1
Exhibit 1
PNC Funding Corp, Issuer
and
PNC Bank Corp., Guarantor
Underwriting Agreement
New York, New York
July 9, 1997
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 Federal or similar same day 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 Xxxxxxx X. Xxxxx,
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, after due inquiry, 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, and the
statements in the Final Prospectus under the caption
"Certain Tax Considerations", 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
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thereunder; and nothing has come to the attention of
such counsel that has caused such 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 Deposit Agreement or 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
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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 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 & Xxxxx, 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.
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(d) The Guarantor shall have furnished to the
Representatives a certificate of the Guarantor, 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
17
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meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited 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 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 financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which
caused them to believe that: (1) any unaudited
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 financial statements are not in
conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited 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
18
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audited financial 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 the Company or any
decreases in the capital stock 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
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 year
ended December 31, 1996, 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 of the
Guarantor and its subsidiaries,
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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.
In addition, except as provided 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 Xxxxx'x 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.
20
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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
- 21 -
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
- 22 -
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
23
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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
24
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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, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, attention of the Senior Vice
President and Chief Financial Officer of the Guarantor.
26
- 26 -
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.
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: /s/ XXXXXX X. XXXXX, XX.
----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
PNC Bank Corp.
By: /s/ XXXXXX X. XXXXXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
and Chief Financial Officer
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
By: Xxxxx Xxxxxx Inc.
By: /s/ XXXXX X. XXXXXX
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
27
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For itself and the other
several Underwriters, if
any, named in Schedule II
to the foregoing Agreement.
28
SCHEDULE I
Underwriting Agreement dated July 9, 1997
Registration Statement No. 33-55114
Representatives:
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Title, Purchase Price and Description of Securities:
Title: 6-7/8% Subordinated Notes Due 2007
Principal Amount: $350,000,000
Public offering price: 99.650% of the Principal Amount
plus accrued interest, if any,
from July 14, 1997.
Purchase price: 99.316% of the Principal Amount
plus accrued interest, if any, from
July 14, 1997.
Sinking fund provisions: None.
Redemption provisions: None.
Other provisions: None.
Closing Date, Time and Location: July 14, 1997, 10:00 a.m.
at the offices of Cravath, Swaine & Xxxxx, Worldwide Plaza,
000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000
Type of Offering: Delayed Offering.
Delayed Delivery Arrangements: None.
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts:
N/A
Modification of items to be covered by the letter from Ernst &
Young delivered pursuant to Section 5(e):
29
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Letter from Ernst & Young to be delivered pursuant to
Section 5(e) at the Closing Date, not also at the Execution
Time.
30
SCHEDULE II
Principal Amount
of Securities To
Underwriters Be Purchased
------------ ----------------
Xxxxx Xxxxxx Inc. $350,000,000
------------
Total ................... $350,000,000
============
