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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 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
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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 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 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 that 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
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thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the 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 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 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
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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 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 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
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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 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 time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering
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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., 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 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 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;
(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 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
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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 Company or the Guarantor
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.
(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 meaning of the Act
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and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(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 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 of the Guarantor and its subsidiaries,
excluding any questions of legal interpretation.
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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 Xxxxx'x Investors Service, Inc., or Standard & Poor's
Corporation, or any public announcement that any such organization has
under surveillance or review their ratings of any of the Guarantor's
debt securities (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading,
of such rating), and if, in any such case, the effect thereof in the
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the purchase of the Securities.
(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.
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
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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 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 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
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, 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 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, 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 paragraph (a) or (b) of 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 paragraph (a) or (b) of 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
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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 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) or (b) of this Section 7 is unavailable, the Company and the
Guarantor, on the one hand, and the Underwriters severally, 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 proportion to the relative benefits
received by the Company and the Guarantor on the one hand and the Underwriters
on the other from the offering of the Securities, such 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 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. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Guarantor,
on the one hand, and the Underwriters severally, on the other, shall contribute
in such proportion as is appropriate to reflect not only such relative benefits
as described in the immediately preceding sentence but also the relative fault
of the Company and the Guarantor on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages and liabilities as well as any other relevant equitable
considerations. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company or the Guarantor on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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
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 the applicable terms and conditions 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
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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. 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.
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.
-- END OF PAGE --
[signatures appear on following page]
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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.
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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):
16
SCHEDULE II
Principal Amount
of Securities To
Underwriters Be Purchased
------------ ------------
------------
Total ...................
============
17
SCHEDULE III
[to be included if applicable]
