Exhibit 1.1
PNC Funding Corp, Issuer
and
The PNC Financial Services Group, Inc., Guarantor
Underwriting Agreement
New York, New York
October 27, 2003
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Ladies and Gentlemen:
PNC Funding Corp, a Pennsylvania corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), the
principal amount of its securities identified in Schedule I hereto (together
with the guarantees mentioned below, the "Securities") to be guaranteed by The
PNC Financial Services Group, Inc., a Pennsylvania corporation (the
"Guarantor"), and to be issued under an indenture dated as of December 1, 1991,
among the Company, the Guarantor and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank, which was formerly known as Chemical Bank, successor by
merger to Manufacturers Hanover Trust Company), as trustee (the "Trustee"), as
amended by a Supplemental Indenture dated as of February 15, 1993, among the
Company, the Guarantor and the Trustee, and as further amended by a Second
Supplemental Indenture dated as of February 15, 2000 (as amended, the
"Indenture"). If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
Section 1. Representations and Warranties. The Company and the
Guarantor represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1. Certain terms used in this Section 1 are defined
in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company and the Guarantor meet the
requirements for the use of Form S-3 under the Securities Act
of 1933 (the "Act") and have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement (the file number of which is set
forth in Schedule I hereto), on such Form, including a basic
prospectus, for registration under the Act of the offering and
sale of the Securities. The Company and the Guarantor may have
filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic Prospectus may
not include all 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, the Basic
Prospectus includes all such information required by the Act
and the rules thereunder to be included therein as of the
Effective Date. The Company and the Guarantor will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent
the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company and the Guarantor meet the
requirements for the use of Form S-3 under the Act and have
filed with the Commission a registration statement (the file
number of which is set forth in Schedule I hereto) on such
Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company
and the Guarantor may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company and
the Guarantor will next file with the Commission either (x) a
final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or (y) prior
to the effectiveness of such registration statement, an
amendment to such registration statement, including the form
of final prospectus supplement. In the case of clause (x), the
Company and the Guarantor included in such registration
statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the
rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed,
such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the
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Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company and the Guarantor make no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company or the Guarantor by or on behalf of
any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms that follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post effective
amendment or amendments thereto became or become effective. "Execution
Time" shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
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,
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shall mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement
at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any post
effective amendment thereto becomes effective prior to the Closing Date
(as hereinafter defined), shall also mean such registration statement
as so amended. Such term shall include any Rule 430A Information deemed
to be included therein at the Effective Date as provided by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Regulation S-K" refer to such
rules or regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A Information)
with respect to the securities so offered must be included in such
registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
Section 2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to, and the Guarantor agrees to cause the Company to, sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the principal amount of the Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, the respective
principal amounts of Securities to be purchased by the Underwriters shall be as
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set forth in Schedule II hereto less the respective amounts of Contract
Securities determined as provided below. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter
provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company and the
Guarantor may authorize or approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay, and the
Guarantor will cause the Company to pay, to the Representatives, for the account
of the Underwriters, on the Closing Date, the percentage set forth in Schedule I
hereto of the principal amount of the Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. The
Company will enter into, and the Guarantor will cause the Company to enter into,
Delayed Delivery Contracts in all cases where sales of Contract Securities
arranged by the Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery Contract must be for
not less than the minimum principal amount set forth in Schedule I hereto and
the aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters will
not have any responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal amount set forth in Schedule
II hereto, except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of Contract Securities.
Section 3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement among the Representatives, the Company and the
Guarantor or as provided in Section 8 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer of
immediately available funds. Delivery of the Underwriters' Securities shall be
made at such location in The City of New York as the Representatives shall
reasonably designate at least one
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business day in advance of the Closing Date and payment for the Securities shall
be made at the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names (including the
nominee for any depositary which will hold Securities to be established for
"book entry" issuance and transfer) and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
The Company and the Guarantor agree to have the Underwriters'
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 p.m. on the business
day prior to the Closing Date.
Section 4. Agreements. The Company and the Guarantor jointly and
severally agree with the several Underwriters that:
(a) The Company and the Guarantor will use their best efforts
to cause the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective. Prior to the
termination of the offering of the Securities, the Company and the
Guarantor will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company and the
Guarantor have furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company and
the Guarantor will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company and the Guarantor will promptly advise the
Representatives (i) when the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission for any amendment of
the Registration Statement or supplement to the Final Prospectus or for
any additional information, (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company or the Guarantor of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company and the
Guarantor will use their best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a
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material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder,
the Company and the Guarantor promptly will prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or effect such compliance.
(c) As soon as practicable, the Guarantor will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Guarantor and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company and the Guarantor will furnish to the
Representatives and counsel for the Underwriters, without charge,
copies of the Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company and the Guarantor
will pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Company and the Guarantor will use their best efforts
to arrange for the qualification of the Securities for sale under the
laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities and will arrange for the determination
of the legality of the Securities for purchase by institutional
investors; provided, however, that neither the Company nor the
Guarantor shall be required to qualify to do business in any
jurisdiction where it is not now qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where they are not now subject.
(f) Until the business day following the Closing Date, the
Company and the Guarantor will not, without the consent of the
Representatives, offer, sell or contract to sell, or announce the
offering of, any debt securities covered by the Registration Statement
or any other registration statement filed under the Act.
Section 5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company and the Guarantor contained herein as of the Execution Time and the
Closing Date, to the accuracy of the statements of the Company and the Guarantor
made in any certificates pursuant to the provisions hereof, to the performance
by the Company and the Guarantor of their obligations hereunder and to the
following additional conditions:
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(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 Company and the Guarantor shall have furnished to the
Representatives the opinion of Thomas R. Moore, Esq., Senior Counsel
and Corporate Secretary of the Guarantor, dated the Closing Date (which
opinion may be relied upon by Cravath, Swaine & Moore LLP, counsel for
the Underwriters, as to matters of Pennsylvania law), to the effect
that:
(i) Each of the Company and the Guarantor is a
corporation validly organized and presently subsisting under
the laws of the Commonwealth of Pennsylvania with all
requisite corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus,
except for such power and authority the absence of which would
not have a material adverse effect on the Guarantor or the
Company, as the case may be; and the Guarantor is duly
registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended;
(ii) PNC Bank, National Association ("PNC Bank,
N.A.") is a national banking association validly existing in
good standing under the laws of the United States, with all
requisite corporate power and authority to own, lease and
operate its properties and conduct its business as described
in the Final Prospectus, except for such power and authority
the absence of which would not have a material adverse effect
on PNC Bank, N.A.;
(iii) all the outstanding shares of capital stock of
PNC Bank, N.A. have been duly and validly authorized and
issued and (except as provided in 12 U.S.C. Section 55) are
fully paid and nonassessable, and, except as otherwise set
forth in the Final Prospectus, all outstanding shares of
capital stock of PNC Bank, N.A. are owned by the Guarantor
either directly or through wholly-owned subsidiaries free and
clear of any perfected security interest and, to the knowledge
of such counsel, any other security interests, claims, liens
or encumbrances;
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(iv) the Guarantor's authorized equity
capitalization, if set forth in the Final Prospectus, is as
set forth in the Final Prospectus; the Securities conform in
all material respects to the description thereof contained in
the Final Prospectus; and, if the Securities are to be listed
on any stock exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of
satisfactory distribution, or the Company and the Guarantor
have filed a preliminary listing application with respect to
the Securities with such stock exchange and nothing has caused
such counsel to believe that the Securities will not be
authorized for listing, subject to official notice of issuance
and evidence of satisfactory distribution and the satisfaction
of other requirements which counsel reasonably believes will
be satisfied in due course;
(v) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, receivership, readjustment
of debt, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally or general equitable principles (whether considered
in a proceeding in equity or at law); and the Securities have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by
the purchasers thereof pursuant to Delayed Delivery Contracts,
in the case of any Contract Securities, will constitute legal,
valid and binding obligations of the Company and the Guarantor
entitled to the benefits of the Indenture;
(vi) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Guarantor or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Guarantor or any of
its subsidiaries fairly summarize such matters in all material
respects;
(vii) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto,
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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 as of its date and as
of the date hereof included or includes any untrue statement
of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading
except that such counsel does not express any opinion or
belief as to the financial statements or schedules or other
data of a statistical or financial nature included or
incorporated therein or as to that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust
Indenture Act;
(viii) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company and the Guarantor;
(ix) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such
other approvals (specified in such opinion) as have been
obtained;
(x) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will (A) violate the charter or
by-laws of the Company or the Guarantor, or (B) violate,
result in a breach of, or constitute a default under the terms
of any material indenture or other material agreement or
instrument known to such counsel and to which the Company, the
Guarantor or PNC Bank, N.A. is a party or bound, or (C)
violate any
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material order or regulation known to such counsel to be
applicable to the Company, the Guarantor or PNC Bank, N.A. of
any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company, or the Guarantor or PNC Bank, N.A.; and
(xi) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel will opine only as to matters
involving the application of the laws of the Commonwealth of
Pennsylvania or the United States and may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Pennsylvania or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are reasonably
satisfactory to counsel for the Underwriters, except that it will not
be required that such counsel obtain an opinion of New York counsel as
to matters of New York law in order to render such opinion or that such
counsel express an opinion as to matters arising under the laws of any
jurisdiction other than the laws of the Commonwealth of Pennsylvania
and matters of federal law arising under the laws of the United States
of America, and (B) as to matters of fact, to the extent he or she may
deem proper, on certificates, or representations of responsible
officers of the Company or the Guarantor and public officials.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath,
Swaine & Moore LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Securities, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(d) The Guarantor shall have furnished to the Representatives
a certificate of the Guarantor, signed by the Chairman of the Board,
the President, a Vice Chairman of the Board or any Executive or Senior
Vice President and the principal financial or accounting officer of the
Guarantor, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement,
the Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
and the Guarantor in this Agreement are true and correct on
and as of the Closing Date with the same effect as if made on
the Closing Date and the Company and the Guarantor have
complied with all the agreements
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and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Guarantor's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Guarantor and its subsidiaries taken as a
whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) (A) At the Closing Date, Deloitte and Touche LLP 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 included or incorporated in the
Registration Statement and the Final Prospectus and reported
on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited consolidated financial statements made available by
the Guarantor and its subsidiaries; carrying out certain
specified procedures (but not an audit in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the shareholders and directors of the
Guarantor and the audit and executive committees thereof and
inquiries of certain officials of the Guarantor who have
responsibility for financial and accounting matters of the
Guarantor and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited consolidated
financial statements in or incorporated in the Final
Prospectus, nothing came to their attention which caused them
to believe that: (1) any unaudited consolidated financial
statements included or incorporated in the Registration
Statement and the Final Prospectus do not comply in form in
all material respects with applicable accounting requirements
and with the published rules and regulations of the Commission
with
12
respect to the financial statements included or incorporated
in quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited consolidated financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; or (2) with respect to the period subsequent to
the date of the most recent audited or unaudited consolidated
financial statements incorporated in the Registration
Statement and the Final Prospectus, there were, at a specified
date not more than five business days prior to the date of the
letter, any increases in borrowed funds of the Guarantor and
its subsidiaries or any decreases in the capital stock
(defined as each of the individual dollar amounts of preferred
stock, common stock, and capital surplus) of the Guarantor or
the stockholders' equity of the Guarantor as compared with the
amounts shown on the most recent consolidated balance sheet
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most recent
audited or unaudited consolidated financial statements
incorporated in the Registration Statement and the Final
Prospectus to such specified date there were any decreases, as
compared with the corresponding period in the preceding year,
in total or per share amounts of consolidated net income of
the Guarantor or consolidated net interest income except in
all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Guarantor as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Guarantor and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus, including the information
included or incorporated in Items 1, 5, 6 and 7 of the
Guarantor's Annual Report on Form 10-K for the most recent
fiscal year incorporated in the Registration Statement and the
Final Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" included or incorporated in the
Guarantor's Quarterly Reports on Form 10-Q, incorporated in
the Registration Statement and Final Prospectus, agrees with
the accounting records of the Guarantor and its subsidiaries,
excluding any questions of legal interpretation.
(B) At the Closing Date, Ernst & Young LLP 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 were
13
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; and
(ii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Guarantor and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus with respect to periods
covered by consolidated financial statements reported on by
them, including the information included or incorporated in
Items 1, 5, 6 and 7 of the Guarantor's Annual Report on Form
10-K incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the
Guarantor 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.
(C) If provided for in Schedule I hereto, at the Execution
Time, Ernst & Young LLP and Deloitte and Touche LLP 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 effects set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Guarantor and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the ratings of any of the Guarantor's debt
securities by Moody's Investors Service, Inc., or Standard & Poor's
Corporation, or any public
14
announcement that any such organization has under surveillance or
review their ratings of any of the Guarantor's debt securities (other
than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating), and if, in any such case, the effect thereof in the judgment
of the Representatives makes it impracticable or inadvisable to proceed
with the purchase of the Securities.
(h) Prior to the Closing Date, the Company and the Guarantor
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request in connection with the offering of the Securities.
(i) The Company and the Guarantor shall have accepted Delayed
Delivery Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled 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
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
Section 6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company or the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company and the Guarantor
will reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. In no event shall the Company or the Guarantor be
liable to the Underwriters for loss of anticipated profits from the transactions
contemplated by this Agreement.
Section 7. Indemnification and Contribution. (a) The Company and the
Guarantor 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
15
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company and the Guarantor will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company and the Guarantor by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation thereof, or that part of the Registration Statement constituting
the "Statement of Eligibility and Qualification" (Form T-1) of the Trustee under
the Trust Indenture Act, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Securities, if any, to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company and the Guarantor may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Guarantor, each of their respective directors, each of their
respective officers who signs the Registration Statement, and each person who
controls the Company or the Guarantor within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company
and the Guarantor to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company and the
Guarantor by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and the
Guarantor acknowledge that the statements set forth in the last paragraph of the
cover page, and, under the heading "Underwriting" or "Plan of Distribution" (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraphs related to stabilization and syndicate covering transactions and
penalty bids, 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
16
referred to in the foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
paragraph (a) or (b) of this Section 7, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under paragraph (a) or (b) of this Section 7.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of such counsel, the indemnifying party will not be liable
to such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 7 is unavailable, the Company and the Guarantor, on the one
hand, and the Underwriters severally, on the other hand, shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Company, the Guarantor and one or more of the Underwriters may be
subject in proportion to the relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other from the offering of
the Securities, such that the Underwriters are responsible for
17
that portion represented by the percentage that the underwriting discount bears
to the sum of such discount and the purchase price of the Securities specified
in Schedule I hereto and the Company and the Guarantor are responsible for the
balance; provided, however, that in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Guarantor, on the one hand, and the Underwriters
severally, on the other, shall contribute in such proportion as is appropriate
to reflect not only such relative benefits as described in the immediately
preceding sentence but also the relative fault of the Company and the Guarantor
on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages and
liabilities as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company or the Guarantor on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Guarantor and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of the Act shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company and the Guarantor who shall have signed the
Registration Statement and each director of the Company and the Guarantor shall
have the same rights to contribution as the Company and the Guarantor, subject
in each case to the applicable terms and conditions of this paragraph (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
Section 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
18
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
non-defaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any non-defaulting Underwriter or the
Company or the Guarantor. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final Prospectus or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any non-defaulting Underwriter for damages occasioned by
its default hereunder.
Section 9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company and the Guarantor prior to delivery of and payment for the Securities,
if prior to such time (i) trading in the Guarantor's Common Stock shall have
been suspended by the Commission or The New York Stock Exchange or trading in
securities generally on The New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such exchange, (ii) a
banking moratorium shall have been declared either by Federal, New York State or
Pennsylvania authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis, economic or otherwise, the effect
of which on the financial markets of the United States or any foreign
jurisdiction in which the Securities are to be marketed is such as to make it,
in the judgment of the Representatives, impracticable or inadvisable to proceed
with the offering, sale or delivery of the Securities.
Section 10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Guarantor or their respective officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or the Guarantor or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
Section 11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or transmitted by any standard form of telecommunication, at
the address specified in Schedule I hereto; or, if sent to the Company or the
Guarantor, will be mailed, delivered or transmitted by any standard form of
telecommunication to it at One PNC Plaza, 249 Fifth Avenue, Pittsburgh,
Pennsylvania 15222-2707, attention of the Vice Chairman and Chief Financial
Officer of the Guarantor.
19
Section 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.
Section 13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
-- end of page -
[signatures appear on following page]
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Guarantor and the several Underwriters.
Very truly yours,
PNC Funding Corp
By: /s/ Lisa Marie Kovac
--------------------------------------
Name: Lisa Marie Kovac
Title: Assistant Treasurer and Vice
President
The PNC Financial Services Group, Inc.
By: /s/ William S. Demchak
--------------------------------------
Name: William S. Demchak
Title: Vice Chairman and Chief
Financial Officer
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
By: J.P. Morgan Securities Inc.
By: /s/ Stephen L. Sheiner
----------------------------------
Name: Stephen L. Sheiner
Title: Vice President
By: Citigroup Global Markets Inc.
By: /s/ Tara Mirchandani
----------------------------------
Name: Tara Mirchandani
Title: Vice President
By: PNC Capital Markets, Inc.
By: /s/ Robert W. Thomas
----------------------------------
Name: Robert W. Thomas
Title: Managing Director
21
SCHEDULE I
Underwriting Agreement dated October 27, 2003
Registration Statement Nos. 333-69576 and 333-69576-01
Representatives:
J.P. Morgan Securities Inc. Citigroup Global Markets Inc.
270 Park Avenue 390 Greenwich Street, 4(th) Floor
New York, NY 10017 New York, NY 10013
Title, Purchase Price and Description of Securities:
Title: 5 1/4% Subordinated Notes Due
November 15, 2015
Principal Amount: $600,000,000
Public offering price: 99.618% of the Principal Amount
plus accrued interest, if any, from
November 3, 2003
Purchase price: 98.943% of the Principal Amount
plus accrued interest, if any, from
November 3, 2003
Sinking fund
provisions: None
Redemption provisions: None
Other provisions: None
Closing Date, Time and Location: November 3, 2003, 10:00 a.m. at the
office of Cravath, Swaine & Moore
LLP, Worldwide Plaza, 825 Eighth
Avenue, New York, NY 10019-7475
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts: N/A
Modification of items to be covered Letters from Ernst & Young LLP and
by the letters from Ernst & Young LLP Deloitte and Touche LLP to be
and Deloitte and Touche LLP delivered delivered pursuant to Section 5(e)
pursuant to Section 5(e): at the Closing Date, not also at
the Execution Time.
SCHEDULE II
PRINCIPAL AMOUNT OF
SUBORDINATED NOTES DUE
UNDERWRITER NOVEMBER 15, 2015 TO BE PURCHASED
- ----------- ---------------------------------
J.P. Morgan Securities Inc. ................ $270,000,000
Citigroup Global Markets Inc. .............. 270,000,000
PNC Capital Markets, Inc. .................. 60,000,000
------------
Total ................................... $600,000,000
============
SCHEDULE III
Not applicable.