required that such counsel obtain an opinion of New York counsel as to matters
of New York law in order to render such opinion or that such counsel express an
opinion as to matters arising under the laws of any jurisdiction other than the
laws of the Commonwealth of Pennsylvania and matters of federal law arising
under the laws of the United States of America, and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Corporation and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, any
Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(d) The Guarantor shall have furnished to the Representatives a
certificate of the Guarantor,
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signed by the Chairman of the Board, the President, a Vice Chairman of the
Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Guarantor, dated the Closing Date,
to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantor in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company and the Guarantor have
complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Guarantor's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Guarantor and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, Ernst & Young shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
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(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and reported
on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Guarantor and
its subsidiaries; carrying out certain specified procedures (but not
an audit in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the shareholders and directors of the
Guarantor and the audit and executive committees thereof and
inquiries of certain officials of the Guarantor who have
responsibility for financial and accounting matters of the Guarantor
and its subsidiaries as to transactions and events subsequent to the
date of the most recent audited consolidated financial statements in
or incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that: (1) any unaudited
consolidated financial statements included or incorporated in the
Registration Statement and the Final Prospectus do not comply in form
in all material respects with applicable accounting requirements and
with the published rules and regulations of the Commission with
respect to the financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited consolidated financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements included or incorporated in the Registration
Statement and the Final Prospectus; or (2) with respect to the period
subsequent to the date of the most recent audited consolidated
financial
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statements incorporated in the Registration Statement and the Final
Prospectus, there were, at a specified date not more than five
business days prior to the date of the letter, any increases in
borrowed funds of the Guarantor and its subsidiaries or any decreases
in the capital stock (defined as each of the individual dollar
amounts of preferred stock, common stock, and capital surplus) of the
Guarantor or the stockholders' equity of the Guarantor as compared
with the amounts shown on the most recent consolidated balance sheet
incorporated in the Registration Statement and the Final Prospectus,
or for the period from the date of the most recent audited or
unaudited consolidated financial statements incorporated in the
Registration Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the corresponding
period in the preceding year, in total or per share amounts of
consolidated net income of the Guarantor or consolidated net interest
income except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Guarantor as to the significance thereof unless
said explanation is not deemed necessary by the Representative; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Guarantor and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus,
including the information included or incorporated in Items 1, 5, 6
and 7 of the Guarantor's Annual Report on Form 10-K for the most
recent fiscal year incorporated in the Registration Statement and the
Final Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Guarantor's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
Final Prospectus, agrees with the accounting records
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of the Guarantor and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
If provided for in Schedule I hereto, at the Execution Time, Ernst &
Young shall have furnished to the Representatives a letter or letters, dated as
of the Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Guarantor and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive
of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Guarantor's debt securities by
▇▇▇▇▇'▇ Investors Service, Inc., or Standard & Poor's Corporation.
(h) Prior to the Closing Date, the Company and the Guarantor shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request
in connection with the offering of the Securities.
(i) The Company and the Guarantor shall have accepted Delayed
Delivery Contracts in any case where sales of Contract Securities arranged
by the Underwriters have been approved by the Company.
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If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company or the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company and the Guarantor
will reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. In no event shall the Company or the Guarantor be
liable to the Underwriters for loss of anticipated profits from the
transactions contemplated by this Agreement.
7. Indemnification and Contribution. (a) The Company and the
Guarantor agree to indemnify and hold harmless each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities and any related Depositary
Shares as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or
21
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alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company and the Guarantor will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company and the Guarantor by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation thereof, or that part of the Registration Statement
constituting the "Statement of Eligibility and Qualification" (Form T-1) of the
Trustee under the Trust Indenture Act, and (ii) such indemnity with respect to
the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities or any related Depositary Shares which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities or
Depositary Shares, if any, to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as supplemented).
This indemnity agreement will be in addition to any liability which the Company
and the Guarantor may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Guarantor, each of their respective directors, each of
their respective officers who signs the Registration Statement, and each person
who controls the Company or the Guarantor within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the
Company and the Guarantor to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company and
the Guarantor by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in
22
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the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and the
Guarantor acknowledge that the statements set forth in the last paragraph of
the cover page, the first paragraph of the second page and under the heading
"Underwriting" or "Plan of Distribution" and, if Schedule I hereto provides for
sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 7. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or
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other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (plus any local counsel),
approved by the Representatives in the case of paragraph (a) of this Section 7,
representing the indemnified parties under such paragraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company or the Guarantor on grounds of
policy or otherwise, the Company and the Guarantor, on the one hand, and the
Underwriters, on the other hand, shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company, the Guarantor and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the sum
of such discount and the purchase price of the Securities specified in Schedule
I hereto and the Company and the Guarantor are responsible for the balance;
provided, however, that (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of
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the Act shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company and the Guarantor who shall have
signed the Registration Statement and each director of the Company and the
Guarantor shall have the same rights to contribution as the Company and the
Guarantor, subject in each case to clauses (y) and (z) of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Securities, and if such non defaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any non
defaulting Underwriter or the Company or the Guarantor. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected.
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Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any non defaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
and the Guarantor prior to delivery of and payment for the Securities, if prior
to such time (i) trading in the Guarantor's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal, New York State
or Pennsylvania authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company, the Guarantor or their respective officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or the Guarantor or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or transmitted by any standard form of telecommunication, at the
address specified in Schedule I hereto; or, if sent to the Company or the
Guarantor, will be mailed, delivered or transmitted by any standard form of
telecommunication to it at One PNC Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Senior Vice President and Chief Financial
Officer of the Guarantor.
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12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Guarantor and the several Underwriters.
Very truly yours,
PNC Funding Corp
By: ______________________
Name:
Title:
PNC Bank Corp.
By: ______________________
Name:
Title:
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
By:
By: _____________________________
Name:
Title:
For itself and the other
several Underwriters, if
any, named in Schedule II
to the foregoing Agreement.
28
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal Amount:
Public offering price:
Purchase price:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Ernst & Young delivered
pursuant to Section 5(e):
29
SCHEDULE II
Principal Amount
of Securities To
Underwriters Be Purchased
------------ ------------
------------
Total ...................
============