1
Exhibit 1
October 4, 1996
PNC Bank Corp.
Fixed/Adjustable Rate Noncumulative
Preferred Stock, Series F
($1.00 par value)
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
PNC Bank Corp., a Pennsylvania corporation (the
"Corporation"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the number of shares of preferred stock of the Corporation
identified in Schedule I hereto (said shares to be issued and sold by the
Corporation being hereinafter called the "Underwritten Securities"). The
Corporation also proposes to grant to the Underwriters an option to purchase up
to such additional number of shares of preferred stock of the Corporation as is
specified in Schedule I hereto (the "Option Securities"; together with the
Underwritten Securities, the "Securities") to cover over-allotments. If
"Depositary Receipt Arrangements" is specified in Schedule I hereto, the
Securities are to be deposited by you or on your behalf against delivery of
Depositary Receipts (the "Depositary Receipts") to be issued by the bank or
trust company identified in Schedule I hereto as Depositary (the "Depositary"),
under the deposit agreement described in Schedule I hereto (the "Deposit
Agreement"), among the Corporation, the Depositary and the holders from time to
time of the Depositary Receipts issued thereunder. Any Depositary Receipts
will evidence Depositary Shares (the "Depositary Shares") and each Depositary
Share will represent a fraction of a Security, as specified in Schedule I
hereto. Except where the context otherwise requires, references to Securities
herein shall include any related Depositary Shares and associated Depositary
Receipts. If the firm or firms listed in Schedule II
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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 Corporation
represents and warrants to, and agrees 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 Corporation meets the requirements
for the use of Form S-3 under the Securities Act of
1933 (the "Act") and has 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 Corporation 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 Corporation 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
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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.
(ii) The Corporation meets the requirements
for the use of Form S-3 under the Act and has 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 may have
filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has
previously been furnished to you. The Corporation
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 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
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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.
(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 makes no
representations or warranties as to 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 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
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and delivered by the parties hereto. "Basic Prospectus" shall
mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date
including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the 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
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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. (a)(i) Subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth, the Corporation agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Corporation, 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 number of
shares of Securities to be purchased by the Underwriters shall be as set forth
in Schedule II hereto less the respective number of shares 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."
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(a)(ii) If so provided in Schedule I hereto, the
Underwriters are authorized to solicit offers to purchase Securities from the
Corporation pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but with such
changes therein as the Corporation may authorize or approve. The Underwriters
will endeavor to make such arrangements and, as compensation therefor, the
Corporation will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth in Schedule I
hereto of the aggregate liquidation preference 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 Corporation will enter into Delayed Delivery Contracts in
all cases where sales of Contract Securities arranged by the Underwriters have
been approved by the Corporation but, except as the Corporation may otherwise
agree, each such Delayed Delivery Contract must be for not less than the
minimum number of shares set forth in Schedule I hereto and the aggregate
number of shares of Contract Securities may not exceed the maximum aggregate
number of shares 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 number of shares of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by the number
of shares which shall bear the same proportion to the total number of shares of
Contract Securities as the number of shares of Securities set forth opposite
the name of such Underwriter bears to the aggregate number of shares 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 number of shares of Securities to
be purchased by all Underwriters shall be the aggregate number of shares set
forth in Schedule II hereto less the aggregate number of shares of Contract
Securities.
(b) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Corporation hereby grants an option to the several Underwriters to purchase,
severally and not jointly, the Option Securities at the same purchase price per
share as the Underwriters shall
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pay for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the Final
Prospectus upon written or telegraphic notice by the Representatives to the
Corporation setting forth the number of shares of the Option Securities as to
which the several Underwriters are exercising the option and the settlement
date. Delivery of certificates for the shares of Option Securities, and
payment therefor, shall be made as provided in Section 3 hereof. The number of
shares of the Option Securities to be purchased by each Underwriter shall be
the same percentage of the total number of shares of the Option Securities to
be purchased by the several Underwriters as such Underwriter is purchasing the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
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
Corporation 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 Corporation by certified or official
bank check or checks drawn on or by a New York Clearing House bank and payable
in next day 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
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Representatives may request not less than two full business days in advance of
the Closing Date.
The Corporation agrees 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.
If the option provided for in Section 2(b) hereof is
exercised after the third business day prior to the Closing Date, the
Corporation will deliver (at the expense of the Corporation) to the
Representatives, at such location in The City of New York as the
Representatives shall reasonably designate, on the date specified by the
Representative (which shall be within three business days after exercise of
said option), certificates for the Option Securities in such names and
denominations as the Representatives shall have requested against payment of
the purchase price thereof to or upon the order of the Corporation by certified
or official bank check or checks drawn on or by a New York Clearing House bank
and payable in next day funds. If settlement for the Option Securities occurs
after the Closing Date, the Corporation will deliver to the Representatives on
the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 5 hereof.
Notwithstanding the preceding paragraphs, if
"Depositary Receipt Arrangements" is specified in Schedule I hereto,
certificates representing Securities shall be delivered in the names of the
Representatives. Such certificates shall be delivered by the Representatives
to the Depositary against delivery of Depositary Receipts representing
Depositary Shares. Such Depositary Receipts shall be issued in such
denominations and registered in such names as the Representatives shall request
and shall be made 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 due date for delivery hereof.
4. Agreements. The Corporation agrees with the
several Underwriters that:
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(a) The Corporation will use its 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 Corporation 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 has 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
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 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 that purpose
and (vi) of the receipt by the Corporation 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
Corporation will use its 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
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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
Corporation 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 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 will pay the expenses
of printing or other production of all documents relating to
the offering.
(e) The Corporation will use its 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 the Corporation shall not 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.
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(f) Until the date specified on Schedule I hereto,
the Corporation will not, without the consent of the
Representatives, offer, sell or contract to sell, or announce
the offering of, (i) any shares of preferred stock covered by
the Registration Statement or any other registration statement
filed under the Act, or (ii) if the Securities are convertible
into other securities of the Corporation, any of such other
securities, in each case other than shares of common or
preferred stock of the Corporation issued pursuant to warrants
to purchase any such shares, issued upon conversion of the
Corporation's outstanding convertible debentures or issued
pursuant to any employee benefit or dividend reinvestment plan
of the Corporation in effect at the Execution Time.
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 Corporation
contained herein as of the Execution Time and the Closing Date, to the accuracy
in all material respects of the statements of the Corporation made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Corporation of its 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.
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(b) The Corporation shall have furnished to the
Representatives the opinion of Melanie S. Cibik, Senior
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, 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 Corporation either
directly or through wholly owned subsidiaries free
and clear of any perfected security interest and, to
the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or
encumbrances;
(iv) the Corporation's authorized equity
capitalization, if set forth in the Final Prospectus,
is as set forth in the Final Prospectus; the
Securities and any Depositary Receipts conform in all
material respects to the description thereof
contained
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in the Final Prospectus; the Securities have been duly and
validly authorized, and, when issued and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be
fully paid an nonassessable and, if the Securities or related
Depositary Shares 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 has filed a preliminary listing application
and all required supporting documents with respect to the
Securities or such Depositary Shares, if any, with such stock
exchange and nothing has caused such counsel to believe that
the Securities or such Depositary Shares, if any, will not be
authorized for listing, subject to official notice of issuance
and evidence of satisfactory distribution;
(v) 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;
(vi) 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
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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 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 as to the financial
statements or schedules or other data of a statistical or
financial nature included or incorporated therein or;
(vii) this Agreement and any Delayed
Delivery Contracts have been duly authorized,
executed and delivered by the Corporation and, if any
Depositary is also a subsidiary, by such Depositary;
(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 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;
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(ix) neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment
of the terms hereof or of any Deposit Agreement or
Delayed Delivery Contracts will (A) violate the
charter or by-laws of the Corporation, 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 Corporation 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 Corporation or PNC Bank, N.A. of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Corporation or PNC Bank, N.A.; and
(x) no holders of securities of the
Corporation have rights to the registration of such
securities under the Registration Statement.
In rendering such opinion, such counsel will opine only as to matters involving
the application of the laws of the Commonwealth of Pennsylvania or the United
States and may rely (A) as to matters involving the application of laws of any
jurisdiction other than the Commonwealth of Pennsylvania or the United States,
to the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are reasonably
satisfactory to counsel for the Underwriters, except that it will not be
required that such counsel obtain an opinion of New York counsel as to matters
of New York law in order to render such opinion or that such counsel express an
opinion as to matters arising under the laws of any jurisdiction other than the
laws of the Commonwealth of Pennsylvania and matters of federal law arising
under the laws of the United States of America, and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Corporation and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from
Cravath, Swaine & Moore, counsel for the Underwriters, such
opinion or opinions, dated the
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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 Corporation 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 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 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 has 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), and except as
may result from a payment required as a result of
legislation passed by Congress to recapitalize the
Savings Association Insurance Fund, 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
18
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course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Closing Date, Ernst & Young shall have
furnished to the Representatives a letter or letters (which
may refer to letters previously delivered to one or more of
the Representatives), dated as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included
or incorporated in the Registration Statement and the
Final Prospectus and reported on by them comply in
form in all material respects with the applicable
accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the
Corporation 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 financial
statements in or incorporated in the Final
Prospectus, nothing came to their attention which
caused them to believe that: (1) any unaudited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus do
not comply in form in all material respects with
applicable accounting requirements and with the
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published rules and regulations of the Commission with
respect to the financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to the date
of the most recent audited financial statements
incorporated in the Registration Statement and the
Final Prospectus, there were, at a specified date not
more than five business days prior to the date of the
letter, any increases in the long-term debt of the
Corporation or any decreases in the capital stock 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 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 net
income of the Corporation or 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 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
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included or incorporated in Items 1, 5, 6 and 7 of the
Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995, 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
(e) include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto,
at the Execution Time, Ernst & Young shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in form
and substance satisfactory to the Representatives, to the effect set forth
above.
(f) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section
5 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties
of the 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 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
Corporation's equity securities by Moody's Investors Service,
Inc., or Standard & Poor's Corporation.
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(h) Prior to the Closing Date, the Corporation 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 Corporation shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been approved by
the Corporation.
(j) Any Deposit Agreement shall have been duly
executed by the Corporation and the Depositary.
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 Corporation
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 Corporation 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 will reimburse
the Underwriters severally upon demand for all 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 Corporation be liable to the Underwriters
for loss of anticipated profits from the transactions contemplated by this
Agreement.
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7. Indemnification and Contribution. (a) The
Corporation agrees 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 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 by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities or any related Depositary Shares which are the subject thereof if
such person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities or
Depositary Shares, if any, to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as supplemented).
This
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indemnity agreement will be in addition to any liability which the Corporation
may otherwise have.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Corporation, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Corporation within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Corporation to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Corporation 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 acknowledges that the statements set forth in the last
paragraph of the cover page, the first paragraph of the second page and under
the heading "Underwriting" or "Plan of Distribution" and, if Schedule I hereto
provides for sales of Securities pursuant to delayed delivery arrangements, in
the last sentence under the heading "Delayed Delivery Arrangements" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters
for inclusion in the documents referred to in the foregoing indemnity, and you,
as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any
24
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such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (plus any local counsel), approved by the Representatives in
the case of paragraph (a) of this Section 7, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Corporation on grounds of
policy or otherwise, the Corporation, 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 and
one or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion
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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 Corporation is responsible for the balance; provided, however,
that (y) in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter hereunder and (z) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of 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 who shall have signed the Registration Statement and
each director of the Corporation shall have the same rights to contribution as
the Corporation, subject in each case to clauses (y) and (z) of this paragraph
(d). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Securities set forth opposite their names in Schedule II hereto bears
to the aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of
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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 Corporation. 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 Corporation 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 Corporation prior to delivery of and payment for the 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 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 Corporation or its 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 any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and
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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 Corporation, will be mailed, delivered or transmitted by any standard
form of telecommunication to it at One PNC Plaza, 249 Fifth Avenue, Pittsburgh,
Pennsylvania 15222, attention of the Executive Vice President--Finance and
Administration of the Corporation.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to
in Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall represent a
binding agreement among the Corporation and the several Underwriters.
Very truly yours,
PNC Bank Corp.
By:
____________________________
Executive Vice President--
Finance and Administration
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
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By: Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: ___________________
Managing Director
For itself and the other
several Underwriters, if
any, named in Schedule II
to the foregoing Agreement.
29
SCHEDULE I
Underwriting Agreement dated October 4, 1996
Registration Statement No. 33-55114
Representative(s): Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Designation, Purchase Price and Description of Securities:
Designation: Fixed/Adjustable Rate Noncumulative Preferred Stock, Series F
Liquidation preference per share: $50
Number of shares: 6,000,000
Purchase price per share (include accrued
dividends, if any): $49.375, to be paid by wire
transfer of immediately available funds rather than
as described in Section 3.
Over-allotment option: None
Depositary Receipt Arrangements: None
Name of Depositary:
Date of Deposit Agreement:
Fraction of a Security equal to one Depositary Share:
Closing Date, Time and Location: October 9, 1996
Cravath, Swaine & Moore, 825 Eighth Avenue, New York, NY
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee:
Minimum number of shares of Securities of each contract:
Maximum aggregate number of shares of Securities of all
contracts:
Modification of items to be covered by the letter from Ernst
& Young delivered pursuant to Section 5(e) at the Execution
Time:
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Letter from Ernst & Young to be delivered pursuant to Section
5(e) at the Closing Date, not also at the Execution Time.
31
SCHEDULE II
Number of shares
of Securities To
Underwriters Be Purchased
- ------------ ----------------
Merrill Lynch, Pierce, Fenner &
Smith Incorporated 3,600,000
Morgan Stanley & Co. Incorporated 800,000
Salomon Brothers Inc 800,000
Smith Barney Inc. 800,000
----------------
Total ................... 6,000,000
================