0000950128-01-500651.txt : 20011031
0000950128-01-500651.hdr.sgml : 20011031
ACCESSION NUMBER: 0000950128-01-500651
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 5
CONFORMED PERIOD OF REPORT: 20011029
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20011029
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: PNC FINANCIAL SERVICES GROUP INC
CENTRAL INDEX KEY: 0000713676
STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021]
IRS NUMBER: 251435979
STATE OF INCORPORATION: PA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-09718
FILM NUMBER: 1769323
BUSINESS ADDRESS:
STREET 1: ONE PNC PLAZA
STREET 2: 249 FIFTH AVE
CITY: PITTSBURGH
STATE: PA
ZIP: 15265
BUSINESS PHONE: 4127621553
MAIL ADDRESS:
STREET 1: ONE PNC PLAZA
STREET 2: FIFTH AVENUE & WOOD STREET
CITY: PITTSBURGH
STATE: PA
ZIP: 15265
FORMER COMPANY:
FORMER CONFORMED NAME: PNC BANK CORP
DATE OF NAME CHANGE: 19930505
FORMER COMPANY:
FORMER CONFORMED NAME: PNC BANK CORP /PA/
DATE OF NAME CHANGE: 19930428
FORMER COMPANY:
FORMER CONFORMED NAME: PNC FINANCIAL CORP /PA/
DATE OF NAME CHANGE: 19930412
8-K
1
j9110201e8-k.txt
THE PNC FINANCIAL SERVICES GROUP, INC. FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
OCTOBER 29, 2001
------------------------------------------------
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED)
THE PNC FINANCIAL SERVICES GROUP, INC.
------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
COMMISSION FILE NUMBER 1-9718
PENNSYLVANIA 25-1435979
------------------------------- ---------------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE PNC PLAZA
249 FIFTH AVENUE
PITTSBURGH, PENNSYLVANIA 15222-2707
----------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(ZIP CODE)
(412) 762-2000
----------------------------------------------------
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
-------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
ITEM 5. OTHER EVENTS
On October 23, 2001, PNC Funding Corp ("Funding") and The PNC Financial Services
Group, Inc. (the "Corporation") entered into an Underwriting Agreement (the
"Underwriting Agreement") with J.P. Morgan Securities Inc. and Salomon Smith
Barney Inc., as representatives of the several underwriters, relating to (i) the
public offering of $600,000,000 aggregate principal amount of Floating Rate
Senior Notes due 2004 of Funding (the "2004 Notes") at a purchase price of
99.775% of their principal amount, plus accrued interest, if any, from October
30, 2001 and (ii) $400,000,000 aggregate principal amount of 5.75% Senior Notes
due 2006 of Funding (the "2006 Notes") at a purchase price of 102.66% of their
principal amount, plus accrued interest from August 1, 2001. The 2006 Notes are
additional debt securities of Funding issued as part of the same series and with
the same CUSIP number as the $700,000,000 aggregate principal amount of 5.75%
Senior Notes due 2006 of Funding issued on August 1, 2001. The 2004 Notes and
the 2006 Notes are guaranteed, as to payment of principal and interest, by the
Corporation. The closing is expected to occur on October 30, 2001.
The Underwriting Agreement is attached to this Current Report on Form 8-K as
Exhibit 1.1.
The 2004 Notes and 2006 Notes are being issued pursuant to a Registration
Statement on Form S-3 (No. 333-69576), initially filed with the Securities and
Exchange Commission (the "SEC") on September 18, 2001, and declared effective on
September 24, 2001. A Prospectus Supplement dated October 23, 2001 relating to
the 2004 Notes and the 2006 Notes was filed with the SEC pursuant to Rule
424(b)(5) under the Securities Act of 1933, as amended, on October 25, 2001.
The form of the 2004 Notes and the 2006 Notes and the related Guarantees are
attached to this Current Report on Form 8-K as Exhibits 4.1, 4.2 and 4.3,
respectively.
Application has been made to list the 2004 Notes and the 2006 Notes on the
Luxembourg Stock Exchange. The Chase Manhattan Bank, formerly known as Chemical
Bank, successor by merger to Manufacturers Hanover Trust Company, is the
Trustee. Deutsche Bank Luxembourg S.A. is the Luxembourg Paying and Listing
Agent. Deutsche Bank AG London is the Calculation Agent for the 2004 Notes.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
The exhibits listed on the Exhibit Index on page 4 of this Form 8-K are filed
herewith.
2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE PNC FINANCIAL SERVICES GROUP, INC.
(Registrant)
Date: October 29, 2001 By: /s/ ROBERT L. HAUNSCHILD
--------------------------------------
Robert L. Haunschild
Senior Vice President and Chief
Financial Officer
EXHIBIT INDEX
1.1 Underwriting Agreement dated as of October 23, 2001, among PNC Funding
Corp, The PNC Financial Services Group, Inc., and the underwriters named
therein, filed herewith. (See Item 5).
4.1 Form of the 2004 Notes, filed herewith. (See Item 5).
4.2 Form of the 2006 Notes, filed herewith. (See Item 5).
4.3 Form of the Guarantees related to the 2004 Notes and the 2006 Notes, filed
herewith. (See Item 5).
EX-1.1
3
j9110201ex1-1.txt
EXHIBIT 1.1
Exhibit 1.1
PNC Funding Corp, Issuer
and
The PNC Financial Services Group, Inc., Guarantor
Underwriting Agreement
New York, New York
October 23, 2001
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 The Chase
Manhattan Bank (formerly known as Chemical Bank, successor by merger to
Manufacturers Hanover Trust Company), as trustee (the "Trustee"), as amended by
a Supplemental Indenture dated as of February 15, 1993, among the Company, the
Guarantor and the Trustee, 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.
1. Representations and Warranties. The Company and the
Guarantor represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1. Certain terms used in this Section 1 are defined
in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company and the Guarantor meet the
requirements for the use of Form S-3 under the Securities Act
of 1933 (the "Act") and have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I
hereto), on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company and the Guarantor may have filed one
or more amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been furnished
to you. Such registration statement, as so amended, has become
effective. The offering of the Securities is a Delayed
Offering and, accordingly, it is not necessary that any
further information with respect to the Securities and the
offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus have been included in
an amendment to such registration statement prior to the
Effective Date. The Company and the Guarantor will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent
the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company and the Guarantor meet the
requirements for the use of Form S-3 under the Act and have
filed with the Commission a registration statement (the file
number of which is set forth in Schedule I hereto) on such
Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company
and the Guarantor may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company and
the Guarantor will next file with the Commission either (x) a
final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or (y) prior
to the effectiveness of such registration statement, an
amendment to such registration statement, including the form
of final prospectus supplement. In the case of clause (x), the
Company and the Guarantor included in such registration
statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the
rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed,
such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and
2
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, 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
3
it shall become effective) and, in the event any post effective
amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so
amended. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
415," "Rule 424," "Rule 430A" and "Regulation S-K" refer to such rules
or regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that
only information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to, and the Guarantor agrees to cause the Company to, sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the 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
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."
4
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.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement among the Representatives, the Company and the
Guarantor or as provided in Section 8 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer of
immediately available funds. Delivery of the Underwriters' Securities shall be
made at such location in The City of New York as the Representatives shall
reasonably designate at least one business day in advance of the Closing Date
and payment for the Securities shall be made at the office specified in Schedule
I hereto. Certificates for the Underwriters' Securities shall be registered in
such names (including the nominee for any depositary which will hold Securities
to be established for "book entry" issuance and transfer) and in such
denominations as the Representatives may request not less than two full business
days in advance of the Closing Date.
5
The Company and the Guarantor agree to have the Underwriters'
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 p.m. on the business
day prior to the Closing Date.
4. Agreements. The Company and the Guarantor jointly and
severally agree with the several Underwriters that:
(a) The Company and the Guarantor will use their best efforts
to cause the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, to become effective. Prior to the
termination of the offering of the Securities, the Company and the
Guarantor will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company and the
Guarantor have furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company and
the Guarantor will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company and the Guarantor will promptly advise the
Representatives (i) when the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission for any amendment of
the Registration Statement or supplement to the Final Prospectus or for
any additional information, (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company or the Guarantor of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company and the
Guarantor will use their best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company and the Guarantor promptly
will prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or effect such
compliance.
6
(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.
(g) The Company and the Guarantor will use commercially
reasonable efforts to have the Securities listed and maintained on the
Luxembourg Stock Exchange in accordance with its rules.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Company and the Guarantor contained herein as of
the Execution Time and the Closing Date, to the accuracy in all material
respects of the statements of the Company and the Guarantor made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Company and the Guarantor of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
7
(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, 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;
(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
8
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, 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
9
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 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
10
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, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, any Delayed Delivery Contracts, the Registration Statement,
the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Guarantor shall have furnished to the Representatives
a certificate of the Guarantor, signed by the Chairman of the Board,
the President, a Vice Chairman of the Board or any Executive or Senior
Vice President and the principal financial or accounting officer of the
Guarantor, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement,
the Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
and the Guarantor in this Agreement are true and correct in
all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company and
the Guarantor have complied in all material respects with all
the agreements and satisfied in all material respects all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Guarantor's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Guarantor and its subsidiaries taken as a
whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
11
(e) 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 are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedules
included or incorporated in the Registration Statement and the
Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited consolidated financial statements made available by
the Guarantor and its subsidiaries; carrying out certain
specified procedures (but not an audit in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the shareholders and directors of the
Guarantor and the audit and executive committees thereof and
inquiries of certain officials of the Guarantor who have
responsibility for financial and accounting matters of the
Guarantor and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited consolidated
financial statements in or incorporated in the Final
Prospectus, nothing came to their attention which caused them
to believe that: (1) any unaudited consolidated financial
statements included or incorporated in the Registration
Statement and the Final Prospectus do not comply in form in
all material respects with applicable accounting requirements
and with the published rules and regulations of the Commission
with respect to the financial statements included or
incorporated in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited consolidated financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial
statements included or incorporated in the Registration
Statement and the Final Prospectus; or (2) with respect to the
period subsequent to the date of the most recent audited
consolidated financial statements incorporated in the
Registration Statement and the Final Prospectus, there were,
at a specified date not more than five business days prior to
the date of the letter, any increases in borrowed funds of the
Guarantor and its subsidiaries or any decreases in the capital
stock (defined as each of the individual dollar amounts of
preferred stock, common stock, and capital surplus) of the
Guarantor or the stockholders' equity of the Guarantor as
compared with the amounts shown on the most recent
12
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.
References to the Final Prospectus in this paragraph
(e) include any supplement thereto at the date of the letter.
If provided for in Schedule I hereto, at the
Execution Time, Ernst & Young 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 effect
set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Guarantor and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
13
(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 announcement that any such organization has
under surveillance or review their ratings of any of the Guarantor's
debt securities (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading,
of such rating), and if, in any such case, the effect thereof in the
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the purchase of the Securities.
(h) Prior to the Closing Date, the Company and the Guarantor
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request in connection with the offering of the Securities.
(i) The Company and the Guarantor shall have accepted Delayed
Delivery Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company or the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company and the Guarantor
will reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. In no event shall the Company or the Guarantor be
liable to the Underwriters for loss of anticipated profits from the transactions
contemplated by this Agreement.
7. Indemnification and Contribution. (a) The Company and the
Guarantor 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
14
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company and the Guarantor will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company and the Guarantor by or on behalf of any
Underwriter through the Representatives specifically for use in connection with
the preparation thereof, or that part of the Registration Statement constituting
the "Statement of Eligibility and Qualification" (Form T-1) of the Trustee under
the Trust Indenture Act, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Securities, if any, to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company and the Guarantor may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company and the Guarantor, each of their respective directors, each
of their respective officers who signs the Registration Statement, and each
person who controls the Company or the Guarantor within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company and the Guarantor to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Company and
the Guarantor by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and the
Guarantor acknowledge that the statements set forth in the last paragraph of the
cover page, and, under the heading "Underwriting" or "Plan of Distribution" (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
15
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under paragraph (a) or (b) of this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under paragraph (a) or (b) of this Section
7. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of such counsel, the indemnifying party will not be liable
to such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (plus any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 7 is unavailable, the Company and the Guarantor, on the one
hand, and the Underwriters severally, on the other hand, shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
to which the Company, the Guarantor and one or more of the Underwriters may be
subject in proportion to the relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other from the offering of
the Securities, such that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the sum of
16
such discount and the purchase price of the Securities specified in Schedule I
hereto and the Company and the Guarantor are responsible for the balance;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Guarantor, on the one hand, and the Underwriters
severally, on the other, shall contribute in such proportion as is appropriate
to reflect not only such relative benefits as described in the immediately
preceding sentence but also the relative fault of the Company and the Guarantor
on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages and
liabilities as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company or the Guarantor on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Guarantor and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of the Act shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company and the Guarantor who shall have signed the
Registration Statement and each director of the Company and the Guarantor shall
have the same rights to contribution as the Company and the Guarantor, subject
in each case to the applicable terms and conditions of this paragraph (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and 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
17
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any non
defaulting Underwriter or the Company or the Guarantor. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company and the Guarantor prior to delivery of and payment for the Securities,
if prior to such time (i) trading in the Guarantor's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange or the Luxembourg 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 to market the Securities.
10. Other Terms. Each of the Underwriters hereby agrees that
it will not offer, sell, or deliver any of the Securities, directly or
indirectly, or distribute the Final Prospectus or the Basic Prospectus or any
other offering material relating to the Securities, in or from any jurisdiction
outside the United States except under circumstances that will, to the best of
the Underwriter's knowledge and belief, result in compliance with the applicable
laws and regulations thereof and which will not impose any obligations on the
Company except as set forth herein. Without limiting the generality of the
foregoing, each Underwriter represents and agrees that:
(a) United Kingdom. It and each of its affiliates (i) have not
offered or sold and, prior to the expiry of the period of six months from the
time of closing, will not offer or sell any of the Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing, or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995,
as amended; (ii) have complied and will comply with all applicable provisions of
the Financial Services Act 1986 with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom; and (iii)
have only issued or passed
18
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996, as amended, or is a person to whom
those documents may otherwise lawfully be issued or passed on.
(b) Germany. In connection with the initial placement of
Securities in Germany, it has not offered or sold and it will not offer or sell
any Securities in Germany other than in compliance with the Securities
Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of 13th December, 1990 as
amended or any other law applicable in Germany governing the issue, offering and
sale of securities.
(c) The Netherlands. It has not, directly or indirectly,
offered or sold and will not, directly or indirectly, offer or sell in the
Netherlands any Securities other than to persons who trade or invest in
securities in the conduct of a profession or business (which include banks,
stockbrokers, insurance companies, pension funds, other institutional investors
and finance companies and treasury departments of large enterprises).
(d) The Republic of France. The Securities are being issued
outside of France, and that it, in connection with the initial distribution of
the Securities, has not offered or sold and will not offer or sell Securities in
France, and that it has not distributed and will not distribute or cause to be
distributed in France the Final Prospectus and the accompanying Basic Prospectus
or any other offering material relating to the Securities, except to (i)
qualified investors (investisseurs qualifies) and/or (ii) a restricted circle of
investors (Cercle restreint d'investisseurs), all as defined in Article 6 of the
Order ("Ordinance") dated 28th September, 1967 (as amended) and Decree no.
98-880 dated 1st October, 1998 and in compliance with regulations issued from
time to time by the Commission des Operations de Bourse.
(e) Japan. The Securities have not been and will not be
registered under the Securities and Exchange Law of Japan and it and its
affiliates have not offered or sold, and will not offer or sell, directly or
indirectly, any of the Securities in or to residents of Japan or to any persons
for reoffering or resale, directly or indirectly, in Japan or to any resident of
Japan, except pursuant to an exemption from the registration requirements of the
Securities and Exchange Law available thereunder and in compliance with the
other relevant laws and regulations of Japan.
(f) Hong Kong. It and its affiliates have not offered or sold,
and will not offer or sell, any of the Securities by means of any document to
persons in Hong Kong other than persons whose ordinary business it is to buy or
sell shares or debentures, whether as principal or agent, or otherwise in
circumstances which do not constitute an offer to the public within the meaning
of the Hong Kong Companies Ordinance (Chapter 32 of the Laws of Hong Kong).
19
11. 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.
12. 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 Senior Vice President and Chief
Financial Officer of the Guarantor.
13. 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.
14. 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 M. KOVAC
-----------------------------------------
Name: Lisa Marie Kovac
Title: Vice President and Asst. Treasurer
The PNC Financial Services Group, Inc.
By: /s/ ROBERT L. HAUNSCHILD
-----------------------------------------
Name: Robert L. Haunschild
Title: Senior Vice President, and
Chief Financial Officer
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
By: J.P. Morgan Securities Inc.
By: /s/ JOSE L. PADILLA
----------------------------------------
Name: Jose L. Padilla
Title: Vice President
By: Salomon Smith Barney Inc.
By: /s/ J. KENNETH MCPHAIL
----------------------------------------
Name: J. Kenneth McPhail
Title: Managing Director
Each for itself and the other
several Underwriters, if
any, named in Schedule II
to the foregoing Agreement.
21
SCHEDULE I
Underwriting Agreement dated October 23, 2001
Registration Statement Nos. 333-88479, 333-88479-01, 333-69576 and 333-69576-01
Representatives:
J. P. Morgan Securities Inc. Salomon Smith Barney Inc.
270 Park Avenue 390 Greenwich Street, 4th Floor
New York, NY 10017 New York, NY 10013
Title, Purchase Price and Description of Securities:
Title: Floating Rate Senior Notes Due 2004 5.75% Senior Notes Due 2006
(3-month LIBOR plus 37.5 bps)
Principal Amount: $600,000,000 $400,000,000
Public offering price: 100.000% of the Principal Amount plus 103.01% of the Principal Amount
accrued interest, if any, from plus accrued interest from
October 30, 2001 August 1, 2001
Purchase price: 99.775% of the Principal Amount plus 102.66% of the Principal Amount
accrued interest, if any, from plus accrued interest from
October 30, 2001 August 1, 2001
Sinking fund provisions: None None
Redemption provisions: Redemption for Taxation Reasons Redemption for Taxation Reasons
Other provisions: Additional Payments for Taxation Additional Payments for Taxation
Reasons Reasons
Closing Date, Time and Location: October 30, 2001, 10:00 a.m. at the office of
Cravath, Swaine & Moore, Worldwide
Plaza, 825 Eighth Avenue, New York, N.Y.
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
22
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to Section 5(e): Letter from Ernst & Young
LLP to be delivered pursuant
to Section 5(e) at the Closing
Date, not also at the
Execution Time.
SCHEDULE II
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
SENIOR NOTES DUE SENIOR NOTES DUE
UNDERWRITER 2004 TO BE PURCHASED 2006 TO BE PURCHASED
----------- -------------------- --------------------
J.P. Morgan Securities Inc........................... $270,000,000 $180,000,000
Salomon Smith Barney Inc............................. 270,000,000 180,000,000
Goldman, Sachs & Co.................................. 24,000,000 16,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated... 24,000,000 16,000,000
PNC Capital Markets, Inc............................. 12,000,000 8,000,000
------------ ------------
Total.......................................... $600,000,000 $400,000,000
============ ============
SCHEDULE III
Not applicable.
EX-4.1
4
j9110201ex4-1.txt
EXHIBIT 4.1
Exhibit 4.1
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
NEITHER THIS NOTE NOR THE GUARANTEE INCLUDED HEREIN IS A BANK DEPOSIT OR INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR BY ANY OTHER INSURER OR
GOVERNMENTAL AGENCY.
THE INDENTURE, DATED AS OF DECEMBER 1, 1991, RELATING TO THIS SECURITY, HAS BEEN
AMENDED BY A SUPPLEMENTAL INDENTURE, DATED AS OF FEBRUARY 15, 1993, AND FURTHER
AMENDED BY A SECOND SUPPLEMENTAL INDENTURE, DATED AS OF FEBRUARY 15, 2000.
PNC FUNDING CORP
FLOATING RATE SENIOR NOTES DUE 2004
REGISTERED CUSIP: 693476AS2
ISIN: US693476AS21
Common Code: 013819335
No. ____ $
PNC FUNDING CORP, a corporation duly organized and existing under the
laws of Pennsylvania (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, the
principal sum of ______________ Dollars on October 29, 2004, and to pay interest
quarterly in arrears on January 29, April 29, July 29 and October 29 of each
year commencing January 29, 2002, each an "Interest Payment Date," and on the
maturity date, at a floating rate of three-month LIBOR plus 0.375%, until the
principal hereof is paid or made available for payment, and (to the extent that
the payment of such interest shall be legally enforceable) at the same rate per
annum on any overdue principal and premium and on any overdue installment of
interest. Interest shall accrue from October 30, 2001 to January 29, 2002,
excluding the first Interest Payment Date and then from, and including, the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for to, but excluding, the next Interest Payment Date or the
maturity date, as the case may be. Each of these periods is referred to as an
"interest period." Interest will be computed on the basis of a 360-day year for
the actual number of days elapsed. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date, subject to certain
exceptions, will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the fifteenth calendar day, whether or not a Business Day, immediately preceding
such Interest Payment Date. However, interest payable on the maturity date will
be paid to the person to whom the principal will be payable. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to holders of the Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner acceptable to the
Trustee and not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
The interest rate will be calculated by Deutsche Bank AG London, as
calculation agent, except that the interest rate in effect for the period from
October 30, 2001 to January 29, 2002 (the "initial interest rate") will be
established by the Company as the rate for deposits in U.S. dollars having a
maturity of three months commencing on October 30, 2001 that appears on Telerate
Page 3750 as of 11:00 a.m., London time, on
October 26, 2001. If no rate appears on Telerate Page 3750, as specified in the
preceding sentence, then the initial interest rate will be determined by the
Company in the manner described in clause (ii) below, except that the banks
referred to in such clause will be selected by the Company rather than the
calculation agent.
The calculation agent will reset the interest rate on each Interest Payment
Date, each of which is referred to as an "interest reset date." The second
London business day preceding an interest reset date will be the "interest
determination date" for that interest reset date. The interest rate in effect on
each date that is not an interest reset date will be the interest rate
determined as of the interest determination date pertaining to the immediately
preceding interest reset date. The interest rate in effect on any day that is an
interest reset date will be the interest rate determined as of the interest
determination date pertaining to that interest reset date, except that the
interest rate in effect for the period from and including October 30, 2001 to
January 29, 2002, the initial interest reset date, will be the initial interest
rate.
"LIBOR" will be determined by the calculation agent in accordance with the
following provisions:
(i) With respect to any interest determination date, LIBOR will be the
rate for deposits in U.S. dollars having a maturity of three months
commencing on the first day of the applicable interest period that appears
on Telerate Page 3750 as of 11:00 a.m., London time, on that interest
determination date. If no rate appears on that interest determination date,
LIBOR, in respect to that interest determination date, will be determined in
accordance with the provisions described in (ii) below.
(ii) With respect to an interest determination date on which no rate
appears on Telerate Page 3750, as specified in (i) above, the calculation
agent will request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the
calculation agent, to provide the calculation agent with its offered
quotation for deposits in U.S. dollars for the period of three months,
commencing on the first day of the applicable interest period, to prime
banks in the London interbank market at approximately 11:00 a.m., London
time, on that interest determination date and in a principal amount that is
representative for a single transaction in U.S. dollars in that market at
the time. If at least two quotations are provided, then LIBOR on that
interest determination date will be the arithmetic mean of those quotations.
If fewer than two quotations are provided, then LIBOR on the interest
determination date will be the arithmetic mean (rounded, if necessary, to
the nearest one-hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards) of the rates quoted at
approximately 11:00 a.m., New York City time, on the interest determination
date by three major banks in New York City selected by the calculation agent
for loans in U.S. dollars to leading European banks, having a three-month
maturity and in a principal amount that is representative for a single
transaction in U.S. dollars in that market at that time; provided, however,
that if the banks selected by the calculation agent are not providing
quotations in the manner described by this sentence, LIBOR for the interest
period commencing on the interest reset date following the interest
determination date will be LIBOR in effect on that interest determination
date.
2
"London business day" means any day on which dealings in U.S. dollars are
transacted in the London interbank market.
"Telerate Page 3750" means the display designated as "Page 3750" on the Dow
Jones Market Service or any successor page or service, for the purposes of
displaying the London interbank offered rates for U.S. dollar deposits.
For so long as the Securities are listed on the Luxembourg Stock
Exchange, the calculation agent will notify the Luxembourg Stock Exchange and
any holders of the Securities of the relevant interest rate, interest period and
interest (coupon) amount no later than the first business day following the
relevant interest reset date.
All payments of principal and interest in respect of the Securities
shall be made free and clear of, and without withholding or deduction for, any
taxes, duties, assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by or within the United States or any
authority therein or thereof having power to tax, unless such withholding or
deduction is required by law. In that event, the Company shall pay such
additional amounts as shall result in net receipt by the holders of the
Securities who are United States Aliens (as such term is defined below) of such
amounts as would have been received by them had no such withholding or deduction
been required, except that the foregoing obligation to pay additional amounts
shall not apply to:
(i) any tax, assessment or governmental charge that would not have
been so imposed but for the existence of any present or former
connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or holder of power over,
such holder, if such holder is an estate, trust, partnership or
corporation) and the United States, including, without
limitation, such holder (or fiduciary, settlor, beneficiary,
member, shareholder or holder of a power) being considered as:
(A) being or having been present or engaged in a trade or
business in the United States or having or having had a
permanent establishment therein;
(B) having a current or former relationship with the United
States, including a relationship as a citizen or
resident or being treated as a resident thereof;
(C) being or having been a personal holding company, a
controlled foreign corporation, a passive foreign
investment company, a foreign personal holding company
with respect to the United States, a corporation that
has accumulated earnings to avoid United States federal
income tax or a private foundation or other tax-exempt
organization; or
3
(D) an actual or a constructive "10 percent shareholder" of
the Company or the Guarantor as defined in Section
871(h)(3) of the United States Internal Revenue Code of
1986, as amended (the "Code");
(ii) any holder who is a fiduciary or partnership or other than the
sole beneficial owner of the Note, but only to the extent that a
beneficiary or settlor with respect to such fiduciary or member
of such partnership or a beneficial owner of the Note would not
have been entitled to the payment of an additional amount had
such beneficiary, settlor, member or beneficial owner been the
holder of such Note;
(iii) any tax, assessment or governmental charge that would not have
been imposed or withheld but for the failure of the holder, if
required, to comply with certification, identification or
information reporting or any other requirements under United
States income tax laws and regulations, without regard to any
tax treaty, with respect to the payment, concerning the
nationality, residence, identity or connection with the United
States of the holder or a beneficial owner of such Note, if such
compliance is required by United States income tax laws and
regulations, without regard to any tax treaty, as a precondition
to relief or exemption from such tax, assessment or governmental
charge;
(iv) any tax, assessment or governmental charge that would not have
been so imposed or withheld but for the presentation by the
holder of such Note for payment on a date more than 30 days
after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for,
whichever occurs later;
(v) any estate, inheritance, gift, sales, transfer, excise, wealth
or personal property tax or any similar tax, assessment or
governmental charge;
(vi) any tax, assessment or governmental charge that is payable
otherwise than by withholding by the Company or a paying agent
from the payment of the principal of or interest on such Note;
(vii) any tax, assessment or governmental charge required to be
withheld by any paying agent from such payment of principal of
or interest on any Note, if such payment can be made without
such withholding by any other paying agent;
(viii) any tax required to be withheld or deducted from a payment to an
individual which is required to be made pursuant to any European
Union Directive on the taxation of savings implementing the
conclusion of the ECOFIN Council
4
meeting of 26-27th November, 2000 or any law implementing or
complying with, or introduced in order to conform to, such
Directive;
(ix) any Note presented for payment by or on behalf of a holder who
would have been able to avoid such withholding or deduction by
presenting the relevant Note to another paying agent in a Member
State of the European Union; or
(x) any combination of items (i), (ii), (iii), (iv), (v), (vi),
(vii), (viii) and/or (ix).
The term "United States" means the United States of America, the
Commonwealth of Puerto Rico and each possession of the United States of America
and place subject to its jurisdiction, and the term "United States Alien" means
any corporation, individual, estate or trust that, as to the United States, is
for United States federal income tax purposes (A) a foreign corporation, (B) a
non-resident alien individual or (C) a foreign estate or trust.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities" or "Notes"), issued and to be issued in
one or more series under an Indenture, dated as of December 1, 1991, among the
Company, PNC Financial Corp (also known as "PNC Bank Corp." and now known as
"The PNC Financial Services Group, Inc.") (the "Guarantor") and Manufacturers
Hanover Trust Company, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture) as amended by a Supplemental
Indenture dated as of February 15, 1993 by and among the Company, the Guarantor
and Chemical Bank (successor by merger to Manufacturers Hanover Trust Company
and now known as The Chase Manhattan Bank) ("Trustee"), and as further amended
by a Second Supplemental Indenture dated as of February 15, 2000 by and among
the Company, the Guarantor and the Trustee (such Indenture as amended being
herein called the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated above, initially limited (except as provided in the
Indenture) in aggregate principal amount to $600,000,000.
The Securities may be redeemed at the option of the Company in whole,
but not in part, at any time, on giving not less than 30 nor more than 60 days'
notice to the holders of the Securities (which notice shall be irrevocable), at
their principal amount (together with interest accrued to the date fixed for
redemption), if (i) the Company has or will become obliged to pay additional
amounts as a result of any change in, or amendment to, the laws or regulations
of the United States or any political subdivision or any authority thereof or
therein having power to tax, or any change in the application or official
interpretation of such laws or regulations, which change or amendment becomes
effective on or after the issue date of the Securities, and (ii) such obligation
cannot be avoided by the Company taking reasonable measures available to it,
provided that no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on
5
which the Company would be obliged to pay such additional amounts were a payment
in respect of the Securities then due. Before the publication of any notice of
redemption pursuant to this paragraph, the Company shall deliver to the
principal paying agent a certificate signed by two officers of the Company
stating that the Company is entitled to effect such redemption and setting forth
a statement of facts showing that the conditions precedent to the right of the
Company to so redeem have occurred, and an opinion of independent legal advisers
of recognized standing to the effect that the Company has or will become obliged
to pay such additional amounts as a result of such change or amendment. The
Securities are otherwise not redeemable at either the option of the Holder or by
the Company prior to the Stated Maturity thereof and are not subject to any
sinking fund.
If an Event of Default (as defined in the Indenture) with respect to
the Securities shall occur and be continuing, the principal of the Securities
may be declared due and payable in the manner and with the effect provided in
the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee hereinafter referred to, by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
The indebtedness of the Company evidenced by the Securities, including
the principal thereof and interest thereto, is, to the extent and in the manner
set forth in the Indenture, senior in right of payment to its obligations to
holders of Subordinated Debt Securities and Existing Company Subordinated
Indebtedness (each as defined in the Indenture) and shall rank pari passu in
right of payment with each other and with Senior Company Indebtedness (as
defined in said Indenture), as provided in the Indenture, and each Holder of
Securities, by the acceptance hereof, agrees to and shall be bound by such
provisions of the Indenture. The indebtedness of the Company evidenced by the
Securities, including the principal thereof and interest thereon, also shall
rank pari passu in right of payment with the Company's 6.95% Notes Due 2002,
Floating Rate Senior Notes Due 2003, 7.00% Notes Due 2004 and 5.75% Senior Notes
Due 2006, as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the holders of the Securities of any
series under the Indenture at any time by the Company, the Guarantor and the
Trustee with the consent of the holders of a majority in principal amount of the
outstanding Securities of all series (voting as one class) to be affected by
such amendment or modification. The Indenture also contains provisions
permitting the holders of specified percentages in principal amount of the
Outstanding Securities of any series, on behalf of the holders of all Securities
of such series, to waive compliance by the Company or the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the holder of this Security
shall be conclusive and binding upon such holder and upon all future holders of
this Security and
6
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. This Security is a
global security, represented by one or more permanent global certificates
registered in the name of the nominee of The Depository Trust Company (each a
"Global Note and collectively, the "Global Notes"). Accordingly, unless and
until it is exchanged in whole or in part for individual certificates evidencing
the Securities represented hereby, this Security may not be transferred except
as a whole by The Depositary Trust Company (the "Depositary") to a nominee of
such Depositary or by a nominee of such Depositary or by the Depositary or any
nominee to a successor Depositary or any nominee of such successor. Ownership of
beneficial interests in this Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interest of persons that have
accounts with the Depositary ("Participants") and the records of Participants
(with respect to interests of persons other than Participants)). Beneficial
interests in Securities by persons that hold through participants will be
evidenced only by, and transfers of such beneficial interests with such
participants will be effected only through, records maintained by such
participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
this Security. Except as provided below, owners of beneficial interests in this
Security will not be entitled to have any individual certificates and will not
be considered the owners or Holders thereof under the Indenture.
Except in the limited circumstances set forth herein, participants and
owners of beneficial interests in the Global Notes will not be entitled to
receive Securities in definitive form and will not be considered holders of
Securities. If the Depositary is at any time unwilling, unable or ineligible to
continue as Depositary and a successor Depositary is not appointed by the
Company within 90 days, or an event of default has occurred and is continuing,
and the Depositary requests the issuance of certificated notes, the Company will
issue individual certificates evidencing the Securities represented hereby in
definitive form in exchange for this Security in registered form to each person
that the Depositary identifies as the beneficial owner of the Securities
represented by the Global Notes upon surrender by the Depositary of the Global
Notes. In addition, the Company may at any time and in its sole discretion
determine not to have any Securities represented by one or more global
securities and, in such event, will issue individual certificates evidencing
Securities in definitive form in exchange for this Security. In any such
instance, an owner of a beneficial interest in a Security will be entitled to
physical delivery in certificated form of Securities equal in principal amount
to such beneficial interest and to have such Securities registered in its name.
Securities so issued in
7
certificated form will be issued in denominations of $1,000 and any integral
multiple thereof and will be issued in registered form only, without coupons.
Neither the Company nor the principal paying agent will be liable for any delay
by the Depositary, its nominee or any direct or indirect participant in
identifying the beneficial owners of the related Securities. The Company and the
principal paying agent may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes,
including with respect to the registration and delivery, and the respective
principal amounts, of the Securities to be issued.
Except as provided herein, beneficial owners of Global Notes will not
be entitled to receive physical delivery of Securities in definitive form and no
Global Note will be exchangeable except for another Global Note of like
denomination and tenor to be registered in the name of the Depositary or its
nominee. Accordingly, each person owning a beneficial interest in a Global Note
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Securities.
Beneficial interests in the Global Notes will be represented through
book-entry accounts of financial institutions acting on behalf of beneficial
owners as direct and indirect participants in the Depositary. Investors may
elect to hold interests in the Global Notes through either the Depositary (in
the United States) or Clearstream Banking Luxembourg S.A. ("Clearstream
Luxembourg") or the Euroclear System ("Euroclear") in Europe, either directly if
they are participants of such systems or indirectly through organizations that
are participants in such systems. Clearstream, Luxembourg and Euroclear will
hold interests on behalf of their participants through customers' securities
accounts in Clearstream, Luxembourg's and Euroclear's names on the books of
their U.S. depositaries, which in turn will hold such interests in customers'
securities accounts in the U.S. depositaries' names on the books of the
Depositary.
The laws of some jurisdictions may require that purchasers of
securities take physical delivery of those securities in definitive form.
Accordingly, the ability to transfer interests in the Securities represented by
a Global Note to those persons may be limited. In addition, because the
Depositary can act only on behalf of its participants, who in turn act on behalf
of persons who hold interests through participants, the ability of a person
having an interest in Securities represented by a Global Note to pledge or
transfer such interest to persons or entities that do not participate in the
Depositary's system, or otherwise to take actions in respect of such interest,
may be affected by the lack of a physical definitive security in respect of such
interest.
Neither the Company, the Trustee, the principal paying agent nor any
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of Securities by the
Depositary, Clearstream, Luxembourg, or Euroclear, or for maintaining,
supervising or reviewing any records of those organizations relating to the
Securities.
8
If the Company issues certificated Securities, holders may obtain
certificates at the offices of the Luxembourg paying and listing agent. The
Company will make those certificates available in Luxembourg at the time the
Company delivers certificates to the principal paying agent.
The Chase Manhattan Bank will act as the Company's principal paying agent
with respect to the Securities through its offices presently located at 450 West
33rd Street, New York, New York 10001. The Company may at any time rescind the
designation of a paying agent, appoint a successor paying agent, or approve a
change in the office through which any paying agent acts. For as long as the
Securities are listed on the Luxembourg Stock Exchange, the Company will
maintain a paying agent in Luxembourg with respect to the Securities. Deutsche
Bank Luxembourg SA, as the Luxembourg paying and listing agent, will act as the
Company's paying agent in Luxembourg with respect to the Securities through its
offices located at 2 Boulevard Konrad Adenauer, L-1115 Luxembourg. Payments of
interest and principal may be made by wire-transfer in immediately available
funds in U.S. dollars for Securities held in book-entry form or, at the
Company's option in the event the Securities are not represented by Global
Notes, by check mailed to the address of the person entitled to the payment as
it appears in the Security register. Payment of principal will be made upon the
surrender of the relevant Securities at the offices of the principal paying
agent or Luxembourg paying and listing agent.
For as long the Securities is listed on the Luxembourg Stock Exchange, the
Company will publish notice of any change in a paying agent with respect to the
Securities in a daily newspaper of general circulation in Luxembourg (which is
expected to be the Luxembourger Wort).
Notices to the holders of registered Securities will be mailed to them at
their respective addresses in the register of the Securities and will be deemed
to have been given on the fourth weekday (being a day other than Saturday or
Sunday) after the date of mailing. Notices to the holders of registered
Securities that are listed on the Luxembourg Stock Exchange will also be
published in a daily newspaper of general circulation in Luxembourg (which is
expected to be the Luxembourger Wort). For so long as the Securities are listed
on the Luxembourg Stock Exchange, any appointment of or change in the Luxembourg
paying and listing agent with respect to the Securities will be published in
Luxembourg in the manner set forth above.
The Indenture contains provisions setting forth certain conditions to
the institution of proceedings by the holders of Securities with respect to the
Indenture or for any remedy under the Indenture.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-- END OF PAGE -
[signatures appear on following page]
9
IN WITNESS WHEREOF, PNC Funding Corp has caused this Note to be signed
in its name by its Chairman of the Board, President or any Executive or Senior
Vice President, and by its Secretary or an Assistant Secretary, or by facsimiles
of any of their signatures, and its corporate seal, or a facsimile thereof, to
be hereto affixed.
Dated: October 30, 2001
PNC FUNDING CORP
By
---------------------------------
Name: Robert L. Haunschild
Title: Chairman and President
Attest:
-------------------------------
Name: Thomas R. Moore
Title: Secretary
[SEAL]
10
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By
---------------------------------
Authorized Officer
11
EX-4.2
5
j9110201ex4-2.txt
EXHIBIT 4.2
Exhibit 4.2
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
NEITHER THIS NOTE NOR THE GUARANTEE INCLUDED HEREIN IS A BANK DEPOSIT OR INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR BY ANY OTHER INSURER OR
GOVERNMENTAL AGENCY.
THE INDENTURE, DATED AS OF DECEMBER 1, 1991, RELATING TO THIS SECURITY, HAS BEEN
AMENDED BY A SUPPLEMENTAL INDENTURE, DATED AS OF FEBRUARY 15, 1993, AND FURTHER
AMENDED BY A SECOND SUPPLEMENTAL INDENTURE, DATED AS OF FEBRUARY 15, 2000.
PNC FUNDING CORP
5.75% SENIOR NOTES DUE 2006
REGISTERED CUSIP: 693476AR4
No. ___ ISIN: US693476AR48
Common Code: 013350639
$
PNC FUNDING CORP, a corporation duly organized and existing under the
laws of Pennsylvania (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, the
principal sum of __________ Dollars on August 1, 2006, and to pay interest
thereon from August 1, 2001, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually on February 1
and August 1 in each year, commencing February 1, 2002, and at maturity, at the
rate of 5.75% per annum, until the principal hereof is paid or made available
for payment, and (to the extent that the payment of such interest shall be
legally enforceable) at the same rate per annum on any overdue principal and
premium and on any overdue installment of interest. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date, subject to
certain exceptions, will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be January 15 or July 15 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. However, interest
payable on the maturity date will be paid to the person to whom the principal
will be payable. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to holders of the Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner acceptable to the Trustee and not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities" or "Notes"), issued and to be issued in
one or more series under an Indenture, dated as of December 1, 1991, among the
Company, PNC Financial Corp (also known as "PNC Bank Corp." and now known as
"The PNC Financial Services Group, Inc.") (the "Guarantor") and Manufacturers
Hanover Trust Company, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture) as amended by a Supplemental
Indenture dated as of February 15, 1993 by and among the Company, the Guarantor
and Chemical Bank (successor by merger to Manufacturers Hanover Trust Company
and now known as The Chase Manhattan Bank) ("Trustee"), and as further amended
by a Second Supplemental Indenture dated as of
February 15, 2000 by and among the Company, the Guarantor and the Trustee (such
Indenture as amended being herein called the "Indenture"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated above, limited (except
with respect to further issuances and as provided in the Indenture) in aggregate
principal amount to $1,100,000,000.
The Securities may be redeemed at the option of the Company in whole,
but not in part, at any time, on giving not less than 30 nor more than 60 days'
notice to the holders of the Securities (which notice shall be irrevocable), at
their principal amount (together with interest accrued to the date fixed for
redemption), if (i) the Company has or will become obliged to pay additional
amounts as a result of any change in, or amendment to, the laws or regulations
of the United States or any political subdivision or any authority thereof or
therein having power to tax, or any change in the application or official
interpretation of such laws or regulations, which change or amendment becomes
effective on or after the issue date of the Securities, and (ii) such obligation
cannot be avoided by the Company taking reasonable measures available to it,
provided that no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obliged to pay such
additional amounts were a payment in respect of the Securities then due. Before
the publication of any notice of redemption pursuant to this paragraph, the
Company shall deliver to the principal paying agent a certificate signed by two
officers of the Company stating that the Company is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Company to so redeem have occurred, and an opinion
of independent legal advisers of recognized standing to the effect that the
Company has or will become obliged to pay such additional amounts as a result of
such change or amendment. The Securities are otherwise not redeemable at either
the option of the Holder or by the Company prior to the Stated Maturity thereof
and are not subject to any sinking fund.
If an Event of Default (as defined in the Indenture) with respect to
the Securities shall occur and be continuing, the principal of the Securities
may be declared due and payable in the manner and with the effect provided in
the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee hereinafter referred to, by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
The indebtedness of the Company evidenced by the Securities, including
the principal thereof and interest thereto, is, to the extent and in the manner
set forth in the Indenture, senior in right of payment to its obligations to
holders of Subordinated Debt Securities and Existing Company Subordinated
Indebtedness (each as defined in the Indenture) and shall rank pari passu in
right of payment with each other and with Senior Company Indebtedness (as
defined in said Indenture), as provided in the Indenture, and
2
each Holder of Securities, by the acceptance hereof, agrees to and shall be
bound by such provisions of the Indenture. The indebtedness of the Company
evidenced by the Securities, including the principal thereof and interest
thereon, also shall rank pari passu in right of payment with the Company's 6.95%
Notes Due 2002, Floating Rate Senior Notes Due 2003, 7.00% Notes Due 2004 and
Floating Rate Senior Notes Due 2004 (which are being issued simultaneously with
this Note), as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the holders of the Securities of any
series under the Indenture at any time by the Company, the Guarantor and the
Trustee with the consent of the holders of a majority in principal amount of the
outstanding Securities of all series (voting as one class) to be affected by
such amendment or modification. The Indenture also contains provisions
permitting the holders of specified percentages in principal amount of the
Outstanding Securities of any series, on behalf of the holders of all Securities
of such series, to waive compliance by the Company or the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the holder of this Security
shall be conclusive and binding upon such holder and upon all future holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. This Security is a
global security, represented by one or more permanent global certificates
registered in the name of the nominee of The Depository Trust Company (each a
"Global Note and collectively, the "Global Notes"). Accordingly, unless and
until it is exchanged in whole or in part for individual certificates evidencing
the Securities represented hereby, this Security may not be transferred except
as a whole by The Depositary Trust Company (the "Depositary") to a nominee of
such Depositary or by a nominee of such Depositary or by the Depositary or any
nominee to a successor Depositary or any nominee of such successor. Ownership of
beneficial interests in this Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interest of persons that have
accounts with the Depositary ("Participants") and the records of Participants
(with respect to interests of persons other than Participants)). Beneficial
interests in Securities by persons that hold through participants will be
evidenced only by, and transfers of such beneficial interests with such
participants will be effected only through, records maintained by such
participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
this Security. Except as provided below, owners of
3
beneficial interests in this Security will not be entitled to have any
individual certificates and will not be considered the owners or Holders thereof
under the Indenture.
Except in the limited circumstances set forth herein, participants and
owners of beneficial interests in the Global Notes will not be entitled to
receive Securities in definitive form and will not be considered holders of
Securities. If the Depositary is at any time unwilling, unable or ineligible to
continue as Depositary and a successor Depositary is not appointed by the
Company within 90 days, or an event of default has occurred and is continuing,
and the Depositary requests the issuance of certificated notes, the Company will
issue individual certificates evidencing the Securities represented hereby in
definitive form in exchange for this Security in registered form to each person
that the Depositary identifies as the beneficial owner of the Securities
represented by the Global Notes upon surrender by the Depositary of the Global
Notes. In addition, the Company may at any time and in its sole discretion
determine not to have any Securities represented by one or more global
securities and, in such event, will issue individual certificates evidencing
Securities in definitive form in exchange for this Security. In any such
instance, an owner of a beneficial interest in a Security will be entitled to
physical delivery in certificated form of Securities equal in principal amount
to such beneficial interest and to have such Securities registered in its name.
Securities so issued in certificated form will be issued in denominations of
$1,000 and any integral multiple thereof and will be issued in registered form
only, without coupons. Neither the Company nor the principal paying agent will
be liable for any delay by the Depositary, its nominee or any direct or indirect
participant in identifying the beneficial owners of the related Securities. The
Company and the principal paying agent may conclusively rely on, and will be
protected in relying on, instructions from the Depositary or its nominee for all
purposes, including with respect to the registration and delivery, and the
respective principal amounts, of the Securities to be issued.
Except as provided herein, beneficial owners of Global Notes will not
be entitled to receive physical delivery of Securities in definitive form and no
Global Note will be exchangeable except for another Global Note of like
denomination and tenor to be registered in the name of the Depositary or its
nominee. Accordingly, each person owning a beneficial interest in a Global Note
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Securities.
Beneficial interests in the Global Notes will be represented through
book-entry accounts of financial institutions acting on behalf of beneficial
owners as direct and indirect participants in the Depositary. Investors may
elect to hold interests in the Global Notes through either the Depositary (in
the United States) or Clearstream Banking Luxembourg S.A. ("Clearstream
Luxembourg") or the Euroclear System ("Euroclear") in Europe, either directly if
they are participants of such systems or indirectly through organizations that
are participants in such systems. Clearstream, Luxembourg and Euroclear will
hold interests on behalf of their participants through customers' securities
accounts in Clearstream, Luxembourg's and Euroclear's names on the books of
their U.S.
4
depositaries, which in turn will hold such interests in customers' securities
accounts in the U.S. depositaries' names on the books of the Depositary.
The laws of some jurisdictions may require that purchasers of
securities take physical delivery of those securities in definitive form.
Accordingly, the ability to transfer interests in the Securities represented by
a Global Note to those persons may be limited. In addition, because the
Depositary can act only on behalf of its participants, who in turn act on behalf
of persons who hold interests through participants, the ability of a person
having an interest in Securities represented by a Global Note to pledge or
transfer such interest to persons or entities that do not participate in the
Depositary's system, or otherwise to take actions in respect of such interest,
may be affected by the lack of a physical definitive security in respect of such
interest.
Neither the Company, the Trustee, the principal paying agent nor any
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of Securities by the
Depositary, Clearstream, Luxembourg, or Euroclear, or for maintaining,
supervising or reviewing any records of those organizations relating to the
Securities.
If the Company issues certificated Securities, holders may obtain
certificates at the offices of the Luxembourg paying and listing agent. The
Company will make those certificates available in Luxembourg at the time the
Company delivers certificates to the principal paying agent.
The Chase Manhattan Bank will act as the Company's principal paying
agent with respect to the Securities through its offices presently located at
450 West 33rd Street, New York, New York 10001. The Company may at any time
rescind the designation of a paying agent, appoint a successor paying agent, or
approve a change in the office through which any paying agent acts. For as long
as the Securities are listed on the Luxembourg Stock Exchange, the Company will
maintain a paying agent in Luxembourg with respect to the Securities. Deutsche
Bank Luxembourg SA, as the Luxembourg paying and listing agent, will act as the
Company's paying agent in Luxembourg with respect to the Securities through its
offices located at 2 Boulevard Konrad Adenauer, L-1115 Luxembourg. Payments of
interest and principal may be made by wire-transfer in immediately available
funds in U.S. dollars for Securities held in book-entry form or, at the
Company's option in the event the Securities are not represented by Global
Notes, by check mailed to the address of the person entitled to the payment as
it appears in the Security register. Payment of principal will be made upon the
surrender of the relevant Securities at the offices of the principal paying
agent or Luxembourg paying and listing agent.
For as long the Securities is listed on the Luxembourg Stock Exchange,
the Company will publish notice of any change in a paying agent with respect to
the Securities in a daily newspaper of general circulation in Luxembourg (which
is expected to be the Luxembourger Wort).
5
Notices to the holders of registered Securities will be mailed to them
at their respective addresses in the register of the Securities and will be
deemed to have been given on the fourth weekday (being a day other than Saturday
or Sunday) after the date of mailing. Notices to the holders of registered
Securities that are listed on the Luxembourg Stock Exchange will also be
published in a daily newspaper of general circulation in Luxembourg (which is
expected to be the Luxembourger Wort). For so long as the Securities are listed
on the Luxembourg Stock Exchange, any appointment of or change in the Luxembourg
paying and listing agent with respect to the Securities will be published in
Luxembourg in the manner set forth above.
The Indenture contains provisions setting forth certain conditions to
the institution of proceedings by the holders of Securities with respect to the
Indenture or for any remedy under the Indenture.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-- END OF PAGE -
[signatures appear on following page]
6
IN WITNESS WHEREOF, PNC Funding Corp has caused this Note to be signed
in its name by its Chairman of the Board, President or any Executive or Senior
Vice President, and by its Secretary or an Assistant Secretary, or by facsimiles
of any of their signatures, and its corporate seal, or a facsimile thereof, to
be hereto affixed.
Dated: October 30, 2001
PNC FUNDING CORP
By
------------------------------
Name: Robert L. Haunschild
Title: Chairman and President
Attest:
----------------------
Name: Thomas R. Moore
Title: Secretary
[SEAL]
7
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By
-------------------------------
Authorized Officer
8
EX-4.3
6
j9110201ex4-3.txt
EXHIBIT 4.3
Exhibit 4.3
GUARANTEE OF
THE PNC FINANCIAL SERVICES GROUP, INC.
FOR VALUE RECEIVED, THE PNC FINANCIAL SERVICES GROUP, INC. (formerly
known as PNC Bank Corp.), a corporation duly organized and existing under the
laws of the Commonwealth of Pennsylvania (herein called the "Guarantor"), hereby
unconditionally guarantees to the holder of the Security upon which this
Guarantee is endorsed the due and punctual payment of the principal and interest
on said Security, when and as the same shall become due and payable, whether by
declaration thereof or otherwise, according to the terms thereof and of the
Indenture referred to therein. In case of default by PNC Funding Corp (herein
called the "Company") in the payment of any such principal or interest, the
Guarantor agrees duly and punctually to pay the same.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of said Security or said Indenture,
any failure to enforce the provisions of said Security or said Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the holder of said Security or the Trustee under said Indenture or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of a merger or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to said Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not
be discharged except by payment in full of the principal of and premium, if any,
and interest on said Security.
The obligations of the Guarantor evidenced by this Guarantee, to the
extent and in the manner set forth in said Indenture, shall rank pari passu in
right of payment with each other and with the Guarantor's unsecured obligations
to holders of Senior Guarantor Indebtedness (as defined in said Indenture), and
are senior in right of payment to the Existing Guarantor Subordinated
Indebtedness (as defined in said Indenture), and each holder of Securities, by
the acceptance hereof, agrees to and shall be bound by such provisions of said
Indenture. The obligations of the Guarantor evidenced by this Guarantee shall
also rank pari passu in right of payment with the Guarantor's guarantees of the
Company's 6.95% Notes Due 2002, Floating Rate Senior Notes Due 2003, Floating
Rate Senior Notes Due 2004, 7.00% Notes Due 2004 and 5.75% Senior Notes Due
2006.
The Guarantor shall be subrogated to all rights of the holder of said
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal of and
premium, if any, and interest then due on all Securities issued under said
Indenture shall have been paid in full.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on the Security on which this Guarantee
is endorsed shall have been signed manually by the Trustee under the Indenture
referred to in said Security.
All terms used in this Guarantee which are defined in the Indenture,
dated as of December 1, 1991, among the Company, the Guarantor and the
Manufacturers Hanover Trust Company, as Trustee (the term "Trustee" includes any
successor trustee under the Indenture), as amended by a Supplemental Indenture
dated as of February 15, 1993, by and among the Company, the Guarantor and
Chemical Bank (successor by merger to Manufacturers Hanover Trust Company and
now known as The Chase Manhattan Bank) ("Trustee"), and as further amended by a
Second Supplemental Indenture dated as of February 15, 2000, by and among the
Company, the Guarantor and the Trustee shall have the meanings assigned to them
in the Indenture.
-- END OF PAGE -
[signatures appear on following page]
-2-
IN WITNESS WHEREOF, THE PNC FINANCIAL SERVICES GROUP, INC. has caused
this Guarantee to be duly executed by manual or facsimile signature under its
corporate seal or a facsimile thereof.
Dated: October 30, 2001
THE PNC FINANCIAL SERVICES GROUP, INC.
By
--------------------------------------
Name: Robert L. Haunschild
Title: Senior Vice President and
Chief Financial Officer
Attest:
--------------------------------
Name: Thomas R. Moore
Title: Corporate Secretary
[SEAL]
-3-