PNC BANK, NATIONAL ASSOCIATION US$40,000,000,000 Global Bank Note Program for the Issue of Senior and Subordinated Bank Notes with Maturities of more than nine months from Date of Issue AMENDMENT NO. 2 TO THE DISTRIBUTION AGREEMENT
EXHIBIT 10.48.3
EXECUTION VERSION
PNC BANK, NATIONAL ASSOCIATION
US$40,000,000,000
Global Bank Note Program
for the Issue of Senior and Subordinated Bank Notes
with Maturities of more than nine months from Date of Issue
AMENDMENT NO. 2
TO THE DISTRIBUTION AGREEMENT
May 27, 2016
CITIGROUP GLOBAL MARKETS INC.
000 Xxxxxxxxx Xxxxxx
New York, NY 10013
AND EACH OF THE DEALERS LISTED
ON SCHEDULE I HERETO
WHEREAS, the parties hereto have previously entered into a Distribution Agreement, dated January 16, 2014 (as amended on May 22, 2015, the “Distribution Agreement”), with respect to the issue and sale by PNC Bank, National Association (the “Issuing Bank”) to Citigroup Global Markets Inc. and each of the other dealers listed on Schedule I hereto (each referred to as a “Dealer” and collectively referred to as the “Dealers”) of (i) senior unsecured debt obligations, with maturities of more than nine months, not insured by the Federal Deposit Insurance Corporation (the “Senior Notes”) and (ii) subordinated unsecured debt obligations, with maturities of five years or more from their date of issue, not insured by the Federal Deposit Insurance Corporation (the “Subordinated Notes” and, together with the Senior Notes, the “Bank Notes”).
WHEREAS, the parties hereto wish to amend the terms of the Distribution Agreement as set forth in this amendment (“Amendment No. 2”).
NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements contained herein, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to the Terms of the Distribution Agreement.
(a) Definitions. All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Distribution Agreement.
(b) Modifications to the Distribution Agreement.
| i. | The second sentence of Section 1(b) of the Distribution Agreement is replaced in its entirety with the following: |
“Bank Notes may be outstanding at any one time in an aggregate maximum principal amount equal to US$40,000,000,000, inclusive of any notes outstanding which have been issued prior to the date of this Offering Circular by the Bank or entities that have been acquired by the Bank.”
| ii. | The first sentence of Section 2(a)(i) of the Distribution Agreement is replaced in its entirety with the following: |
“The Issuing Bank has caused to be prepared an offering circular, dated May 27, 2016, to be used by the Dealers in connection with the Dealers’ solicitation of purchasers of or offering of the Bank Notes.”
| iii. | The first sentence of Section 2(a)(iii) of the Distribution Agreement is replaced in its entirety with the following: |
“The Issuing Bank has all corporate power and authority necessary to execute, deliver and perform, and it has duly authorized, executed and delivered, this Agreement, the Issuing and Paying Agency Agreement dated as of January 16, 2014 (as amended on May 22, 2015 and May 27, 2016 and from time to time thereafter, the “Agency Agreement”), between the Issuing Bank and PNC Bank, National Association, as issuing and paying agent, and the Interest Calculation Agreement dated as of January 16, 2014 (as amended on May 22, 2015 and May 27, 2016 and from time to time thereafter, the “Interest Calculation Agreement”), between the Issuing Bank and PNC Bank, National Association, as the interest calculation agent (in such capacity, the “Calculation Agent,” which term shall include any successor thereto).”
| iv. | The first sentence of Section 6(b) of the Distribution Agreement is replaced in its entirety with the following: |
“On the date hereof and, if required pursuant to Section 8(b) hereof, on each other applicable date, as the case may be, the Dealers shall have received a certificate of the President, an Executive Vice President, a Senior Vice President, a Vice President, an Assistant Vice President, or the equivalent thereof, of the Issuing Bank reasonably satisfactory to the Dealers, substantially in the form of Exhibit C hereto.”
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| v. | The first sentence of Section 6(c) of the Distribution Agreement is replaced in its entirety with the following: |
“On the date hereof and, if required pursuant to Section 8(b) hereof, on each other applicable date, as the case may be the Dealers shall have received a certificate of the President, an Executive Vice President, a Senior Vice President, a Vice President or an Assistant Vice President of the Parent, substantially in the form of Exhibit D hereto.”
(c) Interpretation. Upon the execution and delivery of this Amendment No. 2, the Distribution Agreement shall be modified and amended in accordance with this Amendment No. 2, and all the terms and conditions of both shall be read together as though they constitute one instrument, except that, in case of conflict, the provisions of this Amendment No. 2 will control. For the avoidance of doubt, references in the Distribution Agreement to this “Agreement” shall refer to the Distribution Agreement, as amended by this Amendment No. 2.
(d) Ratification. The Distribution Agreement, as modified and amended by this Amendment No. 2, is hereby ratified and confirmed in all respects and shall bind each party hereto.
SECTION 2. Representations and Warranties of the Issuing Bank.
| (a) | The Issuing Bank represents and warrants to each Dealer as of the date hereof, as follows: |
| i. | The Issuing Bank has all corporate power and authority necessary to execute, deliver and perform, and it has duly authorized, executed and delivered this Amendment No. 2; Amendment No. 2 to the Issuing and Paying Agency Agreement dated as of January 16, 2014, between the Issuing Bank and PNC Bank, National Association, as issuing and paying agent; and Amendment No. 2 to the Interest Calculation Agreement dated as of January 16, 2014, between the Issuing Bank and PNC Bank, National Association, as the interest calculation agent. This Amendment No. 2, the Distribution Agreement (as amended on the date hereof), the Agency Agreement (as amended on the date hereof) and the Interest Calculation Agreement (as amended on the date hereof) are valid and legally binding agreements of the Issuing Bank, enforceable against the Issuing Bank in accordance with their respective terms, subject to applicable bankruptcy, liquidation, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to, or affecting, the rights of creditors of national banking associations, including laws relating to conservatorship and receivership of insured depository institutions, and to general equity principles. |
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| ii. | Each of the representations and warranties in Section 2(a) of the Distribution Agreement are true and correct as of the date hereof. |
SECTION 3. Conditions of Dealers’ Obligations.
The continued obligations of the Dealers under the Distribution Agreement shall be subject to the receipt on the date hereof of the opinions and certificates described in Sections 6(a), 6(b), 6(c), 6(d), 6(e), 6(f) and 6(g) of the Distribution Agreement, provided however, that the disclosure statement described in Section 6(a)(i)(C) need not be provided.
SECTION 4. Notices.
Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any such notice shall be effective when received at the address specified below.
If to the Issuing Bank:
PNC Bank, National Association
The Tower at PNC Plaza
000 Xxxxx Xxxxxx
6th Floor
Pittsburgh, PA 15222-2401
Attention: Xxxx Xxxxx
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Parent:
The PNC Financial Services Group, Inc.
The Tower at PNC Plaza
000 Xxxxx Xxxxxx
6th Floor
Pittsburgh, PA 15222-2401
Attention: Xxxx Xxxxx
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to Citigroup Global Markets Inc.:
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
New York, NY 10013
Attention: Transaction Execution Group
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
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If to any other Dealer: at its notice address(es) specified on Schedule I hereto or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 4.
SECTION 5. Parties.
This Amendment No. 2 shall inure to the benefit of and be binding upon the Dealers and the Issuing Bank and their respective successors. Nothing expressed or mentioned in this Amendment No. 2 is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons, directors and affiliates referred to in Sections 9 and 10 of the Distribution Agreement and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Amendment No. 2 or any provision herein or therein contained.
This Amendment No. 2 and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto and their respective successors and said controlling persons, directors and affiliates and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Bank Notes shall be deemed to be a successor by reason merely of such purchase. Notwithstanding the foregoing, the purchasers referred to in Section 4(j) of the Distribution Agreement shall have the rights set forth therein.
SECTION 6. Waiver of Jury Trial.
The Issuing Bank and each of the Dealers hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Amendment No. 2 or the transactions contemplated hereby.
SECTION 7. Governing Law.
This Amendment No. 2 and all the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of New York, excluding any choice-of-law principles that would otherwise require the application of the law of any other jurisdiction.
SECTION 8. Counterparts.
This Amendment No. 2 may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuing Bank a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between the Issuing Bank and each of the Dealers in accordance with its terms.
| Very truly yours, | ||
| PNC BANK, NATIONAL ASSOCIATION | ||
| by |
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx Title: Executive Vice President | ||
[Signature Page to Amendment No. 2 to the Distribution Agreement]
CONFIRMED AND ACCEPTED,
as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
| by |
/s/ Xxxx X. XxXxxxxxx, Xx. | |
| Name: Xxxx X. XxXxxxxxx, Xx. | ||
| Title: Managing Director |
BARCLAYS CAPITAL INC.
| by |
/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | ||
| Title: Managing Director |
CREDIT SUISSE SECURITIES (USA) LLC
| by |
/s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx | ||
| Title: Director |
DEUTSCHE BANK SECURITIES INC.
| by |
/s/ Xxx Xxxxxx | |
| Name: Xxx Xxxxxx | ||
| Title: Managing Director/Debt Syndicate | ||
| Deutsche Bank Securities Inc. |
| by |
/s/ Xxxxxxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxxxxxx X. Xxxxxxx | ||
| Title: Director | ||
| Deutsche Bank Securities Inc. | ||
| Debt Syndicate |
XXXXXXX, XXXXX & CO.
| by |
/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Vice President |
[Signature Page to Amendment No. 2 to the Distribution Agreement]
XXXXXXXXX LLC
| by |
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | ||
| Title: Managing Director |
X.X. XXXXXX SECURITIES LLC
| by |
/s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Executive Director |
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
| by |
/s/ Xxxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxxx Xxxxxx | ||
| Title: Managing Director |
XXXXXX XXXXXXX & CO. LLC
| by |
/s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | ||
| Title: Executive Director |
PNC CAPITAL MARKETS LLC
| by |
/s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | ||
| Title: Managing Director |
SANDLER X’XXXXX & PARTNERS, L.P.
By: Sandler X’Xxxxx & Partners Corp.,
its general partner
| by |
/s/ Xxxxxx X. Xxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxx | ||
| Title: An Officer of the Corporation |
[Signature Page to Amendment No. 2 to the Distribution Agreement]
U.S. BANCORP INVESTMENTS, INC.
| by |
/s/ Xxxx Xxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxx | ||
| Title: Managing Director |
XXXXX FARGO SECURITIES, LLC
| by |
/s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx | ||
| Title: Managing Director |
[Signature Page to Amendment No. 2 to the Distribution Agreement]
SCHEDULE I
Contact Information for
Notices to Dealers
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Attention: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
Barclays Capital Inc.
000 Xxxxxxx Xxxxxx, 0xx Floor
Attention: Syndicate Registration
Phone: 000-000-0000
Fax: 000-000-0000
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx Xxxxxx
Attention: Short and Medium Term Finance
Phone: 000-000-0000
Fax: 000-000-0000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
New York, New York 10005
Attention: Debt Capital Markets Syndicate
Fax: 000-000-0000
with a copy to:
General Counsel
Fax: 000-000-0000
Xxxxxxx, Xxxxx & Co.
000 Xxxx Xxxxxx
New York, New York 10282
Attention: Prospectus Department
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxxxxxxx-xx@xx.xxxxx.xx.xxx
S-I-1
Xxxxxxxxx LLC
000 Xxxxxxx Xxxxxx
New York, New York 10022
Attention: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
New York, New York 10179
Attention: Investment Grade Syndicate Desk
Phone: 000-000-0000
Fax: 000-000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
00 Xxxxxxxxxxx Xxxxx
NY1-050-12-02
New York, New York 10020
Facsimile: (000) 000-0000
Attention: High Grade Transaction Management/Legal
Xxxxxx Xxxxxxx & Co. LLC
0000 Xxxxxxxx
New York, New York 10036
Attention: Investment Banking Division
Phone: 000-000-0000
Fax: 000-000-0000
PNC Capital Markets LLC
000 Xxxxxxx Xxx
New York, NY 10173
Attention: Xxxxxxxxxxx Xxxxx
Phone: 000-000-0000
with a copy to:
Xxx X. Xxxxxx
The Tower at PNC Plaza
000 Xxxxx Xxxxxx
19th Floor
Pittsburgh, PA 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
S-I-2
Sandler X’Xxxxx & Partners, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
New York, NY 10020
Attention: Syndicate
Phone: 000-000-0000
Fax: 000-000-0000
U.S. Bancorp Investments, Inc.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Charlotte, North Carolina 28202
Attention: High Grade Syndicate
Phone: 000-000-0000
Fax: 000-000-0000
Xxxxx Fargo Securities, LLC
000 X. Xxxxx Xxxxxx, 0xx Floor
Charlotte, North Carolina 28202
Attention: Transaction Management
Phone: 000-000-0000
Fax: 000-000-0000
S-I-3
