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Exhibit 1.1
PNC Capital Trust [C] [D [E] [F], Issuer
and
PNC Bank Corp., Guarantor
$_____________
(Aggregate Liquidation Amount)
Capital Securities
(Liquidation Amount $__ per Capital Security)
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 Capital Trust [C] [D] [E] [F] (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
Section 3801 et seq.), and PNC Bank Corp., a Pennsylvania corporation (the
"Corporation" and together with the Trust, the "Offerors"), as depositor of the
Trust and as guarantor, propose to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the Trust's Capital Securities (liquidation amount $___ per
Capital Security) (the "Capital Securities") with an aggregate liquidation
amount identified in Schedule I hereto. 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.
The Capital Securities and the Common Securities (as defined
herein) are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of ____ __, ____ (the "Trust Agreement"), among the
Corporation, as depositor and as guarantor, and Bankers Trust Company (the
"Trust Company"), a New York banking corporation, as property trustee (the
"Property Trustee") and Bankers Trust (Delaware) ("Trust Delaware"), a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee") and the
holders from time to time of undivided interests in the assets of the Trust. The
Capital Securities will be guaranteed by the Corporation on a subordinated basis
and subject to certain limitations with respect to distributions and payments
upon liquidations,
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redemption or otherwise (the "Guarantee") pursuant to the Guarantee Agreement
dated as of _____ __, ____ (the "Guarantee Agreement"), between the Corporation
and the Trust Company, as Trustee (the "Guarantee Trustee"). The assets of the
Trust will consist of Junior Subordinated Deferrable Interest Debentures, due
_____ __, ____ (the "Subordinated Debentures") of the Corporation which will be
issued under an indenture dated as of _____ __, ____ (the "Indenture"), between
the Corporation and the Trust Company, as Trustee (the "Indenture Trustee").
The Capital Securities, the Guarantee and the Subordinated Debentures
are hereinafter collectively referred to as the "Securities."
1. Representations and Warranties. The Corporation and the
Trust 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) The Corporation and the Trust 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 Corporation and the Trust may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Corporation and the Trust 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
Corporation and the Trust 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
Corporation has advised you, prior to the Execution Time, will be
included or made therein.
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(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
Corporation and the Trust 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 Corporation or the Trust 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 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
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 no filing pursuant to Rule 424(b) is required,
shall mean
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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.
(d) Neither the Corporation nor the Trust is an open-end
investment company, unit investment trust or face-amount certificate
company that is, or is required to be, registered under Section 8 of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), nor is either a closed-end investment company required to be
registered but not registered thereunder.
2. Purchase and Delivery; Commission. The Trust hereby agrees to
sell to the Underwriters and each Underwriter, severally and not jointly, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase from the Trust the
aggregate
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liquidation amount of Capital Securities set forth opposite such Underwriter's
name on Schedule II hereto.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Capital Securities
will be issued by the Trust to purchase the Subordinated Debentures of the
Corporation, the Corporation hereby agrees to pay at the Time of Delivery (as
defined below) to the Representatives, for the accounts of the several
Underwriters, an amount equal to $___ per Capital Security for the Capital
Securities to be delivered at the Time of Delivery.
Except as set forth in the next paragraph, the Capital Securities to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Capital Securities in book entry form which will be deposited
by or on behalf of the Trust with The Depository Trust Company ("DTC") or its
designated custodian. The Trust will deliver the Capital Securities to the
Representatives, for the account of each Underwriter, against payment by or on
behalf of such Underwriters of the purchase price therefor by certified or
official bank check or checks or fedwire, payable to the order of the Trust in
Federal (same day) funds, by causing DTC to credit the Capital Securities to the
accounts of the Representatives at DTC. The Trust will cause the certificates
representing the Capital Securities to be made available to the Representatives
for checking at least 24 hours prior to the Time of Delivery (as defined below)
at the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be at the offices of _________,
__________ , _________, _______, _________ ______, at 9:30 a.m., New York time,
on ______ __, ____ (the "Closing Date") or such other time and date as the
Representatives, the Corporation and the Trust may agree upon in writing. Such
time and date are herein called the "Time of Delivery".
Such Capital Securities, if any, as the Representatives may request
upon at least 48 hours' prior notice to the Trust (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by and on behalf of the
Trust to the Representatives for the account of certain of the Underwriters,
against payment by or on behalf of such Underwriters of the purchase price
therefor by fedwire, payable to the order of the Trust in Federal (same day)
funds. The Trust will cause the certificates representing the Capital Securities
to be made available for checking and packaging at least 24 hours prior to the
Time of Delivery at the office of Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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3. Agreements. The Corporation and the Trust jointly and severally
agree with the several Underwriters that:
(a) The Corporation and the Trust 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 Capital Securities, the Corporation
and the Trust 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 Corporation and the
Trust 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 Corporation
and the Trust 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 Corporation and the Trust 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 Capital
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 that purpose and (vi) of the receipt by the Corporation
or the Trust of any notification with respect to the suspension of the
qualification of the Capital Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. The
Corporation and the Trust 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
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the Act or the Exchange Act or the respective rules thereunder, the
Corporation and the Trust 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 Corporation will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Corporation and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Corporation and the Trust 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 Corporation and the Trust
will pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Corporation and the Trust will use their best efforts
to arrange for the qualification of the Capital 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 Capital Securities and will
arrange for the determination of the legality of the Capital Securities
for purchase by institutional investors; provided, however, that
neither the Corporation nor the Trust 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) During the period beginning on the date hereof and
continuing to and including the Closing Date, the Corporation and the
Trust will not, without the consent of the Representatives, offer,
sell, contract to sell or otherwise dispose of any Capital Securities,
any other beneficial interests in the assets of the Trust, or any
Capital securities or any other securities of the Trust, the
Corporation or any other trust which are substantially similar to the
Capital Securities, including any guarantee of any such securities, or
any securities convertible into or exchangeable for or representing the
right to receive any such securities.
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(g) During the period when the Capital Securities are
outstanding, the Corporation will not be or become an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
4. 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 Corporation and the Trust contained herein as of
the Execution Time and the Closing Date, to the accuracy in all material
respects of the statements of the Corporation and the Trust made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Corporation and the Trust 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 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 Corporation and the Trust shall have furnished to the
Representatives the opinion of Xxxx Xxxxxxxx, Esq., Special Counsel of
the Corporation, dated the Closing Date, to the effect that:
(i) the Corporation 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 Corporation; and the
Corporation is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended;
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(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. ss. 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 Corporation 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 Capital Securities conform in all material
respects to the description thereof contained in the Final
Prospectus; and, if the Capital 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 Corporation and the Trust
have filed a preliminary listing application and all required
supporting documents with respect to the Capital Securities
with such stock exchange and nothing has caused such counsel
to believe that the Capital Securities will not be authorized
for listing, subject to official notice of issuance and
evidence of satisfactory distribution;
(v) the issuance and sale of the Capital Securities
and the Subordinated Debentures and the execution, delivery
and performance by the Corporation and the Trust of this
Agreement, the Indenture, the Guarantee Agreement, the Trust
Agreement, the purchase agreement relating to the Common
Securities, and the purchase agreement relating to the
Subordinated Debentures will not violate the Corporation's
Articles of Incorporation or By-laws or any material agreement
or other material instrument known to such counsel to which
the Corporation or the Trust is a party or any material order
or regulation known to such counsel to be applicable to the
Corporation or the Trust of any court, regulatory body,
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administrative agency, governmental body or arbitrator having
jurisdiction over the Corporation or the Trust;
(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 Corporation 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 Corporation 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
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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) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein,
except such as have been obtained; it being understood and
agreed that such counsel expresses no opinion as to the
securities or blue sky laws of any jurisdiction; and
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 an opinion of
special Delaware counsel to the Corporation and the Trust, dated the
Closing Date, substantially to the effect that:
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made;
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(ii) under the Delaware Act and the Trust Agreement,
the Trust has the trust power and authority to own its
property and to its conduct its business, all as described in
the Prospectus;
(iii) the Trust Agreement constitutes a valid and
binding obligation of the Corporation and the Property Trustee
and the Delaware Trustee, and is enforceable against the
Corporation and the Trustees, in accordance with its terms;
(iv) under the Delaware Act and the Trust Agreement,
(A) the Trust has the trust power and authority to execute and
deliver, and to perform its obligations under, this Agreement
and (B) to issue and perform its obligations under the Capital
Securities and the Common Securities of the Trust (the "Common
Securities");
(v) under the Delaware Act and the Trust Agreement,
the execution and delivery by the Trust of this Agreement, and
the performance by the Trust of its obligations hereunder,
have been duly authorized by all necessary trust action on the
part of the Trust;
(vi) the Capital Securities have been duly authorized
by the Trust Agreement and are duly and validly issued and,
subject to the qualifications set forth therein, fully paid
and nonassessable undivided beneficial interests in the assets
of the Trust and are entitled to the benefits of the Trust
Agreement. The Holders, as beneficial owners of the Trust,
will be entitled to the same limitations of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware;
(vii) the Common Securities have been duly authorized
by the Trust Agreement and are duly and validly issued
undivided beneficial interests in the assets of the Trust and
are entitled to the benefits of the Trust Agreement.
(viii) under the Delaware Act and the Trust
Agreement, the issuance of the Capital Securities and Common
Securities is not subject to preemptive rights;
(ix) the issuance and sale by the Trust of the
Capital Securities and Common Securities, the purchase by the
Trust of the Subordinated Debentures, the execution, delivery
and performance by the Trust of this Agreement, the
consummation by the Trust of
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the transactions contemplated by this Agreement and the
compliance by the Trust with its obligations thereunder will
not violate (A) any of the provisions of the Certificate of
Trust or the Trust Agreement or (B) any applicable Delaware
law or administrative regulation;
(x) the Delaware Trustee is duly incorporated and is
validly existing in good standing as a banking corporation
with trust powers under the laws of the State of Delaware; and
(xi) the Delaware Trustee has the requisite power and
authority to execute and deliver the Trust Agreement, and has
taken all necessary corporate action to authorize the
execution and delivery of the Trust Agreement.
(d) The Representatives shall have received an opinion of
Xxxxxx & Xxxxxx, counsel to the Corporation, dated the Closing Date,
substantially to the effect that:
(i) the Underwriting Agreement has been duly
authorized, executed and delivered by the Corporation;
(ii) the Trust Agreement has been duly authorized,
executed and delivered by the Corporation, and is a valid and
binding obligation of the Corporation, enforceable against the
Corporation in accordance with its terms, (except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws
relating to or affecting creditors' rights generally, or
general equity principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and
fair dealing);
(iii) the Guarantee Agreement has been duly
authorized, executed and delivered by the Corporation and is a
valid and binding obligation of the Corporation enforceable
against the Corporation in accordance with its terms, (except
as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership,
readjustment of debt, moratorium, fraudulent conveyance or
similar laws relating to or affecting creditors' rights
generally, or general equity principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing);
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(iv) the Indenture has been duly authorized, executed
and delivered by the Corporation, has been duly qualified
under the Trust Indenture Act, and is a valid and binding
agreement of the Corporation, enforceable against the
Corporation in accordance with its terms, (except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, readjustment of
debt, moratorium, fraudulent conveyance or similar laws
relating to or affecting creditors' rights generally, or
general equity principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and
fair dealing);
(v) the Subordinated Debentures have been duly
authorized, executed and delivered by the Corporation and when
duly authenticated in accordance with the Indenture and
delivered and paid for in accordance with the Underwriting
Agreement, will be valid and binding obligations of the
Corporation, entitled to the benefits of the Indenture and
enforceable against the Corporation in accordance with their
terms, (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors'
rights generally, or general equity principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing);
(vi) the Trust is not an "investment company" or an
entity "controlled" by an "investment company," as such terms
are defined in Investment Company Act;
(vii) the statements set forth in the Registration
Statement under the captions "Description of Capital
Securities," "Description of the Junior Subordinated
Debentures," "Description of Guarantee" and "Relationship
Among the Capital Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as they purport to
describe the provisions of the laws and documents referred to
therein, fairly summarize the matters described therein;
(viii) the statements of law or legal conclusions and
opinions set forth in the Registration Statement under the
caption "Certain Federal Income Tax Consequences," subject to
the
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assumptions and conditions described therein, constitute such
counsel's opinion; and
(ix) the Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been
initiated or threatened by the Commission.
In rendering such opinion, counsel may state that they are passing only
on matters of New York and United States Federal law. In rendering such
opinion, counsel may rely upon an opinion or opinions, each dated the
Closing Date, of other counsel retained by them or the Corporation as
to laws of any jurisdiction other than the United States or the State
of New York, provided that (i) such reliance is expressly authorized by
each opinion so relied upon and a copy of each such opinion is
delivered to the Representatives, and (ii) counsel shall state in their
opinion that they and the Representatives are justified in relying
thereon. Insofar as such opinions involve factual matters, such counsel
may rely, to the extent such counsel deems proper, upon certificates of
officers of the Corporation, its subsidiaries and the Trust and
certificates of public officials.
(e) The Representatives shall have received an opinion of
counsel to the Trust Company and Trust Delaware, dated the Closing
Date, substantially to the effect that:
(i) the Trust Company is duly incorporated and is
validly existing in good standing as a banking corporation
with trust powers under the laws of the State of New York;
(ii) the Indenture Trustee has the requisite power
and authority to execute, deliver and perform its obligations
under the Indenture, and has taken all necessary corporate
action to authorize the execution, delivery and performance by
it of the Indenture;
(iii) the Guarantee Trustee has the requisite power
and authority to execute, deliver and perform its obligations
under the Guarantee Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement;
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(iv) the Property Trustee has the requisite power and
authority to execute and deliver the Trust Agreement, and has
taken all necessary corporate action to authorize the
execution and delivery of the Trust Agreement;
(v) each of the Indenture and the Guarantee Agreement
has been duly executed and delivered by the Indenture Trustee
and the Guarantee Trustee, respectively, and constitutes a
legal, valid and binding obligation of the Indenture Trustee
and the Guarantee Trustee, respectively, enforceable against
the Indenture Trustee and the Guarantee Trustee, respectively
in accordance with its respective terms, except that certain
payment obligations may be enforceable solely against the
assets of the Trust and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, fraudulent conveyance and transfer or other
similar laws applicable to New York banking corporations
affecting the enforcement of creditors' rights generally, and
by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(vi) the Subordinated Debentures delivered on the
Closing Date have been duly authenticated by the Indenture
Trustee in accordance with the terms of the Indenture.
(f) The Representatives shall have received from [__________],
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Capital
Securities, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Trust shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) The Corporation shall have furnished to the
Representatives a certificate of the Corporation, 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 Corporation, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final
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Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the
Corporation 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 Corporation and
the Trust 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 Corporation'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 Corporation 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).
(h) At the Closing Date, Ernst & Young shall have furnished to
the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as
of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(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 Corporation
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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 Corporation
and the audit and executive committees thereof and inquiries
of certain officials of the Corporation who have
responsibility for financial and accounting matters of the
Corporation 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: (A) 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 (B) 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
Corporation and its subsidiaries or any decreases in the
capital stock (defined as each of the individual dollar
amounts of Capital stock, common stock, and capital surplus)
of the Corporation or the stockholders' equity of the
Corporation 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 Corporation 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
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accompanied by an explanation by the Corporation 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
Corporation 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 Corporation'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
Corporation's Quarterly Reports on Form 10-Q, incorporated in
the Registration Statement and Final Prospectus, agrees with
the accounting records of the Corporation and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (h)
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.
(i) 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 (h) of this Section 4 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Corporation 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 Capital Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto).
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(j) The Capital Securities shall have received a rating from
each of Xxxxx'x Investor Service, Inc. and Standard & Poor's Rating
Services, each such rating to be not less than the rating set forth in
the Final Prospectus.
(k) No downgrading in the rating accorded the Capital
Securities or any other debt securities of the Corporation by any
"nationally recognized statistical rating organization" (as that term
is defined by the SEC for the purposes of Rule 436(g)(2) under the
Securities Act) shall have occurred, or any public announcement that
any such organization has under surveillance or review their ratings of
the Capital Securities or any other debt securities of the Corporation
(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 Capital Securities.
(l) Prior to the Closing Date, the Corporation and the Trust
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 Capital Securities.
If any of the conditions specified in this Section 4 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 Corporation in writing or by telephone or
telegraph confirmed in writing.
5. Reimbursement of Underwriters' Expenses. If the sale of the
Capital Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 4 hereof is not
satisfied, because of any termination pursuant to Section 8 hereof or because of
any refusal, inability or failure on the part of the Corporation or the Trust to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Corporation and the Trust
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
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incurred by them in connection with the proposed purchase and sale of the
Capital Securities. In no event shall the Corporation or the Trust be liable to
the Underwriters for loss of anticipated profits from the transactions
contemplated by this Agreement.
6. Indemnification and Contribution. (a) Each of the
Corporation and the Trust jointly and severally 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 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 Corporation and the Trust
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
Corporation and the Trust 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 Capital
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 Capital 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
Corporation and the Trust may otherwise have.
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(b) Each Underwriter severally agrees to indemnify and hold
harmless the Corporation and the Trust, each of their respective directors, each
of their respective officers who signs the Registration Statement, and each
person who controls the Corporation or the Trust within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Corporation and the Trust to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Corporation
and the Trust 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 Corporation and the
Trust 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" 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 6 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 6, 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 6. 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 6 for any legal or other expenses subsequently incurred by such
indemnified party in
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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 6, 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 6 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Corporation or the Trust on grounds of policy
or otherwise, the Corporation and the Trust, 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
Corporation, the Trust 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 Capital Securities specified in
Schedule I hereto and the Corporation and the Trust 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 Capital Securities) be responsible for any amount in excess of the
underwriting discount applicable to the Capital 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 6, 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 Corporation
within the meaning of either the Act or the Exchange Act, each officer of the
Corporation and the Trust who shall have signed the Registration Statement and
each director of the Corporation and the Trust shall have the same rights to
contribution as the Corporation and the Trust, 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
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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).
7. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Capital 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 Capital Securities set forth opposite the names of all the
remaining Underwriters) the Capital Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Capital Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate liquidation amount of Capital 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 Capital Securities,
and if such non defaulting Underwriters do not purchase all the Capital
Securities, this Agreement will terminate without liability to any non
defaulting Underwriter or the Corporation or the Trust. 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 Trust and any non
defaulting Underwriter for damages occasioned by its default hereunder.
8. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Corporation and the Trust prior to delivery of and payment for the Capital
Securities, if prior to such time (i) trading in the Corporation'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
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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 Capital Securities.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Corporation, the Trust 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 Corporation or the Trust or any of the officers, directors or controlling
persons referred to in Section 6 hereof, and will survive delivery of and
payment for the Capital Securities. The provisions of Sections 5 and 6 hereof
shall survive the termination or cancellation of this Agreement.
10. 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 Corporation or
the Trust, 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 Corporation.
11. 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 6 hereof,
and no other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Corporation, the Trust and the several Underwriters.
Very truly yours,
PNC Capital Trust [C] [D] [E] [F]
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 Capital Securities:
Title:
Liquidation Amount:
Public offering price:
Purchase price:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering:
Modification of items to be covered by the letter from Ernst & Young delivered
pursuant to Section 5(h):
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SCHEDULE II
Liquidation Amount
of Capital Securities to
Underwriters be Purchased
------------ ------------
------------------
Total ...................
==================
1
