<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PNC BANK CORP. PNC FUNDING CORP
(Exact name of registrants as specified in their charters)
<TABLE>
<S> <C>
PENNSYLVANIA PENNSYLVANIA
(State or other jurisdiction of incorporation or (State or other jurisdiction of incorporation or
organization) organization)
25-1435979 25-1234372
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
249 FIFTH AVENUE 1600 MARKET STREET
PITTSBURGH, PENNSYLVANIA 15222 PHILADELPHIA, PENNSYLVANIA 19101
(412) 762-1553 (215) 585-5000
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of registrant's principal executive including area code, of registrant's principal executive
offices) offices)
</TABLE>
------------------------
ROBERT L. HAUNSCHILD
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
PNC BANK CORP.
249 FIFTH AVENUE
PITTSBURGH, PA 15222
(412) 762-5770
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
CATHERINE COLLINS MCCOY, ESQ.
ARNOLD & PORTER
555 TWELFTH STREET, N.W.
WASHINGTON, D.C. 20004
(202)942-5055
------------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as the
Registrants may determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than Securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
----------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AGGREGATE PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities--to be issued by PNC Funding Corp
- ----------------------------------------------------
Common Stock--to be issued by PNC Bank Corp.(2) $1,300,000,000(3) 100% $1,300,000,000 $393,939.40
- ----------------------------------------------------
Preferred Stock--to be issued by PNC Bank Corp.
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Guarantees--constituting guarantees of the Debt
Securities by PNC Bank Corp. $1,300,000,000(3) (4) (4) None
- ----------------------------------------------------------------------------------------------------------------------------------
Depositary Shares--to be issued by PNC Bank Corp. (5) (4) (4) None
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock--to be issued by PNC Bank Corp. (6) (4) (4) None
==================================================================================================================================
</TABLE>
(1) This amount is estimated solely for the purpose of calculating the
registration fee. The proposed maximum offering price per unit will be
determined from time to time in connection with the issuance of securities
registered hereunder.
(2) The aggregate amount of Common Stock registered hereunder will be limited to
that which is permissible under Rule 415(a)(4) under the Securities Act of
1933.
(3) There is being registered hereunder such Debt Securities and such number of
shares of Common Stock and Preferred Stock as will result in aggregate
proceeds of $1,300,000,000; or, if any Debt Securities are issued at an
original issue discount, such greater amount as shall result in net proceeds
of $1,300,000,000 to PNC Funding Corp.
(4) No separate consideration will be received.
(5) There are being registered hereunder such indeterminate number of Depositary
Shares to be evidenced by Depositary Receipts issued pursuant to a Deposit
Agreement. In the event that the Registrant elects to offer to the public
fractional interests of the Preferred Stock registered hereunder, Depositary
Receipts will be distributed to those persons purchasing such fractional
interests and the underlying Preferred Stock will be issued to the
Depositary under the Deposit Agreement.
(6) There are also being registered hereunder shares of Common Stock, the number
of which has not been determined, issuable upon conversion of the Preferred
Stock registered hereunder, to the extent any of such Preferred Stock is by
its terms convertible into Common Stock.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 29, 1997
PROSPECTUS
PNC FUNDING CORP
DEBT SECURITIES
PNC BANK LOGO
PNC BANK CORP.
UNCONDITIONAL GUARANTEE OF PNC FUNDING CORP DEBT SECURITIES
AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
COMMON STOCK ($5.00 PAR VALUE)
PREFERRED STOCK ($1.00 PAR VALUE)
PNC Funding Corp ("PNC Funding") from time to time may offer its unsecured
debt securities consisting of debentures, notes and/or other unsecured evidences
of indebtedness (the "Debt Securities") and PNC Bank Corp. ("PNC" or the
"Corporation") from time to time may offer shares of its common stock, $5.00 par
value per share ("Common Stock"), either originally issued or treasury shares,
and shares of its preferred stock, $1.00 par value per share ("Preferred
Stock"), up to an amount resulting in combined net proceeds to PNC Funding and
PNC of $1,300,000,000. The Debt Securities may be either senior (the "Senior
Debt Securities") or subordinated in priority of payment (the "Subordinated Debt
Securities"). All such Senior Debt Securities and Subordinated Debt Securities
will be unconditionally guaranteed on a senior or subordinated basis,
respectively, as to payment of principal, premium, if any, and interest (the
"Guarantees") by PNC. The Debt Securities, the Common Stock and the Preferred
Stock (collectively, the "Securities") may be offered separately or together, in
separate series in amounts, at prices and on terms to be set forth in
supplements to this Prospectus (a "Prospectus Supplement"), which will be
delivered together with this Prospectus at the time of the particular Securities
offering.
The Debt Securities, the Common Stock and the Preferred Stock may be offered
and sold to or through underwriters or dealers, directly to other purchasers or
through agents. Underwritten offerings of the Securities may involve
underwriting syndicates represented by managing underwriters, or underwriters
without a syndicate. See "Plan of Distribution." The names of, and the principal
amounts to be purchased by, underwriters or agents, if any, and the compensation
of such underwriters or agents, including applicable commissions and discounts,
will be set forth in the Prospectus Supplement. The aggregate net proceeds to
PNC Funding and PNC from the sale of the Debt Securities, the Common Stock and
the Preferred Stock will be the public offering or purchase price of the
Securities sold less the aggregate of any applicable commissions, discounts and
other expenses of issuance and distribution.
The applicable Prospectus Supplement for offered Debt Securities, among
other things and where applicable, will include the specific designation,
priority, aggregate principal amount, denominations, maturity, premium, interest
rate (which may be fixed or variable) and time of payment of interest,
redemption terms, terms for sinking fund payments, the initial public offering
price, terms relating to temporary or global securities, provisions regarding
repayment, provisions regarding convertibility, special provisions and
restrictions relating to Debt Securities, the principal, premium and interest of
which is denominated and payable in a foreign currency or currency unit,
provisions regarding original issue discount securities, and other terms of the
offer and sale of such Debt Securities.
The applicable Prospectus Supplement for offered Common Stock, among other
things, will include the number of shares and other terms of the offer and sale
of such Common Stock.
The applicable Prospectus Supplement for offered Preferred Stock, among
other things and where applicable, will include the specific designation, number
of shares, whether fractional interests will be offered through depositary
arrangements, dividend rate or method of calculation, dividend periods, dividend
payment dates, whether dividends are cumulative or noncumulative, liquidation
preference, any redemption, sinking fund, or conversion or exchange provisions,
voting or other rights, and other terms of the offer and sale of such Preferred
Stock.
The applicable Prospectus Supplement will also contain information, where
applicable, concerning United States federal income tax considerations relating
to, and as to any listing on a securities exchange of, the Securities covered by
such Prospectus Supplement.
------------------------
THESE SECURITIES AND THE GUARANTEES ARE NOT SAVINGS OR DEPOSIT ACCOUNTS OR OTHER
OBLIGATIONS OF ANY BANK. THEY ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER INSURER OR GOVERNMENTAL AGENCY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1997.
<PAGE> 3
AVAILABLE INFORMATION
PNC is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Information, as of particular dates, concerning directors and
executive officers, their compensation, options granted to them, the principal
holders of securities of PNC and any material interest of such persons in
transactions with PNC is disclosed in proxy statements distributed to
shareholders of PNC and filed with the Commission. Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20459, and the Commission's Regional Offices at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New
York, New York 10048. Copies of such materials can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20459 at prescribed rates. In addition, such material may be accessed
electronically at the Commission's site on the World Wide Web located at
http://www.sec.gov. Such reports, proxy statements and other materials
concerning PNC may also be inspected at the office of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005, on which exchange PNC's
Common Stock and certain series of Preferred Stock are listed.
PNC Funding and PNC have filed with the Commission a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Securities being offered by this Prospectus. This Prospectus does
not contain all of the information set forth in the Registration Statement,
certain portions of which have been omitted as permitted by the rules and
regulations of the Commission. For additional information about PNC Funding, PNC
and the Securities, reference is made to the Registration Statement, including
the exhibits thereto. The Registration Statement may be inspected by anyone
without charge at the principal office of the Commission in Washington, D.C. and
copies of all or any part of it may be obtained from the Commission upon payment
of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by PNC with the Commission are incorporated
herein by reference:
(1) PNC's Annual Report on Form 10-K for the year ended December 31,
1996, as amended by Form 10-K/A (Amendment No. 1) filed on June 30, 1997;
(2) Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 1997 and June 30, 1997;
(3) Current Reports on Form 8-K dated as of April 15, 1997, July 9,
1997 and July 16, 1997; and
(4) Description of PNC's Common Stock and certain series of Preferred
Stock contained in the Form 8-A filed on September 24, 1987.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated by
reference or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
PNC will provide without charge to each person to whom this Prospectus is
delivered, on the written or oral request of such person, a copy of any or all
documents incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
such documents). Written requests should be directed to: Glenn Davies, Vice
President Financial Reporting, PNC Bank Corp., One PNC Plaza, 249 Fifth Avenue,
Pittsburgh, Pennsylvania 15222 or "[email protected]" on
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the Internet. Telephone requests may be directed to (412)762-1553. PNC's
Exchange Act filings are also electronically available to the public at its
World Wide Web site at http://www.pncbank.com.
PNC BANK CORP.
PNC is a bank holding company registered under the Bank Holding Company Act
of 1956, as amended (the "BHC Act"). PNC was incorporated under the laws of the
Commonwealth of Pennsylvania in 1983 with the consolidation of Pittsburgh
National Corporation and Provident National Corporation. Since 1983, PNC has
diversified its geographic presence and product capabilities through strategic
bank and nonbank acquisitions and the formation of various nonbank subsidiaries.
PNC is one of the largest diversified financial service companies in the
United States. The Corporation operates through five lines of business: Consumer
Banking, Corporate Banking, Real Estate Banking, Mortgage Banking and Asset
Management. Each line of business focuses on specific customer segments and
offers financial products and services in PNC's primary geographic markets in
Pennsylvania, New Jersey, Delaware, Ohio and Kentucky and nationally through
retail distribution networks and alternative delivery channels. At June 30,
1997, the Corporation's consolidated assets, loans (net of unearned income),
deposits, and shareholders' equity were $72.0 billion, $53.5 billion, $45.2
billion and $5.4 billion, respectively.
While the Corporation manages five lines of business, the corporate legal
structure consists of 10 subsidiary banks and over 110 active nonbank
subsidiaries. PNC Bank, National Association, headquartered in Pittsburgh,
Pennsylvania ("PNC Bank"), is the Corporation's principal bank subsidiary. At
June 30, 1997, PNC Bank had total assets of $57.5 billion, representing
approximately 80% of the Corporation's consolidated assets.
PNC's principal executive offices are located at One PNC Plaza, 249 Fifth
Avenue, Pittsburgh, Pennsylvania 15222, and its telephone number is
(412)762-1553.
PNC FUNDING CORP
PNC Funding is a wholly-owned indirect subsidiary of PNC. PNC Funding was
incorporated under the laws of the Commonwealth of Pennsylvania in 1972 and is
engaged in financing the activities of PNC and its subsidiaries through the
issuance of commercial paper and other debt guaranteed by PNC.
PNC Funding's principal executive offices are located at 1600 Market
Street, Philadelphia, Pennsylvania 19101, and its telephone number is
(215)585-5000.
SUPERVISION, REGULATION AND OTHER MATTERS
The Corporation and its subsidiaries are subject to extensive governmental
regulation. The coverage of the regulations range from activity, investment and
dividend limitations on the bank holding company and its subsidiaries to
consumer-related protections for loans, deposits, brokerage and mutual fund
customers. The following information is not intended to be an exhaustive
description of the statutes and regulations applicable to PNC. The discussion is
qualified in its entirety by reference to all particular statutory or regulatory
provisions. Additional information regarding supervision and regulation is
included in the incorporated documents. See "Incorporation of Certain Documents
by Reference."
As a bank holding company registered under the BHC Act, PNC's primary bank
regulatory authority is the Board of Governors of the Federal Reserve System
(the "Federal Reserve"). Under Federal Reserve policy, a bank holding company is
expected to act as a source of strength to each of its subsidiary banks and to
commit resources to support each such bank. As a result of that policy, PNC may
be required to commit resources to its subsidiary banks in circumstances where
it might not otherwise do so. Moreover, the actions and policy directives of the
Federal Reserve determine to a significant degree the cost and the availability
of funds obtained from money market sources for lending and investing. The
Federal Reserve's policies and regulations also influence, directly and
indirectly, the rates of interest paid by commercial banks on their time and
savings deposits. The nature and impact on PNC of future changes in monetary and
other policies of the
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Federal Reserve are not predictable, as such changes also depend on economic
conditions and domestic and foreign governmental policies, among other factors.
PNC is a legal entity separate and distinct from PNC Funding, PNC Bank and
its other subsidiaries and affiliates. Such subsidiaries and affiliates are also
subject to supervision and examination by various federal and state regulatory
agencies, including the Office of the Comptroller of the Currency ("OCC") with
respect to PNC Bank. Because PNC is a holding company, its rights and the rights
of its creditors and shareholders, including the holders of the Securities, to
participate in the assets of any subsidiary upon the latter's liquidation or
recapitalization will be subject to the prior claims of the subsidiary's
creditors, except to the extent that PNC may itself be a creditor with
recognized claims against the subsidiary.
PNC derives substantially all of its income from payment of dividends by
its bank and non-bank subsidiaries. There are various legal limitations on the
extent to which PNC's bank subsidiaries may extend credit, pay dividends or
otherwise supply funds to PNC. For example, the approval of the OCC is required
if total dividends by a national bank in any calendar year exceed net profits
(as defined) for that year combined with its retained profits for the preceding
two years. In addition, dividends for such a bank may not be paid in excess of
the bank's undivided profits. State-chartered bank subsidiaries are subject to
dividend limitations imposed by applicable state law. The approval of the Office
of Thrift Supervision may be required if total dividends declared by PNC's
savings association subsidiary in any calendar year exceed amounts specified in
that agency's regulations. In determining whether and to what extent to pay
dividends, each bank subsidiary must also consider the effect of dividend
payments on applicable risk-based capital and leverage requirements (as
described below) as well as policy statements of the federal regulatory agencies
that indicate that banking organizations should generally pay dividends out of
current operating earnings. Contractual restrictions may also limit the ability
to pay dividends, such as those contained in documentation relating to
mandatorily redeemable capital securities in the event of a default.
The U.S. federal bank regulatory authorities have each adopted risk-based
capital guidelines to which the Corporation and its insured depository
institutions subsidiaries are subject. These guidelines are based on an
international agreement developed by the Basle Committee on Banking Regulations
and Supervisory Practices, which consists of representatives of central banks
and supervisory authorities in 12 countries including the United States of
America. The guidelines establish a systematic analytical framework that makes
regulatory capital requirements more sensitive to differences in risk profiles
among banking organizations, takes off-balance sheet exposures into explicit
account in assessing capital adequacy and minimizes disincentives to holding
liquid, low-risk assets. Risk-based assets are determined by allocating assets
and specified off-balance sheet commitments and exposures into four weighted
categories, with higher levels of capital being required for the categories
perceived as representing greater risk. From time to time, the federal
regulatory agencies propose amendments to and issue interpretations of their
risk-based capital guidelines and reporting instructions, which can affect
reported capital ratios and net risk-adjusted assets.
Each of the Corporation's subsidiary banks is required to maintain a
minimum total risk-based ratio of 8%, of which half (4%) must be "Tier I"
capital. In addition, U.S. federal bank regulators have established leverage
ratio (Tier I capital to average total adjusted assets) guidelines providing for
a minimum leverage ratio of 3% for banks meeting certain specified criteria,
including excellent asset quality, high liquidity, low interest rate exposure
and the highest regulatory rating. Institutions not meeting these criteria are
expected to maintain a ratio which exceeds the 3% minimum by at least 100 to 200
basis points. The federal bank regulatory authorities may, however, set higher
capital requirements when a bank's particular circumstances warrant.
The federal banking agencies possess broad powers to take corrective action
as deemed appropriate for an insured depository institution and its holding
companies. The extent of these powers depends upon whether the institution in
question is considered "well capitalized," "adequately capitalized,"
"undercapitalized," "significantly undercapitalized" or "critically
undercapitalized." Generally, as an institution is deemed to be less well
capitalized, the scope and severity of the agencies' powers increase. The
agencies' corrective powers can include, among other things, requiring an
insured financial institution to adopt a capital restoration plan which cannot
be approved unless guaranteed by the institution's parent holding company;
placing limits on asset
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growth and restrictions on activities; placing restrictions on transactions with
affiliates; restricting the interest rates the institution may pay on deposits;
prohibiting the institution from accepting deposits from correspondent banks;
prohibiting the payment of principal or interest on subordinated debt;
prohibiting the holding company from making capital distributions without prior
regulatory approval; and, ultimately, appointing a receiver for the institution.
Business activities may also be influenced by an institution's capital
classification. For instance, only a "well capitalized" depository institution
may accept brokered deposits without prior regulatory approval and only an
"adequately capitalized" depository institution may accept brokered deposits
with prior regulatory approval. At June 30, 1997, each of the Corporation's
subsidiary banks exceeded the required ratios for classification as "well
capitalized."
The deposits of the Corporation's subsidiary banks are insured by the
Federal Deposit Insurance Corporation (the "FDIC") and are subject to FDIC
insurance assessments. The amount of FDIC assessments paid by individual insured
depository institutions is based on their relative risk as measured by
regulatory capital ratios and certain other factors. Currently, the
Corporation's bank subsidiaries are not assessed any premium for deposits
insured by either the Bank Insurance Fund or by the Savings Association
Insurance Fund. The Corporation's bank subsidiaries, however, continue to pay
premiums based on deposit levels to service debt on bonds issued by a
governmental entity.
Under U.S. federal law, a financial institution insured by the FDIC under
common ownership with a failed institution can be required to indemnify the FDIC
for its losses resulting from the insolvency of the failed institution, even if
such indemnification causes the affiliated institution also to become insolvent.
As a result, the Corporation's subsidiary banks could, under certain
circumstances, be obligated for the liabilities of its affiliates that are
FDIC-insured institutions. In addition, if any insured depository institution
becomes insolvent and the FDIC is appointed its conservator or receiver, the
FDIC may disaffirm or repudiate any contract or lease to which such institution
is a party, the performance of which is determined to be burdensome and the
disaffirmance or repudiation of which is determined to promote the orderly
administration of the institution's affairs. If federal law were construed to
permit the FDIC to apply these provisions to debt obligations of an insured
depository institution the result could be that such obligations would be
prepaid without premium even where by their terms they were not prepayable or
prepayable only with a premium. Federal law also accords the claims of a
receiver of an insured depository institution for administrative expenses and
the claims of holders of deposit liabilities of such an institution priority
over the claims of general unsecured creditors of such an institution in the
event of a liquidation or other resolution of such institution.
The BHC Act currently permits adequately capitalized and adequately managed
bank holding companies from any state to acquire banks and bank holding
companies located in any other state, subject to certain conditions. Effective
June 1, 1997, the Corporation's bank subsidiaries have the ability, subject to
certain restrictions, to consolidate with other banking subsidiaries of the
Corporation or to acquire by acquisition or merger branches outside of their
home state. The Corporation has taken advantage of such and certain related
state actions as evidenced by the September 6, 1996 merger of PNC Bank, National
Association and Midlantic Bank, National Association, and may do so again in the
future with its bank subsidiaries. Competition may increase as banks branch
across state lines and enter new markets.
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<PAGE> 7
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following unaudited table presents the consolidated ratio of earnings
to fixed charges of PNC. The consolidated ratio of earnings to fixed charges has
been computed by dividing income before income taxes and cumulative effect of
changes in accounting principles and fixed charges by fixed charges. Fixed
charges represent all interest expense (ratios are presented both excluding and
including interest on deposits), the portion of net rental expense which is
deemed to be equivalent to interest on debt, borrowed funds discount
amortization expense and distributions on trust preferred capital securities.
Interest expense (other than on deposits) includes interest on bank notes and
senior debt, federal funds purchased, repurchase agreements, other borrowed
funds and subordinated debt. Since PNC Funding is a provider of funds to PNC and
its subsidiaries, fixed charges ratios have been presented on a consolidated
basis.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED ----------------------------------------
JUNE 30, 1997 1996 1995 1994 1993 1992
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Excluding interest on
deposits...................... 2.40x 2.39x 1.42x 2.10x 2.62x 2.35x
Including interest on
deposits...................... 1.62 1.60 1.21 1.53 1.67 1.37
</TABLE>
CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following unaudited table presents the consolidated ratio of earnings
to combined fixed charges and preferred stock dividends of PNC. The consolidated
ratio of earnings to combined fixed charges and preferred stock dividends has
been computed by dividing income before income taxes, cumulative effect of
changes in accounting principles and fixed charges by fixed charges and
preferred stock dividends. Fixed charges represent all interest expense (ratios
are presented both excluding and including interest on deposits), the portion of
net rental expense which is deemed to be equivalent to interest on debt,
borrowed funds discount amortization expense and distributions on trust
preferred capital securities. Interest expense (other than on deposits) includes
interest on bank notes and senior debt, federal funds purchased, repurchase
agreements, other borrowed funds and subordinated debt.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED ----------------------------------------
JUNE 30, 1997 1996 1995 1994 1993 1992
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Excluding interest on
deposits...................... 2.36x 2.38x 1.42x 2.09x 2.60x 2.33x
Including interest on
deposits...................... 1.62 1.60 1.21 1.53 1.66 1.37
</TABLE>
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<PAGE> 8
USE OF PROCEEDS
Unless otherwise provided in the Prospectus Supplement, PNC Funding and PNC
will apply the net proceeds from the sale of the Securities offered hereby to
their general funds to be used for corporate financing purposes, including
advances to PNC (in the case of PNC Funding) and subsidiaries of PNC (including
its bank subsidiaries), financing of possible future acquisitions, repayment of
outstanding indebtedness and repurchases of issued and outstanding shares of
Common Stock under authorized programs of PNC. The amount and timing of advances
will depend on future growth and financing requirements of PNC and its
subsidiaries. Pending ultimate application, the net proceeds may be used to make
short-term investments or reduce borrowed funds. In view of anticipated funding
requirements, PNC Funding or PNC may from time to time engage in additional
financings of a character and in amounts to be determined.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The Debt Securities will constitute either Senior Debt Securities of PNC
Funding or Subordinated Debt Securities of PNC Funding. The following
description of the terms of the Debt Securities sets forth certain general terms
and provisions of the Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities and Guarantees offered by
any Prospectus Supplement ("Offered Debt Securities") and the extent, if any, to
which such general provisions may apply to the Debt Securities and Guarantees so
offered will be described in the Prospectus Supplement relating to such Offered
Debt Securities.
The Offered Debt Securities are to be issued under an Indenture, dated as
of December 1, 1991, as amended by a Supplemental Indenture dated as of February
15, 1993 (as amended, the "Indenture"), a copy of which has been filed with the
Commission. The Chase Manhattan Bank, formerly known as Chemical Bank and as
successor by merger to Manufacturers Hanover Trust Company, shall be the Trustee
under the Indenture ("Trustee"), unless a different Trustee for a series of Debt
Securities is named in the Prospectus Supplement. For each series of Debt
Securities, a supplemental indenture may be entered into among PNC Funding, PNC
and The Chase Manhattan Bank or such other Trustee as may be named in the
Prospectus Supplement relating to such series of Debt Securities. The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain terms.
Wherever particular sections or defined terms of the Indenture are referred to,
it is intended that such sections or defined terms shall be incorporated herein
by reference.
GENERAL
The Debt Securities will be unsecured obligations of PNC Funding.
Although the amount of Offered Debt Securities will be limited to the
amount that will result in net proceeds to PNC Funding as described on the cover
page of this Prospectus, the Indenture does not limit the aggregate principal
amount of debt securities that may be issued thereunder from time to time in one
or more series.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the terms of the Offered Debt
Securities, including, where applicable; (1) the form, title and denomination of
the Debt Securities; (2) the aggregate principal amount of the Debt Securities;
(3) the date or dates on which Debt Securities may be issued; (4) the date or
dates on which the principal of, and premium, if any, on the Debt Securities
shall be payable; (5) the rate or rates, or the method of determination thereof,
at which the Debt Securities shall bear interest, if any, the date or dates from
which such interest shall accrue, and the Interest Payment Dates on which such
interest shall be payable; (6) the priority of payment of such Debt Securities
and thus whether they shall be designated as Senior Debt Securities or
Subordinated Debt Securities; (7) the place or places where the principal of,
and premium, if any, and interest on Debt Securities of the series shall be
payable; (8) the provisions, if any, for optional or mandatory redemption of the
Debt Securities, including any sinking fund provisions; (9) if other than the
principal amount thereof, the
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portion of the principal amount of Debt Securities which shall be payable upon
declaration of acceleration of the Maturity thereof in accordance with the
provisions of the Indenture; (10) whether payment of the principal of, premium,
if any, and interest, if any, on the Debt Securities shall be with or without
deduction for taxes, assessments or governmental charges, and with or without
reimbursement of taxes, assessments or governmental charges paid by Holders;
(11) any Events of Default or Defaults with respect to the Debt Securities that
differ from those set forth in the Indenture; (12) whether the securities of
such series are to be issued in a form registered as to principal ("Registered
Securities") (with or without interest coupons ("Coupons")) or in a form
registered with regard to principal and interest ("Fully Registered Securities")
or in bearer form ("Unregistered Securities"), or as both Registered Securities
and Unregistered Securities; (13) the currency or currencies, or currency unit
or currency units in which the principal of, and premium, if any, and interest,
if any, on the Debt Securities are to be denominated, payable, redeemable or
repurchaseable, as the case may be; (14) if other than as set forth in the
Indenture, provisions the satisfaction and discharge of the indebtedness
represented by the Debt Securities; (15) whether the Debt Securities of such
series are issuable as a global security and, in such case, the identity of the
depositary for such series; (16) any trustees, paying agents, transfer agents or
registrars for the Debt Securities; (17) with regard to Debt Securities that do
not bear interest, the dates for certain required reports to the Trustee; (18)
any special federal income tax considerations applicable to any Offered Debt
Securities; and (19) any other terms of such Debt Securities.
Any Subordinated Debt Securities offered are intended to be included as
regulatory capital under recent interpretations of the Federal Reserve Board
and, as a result, contain subordination and acceleration provisions different
from, and covenants more limited than in, prior issuances of PNC Funding's
Subordinated Securities.
If any of the Debt Securities are sold for foreign currencies or foreign
currency units or if the principal of or any interest on any series of Debt
Securities is payable in foreign currencies or foreign currency units, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such issue of Debt Securities and such currencies or currency
units will be set forth in the Prospectus Supplement relating thereto.
Although the Indenture provides that Debt Securities may be issued as
Registered Securities, with or without Coupons, or Unregistered Securities, each
series of Debt Securities will be issued as Fully Registered Securities unless
the Prospectus Supplement provides otherwise. Debt Securities that are not
registered as to interest shall have Coupons attached, unless issued as Original
Issue Discount Securities. All references to the Debt Securities shall, where
applicable, include the Coupons, if any, appertaining thereto.
Principal of, and premium, if any, and interest on Fully Registered
Securities will be payable at the Place of Payment designated for such Debt
Securities; provided that payment of interest may, at the option of PNC Funding,
be made by check mailed to the address of the person entitled thereto as it
appears in the Security Register at the close of business on the day or days
specified in the Prospectus Supplement relating to such Debt Securities. The
principal of, and premium, if any, and interest on any Debt Securities in other
forms will be payable in such manner and at such place or places as may be
designated by PNC Funding and specified in the Prospectus Supplement relating to
such Debt Securities. (Sections 3.01 and 5.01)
The Debt Securities may be exchanged, and Registered Securities may be
transferred, at the Corporate Trust Office of the Trustee for such series of
Debt Securities or at any other office or agency maintained by PNC Funding or
PNC for such purposes. Unregistered Securities and Coupons shall be transferred
by delivery. No service charge will be made for any transfer or exchange of the
Debt Securities, but PNC Funding may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 3.05)
Unless the Prospectus Supplement provides otherwise, each series of the
Debt Securities will be issued only in denominations of $1,000 or any integral
multiple thereof and payable in Dollars. (Section 3.02) Under the Indenture,
however, Debt Securities may be issued in any denomination and payable in a
foreign currency or currency unit. (Section 3.01)
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Debt Securities may be issued with "original issue discount" (within the
meaning of the Internal Revenue Code). Federal income tax consequences and other
special considerations applicable to any such securities issued with original
issue discount will be described in the Prospectus Supplement relating thereto.
SENIOR DEBT SECURITIES
The Senior Debt Securities will rank equally with all Senior Indebtedness
of PNC Funding. At June 30, 1997, such outstanding Senior Indebtedness of PNC
Funding was approximately $513.7 million.
Senior Indebtedness of PNC Funding, defined in the Indenture as "Senior
Company Indebtedness," means the principal of, and premium, if any, and interest
on (i) all indebtedness for money borrowed, whether outstanding on the date of
execution of the Indenture or thereafter created, assumed or incurred, except
(A) such indebtedness as is by its terms expressly stated not to be superior in
right of payment to the Subordinated Debt Securities or to rank pari passu with
the Subordinated Debt Securities, and (B) PNC Funding's 9 7/8% Subordinated
Notes Due 2001, 6 7/8% Subordinated Notes Due 2003, 6 1/8% Subordinated Notes
Due 2003, 7 3/4% Subordinated Notes Due 2004 and 6 7/8% Subordinated Notes Due
2007 and CCNB Corporation's 10.55% Equity Commitment Notes Due 1998 assumed by
PNC Funding and PNC in connection with the acquisition of CCNB Corporation on
October 23, 1992 and (ii) any deferrals, renewals or extensions of any such
Senior Indebtedness of PNC Funding. The term "indebtedness for money borrowed"
as used in the prior sentence means any obligation of, or any obligation
guaranteed by, PNC Funding for the repayment of money borrowed, whether or not
evidenced by bonds, debentures, notes or other written instruments, any
capitalized lease obligation and any deferred obligation for payment of the
purchase price of any property or assets. Senior Indebtedness of PNC Funding
would include any borrowings under the $500 million credit facility under an
Amended and Restated Credit Agreement dated as of March 18, 1996 (the "$500
Million Credit Facility"), under which no amounts are outstanding as of the date
of this Prospectus. There is no limitation under the Indenture on the issuance
of additional Senior Indebtedness of PNC Funding.
SUBORDINATED DEBT SECURITIES
The payment of the principal of and interest on the Subordinated Debt
Securities will, to the extent set forth in the Indenture, be subordinated in
right of payment to the prior payment in full of all Senior Indebtedness of PNC
Funding. (Section 12.01) In certain events of insolvency, the payment of the
principal of and interest on the Subordinated Debt Securities will, to the
extent set forth in the Indenture, also be effectively subordinated in right of
payment to the prior payment in full of all Other Company Obligations (as
defined in the Indenture). (Section 12.13) Other Company Obligations means
obligations of PNC Funding associated with derivative products such as interest
rate and currency exchange contracts, foreign exchange contracts, commodity
contracts or any similar arrangements, unless the instrument by which PNC
Funding incurred, assumed or guaranteed the obligation expressly provides that
it is subordinate or junior in right of payment to any other indebtedness or
obligations of PNC Funding. At June 30, 1997, there were no Other Company
Obligations of PNC Funding. (Section 1.01)
Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshaling of assets or any bankruptcy, insolvency or similar
proceedings of PNC Funding, the holders of all Senior Indebtedness of PNC
Funding will first be entitled to receive payment in full of all amounts due or
to become due thereon before the Holders of the Subordinated Debt Securities
will be entitled to receive any payment in respect of the principal of or
interest on the Subordinated Debt Securities. If upon any such payment or
distribution of assets to creditors there remain, after giving effect to such
subordination provisions in favor of the holders of Senior Indebtedness of PNC
Funding, any amounts of cash, property or securities available for payment or
distribution in respect of Subordinated Debt Securities (as defined in the
Indenture, "Excess Proceeds"), and if, at such time, any creditors in respect of
Other Company Obligations have not received payment in full of all amounts due
or to become due on or in respect of such Other Company Obligations, then such
Excess Proceeds shall first be applied to pay or provide for the payment in full
of such Other Company Obligations before any payment or distribution may be made
in respect of the Subordinated Debt Securities. In addition, no payment may be
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made of the principal of or interest on the Subordinated Debt Securities, or in
respect of any retirement, purchase or other acquisition of any of the
Subordinated Debt Securities at any time when (i) there is a default in the
payment of the principal of, or premium, if any, or interest on or otherwise in
respect of any Senior Indebtedness of PNC Funding or (ii) any event of default
with respect to any Senior Indebtedness of PNC Funding has occurred and is
continuing, or would occur as a result of such payment on the Subordinated Debt
Securities or any retirement, purchase or other acquisition of any of the
Subordinated Debt Securities permitting the holders of such Senior Indebtedness
of PNC Funding to accelerate the maturity thereof. Except as described above,
the obligation of PNC Funding to make payment of the principal of or interest on
the Subordinated Debt Securities will not be affected. By reason of such
subordination, in the event of insolvency, holders of the Subordinated Debt
Securities may recover less, ratably, than holders of Senior Indebtedness of PNC
Funding and Other Company Obligations and may also recover less, ratably, than
holders of Existing Company Subordinated Indebtedness and other creditors of PNC
Funding. (Sections 12.01, 12.02, 12.03, and 12.13)
Existing Company Subordinated Indebtedness means PNC Funding's 9 7/8%
Subordinated Notes Due 2001 and CCNB Corporation's 10.55% Equity Commitment
Notes Due 1998 assumed by PNC Funding and PNC in connection with the acquisition
of CCNB Corporation on October 23, 1992. (Section 1.01) At June 30, 1997, the
Existing Company Subordinated Indebtedness was approximately $101.3 million.
PNC Funding's obligations under the Subordinated Debt Securities shall rank
pari passu in right of payment with each other and with the Existing Company
Subordinated Indebtedness, subject to the obligations of the Holders of
Subordinated Debt Securities to pay over any Excess Proceeds to creditors in
respect of Other Company Obligations as provided in the Indenture. (Section
12.13)
GUARANTEES
PNC will unconditionally guarantee the due and punctual payment of the
principal of, premium, if any, and interest on the Debt Securities when and as
the same shall become due and payable, whether at maturity, upon redemption or
otherwise. (Section 3.12)
GUARANTEES OF SENIOR DEBT SECURITIES
The Guarantees of Senior Debt Securities will rank equally with all Senior
Indebtedness of PNC. At June 30, 1997, the outstanding Senior Indebtedness of
PNC was approximately $869.9 million, which is inclusive of the guarantee of
Senior Indebtedness of PNC Funding.
Senior Indebtedness of PNC, defined in the Indenture as "Senior Guarantor
Indebtedness," means the principal of, and premium, if any, and interest on (i)
all indebtedness of PNC for money borrowed, whether outstanding on the date of
execution of the Indenture or thereafter created, assumed or incurred, except
(A) such indebtedness as is by its terms expressly stated not to be superior in
right of payment to the Subordinated Guarantees or to rank pari passu with the
Subordinated Guarantees, (B) PNC's 8 1/4% Convertible Subordinated Debentures
Due 2008 and PNC's 8 1/2% Convertible Subordinated Debentures Due 2005
originally issued by Citizens Fidelity Corporation, and (C) PNC's Guarantee of
PNC Funding's 9 7/8% Subordinated Notes Due 2001, 6 7/8% Subordinated Notes Due
2003, 6 1/8% Subordinated Notes Due 2003, 7 3/4% Subordinated Notes Due 2004 and
6 7/8% Subordinated Notes Due 2007 and CCNB Corporation's 10.55% Equity
Commitment Notes Due 1998 assumed by PNC Funding and PNC in connection with the
acquisition of CCNB Corporation on October 23, 1992, and (ii) any deferrals,
renewals or extensions of any such Senior Indebtedness of PNC. The term
"indebtedness for money borrowed" as used in the prior sentence means any
obligation of, or any obligation guaranteed by, PNC for the repayment of money
borrowed, whether or not evidenced by bonds, debentures, notes or other written
instruments, any capitalized lease obligation and any deferred obligation for
payment of the purchase price of any property or assets. Senior Indebtedness of
PNC includes PNC's Guarantee of PNC Funding's 4.93% Senior Notes Due 1998, 5.43%
Senior Notes Due 2000 and 5.18% Senior Notes Due 1999 and the following joint
and several obligations of PNC and PNC Bancorp, Inc. assumed in connection with
the merger of Midlantic Corporation with PNC Bancorp, Inc. at December 31, 1996:
8 1/4% Convertible Subordinated Debentures Due 2010, 9.875% Subordinated Capital
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Notes Due 1999, 9.20% Subordinated Capital Notes Due 2001 and 9.25% Senior Notes
Due 1999. Senior Indebtedness of PNC would also include PNC's Guarantee of any
borrowings under the $500 Million Credit Facility. There is no limitation under
the Indenture on the issuance of additional Senior Indebtedness of PNC.
GUARANTEES OF SUBORDINATED DEBT SECURITIES
The payment of the principal of and interest on the Subordinated Debt
Securities pursuant to the Guarantees of the Subordinated Debt Securities
("Subordinated Guarantees") will, to the extent set forth in the Indenture, be
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness of PNC. (Section 12.04) In certain events of insolvency, the
payment of the principal of and interest on the Subordinated Guarantees will, to
the extent set forth in the Indenture, also be effectively subordinated in right
of payment to the prior payment in full of all Other Guarantor Obligations (as
defined in the Indenture). (Section 12.05) Other Guarantor Obligations means
obligations of PNC associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts or
any similar arrangements, unless the instrument by which PNC incurred, assumed
or guaranteed the obligation expressly provides that it is subordinate or junior
in right of payment to any other indebtedness or obligations of PNC. (Section
1.01) At June 30, 1997, there were no Other Guarantor Obligations of PNC.
Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings of PNC, the holders of all Senior Indebtedness of PNC will first be
entitled to receive payment in full of all amounts due or to become due thereon
before the Holders of the Subordinated Guarantees will be entitled to receive
any payment in respect of the principal of or interest on the Subordinated Debt
Securities pursuant to the Subordinated Guarantees. If upon any such payment or
distribution of assets to creditors there remain, after giving effect to such
subordination provisions in favor of the holders of Senior Indebtedness of PNC,
any amounts of cash, property or securities available for payment or
distribution in respect of Subordinated Guarantees (as defined in the Indenture,
"Excess Proceeds"), and if, at such time, any creditors in respect of Other
Guarantor Obligations have not received payment in full of all amounts due or to
become due on or in respect of such Other Guarantor Obligations, then such
Excess Proceeds shall first be applied to pay or provide for the payment in full
of such Other Guarantor Obligations before any payment or distribution may be
made in respect of the Subordinated Guarantees. In addition, no payment may be
made of the principal of or interest on the Subordinated Debt Securities
pursuant to the Subordinated Guarantees or in respect of any retirement,
purchase or other acquisition of any of the Subordinated Debt Securities
pursuant to the Subordinated Guarantees, at any time when (i) there is a default
in the payment of the principal of, premium, if any, or interest on or otherwise
in respect of any Senior Indebtedness of PNC or (ii) any event of default with
respect to any Senior Indebtedness of PNC has occurred and is continuing, or
would occur as a result of such payment on the Subordinated Debt Securities
pursuant to the Subordinated Guarantees or any retirement, purchase or other
acquisition of any of the Subordinated Debt Securities pursuant to the
Subordinated Guarantees, permitting the holders of such Senior Indebtedness of
PNC to accelerate the maturity thereof. Except as described above, the
obligation of PNC to make payment under the Subordinated Guarantees will not be
affected. By reason of such subordination, in the event of insolvency, holders
of Subordinated Guarantees of PNC may recover less, ratably, than holders of
Senior Indebtedness of PNC and Other Guarantor Obligations and may also recover
less, ratably, than holders of Existing Guarantor Subordinated Indebtedness (as
defined in the Indenture) and other creditors of PNC. (Section 3.12, 12.04,
12.05, 12.06 and 12.14)
Existing Guarantor Subordinated Indebtedness means the Guarantor's 8 1/4%
Convertible Subordinated Debentures Due 2008, PNC's Convertible Subordinated
Debentures Due 2005 originally issued by Citizens Fidelity Corporation, PNC's
Guarantee of PNC Funding's 9 7/8% Subordinated Notes Due 2001, and CCNB
Corporation's 10.55% Equity Commitment Notes Due 1998 assumed by PNC Funding and
PNC in connection with the acquisition of CCNB on October 23, 1992. (Section
1.01) At June 30, 1997, the Existing Guarantor Subordinated Indebtedness was
approximately $102.1 million. PNC's 8.315% Junior Subordinated Debentures Due
2027, in the aggregate principal amount of $300 million, issued on May 12, 1997
would be subordinated to the Debt Securities and the Existing Guarantor
Subordinated Indebtedness.
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PNC's obligations under the Subordinated Guarantees shall rank pari passu
in right of payment with each other and with the Existing Guarantor Subordinated
Indebtedness, subject to the obligations of the Holders of Subordinated
Guarantees to pay over any Excess Proceeds to creditors in respect of Other
Guarantor Obligations as provided in the Indenture. (Section 12.14)
Since PNC is a holding company separate from its subsidiaries, the rights
of PNC to share in the distribution of the assets of any subsidiary upon the
subsidiary's liquidation, reorganization or otherwise will be subject to the
prior claims of the subsidiary's creditors (including in the case of any bank
subsidiary, its depositors), except to the extent that PNC may itself be a
creditor with recognized claims against the subsidiary. In addition, there are
certain regulatory and other limitations on the payment of dividends and on
loans and other transfers of funds to PNC by its bank subsidiaries. See
"Supervision, Regulation and Other Matters."
CERTAIN COVENANTS
The Indenture contains certain covenants that impose various restrictions
on PNC Funding and PNC and, as a result, afford the holders of Debt Securities
certain protections. Although statements have been included as to the general
purpose and effect of the covenants, investors must review the full text of the
covenants to be able to meaningfully evaluate the covenants.
Restriction on Sale or Issuance of Voting Stock of a Principal Subsidiary Bank
The covenant described below is designed to ensure that, for so long as any
Senior Debt Securities are issued and outstanding, PNC will continue directly or
indirectly to own and thus serve as the holding company for its Principal
Subsidiary Banks (defined as each of (i) PNC Bank, (ii) any other Subsidiary
Bank the consolidated assets of which constitute 20% or more of the consolidated
assets of PNC and its subsidiaries, (iii) any other Subsidiary Bank designated
as a Principal Subsidiary Bank by the board of directors of PNC, or (iv) any
Subsidiary that owns any Voting Shares or certain rights to acquire Voting
Shares of any Principal Subsidiary Bank, and their respective successors,
provided any such successor is a Subsidiary Bank or a Subsidiary, as
appropriate). Principal Subsidiary Banks, in the past, have provided PNC income
in the form of dividends. See "Supervision, Regulation and Other Matters." The
Indenture prohibits PNC, unless debtholder consent is obtained from the holders
of Senior Debt Securities, from (i) selling or otherwise disposing of, and
permitting a Principal Subsidiary Bank to issue, Voting Shares or certain rights
to acquire Voting Shares of a Principal Subsidiary Bank, (ii) permitting the
merger or consolidation of a Principal Subsidiary Bank with or into any other
corporation, or (iii) permitting the sale or other disposition of all or
substantially all the assets of any Principal Subsidiary Bank, if after giving
effect to any one of such transactions and the issuance of the maximum number of
Voting Shares issuable upon the exercise of all such rights to acquire Voting
Shares of a Principal Subsidiary Bank, PNC would own directly or indirectly less
than 80% of the Voting Shares of such Principal Subsidiary Bank, with the
following exceptions: (i) transactions required by any law, or any regulation or
order of any governmental authority; (ii) transactions required as a condition
imposed by any governmental authority to the acquisition by PNC, directly or
indirectly, or any other corporation or entity if thereafter, (a) PNC would own
at least 80% of the Voting Shares of such other corporation or entity, (b) the
Consolidated Banking Assets of PNC would be at least equal to those prior
thereto, and (c) the board of directors of PNC shall have designated such other
corporation or entity a Principal Subsidiary Bank; (iii) transactions that do
not reduce the percentage of Voting Shares of such Principal Subsidiary Bank
owned directly or indirectly by PNC; and (iv) transactions where the proceeds
are invested within 180 days after such transaction in any one or more
Subsidiary Banks. However, the Indenture permits the merger of a Principal
Subsidiary Bank with and into a Principal Subsidiary Bank or PNC, the
consolidation of Principal Subsidiary Banks into a Principal Subsidiary Bank or
PNC, or the sale or other disposition of all or substantially all of the assets
of any Principal Subsidiary Bank to another Principal Subsidiary Bank or PNC,
if, in any such case in which the surviving, resulting or acquiring entity is
not PNC, PNC would own, directly or indirectly, at least 80% of the Voting
Shares of the Principal Subsidiary Bank surviving such merger, resulting from
such consolidation or acquiring such assets. (Section 5.06)
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Ownership of PNC Funding
The Indenture contains a covenant that, so long as any of the Debt
Securities are outstanding and subject to certain rights described below under
"Consolidation or Merger," PNC will continue to own, directly or indirectly, all
of the outstanding voting shares of PNC Funding. (Section 5.07)
Restriction on Liens
The purpose of the restriction on liens covenant is to preserve PNC's
direct or indirect interest in Voting Shares of Principal Subsidiary Banks free
of security interests of other creditors. The covenant permits certain specified
liens and liens where the Senior Debt Securities are equally secured. The
Indenture prohibits PNC and its subsidiaries from creating or permitting any
liens (other than certain tax and judgment liens) upon Voting Shares of any
Principal Subsidiary Bank to secure indebtedness for borrowed money without
making effective provision whereby the Senior Debt Securities shall be equally
and ratably secured, except that PNC may create or permit (i) purchase money
liens and liens on Voting Shares of any Principal Subsidiary Bank existing at
the time such Voting Shares are acquired or created within 120 days thereafter;
(ii) the acquisition of any Voting Shares of any Principal Subsidiary Bank
subject to liens at the time of acquisition or the assumption of obligations
secured by a lien on such Voting Shares; (iii) under certain circumstances,
renewals, extensions or refunding of the liens described in (i) and (ii) above;
and (iv) liens to secure loans or other extensions of credit under Section 23A
of the Federal Reserve Act or any successor or similar federal law or
regulation. (Section 5.08)
Consolidation or Merger
The covenant described below protects the holders of Debt Securities upon
certain transactions involving PNC Funding or PNC by requiring any successor to
PNC Funding or PNC to assume the predecessor's obligations under the Indenture,
and prohibits transactions that would result in an Event of Default, a Default
or an event which could become an Event of Default or Default under the
Indenture. PNC Funding or PNC may consolidate with, merge into, or transfer
substantially all of its properties to, any other corporation organized under
the laws of any domestic jurisdiction, provided that the successor corporation
assumes all obligations of PNC Funding or PNC, as the case may be, under the
Debt Securities and the Guarantees and under the Indenture, that after giving
effect to the transaction no Event of Default or Default, and no event which,
after notice or lapse of time, would become an Event of Default or Default,
shall have occurred and be continuing, and that certain other conditions are
met. (Sections 10.01 and 10.03)
Except as may be disclosed in a Prospectus Supplement and other than the
restrictions on liens on Voting Shares of Principal Subsidiary Banks and on
certain dispositions of Principal Subsidiary Banks described above, the
Indenture and the Debt Securities do not contain any covenants or other
provisions designed to afford holders of the Debt Securities protection in the
event of a highly leveraged transaction involving PNC.
MODIFICATION AND WAIVER
Modifications of the Indenture may be made by PNC Funding, PNC and the
Trustee with the consent of the Holders of the majority in aggregate principal
amount of Outstanding Debt Securities of each series affected thereby; provided,
however, that no such modification may, without the consent of the Holder of
each Outstanding Debt Security affected thereby: (i) change the Maturity of the
principal of, or the stated Maturity of any installment of interest on, any such
Debt Security; (ii) reduce the principal amount of, or the premium, if any, or
the interest on such Debt Security (including, in the case of an Original Issue
Discount Security, the amount payable upon acceleration of the maturity
thereof); (iii) change the place or currency of payment of principal of or
premium, if any, or interest on any such Debt Security; (iv) impair the right to
institute suit for the enforcement of any payment on or with respect to any such
Debt Security; (v) reduce the aforesaid percentage in principal amount of
Outstanding Debt Securities of any series necessary to modify the Indenture or
the percentage in principal amount of Outstanding Debt Securities necessary for
any waiver of compliance with conditions and defaults thereunder; or (vi) modify
or affect in any manner adverse to a Holder the terms and conditions of the
Guarantees. (Section 9.02)
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Modification and amendment of the Indenture may be made by PNC Funding,
PNC, and the Trustee without the consent of any Holder of Debt Securities for
any of the following purposes: (i) to evidence the succession of another
corporation to PNC Funding or PNC; (ii) to provide for the acceptance of
appointment of a successor Trustee; (iii) to add to the covenants of PNC Funding
or PNC for the benefit of the Holders of Debt Securities; (iv) to cure any
ambiguity, defect or inconsistency in the Indenture, provided such action does
not adversely affect the Holders of Debt Securities in any material respect; (v)
to secure the Debt Securities under applicable provisions of the Indenture; (vi)
to establish the form or terms of Debt Securities; (vii) to permit the payment
in the United States of principal, premium or interest on Unregistered
Securities; or (viii) to provide for the issuance of uncertificated Debt
Securities in place of certificated Debt Securities. (Section 9.01)
The Holders of a majority in principal amount of Outstanding Debt
Securities of any series may waive, insofar as that series is concerned,
compliance with certain covenants, including those described under the captions
above entitled "Restriction on Sale or Issuance of Capital Stock of a Principal
Subsidiary Bank," "Ownership of PNC Funding" and "Restriction on Liens."
(Section 5.09) No waiver by the Holders of any series of Subordinated Debt
Securities is required with respect to the covenant described under the caption
above entitled "Restriction on Sale or Issuance of Voting Stock of a Principal
Subsidiary Bank." (Section 5.10) Covenants concerning the payment of principal,
premium, if any, and interest on the Debt Securities, compliance with the terms
of the Indenture, maintenance of an agency and certain monies held in trust, may
only be waived pursuant to a supplemental indenture executed with the consent of
each Holder of Debt Securities affected by such waiver. The covenant concerning
certain reports required by federal law may not be waived.
EVENTS OF DEFAULT, DEFAULTS, WAIVERS
The Indenture defines an Event of Default with respect to any series of
Senior Debt Securities as being any one of the following events and such other
event as may be established for the Debt Securities of a particular series: (i)
default for 30 days in the payment of interest on such series; (ii) default in
any payment of principal of or premium, if any, on such series; (iii) default in
the payment of any sinking fund installment with respect to such series; (iv)
default for 90 days after appropriate notice in performance of any other
covenant or warranty in the Indenture (other than a covenant or warranty
included in the Indenture solely for the benefit of a series of Debt Securities
other than that series); (v) the occurrence of certain events relating to
bankruptcy, insolvency or reorganization of PNC, PNC Funding or any Principal
Subsidiary Bank; or (vi) any other Event of Default provided in the supplemental
indenture under which such Senior Debt Securities are issued. (Section 7.01(a))
The Indenture defines an Event of Default with respect to any series of
Subordinated Debt Securities as certain events involving the bankruptcy or
reorganization of PNC or any Principal Subsidiary Bank. There is no right of
acceleration in the case of events involving the bankruptcy, insolvency or
reorganization of PNC Funding or of a default in the payment of principal,
interest, premium, if any, or any sinking fund payment with respect to a series
of Subordinated Debt Securities or in the case of a default in the performance
of any other covenant of PNC Funding or PNC in the Indenture. The Indenture
defines a Default with respect to any series of Subordinated Debt Securities as
any of the items listed in (i) through (iv) of the above paragraph, events
involving the bankruptcy, insolvency or reorganization of PNC Funding and such
other Default as may be established for the Subordinated Debt Securities of a
particular series. A breach of the covenant described under the caption above
entitled "Restriction on Sale or Issuance of Voting Stock of a Principal
Subsidiary Bank" will not result in a default with respect to any Series of
Subordinated Debt Securities. (Sections 7.01(b) and (c))
In case an Event of Default shall occur and be continuing with respect to
any series of Debt Securities, either the Trustee or the Holders of not less
than 25% in principal amount of Outstanding Debt Securities of that series may
declare the principal of such series (or if Debt Securities of that series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms of that series) to be due and payable immediately. At any
time after a declaration of acceleration has been made but before a judgment or
decree for payment of money due has been obtained by the Trustee, the Holders of
a majority in principal
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amount of the Outstanding Debt Securities of such series may rescind any
declaration of acceleration and its consequences, if all payments due (other
than those due as a result of acceleration) have been made and all Events of
Default and Defaults have been remedied or waived. Any Event of Default or
Default with respect to a particular series of Debt Securities may be waived by
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, except in each case of a failure to pay principal of, or
premium, if any, or interest on, or any sinking fund installment in respect of,
such Debt Securities or in respect of a covenant or provision of the Indenture
which cannot be modified without the consent of the Holder of each Outstanding
Debt Security affected. (Sections 7.02, 7.08 and 7.13)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default or a Default shall occur and be continuing,
the Trustee will be under no obligation to exercise any of the rights or powers
in the Indenture at the request or direction of Holders of Debt Securities,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity. Subject to such provisions for indemnification and certain
limitations contained in the Indenture, the Holders of a majority in principal
amount of the Outstanding Debt Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee with respect to Debt Securities of such series.
(Sections 8.03 and 7.12)
The Indenture provides that in the event of a default of 30 days in the
payment of interest upon any Debt Security of any series, or defaults in the
payment of any principal of or premium, if any, or any sinking fund installment
with respect to any Debt Securities of any series, PNC Funding will, upon demand
of the Trustee, pay to it, for the benefit of the Holder of any such Debt
Security the whole amount then due and payable on such Debt Security for
principal and interest. The Indenture, as amended, further provides that if PNC
Funding fails to pay such amount forthwith upon such demand, the Trustee may,
among other things, institute a judicial proceeding for the collection thereof.
(Section 7.03)
The Indenture requires PNC Funding and PNC to file with the Trustee, on an
annual basis, certificates as to the absence of any default and as to compliance
with the terms of the Indenture. The Indenture provides that the Trustee may
withhold notice to the Holders of Debt Securities of any default (except in
payment of principal, premium, if any, interest or sinking fund installment) if
the Trustee considers it in the interest of the Holders of Debt Securities to do
so. (Sections 5.04 and 8.02)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default or Default with respect to Debt
Securities of that series and unless the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the Outstanding Debt Securities of that
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. However, the Holder of any Debt
Security will have an absolute right to receive payment of the principal of, and
premium, if any, and interest on such Debt Security on the due dates expressed
in such Debt Security and to institute suit for the enforcement of any such
payment. (Sections 7.07 and 7.08)
DEFEASANCE
Except as may otherwise be provided in the applicable Prospectus Supplement
with respect to the Debt Securities of any series, the Indenture provides that
PNC Funding and PNC shall be discharged from their obligations under the Debt
Securities of a series at any time prior to the Stated Maturity or redemption
thereof when (a) PNC Funding or PNC has irrevocably deposited with the Trustee,
in trust, (i) sufficient funds to pay the principal of (and premium, if any),
and interest to Stated Maturity (or redemption) on, the Debt Securities of such
series, or (ii) such amount of government securities as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the principal of, and
premium, if any, and interest to Stated Maturity (or redemption) on, the Debt
Securities of such series, and (b) PNC Funding or PNC has paid all other sums
payable with respect to the
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Debt Securities of such series. Deposited funds shall be in the currency or
currency unit in which the Debt Securities are denominated. Deposited government
securities shall be direct obligations of, or obligations the principal of and
interest on which are fully guaranteed by, the government which issued the
currency in which the Debt Securities are denominated, and which are not subject
to prepayment, redemption or call. Upon such discharge, the Holders of the Debt
Securities of such series shall no longer be entitled to the benefits of the
Indenture, except for the purposes of registration of transfer and exchange of
the Debt Securities of such series, and replacement of lost, stolen or mutilated
Debt Securities, and shall look only to such deposited funds or obligations for
payment. (Sections 11.01 and 11.02)
For federal income tax purposes, the deposit and discharge may, depending
on a variety of factors, result in a taxable gain or loss being recognized by
the Holders of the affected Debt Securities. Prospective investors are urged to
consult their own tax advisers as to the specific consequences of such a deposit
and discharge, including the applicability and effect of tax laws other than
federal income tax laws.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of a global security ("Global Security") that will be deposited with, or on
behalf, of, a depositary (the "Depositary"). Such Depositary will be The
Depository Trust Company ("DTC"), unless otherwise identified in the Prospectus
Supplement relating to such series. A Global Security may be issued as either a
Registered or Unregistered Security and in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for individual certificates
evidencing Debt Securities in definitive form represented thereby, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security or any nominee thereof to a successor of such Depositary or a
nominee of such successor. (Section 2.05)
If DTC is the Depositary for a series of Debt Securities, such series will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Global Security will be issued
for such series of Debt Securities, in the aggregate principal amount of such
series, and will be deposited with DTC. If, however, the aggregate principal
amount of such series of Debt Securities exceeds $200 million, one Global
Security will be issued with respect to each $200 million of principal amount
and an additional Global Security will be issued with respect to any remaining
principal amount of such series.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of a series of Debt Securities under the DTC system will need to
be made by or through Direct Participants, which will receive a credit for the
Debt Securities on DTC's records. The ownership interest of each actual
purchaser of each Debt Security ("Beneficial Owner") is in turn to be recorded
on the Direct Participants' and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transaction, as well as provide periodic statements of their
holdings, from the Direct Participants or Indirect Participants through which
the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Debt Securities are to be accomplished by entries made on the
books of the Participants acting
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on behalf of Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interest in the Global Security or Global
Securities, except in the event that use of the book-entry system for such Debt
Securities is discontinued.
To facilitate subsequent transfers, all Global Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Global Securities with DTC and their registration in
the name of Cede & Co. effect no change in beneficial ownership. DTC has advised
PNC and PNC Funding that DTC will have no knowledge of the actual Beneficial
Owners of the Global Securities, and that DTC's records reflect only the
identity of the Direct Participants to whose accounts Global Securities are
credited, which may or may not be the Beneficial Owners. Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
To the extent any series of Debt Securities is redeemable, redemption
notices will be sent to DTC. If less than all of the Debt Securities within an
issue are being redeemed, DTC's practice is to determine by lot the amount of
the interest of each Direct Participant in such issue to be redeemed. The
applicable Prospectus Supplement for a series of Debt Securities will indicate
whether such series is redeemable.
To the extent applicable, neither DTC nor Cede & Co. will consent or vote
with respect to any Global Securities deposited with it. Under its usual
procedure, DTC will mail an Omnibus Proxy to the issuer as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting and
voting rights to those Direct Participants to whose accounts the Debt Securities
are credited on the record date (identified in a listing attached to the Omnibus
Proxy).
Principal and interest payments on the Global Securities deposited with DTC
will be made to Cede & Co., as nominee of DTC. DTC's practice is to credit
Direct Participants' accounts, upon DTC's receipt of funds and corresponding
detail information from the issuer, on the payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as in the case with securities held for the accounts of customers
registered in "street name", and will be the responsibility of such Participant
and not DTC or PNC Funding, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of principal and interest to Cede
& Co. will be the responsibility of the Trustee, who unless otherwise indicated
in the applicable Pricing Supplement, will be PNC Funding's paying agent,
disbursements of such payments to Direct Participants will be the responsibility
of DTC, and disbursements of such payments to Beneficial Owners will be the
responsibility of Direct Participants and Indirect Participants. None of PNC
Funding, PNC, the Trustee, any paying agent, or the registrar for the Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Security or Global Securities for any series of Debt
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial interests.
If DTC is at any time unwilling, unable or ineligible to continue as the
Depositary and a successor depositary is not appointed by PNC Funding within 90
days, PNC Funding will issue certificated Debt Securities for each series in
definitive form in exchange for each Global Security. If PNC Funding determines
not to have a series of Debt Securities represented by a Global Security, which
it may do, it will issue certificated Debt Securities for such series in
definitive form in exchange for the Global Security. In either instance, a
Beneficial Owner will be entitled to physical delivery of certificated Debt
Securities for such series in definitive form equal in principal amount to such
Beneficial Owner's beneficial interest in the Global Security and to have such
certificated Debt Securities for such series registered in such Beneficial
Owner's name. Certificated Debt Securities so issued in definitive form will be
issued in denominations of $1,000 and integral multiples thereof and will be
issued in registered form only, without coupons.
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Any other or differing terms of the depositary arrangement will be
described in the Prospectus Supplement relating to a series of Debt Securities.
REGARDING THE TRUSTEE
In the ordinary course of business, PNC Funding and PNC may maintain lines
of credit with one or more Trustees for a series of Debt Securities and the
Banks may maintain deposit accounts and conduct other banking transactions with
one or more Trustees for a series of Debt Securities.
TRUSTEE'S DUTY TO RESIGN UNDER CERTAIN CIRCUMSTANCES
PNC Funding may issue both Senior and Subordinated Debt Securities under
the Indenture. Because the Subordinated Debt Securities will rank junior in
right of payment to the Senior Debt Securities, the occurrence of a default
under the Indenture with respect to the Subordinated Debt Securities or any
Senior Debt Securities could create a conflicting interest under the Trust
Indenture Act of 1939, as amended ("1939 Act"), with respect to any Trustee who
serves as trustee for both Senior and Subordinated Debt Securities. In addition,
upon the occurrence of a default under the Indenture with respect to any series
of Debt Securities the Trustee of which maintains banking relationships with PNC
Funding or PNC, such Trustee would have a conflicting interest under the 1939
Act as a result of such business relationships. If a default has not been cured
or waived within 90 days after the Trustee has or acquires a conflicting
interest, the Trustee generally is required by the 1939 Act to eliminate such
conflicting interest or resign as Trustee with respect to the Subordinated Debt
Securities or the Senior Debt Securities. In the event of the Trustee's
resignation, PNC Funding and/or PNC shall promptly appoint a successor trustee
with respect to the affected securities.
DESCRIPTION OF COMMON STOCK
PNC is authorized to issue 450,000,000 shares of Common Stock. At June 30,
1997, there were 306,976,545 shares of Common Stock issued and outstanding and
40,407,600 shares held in treasury. For a description of authorized and issued
and outstanding shares of Preferred Stock of PNC, see "Description of Preferred
Stock--General."
Holders of Common Stock are entitled to one vote per share on all matters
submitted to shareholders. Holders of Common Stock have neither cumulative
voting rights nor any preemptive rights for the purchase of additional shares of
any class of stock of PNC, and are not subject to liability for further calls or
assessments. The Common Stock does not have any sinking fund, conversion or
redemption provisions.
Holders of Common Stock are entitled to receive such dividends as may be
declared by the Board of Directors of PNC out of funds legally available
therefor. The Board of Directors may not pay or set apart dividends on Common
Stock until dividends for all past dividend periods on any series of outstanding
preferred stock have been paid or declared and set apart for payment.
In the event of dissolution or winding up of the affairs of PNC, holders of
Common Stock will be entitled to share ratably in all assets remaining after
payments to all creditors and payments required to be made in respect of
outstanding preferred stock (including accrued and unpaid dividends thereon).
The Board of Directors of PNC may, except as otherwise required by
applicable law, cause the issuance of authorized shares of Common Stock without
shareholder approval to such persons and for such consideration as the Board of
Directors may determine in connection with acquisitions by PNC or for other
corporate purposes.
The Chase Manhattan Bank, New York, New York, is the transfer agent and
registrar for PNC's Common Stock. The shares of Common Stock are listed on the
New York Stock Exchange under the symbol "PNC". The outstanding shares of Common
Stock are, and the shares offered hereby will be, validly issued, fully paid and
nonassessable and the holders thereof are not and will not be subject to any
liability as shareholders.
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DESCRIPTION OF PREFERRED STOCK
GENERAL
The Board of Directors of PNC (the "PNC Board") is authorized without
further shareholder action to cause the issuance, as of June 30, 1997, of up to
10,662,800 additional shares of Preferred Stock, and such Preferred Stock may be
issued in one or more series, each with such preferences, limitations,
designations, conversion rights, voting rights, dividend rights, voluntary and
involuntary liquidation rights and other rights as the PNC Board may determine
at the time of issuance.
Under such authority, PNC has previously designated six series of preferred
stock, of which, at June 30, 1997, five series were outstanding, including:
16,048 shares of $1.80 Cumulative Convertible Preferred Stock, Series A
("Preferred Stock-A"); 4,452 shares of $1.80 Cumulative Convertible Preferred
Stock, Series B ("Preferred Stock-B"); 319,865 shares of $1.60 Cumulative
Convertible Preferred Stock, Series C ("Preferred Stock-C"); 432,310 shares of
$1.80 Cumulative Convertible Preferred Stock, Series D ("Preferred Stock-D");
and 6,000,000 shares of Fixed/Adjustable Rate Noncumulative Preferred Stock,
Series F ("Preferred Stock-F"). All shares of a former series of Preferred
Stock, designated as $2.60 Cumulative NonVoting Preferred Stock, Series E, have
been redeemed and restored to the status of authorized but unissued Preferred
Stock. See "Description of Preferred Stock--Preferred Stock Currently
Outstanding" below.
The rights of the holders of PNC's Common Stock are subject to any rights
and preferences of such outstanding series of Preferred Stock, and the Preferred
Stock herein offered, and would be subject to the rights and preferences of any
additional shares of Preferred Stock, or any series thereof, which might be
issued in the future.
The existence of authorized but unissued Preferred Stock could have the
effect of discouraging an attempt to acquire control of PNC. For example,
Preferred Stock could be issued to persons, firms or entities known to be
friendly to management.
PREFERRED STOCK OFFERED HEREIN
General
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. The particular terms of any series of
Preferred Stock offered by any Prospectus Supplement and the extent, if any, to
which such general provisions may apply to the Preferred Stock so offered will
be described in the Prospectus Supplement relating to such Preferred Stock. If
so specified in the applicable Prospectus Supplement, the terms of any series of
Preferred Stock may differ from the terms set forth below. The description below
and in any Prospectus Supplement does not purport to be complete and is subject
to and qualified in its entirety by reference to the Designation of Series
relating to the Preferred Stock the form of which is incorporated by reference
as Exhibit 4.4 to the Registration Statement of which this Prospectus is a part
and the definitive form of which will be filed with the Commission.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the applicable Prospectus Supplement, the shares
of each series of Preferred Stock will upon issuance rank on a parity in all
respects with PNC's existing series of Preferred Stock, described below, and
each other then outstanding series of preferred stock of PNC. Holders of the
Preferred Stock will have no preemptive rights to subscribe for any additional
securities which may be issued by PNC. Unless otherwise specified in the
applicable Prospectus Supplement, The Chase Manhattan Bank, New York, New York,
will be the transfer agent and registrar for the Preferred Stock.
Because PNC is a holding company, its rights and the rights of holders of
its securities, including the holders of Preferred Stock, to participate in the
assets of any PNC subsidiary upon the latter's liquidation or recapitalization
will be subject to the prior claims of such subsidiary's creditors and preferred
shareholders,
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except to the extent PNC may itself be a creditor with recognized claims against
such subsidiary or a holder of preferred shares of such subsidiary. See
"Supervision, Regulation and Other Matters"
PNC may, at its option, elect to offer Depositary Shares ("Depositary
Shares") evidenced by depositary receipts ("Depositary Receipts"), each
representing a fractional interest (to be specified in the Prospectus Supplement
relating to the particular series of Preferred Stock) in a share of a particular
series of the Preferred Stock issued and deposited with a Depositary (as defined
below). See "Description of Depositary Shares" below.
Dividends
The holders of the Preferred Stock will be entitled to receive, when, as
and if declared by the Board of Directors of PNC or a duly authorized committee
thereof, out of funds legally available therefor, dividends at such rates and on
such dates as will be specified in the applicable Prospectus Supplement. Such
rates may be fixed or variable or both. If variable, the formula used for
determining the dividend rate for each dividend period will be specified in the
applicable Prospectus Supplement. Dividends will be payable to the holders of
record as they appear on the stock books of PNC on such record dates as will be
fixed by the Board of Directors of PNC or a duly authorized committee thereof.
Dividends may be paid in the form of cash, Preferred Stock (of the same or a
different series) or Common Stock of PNC, in each case as specified in the
applicable Prospectus Supplement.
Dividends on any series of Preferred Stock may be cumulative or
noncumulative, as specified in the applicable Prospectus Supplement. If the
Board of Directors of PNC fails to declare a dividend payable on a dividend
payment date on any Preferred Stock for which dividends are noncumulative
("Noncumulative Preferred Stock"), then the holders of such Preferred Stock will
have no right to receive a dividend in respect of the dividend period relating
to such dividend payment date, and PNC will have no obligation to pay the
dividend accrued for such period, whether or not dividends on such Preferred
Stock are declared or paid on any future dividend payment dates.
If dividends on a particular series shall have been determined to be
cumulative, no dividends shall be paid or set apart for payment or declared on
the Common Stock or on any class or series of stock of PNC ranking as to
dividends subordinate to such series (other than dividends payable in Common
Stock or in any class or series of stock of PNC ranking as to dividends and
assets subordinate to such series) and no payment shall be made or set apart for
the purchase, redemption or other acquisition for value of any shares of Common
Stock or of any class or series of stock of PNC ranking as to dividends or
assets subordinate to such series, until dividends (to the extent cumulative)
for all past dividend periods on all outstanding shares of such series have been
paid, or declared and set apart for payment, in full. In case dividends for any
dividend period are not paid in full on all shares of Preferred Stock ranking
equally as to dividends, all such shares shall participate ratably in the
payment of dividends for such period in proportion to the full amounts of
dividends to which they are respectively entitled.
Voting
Except as provided herein or in the applicable Prospectus Supplement, or as
required by applicable law, the holders of Preferred Stock have only such voting
rights with regard to matters submitted to a vote of the shareholders of PNC as
shall be fixed and determined by PNC's Board of Directors. Except as otherwise
required by law or provided by the Board of Directors and described in the
applicable Prospectus Supplement, holders of Preferred Stock having voting
rights and holders of Common Stock vote together as one class. Holders of
Preferred Stock do not have cumulative voting rights.
If PNC shall have failed to pay, or declare and set apart for payment,
dividends on all outstanding shares of Preferred Stock in an amount equal to six
quarterly dividends at the rates payable upon such shares (whether or not such
dividends are cumulative), the number of directors of PNC shall be increased by
two at the first annual meeting of the shareholders of PNC held thereafter, and
at such meeting and at each subsequent annual meeting until cumulative dividends
payable for all past dividend periods and continuous noncumulative dividends for
at least one year on all outstanding shares of Preferred Stock entitled thereto
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shall have been paid, or declared and set apart for payment, in full, the
holders of shares of Preferred Stock of all series shall have the right, voting
as a class, to elect such two additional members of the Board of Directors to
hold office for a term of one year. Upon such payment, or such declaration and
setting apart for payment, in full, the terms of the two additional directors so
elected shall forthwith terminate, and the number of directors of PNC shall be
reduced by two, and such voting right of the holders of shares of Preferred
Stock shall cease, subject to increase in the number of directors as aforesaid
and to revesting of such voting right in the event of each and every additional
failure in the payment of dividends in an amount equal to six quarterly
dividends as aforesaid.
PNC shall not, without the affirmative vote at a meeting, or the written
consent with or without a meeting, of the holders of at least two-thirds of the
then outstanding shares of Preferred Stock of all series (a) create or increase
the authorized number of shares of any class of stock ranking as to dividends or
assets prior to the Preferred Stock; or (b) change the preferences,
qualifications, privileges, limitations, restrictions or special or relative
rights granted to or imposed upon the shares of Preferred Stock in any material
respect adverse to the holders thereof, provided that if any such change will
affect any particular series materially and adversely as contrasted with the
effect thereof upon any other series, no such change may be made without, in
addition, such vote or consent of the holders of at least two-thirds of the then
outstanding shares of the particular series which would be so affected.
Subject to such affirmative vote or consent of the holders of the
outstanding shares of Preferred Stock of any series, PNC may, by resolution of
its Board of Directors or as otherwise permitted by law, from time to time alter
or change the preferences, rights or powers of the Preferred Stock of such
series. The holders of the Preferred Stock of such series shall not be entitled
to participate in any such vote if, at or prior to the time when any such
alteration or change is to take effect, provision is made for the redemption of
all the Preferred Stock of such series at the time outstanding. See "Redemption
by PNC" below. Nothing in this section shall be taken to require a class vote or
consent in connection with the authorization, designation, increase or issuance
of any shares of any class or series (including additional Preferred Stock of
any series) that rank junior to or on a parity with the Preferred Stock of such
series as to dividends and liquidation rights or in connection with the
authorization, designation, increase or issuance of any bonds, mortgages,
debentures or other obligations of PNC.
Under interpretations adopted by the Federal Reserve or its staff, if the
holders of Preferred Stock of any series become entitled to vote for the
election of directors because dividends on such series are in arrears as
described above, such series may then be deemed a "class of voting securities"
and a holder of 25% or more of such series (or a holder of 5% or more if it
otherwise exercises a "controlling influence" over PNC) may then be subject to
regulation as a bank holding company in accordance with the BHC Act. In
addition, at such time as such series is deemed a class of voting securities,
any other bank holding company may be required to obtain the prior approval of
the Federal Reserve to acquire more than 5% of such series, and any person other
than a bank holding company may be required to obtain the prior approval of the
Federal Reserve to acquire 10% or more of such series.
Liquidation of PNC
In the event of voluntary or involuntary liquidation of PNC, the holders of
shares of each series of Preferred Stock shall be entitled to receive from the
assets of PNC (whether capital or surplus), prior to any payment to the holders
of Common Stock or of any class or series of stock of PNC ranking as to assets
subordinate to such series, the amount fixed by the Board of Directors for such
series and described in the applicable Prospectus Supplement, plus, in case
dividends on such series shall have been determined to be cumulative, an amount
equal to the accrued and unpaid dividends thereon (to the extent cumulative)
computed to the date on which payment thereof is made available, whether or not
earned or declared. After such payment to the holders of shares of such series,
any remaining balance shall be paid to the holders of Common Stock or of any
class or series of stock of PNC ranking as to assets subordinate to such series,
as they may be entitled. If, upon liquidation of PNC, its assets are not
sufficient to pay in full the amounts so payable to the holders of shares of all
series of Preferred Stock ranking equally as to assets, all such shares shall
participate ratably in the distribution of assets in proportion to the full
amounts to which they are
21
<PAGE> 23
respectively entitled. Neither a merger nor a consolidation of PNC into or with
any other corporation nor a sale, transfer or lease of all or part of the assets
of PNC shall be deemed a liquidation of PNC within the meaning of this
paragraph.
Redemption by PNC
Except as otherwise provided by the Board of Directors and described in the
applicable Prospectus Supplement, PNC, at its option to be exercised by its
Board of Directors, may redeem the whole or any part of the Preferred Stock or
of any series thereof at such times and at the applicable amount for each share
which shall have been fixed and determined, plus, in case dividends shall have
been determined to be cumulative, an amount equal to the accrued and unpaid
dividends thereon (to the extent cumulative) computed to the date fixed for
redemption, whether or not earned or declared (hereinafter collectively called
the "redemption price"). If at any time less than all of the Preferred Stock
then outstanding is to be called for redemption, the Board may select one or
more series to be redeemed, and if less than all the outstanding Preferred Stock
of any series is to be called for redemption, the shares to be redeemed may be
selected by lot or by such other equitable method as the Board in its discretion
may determine.
Notice of redemption shall be published at least once in a newspaper of
general circulation in Philadelphia, Pennsylvania, or in the Borough of
Manhattan, New York, and copies of such notice shall be given by mailing the
same to each record holder of the Preferred Stock to be redeemed, not less than
30 nor more than 60 days prior to the date fixed for redemption thereof, to the
respective addresses of such holders as the same shall appear on the stock books
of PNC. Each notice shall state: (i) the redemption date; (ii) the number of
shares and series of the Preferred Stock to be redeemed; (iii) the redemption
price; and (iv) the place or places where certificates for such Preferred Stock
are to be surrendered for payment of the redemption price. If fewer than all the
shares of Preferred Stock of any series held by any holder are to be redeemed,
the notice mailed to such holder shall also specify the number of shares of
Preferred Stock to be redeemed from such holder.
If notice of redemption of any share of Preferred Stock has been given,
from and after the redemption date for such shares (unless default shall be made
by PNC in providing money for the payment of the redemption price of such
shares), dividends on such shares shall cease to accrue and such shares shall no
longer be deemed to be outstanding, and all rights of the holders thereof as
shareholders of PNC (except the right to receive the redemption price) shall
cease. Failure to give notice by mail or any defect therein or failure of any
addressee to receive it shall not affect the validity of the proceedings for
redemption. Conversion rights of shares called for redemption shall terminate at
the close of business on the date fixed for redemption or at such earlier time
as shall have been fixed by the Board of Directors. Upon surrender in accordance
with such notice of the certificates representing any such shares (properly
endorsed or assigned for transfer, if the Board of Directors of PNC shall so
require and the notice shall so state), the redemption price set forth above
shall be paid out of the funds provided by PNC. If fewer than all the shares
represented by any such certificate are redeemed, a new certificate representing
the unredeemed shares shall be issued without cost to the holder thereof.
Except as otherwise provided by the Board of Directors and described in the
applicable Prospectus Supplement, PNC shall have the right to acquire Preferred
Stock from time to time at such price or prices as PNC may determine, provided
that unless dividends (to the extent cumulative) payable for all past quarterly
dividend periods on all outstanding shares of Preferred Stock entitled to
cumulative dividends have been paid, or declared and set apart for payment, in
full, PNC shall not acquire for value any shares of Preferred Stock except in
accordance with an offer (which may vary as to terms offered with respect to
shares of different series but not with respect to shares of the same series)
made in writing or by publication (as determined by the Board of Directors) to
all holders of record of shares of Preferred Stock.
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<PAGE> 24
Conversion
The holders of any series of Preferred Stock will have such rights, if any,
to convert such shares into or to exchange such shares for, cash, shares of
PNC's Common Stock or any other class of capital securities of PNC as may be set
forth in the Prospectus Supplement relating to such series of Preferred Stock.
PREFERRED STOCK CURRENTLY OUTSTANDING
The following summaries of the outstanding Preferred Stock are qualified in
their entirety by reference to the corresponding Designations of Series and
description of Preferred Stock contained in PNC's Articles of Incorporation, as
amended, attached as Exhibits 99.1 and 99.2 (with respect to the Preferred
Stock-F) to PNC's Current Report on Form 8-K dated October 7, 1996 and PNC's
application for registration of securities on Form 8-A filed September 24, 1987
(File No. 1-9718) and incorporated herein by reference.
Holders of outstanding Preferred Stock are entitled to cumulative dividends
at the annual rate of $1.80 per share for Preferred Stock-A, Preferred Stock-B
and Preferred Stock-D and $1.60 per share for Preferred Stock-C, payable
quarterly when and as declared by the Board of Directors of PNC. The Board of
Directors may not pay or set apart dividends on Common Stock until dividends for
the current period and all past dividend periods on all series of outstanding
Preferred Stock have been paid or declared and set apart for payment. Dividends
on Preferred Stock-F are payable quarterly at a rate per share of 6.05% per
annum through September 29, 2001, and thereafter at the "Applicable Rate" (as
defined in the Designation of Series relating to the Preferred Stock-F), which
rate will not be less than 6.55% nor greater than 12.55% (unless there are
certain changes made to the Internal Revenue Code). Dividends on the Preferred
Stock-F are not cumulative and no rights accrue to the holders by reason of the
fact that PNC may fail to declare or pay dividends on the Preferred Stock-F in
any amount in any year.
Holders of outstanding Preferred Stock, other than Preferred Stock-F, are
entitled to a number of votes equal to the number of full shares of Common Stock
into which their Preferred Stock is at the time convertible. Holders of
outstanding Preferred Stock currently are entitled to the following conversion
privileges: (i) one share of Preferred Stock-A or Preferred Stock-B is
convertible into eight shares of Common Stock and (ii) 2.4 shares of Preferred
Stock-C or Preferred Stock-D are convertible into four shares of Common Stock.
Shares of Preferred Stock-F do not have voting rights, except in limited
circumstances.
On the liquidation of PNC, holders of outstanding Preferred Stock would be
entitled to receive, before any payments are made with respect to Common Stock,
a specified amount for each share held by them, plus all dividends accrued and
unpaid thereon, or such lesser amount remaining after the claims of all
creditors have been satisfied, ratably with holders of other series of Preferred
Stock ranking equally as to assets. The liquidation preference is $40 per share
for Preferred Stock-A and Preferred Stock-B, $20 per share for Preferred Stock-C
and Preferred Stock-D and $50 per share for Preferred Stock-F.
Preferred Stock-A, Preferred Stock-C and Preferred Stock-D are redeemable
at any time at the option of PNC at redemption prices equal to the respective
liquidation preference amounts stated above, plus accrued and unpaid dividends,
if any. Preferred Stock-B is not redeemable. Prior to September 30, 2001,
Preferred Stock-F is not redeemable, except in limited circumstances by PNC upon
certain changes to the Internal Revenue Code at a declining redemption price
ranging from $52.20 to the liquidation preference amount, plus accrued and
unpaid dividends (whether or not earned or declared) from the immediately
preceding dividend payment date (but without any cumulation for unpaid dividends
for prior dividend periods) to the date fixed for redemption. On and after
September 30, 2001, Preferred Stock-F is redeemable at the option of PNC at its
liquidation preference amount, plus accrued and unpaid dividends (whether or not
earned or declared) from the immediately preceding dividend payment date (but
without any cumulation for unpaid dividends for prior dividend periods) to the
date fixed for redemption.
All outstanding series of Preferred Stock, other than Preferred Stock-F,
are convertible (unless called for redemption and not converted within the time
allowed therefor), at any time at the option of the holder. No adjustment will
be made for dividends on Preferred Stock converted or on Common Stock issuable
upon conversion. The conversion rate of each series of convertible Preferred
Stock will be adjusted in certain events,
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<PAGE> 25
including payment of stock dividends on, or splits or combinations of, the
Common Stock or issuance to holders of Common Stock of rights to purchase Common
Stock at a price per share less than 90% of Current Market Price as defined in
the Articles of Incorporation of PNC. Appropriate adjustments in the conversion
provisions also will be made in the event of certain reclassifications,
consolidations or mergers or the sale of substantially all of the assets of PNC.
Preferred Stock-F is not convertible into shares of Common Stock or any other
security of PNC.
PNC shall have the right to acquire outstanding Preferred Stock from time
to time at such price or prices as PNC may determine, provided that unless
dividends (to the extent cumulative) payable for all past quarterly dividend
periods on all outstanding shares of Preferred Stock entitled to cumulative
dividends have been paid, or declared and set apart for payment, in full, PNC
shall not acquire for value any shares of Preferred Stock except in accordance
with an offer (which may vary as to terms offered with respect to shares of
different series but not with respect to shares of the same series) made in
writing or by publication (as determined by the Board of Directors) to all
holders of record of shares of Preferred Stock.
Preferred Stock-A, Preferred Stock-B and Preferred Stock-F are currently
traded in the over-the-counter market. Preferred Stock-C and -D are listed and
traded on the New York Stock Exchange. The Chase Manhattan Bank, New York, New
York, is transfer agent and registrar for all outstanding series of Preferred
Stock.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
Certain general terms and provisions of the Deposit Agreement (as described
below), the Depositary Shares and the Depositary Receipts to which a Prospectus
Supplement may relate are set forth below. The particular terms of the Preferred
Stock offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Depositary Shares will be described in the
Prospectus Supplement relating to such Preferred Stock. The descriptions below
and in any Prospectus Supplement do not purport to be complete and are subject
to and qualified in their entirety by reference to the Deposit Agreement and the
Depositary Receipts, the forms of which are incorporated by reference as
Exhibits 4.5 and 4.6, respectively, to the Registration Statement of which this
Prospectus is a part and the definitive forms of which will be filed with the
Commission.
PNC may, at its option, elect to offer fractional interests in the
Preferred Stock, rather than whole shares of such securities. In the event such
option is exercised, PNC will provide for the issuance by a Depositary to the
public of receipts for Depositary Shares, each of which will represent a
fractional interest (to be set forth in the Prospectus Supplement relating to a
particular series of the Preferred Stock) in a share of a particular series of
the Preferred Stock as described below.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement ("Deposit
Agreement") between PNC and a bank or trust company selected by PNC having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000 ("Depositary"). The Prospectus Supplement relating to a
series of Depositary Shares will set forth the name and address of the
Depositary, which may be one of the Banks. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of Preferred Stock underlying such
Depositary Share, to all the rights and preferences of the Preferred Stock
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement. Depositary Receipts will be distributed to
those persons purchasing the fractional shares of the related series of
Preferred Stock in accordance with the terms of the offering described in a
related Prospectus Supplement.
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<PAGE> 26
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of PNC, issue temporary Depositary
Receipts substantially identical to (and entitling the holders thereof to all
the rights pertaining to) the definitive Depositary Receipts but not in
definitive form. Definitive Depositary Receipts will be prepared thereafter
without unreasonable delay and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at PNC's expense.
Upon surrender of Depositary Receipts at the office of the Depositary
(unless the Depositary Shares have been previously called for redemption) and
upon payment of the charges provided in the Deposit Agreement and subject to the
terms thereof, a holder of Depositary Shares is entitled to have the Depositary
deliver to such holder the number of whole shares of the related Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts. Partial shares of Preferred Stock will not be issued. Holders of
Depositary Shares will be entitled to receive shares of the related series of
Preferred Stock as set forth in a related Prospectus Supplement, but holders of
such whole shares of such Preferred Stock thus withdrawn will not thereafter be
entitled to receive Depositary Shares therefor. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of the
related series of Preferred Stock to be withdrawn, the Depositary will deliver
to such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares. PNC does not expect that there will be any public
trading market for the withdrawn shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
PNC, sell such property and distribute the net proceeds from such sale to such
holders.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever PNC redeems Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemption date the number
of Depositary Shares relating to the shares of Preferred Stock so redeemed. If
less than all the Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holder of the Depositary Shares will cease, except the right to receive the
monies payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
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<PAGE> 27
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the amount of Preferred Stock underlying such
holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the amount of Preferred Stock underlying such Depositary
Shares in accordance with such instructions, and PNC will agree to take all
action which may be deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from voting Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Shares relating to such Preferred Stock.
CONVERSION OF PREFERRED STOCK
If a series of the Preferred Stock underlying the Depositary Shares is
convertible into shares of PNC's Common Stock or any other class of capital
securities of PNC, PNC will accept the delivery of Depositary Receipts for
purposes of effecting conversions of the Preferred Stock utilizing the same
procedures as those provided for delivery of certificates for the Preferred
Stock pursuant to the terms of the series of Preferred Stock. If the Depositary
Shares represented by a Depositary Receipt are to be converted in part only, a
new Depositary Receipt or Depositary Receipts will be issued by the Depositary
for the Depositary Shares not to be converted.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between PNC and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by PNC or the Depositary only if (i) all outstanding
Depositary Shares relating thereto have been redeemed or (ii) there has been a
final distribution in respect of the Preferred Stock of the relevant series in
connection with any liquidation, dissolution or winding up of PNC.
CHARGES OF DEPOSITARY
PNC will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. PNC will also pay
charges of the Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary
Shares will pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to be for their
accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from PNC which are delivered to the Depositary and which PNC
is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor PNC will be liable if it is prevented or delayed
by law or any circumstance beyond its control in performing its obligations
under the Deposit Agreement. The obligations of PNC and the Depositary under the
Deposit Agreement will be limited to performance in good faith of their
respective duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or shares of
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be genuine.
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<PAGE> 28
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to PNC notice of its
election to do so, and PNC may at any time remove the Depositary, any such
resignation or removal to take effect only upon the appointment of a successor
Depositary and its acceptance of such appointment. Such successor Depositary
must be a bank or trust company having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000.
PLAN OF DISTRIBUTION
PNC Funding may offer and sell Debt Securities to or through underwriters,
acting as principals for their own accounts or as agents, and also may offer and
sell Debt Securities directly to other purchasers. PNC may offer and sell Common
Stock and Preferred Stock to or through underwriters, acting as principals for
their own accounts or as agents, and also may offer and sell Common Stock and
Preferred Stock directly to other purchasers. Any underwriters in connection
with Offered Debt Securities, Common Stock or Preferred Stock will be named in
the related Prospectus Supplement and any underwriting compensation paid to such
underwriters will be set forth therein. Underwritten offerings may involve
underwriting syndicates represented by managing underwriters, or underwriters
without a syndicate.
The distribution of Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
In connection with the sale of Securities, underwriters or agents acting on
PNC's behalf may receive compensation from PNC Funding, PNC or from purchasers
of Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers or agents that participate
in the distribution of Securities may be deemed to be underwriters and any
discounts or commissions received by them and any profit on the resale of
Securities by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such underwriter will be identified and any such
compensation will be described in the Prospectus Supplement.
Under agreements which may be entered into with PNC Funding and PNC,
underwriters, dealers and agents may be entitled to indemnification by PNC
Funding or PNC against certain liabilities, including liabilities under the
Securities Act, and to contributions from PNC Funding or PNC in respect of such
liabilities. Underwriters, dealers and agents may be customers of, engage in
transactions with, or perform services for PNC Funding or PNC in the ordinary
course of business.
If so indicated in the Prospectus Supplement, PNC Funding and/or PNC will
authorize underwriters or other persons acting as PNC Funding's agents and/or
PNC's agents to solicit offers by certain institutions to purchase Debt
Securities from PNC Funding and/or Preferred Stock from PNC pursuant to
contracts providing for payment and delivery on a future date or dates stated in
the applicable Prospectus Supplement. Institutions with which such contracts may
be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and others,
but in all cases such institutions must be approved by PNC Funding or PNC. The
obligations of any purchaser under any such contract will not be subject to any
conditions, except that (1) the purchase of the Debt Securities, or the Common
Stock or the Preferred Stock shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject, and (2)
if Debt Securities or Common Stock or Preferred Stock are also being sold to
underwriters, PNC Funding or PNC shall have sold to such underwriters the Debt
Securities or the Common Stock or the Preferred Stock not sold for delayed
delivery. The underwriters and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
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<PAGE> 29
LEGAL OPINIONS
The validity of the Securities and related Guarantees and the Common Stock,
the Preferred Stock and the Depositary Shares will be passed upon for PNC
Funding and PNC by Melanie S. Cibik, Senior Counsel of PNC, One PNC Plaza, 249
Fifth Avenue, Pittsburgh, Pennsylvania 15222. As of June 30, 1997, Miss Cibik
beneficially owned 908 shares of PNC's Common Stock under PNC's employee plans.
If the Securities are being distributed in an underwritten offering, the
validity of the Securities and related Guarantees and the Common Stock, the
Preferred Stock and the Depositary Shares will be passed upon for the
underwriters by counsel identified in the Prospectus Supplement.
EXPERTS
The consolidated financial statements of PNC incorporated by reference into
the Annual Report on Form 10-K of PNC for the year ended December 31, 1996, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon incorporated by reference therein and herein. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
Documents incorporated herein by reference in the future will include
financial statements, related schedules (if required) and auditors' reports,
which financial statements and schedules will have been audited to the extent
and for the periods set forth in such reports by the firm or firms rendering
such reports, and, to the extent so audited and consent to incorporation by
reference is given, will be incorporated herein by reference in reliance upon
such reports given upon the authority of such firms as experts in accounting and
auditing.
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======================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THE PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED. NEITHER THE DELIVERY OF THE PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS NOR ANY SALE MADE UNDER THE PROSPECTUS SUPPLEMENT
AND THE PROSPECTUS SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF PNC FUNDING CORP OR PNC BANK CORP.
SINCE THE DATE HEREOF. THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
PNC Bank Corp......................... 3
PNC Funding Corp...................... 3
Supervision, Regulation and
Other Matters....................... 3
Consolidated Ratio of Earnings to
Fixed Charges....................... 6
Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred
Stock Dividends..................... 6
Use of Proceeds....................... 7
Description of Debt Securities and
Guarantees.......................... 7
Description of Common Stock........... 18
Description of Preferred Stock........ 19
Description of Depositary Shares...... 24
Plan of Distribution.................. 27
Legal Opinions........................ 28
Experts............................... 28
</TABLE>
======================================================
======================================================
PNC FUNDING CORP
DEBT SECURITIES
PNC BANK CORP.
UNCONDITIONAL GUARANTEES OF
PNC FUNDING CORP
DEBT SECURITIES, AS TO PAYMENT OF
PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST
COMMON STOCK ($5.00 PAR VALUE)
PREFERRED STOCK ($1.00 PAR VALUE)
------------
PROSPECTUS
------------
, 1997
======================================================
<PAGE> 31
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following expenses will be incurred in connection with the issuance and
distribution of the Debt Securities, Common Stock, and Preferred Stock being
registered, other than underwriting discounts and commissions:
To be borne by PNC Bank Corp. and PNC Funding Corp:
<TABLE>
<S> <C>
Registration Fee.................................................. $ 393,939.40
Legal Fees and Expenses........................................... 150,000.00*
Indenture Trustee Fees and Expenses............................... 100,000.00*
Printing and Engraving............................................ 200,000.00*
Rating Fees....................................................... 200,000.00*
Accounting Fees................................................... 150,000.00*
Blue Sky and Legal Investment Fees and Expenses................... 50,000.00*
Listing Fees...................................................... 25,000.00*
Miscellaneous..................................................... 31,060.60*
-------------
Total........................................................... $1,300,000.00*
============
</TABLE>
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 1741-1743 of the Pennsylvania Business Corporation Law of 1988
(Act of December 21, 1988, P.L. 1444) ("1988 BCL") provide that a business
corporation may indemnify directors and officers against liabilities they may
incur in such capacities provided certain standards are met, including good
faith and the belief that the particular action is in the best interests of the
corporation. In general, this power to indemnify does not exist in the case of
actions against a director or officer by or in the right of the corporation if
the person entitled to indemnification shall have been adjudged to be liable for
negligence or misconduct in the performance of such person's duties. A
corporation is required to indemnify directors and officers against expenses
they may incur in defending actions against them in such capacities if they are
successful on the merits or otherwise in the defense of such actions.
Section 1746 of the 1988 BCL provides that the foregoing provisions shall
not be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under, among other things, any by-law provision,
provided that no indemnification may be made in any case where the act or
failure to act giving rise to the claim for indemnification is determined by a
court to have constituted willful misconduct or recklessness.
Each of PNC Bank Corp.'s and PNC Funding Corp's By-Laws provide for the
mandatory indemnification of directors and officers in accordance with and to
the full extent permitted by the Laws of Pennsylvania as in effect at the time
of such indemnification. Each of PNC Bank Corp.'s and PNC Funding Corp's By-Laws
also eliminate, to the maximum extent permitted by the laws of the Commonwealth
of Pennsylvania, the personal liability of directors for monetary damages for
any action taken, or any failure to take any action as a director except in any
case such elimination is not permitted by law.
PNC Bank Corp. has purchased directors' and officers' liability insurance
covering certain liabilities which may be incurred by its respective officers
and directors in connection with the performance of their duties. Such insurance
covers PNC Funding Corp's directors and officers as well.
ITEM 16. EXHIBITS
The exhibits listed on the Exhibit Index beginning on page II-6 of this
Registration Statement are filed herewith, will be filed by amendment, or are
incorporated herein by reference to other filings.
II-1
<PAGE> 32
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a) (3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrants pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, that are incorporated by reference in the
Registration Statement.
2. That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
3. To remove from the registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering;
4. That, for purposes of determining any liability under the Securities Act of
1933, each filing of the Registrants' annual reports pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934, that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
5. For the purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it is declared effective; and
6. For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the provisions set forth in Item 15, or otherwise, the
Registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrants of expenses incurred or paid by a director, officer or
controlling person of the Registrants in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrants will, unless
in the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh, and Commonwealth of Pennsylvania, on the
29th day of August, 1997.
PNC BANK CORP.
By: /s/ THOMAS H. O'BRIEN
------------------------------------
Thomas H. O'Brien
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------- -------------------------------------- -----------------
<C> <S> <C>
/s/ THOMAS H. O'BRIEN Chairman, Chief Executive Officer and August 29, 1997
- ----------------------------------------- Director (Principal Executive
Thomas H. O'Brien Officer)
/s/ ROBERT L. HAUNSCHILD Senior Vice President and Chief August 29, 1997
- ----------------------------------------- Financial Officer (Principal
Robert L. Haunschild Financial Officer)
/s/ WILLIAM J. JOHNS Senior Vice President and Chief August 29, 1997
- ----------------------------------------- Accounting Officer (Principal
William J. Johns Accounting Officer)
* Director August 29, 1997
- -----------------------------------------
Paul W. Chellgren
* Director August 29, 1997
- -----------------------------------------
Robert N. Clay
* Director August 29, 1997
- -----------------------------------------
George A. Davidson, Jr.
* Director August 29, 1997
- -----------------------------------------
David F. Girard-diCarlo
* Director August 29, 1997
- -----------------------------------------
C.G. Grefestette
* Director August 29, 1997
- -----------------------------------------
William R. Johnson
* Director August 29, 1997
- -----------------------------------------
Bruce C. Lindsay
* Director August 29, 1997
- -----------------------------------------
Thomas Marshall
* Director August 29, 1997
- -----------------------------------------
W. Craig McClelland
* Director August 29, 1997
- -----------------------------------------
Jackson H. Randolph
/s/ JAMES E. ROHR President and Director August 29, 1997
- -----------------------------------------
James E. Rohr
</TABLE>
II-3
<PAGE> 34
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------- -------------------------------------- -----------------
<C> <S> <C>
* Director August 29, 1997
- -----------------------------------------
Roderic H. Ross
* Director August 29, 1997
- -----------------------------------------
Vincent A. Sarni
* Director August 29, 1997
- -----------------------------------------
Garry J. Scheuring
* Director August 29, 1997
- -----------------------------------------
Richard P. Simmons
* Director August 29, 1997
- -----------------------------------------
Thomas J. Usher
* Director August 29, 1997
- -----------------------------------------
Milton A. Washington
* Director August 29, 1997
- -----------------------------------------
Helge H. Wehmeier
*By: /s/ MELANIE S. CIBIK
-----------------------------------------------------
Melanie S. Cibik, Attorney-in-Fact,
pursuant to Powers of Attorney filed herewith
Date: August 29, 1997
</TABLE>
II-4
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh, and Commonwealth of Pennsylvania, on the
29th day of August, 1997.
PNC FUNDING CORP
By: /s/ ROBERT L. HAUNSCHILD
------------------------------------
Robert L. Haunschild
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------- -------------------------------------- -----------------
<C> <S> <C>
/s/ PAUL L. AUDET Chairman and Director August 29, 1997
- -----------------------------------------
Paul L. Audet
/s/ ROBERT L. HAUNSCHILD President and Director August 29, 1997
- -----------------------------------------
Robert L. Haunschild
/s/ RANDALL C. KING Senior Vice President and Director August 29, 1997
- -----------------------------------------
Randall C. King
/s/ ROBERT C. BARRY, JR. Senior Vice President and August 29, 1997
- ----------------------------------------- Chief Financial Officer
Robert C. Barry, Jr.
/s/ TARA A. HUGHES Accounting Officer and Assistant August 29, 1997
- ----------------------------------------- Controller
Tara A. Hughes
</TABLE>
II-5
<PAGE> 36
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. NAME OF DOCUMENT METHOD OF FILING
- ------- ------------------------------------------------------ ---------------------------
<S> <C> <C>
1.1 Form of Underwriting Agreement for Debt Securities. Filed herewith.
1.2 Form of Underwriting Agreement for Common Stock, Filed herewith.
Preferred Stock and Depositary Shares.
3.1 Articles of Incorporation of PNC Bank Corp., as Incorporated herein by
amended. reference to Exhibits 99.1
and 99.2 to Current Report
on Form 8-K dated October
7, 1996 of PNC Bank Corp.
(File No. 1-9718).
3.2 By-laws of PNC Bank Corp., as amended. Incorporated herein by
reference to Exhibit 99 to
Current Report on Form 8-K
dated July 9, 1997 of PNC
Bank Corp. (File No.
1-9718).
3.3 Articles of Incorporation of PNC Funding Corp, as Filed herewith.
amended.
3.4 By-laws of PNC Funding Corp, as amended. Filed herewith.
4.1 Form of Certificate for Common Stock. Filed herewith.
4.2 Form of Certificate for Preferred Stock (with Incorporated herein by
references to PNC Financial Corp now being PNC Bank reference to Exhibit 4.1 to
Corp.). the Registration Statement
on Form S-3 at File No.
33-40602, in Pre-Effective
Amendment No. 2, filed
September 24, 1991.
4.3 Article Sixth and Article Seventh of PNC Bank Corp.'s Included in Exhibit 99.1 to
Articles of Incorporation, as amended. Current Report on Form 8-K
dated October 7, 1996 of
PNC Bank Corp., which is
incorporated herein by
reference through Exhibit
3.1 to this Registration
Statement.
4.4 Form of Statement of Designation with respect to To be filed in documents
Preferred Stock. incorporated herein by
reference.
4.5 Form of Deposit Agreement. Filed herewith.
4.6 Form of Depositary Receipt. Filed herewith.
4.7 Indenture dated as of December 1, 1991, among PNC Filed herewith.
Funding Corp, as Issuer, PNC Financial Corp (now PNC
Bank Corp.), as Guarantor, and Manufacturers Hanover
Trust Company, as Trustee (of which The Chase
Manhattan Bank, formerly known as Chemical Bank, is
successor trustee).
4.8 Supplemental Indenture dated as of February 15, 1993, Filed herewith.
among PNC Funding Corp, as Issuer, PNC Bank Corp., as
Guarantor, and Chemical Bank, as successor by merger
to Manufacturers Hanover Trust Company and now known
as The Chase Manhattan Bank.
</TABLE>
II-6
<PAGE> 37
<TABLE>
<CAPTION>
EXHIBIT
NO. NAME OF DOCUMENT METHOD OF FILING
- ------- ------------------------------------------------------ ---------------------------
<S> <C> <C>
4.9 Form of Debt Security and related Guarantee. To be filed in documents
incorporated herein by
reference.
4.10 Form of Subordinated Note and related Guarantee. Filed herewith.
5 Opinion of Melanie S. Cibik, Esquire, as to the Filed herewith.
legality of the securities being registered.
12.1 Computation of Consolidated Ratio of Earnings to Fixed Filed herewith.
Charges.
12.2 Computation of Consolidated Ratio of Earnings to Filed herewith.
Combined Fixed Charges and Preferred Stock Dividends.
23.1 Consent of Ernst & Young LLP. Filed herewith.
23.2 Consent of Melanie S. Cibik. Filed as part of Exhibit 5
to this Registration
Statement.
24.1 Power of Attorney of certain directors and officers of Filed herewith.
PNC Bank Corp.
24.2 Power of Attorney of certain directors and officers of Filed herewith.
PNC Funding Corp.
24.3 Power of Attorney of Robert N. Clay (a director of PNC Filed herewith.
Bank Corp.)
25 Form T-1--Statement of Eligibility Under the Trust Filed herewith.
Indenture Act of 1939 of The Chase Manhattan Bank to
Act as Trustee.
</TABLE>
II-7
<PAGE> 1
Exhibit 1.1
PNC Funding Corp, Issuer
and
PNC Bank Corp., Guarantor
Underwriting Agreement
New York, New York
[date]
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
PNC Funding Corp, a Pennsylvania corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (together with the guarantees mentioned below, the
"Securities") to be guaranteed by PNC Bank Corp., a Pennsylvania Corporation
(the "Guarantor"), and to be issued under an indenture dated as of December 1,
1991, among the Company, the Guarantor and The Chase Manhattan Bank (formerly
known as Chemical Bank, successor by merger to Manufacturers Hanover Trust
Company), as trustee (the "Trustee"), as amended by a Supplemental Indenture
dated as of February 15, 1993, among the Company, the Guarantor and the Trustee
(as amended, the "Indenture"). If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives," as used herein, shall each be
deemed to refer to such firm or firms.
1. Representations and Warranties. The Company and the Guarantor
represent and warrant to, and agree with, each Underwriter as set forth below
in this Section 1. Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
<PAGE> 2
- 2 -
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
<PAGE> 3
- 3 -
the Act and have filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on such
Form, including a basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company and the
Guarantor may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company and the Guarantor will next file with
the Commission either (x) a final prospectus supplement relating to
the Securities in accordance with Rules 430A and 424(b)(1) or (4), or
(y) prior to the effectiveness of such registration statement, an
amendment to such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Company and the
Guarantor included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Final Prospectus with respect to the Securities and the offering
thereof. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the
<PAGE> 4
- 4 -
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 which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the
Effective Date including, 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
<PAGE> 5
- 5 -
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
<PAGE> 6
- 6 -
the result that, pursuant to Rules 415 and 430A, all information (other
than Rule 430A Information) with respect to the securities so offered must
be included in such registration statement at the effective date thereof.
A "Delayed Offering" shall mean an offering of securities pursuant to Rule
415 which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to, and the Guarantor agrees to cause the Company to, sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the number of shares of the Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, the respective
principal amounts of Securities to be purchased by the Underwriters shall be as
set forth in Schedule II hereto less the respective amounts of Contract
Securities determined as provided below. Securities to be purchased by the
Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company and the
Guarantor may authorize or approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay, and the
Guarantor will cause the Company to pay, to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed
<PAGE> 7
- 7 -
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
<PAGE> 8
- 8 -
designate at least one business day in advance of the Closing Date and payment
for the Securities shall be made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Securities shall be registered in such names
(including the nominee for any depositary which will hold Securities to be
established for "book entry" issuance and transfer) and in such denominations
as the Representatives may request not less than two full business days in
advance of the Closing Date.
The Company and the Guarantor agree to have the Underwriters'
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 p.m. on the business
day prior to the Closing Date.
4. Agreements. The Company and the Guarantor jointly and severally
agree with the several Underwriters that:
(a) The Company and the Guarantor will use their best efforts to
cause the Registration Statement, if not effective at the Execution Time,
and any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company and the Guarantor will not
file any amendment to the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Company and the Guarantor have furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company and the Guarantor will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Company and the
Guarantor will promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the Securities, any amendment to the Registration
Statement shall have been filed or
<PAGE> 9
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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.
(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
<PAGE> 10
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as the Representatives may reasonably request. The Company and the
Guarantor will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company and the Guarantor will use their best efforts to
arrange for the qualification of the Securities for sale under the laws of
such jurisdictions as the Representatives may designate, will maintain
such qualifications in effect so long as required for the distribution of
the Securities and will arrange for the determination of the legality of
the Securities for purchase by institutional investors; provided, however,
that neither the Company nor the Guarantor shall be required to qualify to
do business in any jurisdiction where it is not now qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where they are not now subject.
(f) Until the business day following the Closing Date, the Company
and the Guarantor will not, without the consent of the Representatives,
offer, sell or contract to sell, or announce the offering of, any debt
securities covered by the Registration Statement or any other registration
statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Company and the Guarantor contained herein as of
the Execution Time and the Closing Date, to the accuracy in all material
respects of the statements of the Company and the Guarantor made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Company and the Guarantor of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m.
New York City
<PAGE> 11
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time on such date or (ii) 12:00 Noon on the business day following the day
on which the public offering price was determined, if such determination
occurred after 3:00 p.m. New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company and the Guarantor shall have furnished to the
Representatives the opinion of Melanie S. Cibik, Esq., Senior Counsel of
the Guarantor, dated the Closing Date, to the effect that:
(i) Each of the Company and the Guarantor is a corporation
validly organized and presently subsisting under the laws of the
Commonwealth of Pennsylvania with all requisite corporate power and
authority to own its properties and conduct its business as described
in the Final Prospectus, except for such power and authority the
absence of which would not have a material adverse effect on the
Guarantor or the Company, as the case may be; and the Guarantor is
duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended;
(ii) PNC Bank, National Association ("PNC Bank, N.A.") is a
national banking organization validly existing in good standing under
the laws of the United States, with all requisite corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Final Prospectus, except for such power
and authority the absence of which would not have a material adverse
effect on PNC Bank, N.A.;
(iii) all the outstanding shares of capital stock of PNC Bank,
N.A. have been duly and validly authorized and issued and (except as
provided in 12 U.S.C. Section 55) are fully paid and nonassessable,
and, except as otherwise set forth in the Final Prospectus, all
<PAGE> 12
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outstanding shares of capital stock of PNC Bank, N.A. are owned by
the Guarantor either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, any other security interests, claims,
liens or encumbrances;
(iv) the Guarantor's authorized equity capitalization, if set
forth in the Final Prospectus, is as set forth in the Final
Prospectus; the Securities conform in all material respects to the
description thereof contained in the Final Prospectus; and, if the
Securities are to be listed on any stock exchange, authorization
therefor has been given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company and the
Guarantor have filed a preliminary listing application and all
required supporting documents with respect to the Securities with
such stock exchange and nothing has caused such counsel to believe
that the Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(v) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
receivership, readjustment of debt, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or general equitable principles
(whether considered in a proceeding in equity or at law); and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the
case of any Contract Securities, will constitute legal, valid and
<PAGE> 13
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binding obligations of the Company and the Guarantor entitled to the
benefits of the Indenture;
(vi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Guarantor or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described in
the Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus
describing any legal proceedings or material contracts or agreements
relating to the Guarantor or any of its subsidiaries fairly summarize
such matters in all material respects;
(vii) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
or incorporated therein, and that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of that Act and
the Exchange Act and the respective rules thereunder; and nothing has
come to the attention of such counsel that has caused such
<PAGE> 14
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counsel to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading except that such counsel does not express any
opinion or belief as to the financial statements or schedules or
other data of a statistical or financial nature included or
incorporated therein or as to that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act; or
(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
<PAGE> 15
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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 other than the Commonwealth of Pennsylvania or the United States,
to the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are reasonably
satisfactory to counsel for the Underwriters, except that it will not be
required that such counsel obtain an opinion of New York counsel as to matters
of New York law in order to render such opinion or that such counsel express an
opinion as to matters arising under the laws of any jurisdiction other than the
laws of the Commonwealth of Pennsylvania and matters of federal law arising
under the laws of the United States of America, and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Corporation and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
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,
<PAGE> 16
- 16 -
signed by the Chairman of the Board, the President, a Vice Chairman of the
Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Guarantor, dated the Closing Date,
to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantor in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company and the Guarantor have
complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Guarantor's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Guarantor and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, Ernst & Young shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
<PAGE> 17
- 17 -
(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
<PAGE> 18
- 18 -
statements incorporated in the Registration Statement and the Final
Prospectus, there were, at a specified date not more than five
business days prior to the date of the letter, any increases in
borrowed funds of the Guarantor and its subsidiaries or any decreases
in the capital stock (defined as each of the individual dollar
amounts of preferred stock, common stock, and capital surplus) of the
Guarantor or the stockholders' equity of the Guarantor as compared
with the amounts shown on the most recent consolidated balance sheet
incorporated in the Registration Statement and the Final Prospectus,
or for the period from the date of the most recent audited or
unaudited consolidated financial statements incorporated in the
Registration Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the corresponding
period in the preceding year, in total or per share amounts of
consolidated net income of the Guarantor or consolidated net interest
income except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Guarantor as to the significance thereof unless
said explanation is not deemed necessary by the Representative; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Guarantor and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus,
including the information included or incorporated in Items 1, 5, 6
and 7 of the Guarantor's Annual Report on Form 10-K for the most
recent fiscal year incorporated in the Registration Statement and the
Final Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Guarantor's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
Final Prospectus, agrees with the accounting records
<PAGE> 19
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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 shall have furnished to the Representatives a letter or letters, dated as
of the Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Guarantor and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive
of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Guarantor's debt securities by
Moody's Investors Service, Inc., or Standard & Poor's Corporation.
(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.
<PAGE> 20
- 20 -
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company or the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company and the Guarantor
will reimburse the Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. In no event shall the Company or the Guarantor be
liable to the Underwriters for loss of anticipated profits from the
transactions contemplated by this Agreement.
7. Indemnification and Contribution. (a) The Company and the
Guarantor agree to indemnify and hold harmless each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities and any related Depositary
Shares as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or
<PAGE> 21
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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 or any related Depositary Shares which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities or
Depositary Shares, if any, to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as supplemented).
This 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
<PAGE> 22
- 22 -
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, the first paragraph of the second page and under the heading
"Underwriting" or "Plan of Distribution" and, if Schedule I hereto provides for
sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 7. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in any 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
<PAGE> 23
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other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (plus any local counsel),
approved by the Representatives in the case of paragraph (a) of this Section 7,
representing the indemnified parties under such paragraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company or the Guarantor on grounds of
policy or otherwise, the Company and the Guarantor, on the one hand, and the
Underwriters, on the other hand, shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company, the Guarantor and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the sum
of such discount and the purchase price of the Securities specified in Schedule
I hereto and the Company and the Guarantor are responsible for the balance;
provided, however, that (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of
<PAGE> 24
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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 clauses (y) and (z) of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of 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.
<PAGE> 25
- 25 -
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any non defaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
and the Guarantor prior to delivery of and payment for the Securities, if prior
to such time (i) trading in the Guarantor's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal, New York State
or Pennsylvania authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company, the Guarantor or their respective officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or the Guarantor or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or transmitted by any standard form of telecommunication, at the
address specified in Schedule I hereto; or, if sent to the Company or the
Guarantor, will be mailed, delivered or transmitted by any standard form of
telecommunication to it at One PNC Plaza, 249 Fifth Avenue, Pittsburgh,
Pennsylvania 15222, attention of the Senior Vice President and Chief Financial
Officer of the Guarantor.
<PAGE> 26
- 26 -
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
<PAGE> 27
- 27 -
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Guarantor and the several Underwriters.
Very truly yours,
PNC Funding Corp
By: ______________________
Name:
Title:
PNC Bank Corp.
By: ______________________
Name:
Title:
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
By:
By: _____________________________
Name:
Title:
For itself and the other
several Underwriters, if
any, named in Schedule II
to the foregoing Agreement.
<PAGE> 28
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal Amount:
Public offering price:
Purchase price:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Ernst & Young delivered
pursuant to Section 5(e):
<PAGE> 29
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities To
Underwriters Be Purchased
- ------------ ------------
<S> <C>
------------
Total ...................
============
</TABLE>
<PAGE> 1
Exhibit 1.2
PNC Bank Corp.
[Preferred Stock
($1.00 par value)]
[Common Stock
($5.00 par value)]
Underwriting Agreement
New York, New York
[date]
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
PNC Bank Corp., a Pennsylvania corporation (the "Corporation"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the number of shares of preferred stock and/or common stock
of the Corporation identified in Schedule I hereto (said shares to be issued
and sold by the Corporation being hereinafter called the "Underwritten
Securities"). The Corporation also proposes to grant to the Underwriters an
option to purchase up to such additional number of shares of preferred stock
and/or common stock of the Corporation as is specified in Schedule I hereto
(the "Option Securities"; together with the Underwritten Securities, the
"Securities") to cover over-allotments. If "Depositary Receipt Arrangements" is
specified in Schedule I hereto, the Securities are to be deposited by you or on
your behalf against delivery of Depositary Receipts (the "Depositary Receipts")
to be issued by the bank or trust company identified in Schedule I hereto as
Depositary (the "Depositary"), under the deposit agreement described in
Schedule I hereto (the "Deposit Agreement"), among the Corporation, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder. Any Depositary Receipts will
<PAGE> 2
- 2 -
evidence Depositary Shares (the "Depositary Shares") and each Depositary Share
will represent a fraction of a Security, as specified in Schedule I hereto.
Except where the context otherwise requires, references to Securities herein
shall include any related Depositary Shares and associated Depositary Receipts.
If the firm or firms listed in Schedule II hereto include only the firm or
firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm
or firms.
1. Representations and Warranties. The Corporation represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Corporation meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto), on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Corporation may have filed one or more amendments
thereto, and may have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, accordingly, it is not
necessary that any further information with respect to the Securities
and the offering thereof required by the Act and the rules thereunder
to be included in the Final Prospectus have been included in an
amendment to such registration statement prior to the Effective Date.
The Corporation will next file with the Commission pursuant to Rules
415 and 424(b)(2) or (5) a final supplement to the form of prospectus
<PAGE> 3
- 3 -
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 Corporation has advised you,
prior to the Execution Time, will be included or made therein.
(ii) The Corporation meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Corporation may have filed one or more amendments thereto, including
a Preliminary Final Prospectus, each of which has previously been
furnished to you. The Corporation will next file with the Commission
either (x) a final prospectus supplement relating to the Securities
in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to
the effectiveness of such registration statement, an amendment to
such registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Corporation included in
such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed, such
final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with respect to
the Securities and the offering thereof and, except to the extent the
Representatives shall
<PAGE> 4
- 4 -
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Corporation has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Corporation makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Corporation 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).
<PAGE> 5
- 5 -
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean
any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed
<PAGE> 6
- 6 -
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. (a) (i) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Corporation agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Corporation, at the purchase
price set forth in Schedule I hereto the number of shares of the Securities set
forth opposite such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective number of shares of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto less
the respective number of shares of Contract Securities determined as provided
below. Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Securities to
<PAGE> 7
- 7 -
be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities."
(a)(ii) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Corporation
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Corporation may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Corporation will pay
to the Representatives, for the account of the Underwriters, on the Closing
Date, the percentage set forth in Schedule I hereto of the aggregate
liquidation preference of the Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The
Corporation will enter into Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the Underwriters have been approved by the
Corporation but, except as the Corporation may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum number of
shares set forth in Schedule I hereto and the aggregate number of shares of
Contract Securities may not exceed the maximum aggregate number of shares set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
number of shares of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by the number of shares which shall bear
the same proportion to the total number of shares of Contract Securities as the
number of shares of Securities set forth opposite the name of such Underwriter
bears to the aggregate number of shares set forth in Schedule II hereto, except
to the extent that you determine that such reduction shall be otherwise than in
such proportion and so advise the Corporation in writing; provided, however,
that the total number of shares of Securities to be purchased by all
Underwriters shall be the aggregate number of shares set forth in Schedule II
hereto less the aggregate number of shares of Contract Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties
<PAGE> 8
- 8 -
herein set forth, the Corporation hereby grants an option to the several
Underwriters to purchase, severally and not jointly, the Option Securities at
the same purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriters.
Said option may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Corporation setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. Delivery of
certificates for the shares of Option Securities, and payment therefor, shall
be made as provided in Section 3 hereof. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and
time may be postponed by agreement among the Representatives, the Corporation
or as provided in Section 8 hereof (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Corporation by 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
<PAGE> 9
- 9 -
and transfer) and in such denominations as the Representatives may request not
less than two full business days in advance of the Closing Date.
The Corporation agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 p.m. on the business day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after
the third business day prior to the Closing Date, the Corporation will deliver
(at the expense of the Corporation) to the Representatives, at such location in
The City of New York as the Representatives shall reasonably designate, on the
date specified by the Representative (which shall be within three business days
after exercise of said option), certificates for the Option Securities in such
names and denominations as the Representatives shall have requested against
payment of the purchase price thereof to or upon the order of the Corporation
by wire transfer of immediately available funds. If settlement for the Option
Securities occurs after the Closing Date, the Corporation will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 5 hereof.
Notwithstanding the preceding paragraphs, if "Depositary Receipt
Arrangements" is specified in Schedule I hereto, certificates representing
Securities shall be delivered in the names of the Representatives. Such
certificates shall be delivered by the Representatives to the Depositary
against delivery of Depositary Receipts representing Depositary Shares. Such
Depositary Receipts shall be issued in such denominations and registered in
such names as the Representatives shall request and shall be made available for
inspection, checking and packaging by the Representatives in New York, New York
not later than 1:00 p.m. on the business day prior to the due date for delivery
hereof.
<PAGE> 10
- 10 -
4. Agreements. The Corporation agrees with the several Underwriters
that:
(a) The Corporation will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Corporation will not file any amendment to
the Registration Statement or supplement (including the Final Prospectus
or any Preliminary Final Prospectus) to the Basic Prospectus unless the
Corporation has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Corporation will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Corporation
will promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Corporation of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Corporation will use its best
efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be
<PAGE> 11
- 11 -
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 Corporation promptly
will prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Corporation will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Corporation and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Corporation will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Corporation
will pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Corporation will use its best efforts to arrange for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will arrange for the determination of the legality of the
Securities for purchase by institutional investors; provided, however,
that the Corporation shall not be required to qualify to do business in
any jurisdiction where it is not now qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where they are not now subject.
<PAGE> 12
- 12 -
(f) Until the date specified on Schedule I hereto, the Corporation
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, (i) any shares of preferred
stock or common stock covered by the Registration Statement or any other
registration statement filed under the Act, or (ii) if the Securities are
convertible into other securities of the Corporation, any of such other
securities, in each case other than shares of common or preferred stock of
the Corporation issued pursuant to warrants to purchase any such shares,
issued upon conversion of the Corporation's outstanding convertible
debentures or issued pursuant to any employee benefit or dividend
reinvestment plan of the Corporation in effect at the Execution Time.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Corporation contained herein as of the Execution
Time and the Closing Date, to the accuracy in all material respects of the
statements of the Corporation made in any certificates pursuant to the
provisions hereof, to the performance in all material respects by the
Corporation of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m.
New York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 p.m. New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall
<PAGE> 13
- 13 -
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Corporation shall have furnished to the Representatives the
opinion of Melanie S. Cibik, Esq., Senior Counsel of the Corporation,
dated the Closing Date, to the effect that:
(i) the Corporation is a corporation validly organized and
presently subsisting under the laws of the Commonwealth of
Pennsylvania with all requisite corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, except for such power and authority the absence of which
would not have a material adverse effect on the Corporation, and is
duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended;
(ii) PNC Bank, National Association ("PNC Bank, N.A.") is a
national banking organization validly existing in good standing under
the laws of the United States, with all requisite corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Final Prospectus, except for such power
and authority the absence of which would not have a material adverse
effect on PNC Bank, N.A.;
(iii) all the outstanding shares of capital stock of PNC Bank,
N.A. have been duly and validly authorized and issued and (except as
provided in 12 U.S.C. Section 55) are fully paid and nonassessable,
and, except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of PNC Bank, N.A. are owned by the
Corporation either directly or through wholly owned subsidiaries free
and clear of any perfected security interest and, to the knowledge of
such counsel, any other security interests, claims, liens or
encumbrances;
(iv) the Corporation's authorized equity capitalization, if set
forth in the Final Prospectus, is as set forth in the Final
Prospectus; the Securities and any Depositary Receipts conform in all
material respects to
<PAGE> 14
- 14 -
the description thereof contained in the Final Prospectus; the
Securities have been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid an nonassessable and, if the Securities
or related Depositary Shares are to be listed on any stock exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the
Corporation has filed a preliminary listing application and all
required supporting documents with respect to the Securities or such
Depositary Shares, if any, with such stock exchange and nothing has
caused such counsel to believe that the Securities or such Depositary
Shares, if any, will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(v) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Corporation or any of its subsidiaries, of a character required
to be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described in
the Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus
describing any legal proceedings or material contracts or agreements
relating to the Corporation or any of its subsidiaries fairly
summarize such matters in all material respects;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the
<PAGE> 15
- 15 -
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened, and
the Registration Statement and the Final Prospectus (other than the
financial statements and other financial and statistical information
contained or incorporated therein, and that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act, as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of
that Act and the Exchange Act and the respective rules thereunder;
and nothing has come to the attention of such counsel that has caused
such counsel to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading except that such counsel does not express any
opinion or belief as to the financial statements or schedules or
other data of a statistical or financial nature included or
incorporated therein or as to that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Trustee under the Trust Indenture Act;
(vii) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Corporation and,
if any Depositary is also a subsidiary, by such Depositary;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the Act and such
as may be required
<PAGE> 16
- 16 -
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;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of any Deposit Agreement or
Delayed Delivery Contracts will (A) violate the charter or by-laws of
the Corporation, or (B) violate, result in a breach of, or constitute
a default under the terms of any material indenture or other material
agreement or instrument known to such counsel and to which the
Corporation or PNC Bank, N.A. is a party or bound, or (C) violate any
material order or regulation known to such counsel to be applicable
to the Corporation or PNC Bank, N.A. of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Corporation or PNC Bank, N.A.; and
(x) no holders of securities of the Corporation have rights to
the registration of such securities under the Registration Statement.
In rendering such opinion, such counsel will opine only as to matters involving
the application of the laws of the Commonwealth of Pennsylvania or the United
States and may rely (A) as to matters involving the application of laws of any
jurisdiction other than the Commonwealth of Pennsylvania or the United States,
to the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are reasonably
satisfactory to counsel for the Underwriters, except that it will not be
required that such counsel obtain an opinion of New York counsel as to matters
of New York law in order to render such opinion or that such counsel express an
opinion as to matters arising under the laws of any jurisdiction other than the
laws of the Commonwealth of Pennsylvania and matters of federal law arising
under the laws of the United States of America, and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Corporation and public officials. References to the Final Prospectus in this
<PAGE> 17
- 17 -
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 Corporation
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(d) The Corporation shall have furnished to the Representatives a
certificate of the Corporation, signed by the Chairman of the Board, the
President, a Vice Chairman of the Board or any Executive or Senior Vice
President and the principal financial or accounting officer of the
Corporation, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Corporation in
this Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing
Date and the Corporation has complied in all material respects with
all the agreements and satisfied in all material respects all the
conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Corporation's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
<PAGE> 18
- 18 -
Corporation and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, Ernst & Young shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements and financial statement schedules included or incorporated
in the Registration Statement and the Final Prospectus and reported
on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Corporation
and its subsidiaries; carrying out certain specified procedures (but
not an audit in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the shareholders and directors of the
Corporation and the audit and executive committees thereof and
inquiries of certain officials of the Corporation who have
responsibility for financial and accounting matters of the
Corporation and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited consolidated
financial statements in or incorporated in the Final Prospectus,
nothing came to their attention which caused them to believe that:
(1) any unaudited consolidated financial statements included or
incorporated in the
<PAGE> 19
- 19 -
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 Corporation 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 Corporation or the stockholders' equity of the Corporation as
compared with the amounts shown on the most recent consolidated
balance sheet incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of the most recent
audited or unaudited consolidated financial statements incorporated
in the Registration Statement and the Final Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in total or per share
amounts of consolidated net income of the Corporation or consolidated
net interest income except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Corporation as to the
significance thereof unless said explanation is not deemed necessary
by the Representative; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
<PAGE> 20
- 20 -
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Corporation and its subsidiaries)
set forth in the Registration Statement and the Final Prospectus,
including the information included or incorporated in Items 1, 5, 6
and 7 of the Corporation's Annual Report on Form 10-K for the most
recent fiscal year incorporated in the Registration Statement and the
Final Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Corporation's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
Final Prospectus, agrees with the accounting records of the
Corporation and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
If provided for in Schedule I hereto, at the Execution Time, Ernst &
Young shall have furnished to the Representatives a letter or letters, dated as
of the Execution Time, in form and substance satisfactory to the
Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Corporation and its
subsidiaries the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or the delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
<PAGE> 21
- 21 -
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Corporation's equity securities by
Moody's Investors Service, Inc., or Standard & Poor's Corporation.
(h) Prior to the Closing Date, the Corporation shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request in connection with
the offering of the Securities.
(i) The Corporation shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Corporation.
(j) Any Deposit Agreement shall have been duly executed by the
Corporation and the Depositary.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Corporation in writing or by telephone
or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Corporation to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Corporation will reimburse the
Underwriters severally upon demand for all 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
<PAGE> 22
- 22 -
sale of the Securities. In no event shall the Corporation be liable to the
Underwriters for loss of anticipated profits from the transactions contemplated
by this Agreement.
7. Indemnification and Contribution. (a) The Corporation agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities and any related Depositary Shares as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Corporation will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Corporation by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation thereof, 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 or any related Depositary Shares which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the
<PAGE> 23
- 23 -
confirmation of the sale of such Securities or Depositary Shares, if any, to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as supplemented). This indemnity agreement
will be in addition to any liability which the Corporation may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Corporation, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Corporation within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Corporation to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Corporation by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Corporation
acknowledges that the statements set forth in the last paragraph of the cover
page, the first paragraph of the second page and under the heading
"Underwriting" or "Plan of Distribution" and, if Schedule I hereto provides for
sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 7. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
<PAGE> 24
- 24 -
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) of
this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Corporation on grounds of policy or
otherwise, the Corporation, on the one hand, and the Underwriters, on the other
hand, shall contribute to the aggregate losses, claims, damages and liabilities
(including legal
<PAGE> 25
- 25 -
or other expenses reasonably incurred in connection with investigating or
defending same) to which the Corporation and one or more of the Underwriters
may be subject in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount bears
to the sum of such discount and the purchase price of the Securities specified
in Schedule I hereto and the Corporation is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of the
Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Corporation within the meaning of either the Act or the
Exchange Act, each officer of the Corporation who shall have signed the
Registration Statement and each director of the Corporation shall have the same
rights to contribution as the Corporation, subject in each case to clauses (y)
and (z) of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite
<PAGE> 26
- 26 -
the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non defaulting Underwriter or
the Corporation. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Corporation and any non defaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Corporation prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Corporation's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal, New York State
or Pennsylvania authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Corporation or its respective officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of
<PAGE> 27
- 27 -
any Underwriter or the Corporation or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or transmitted by any standard form of telecommunication, at the
address specified in Schedule I hereto; or, if sent to the Corporation, will be
mailed, delivered or transmitted by any standard form of telecommunication to
it at One PNC Plaza, 249 Fifth Avenue, Pittsburgh, Pennsylvania 15222,
attention of the Senior Vice President and Chief Financial Officer of the
Corporation.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
<PAGE> 28
- 28 -
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Corporation and the several Underwriters.
Very truly yours,
PNC Bank Corp.
By: ___________________________
Name:
Title:
Confirmed and accepted,
intending to be legally
bound, as of the date specified
in Schedule I hereto.
By:
By: __________________________
Name:
Title:
For itself and the other
several Underwriters, if
any, named in Schedule II
to the foregoing Agreement.
<PAGE> 29
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Designation, Purchase Price and Description of Preferred Stock:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued dividends, if any):
Over-allotment option for Preferred Stock:
Depositary Receipt Arrangements:
Name of Depositary:
Date of Deposit Agreement:
Fraction of a Security equal to one Depositary Share:
Number of Shares of Common Stock:
Purchase price per share of Common Stock:
Over-allotment option for Common Stock:
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements:
Fee:
Minimum number of shares of Securities of each contract:
Maximum aggregate number of shares of Securities of all contracts:
Modification of items to be covered by the letter from Ernst & Young delivered
pursuant to Section 5(e):
Date pursuant to Section 4(f):
<PAGE> 30
SCHEDULE II
<TABLE>
<CAPTION>
Number of shares
of Preferred Stock To
Underwriters Be Purchased
- ------------ ------------
<S> <C>
------------
Total ...................
============
</TABLE>
<TABLE>
<CAPTION>
Number of shares
of Common Stock To
Underwriters Be Purchased
- ------------ ------------
<S> <C>
------------
Total ...................
============
</TABLE>
<PAGE> 1
EXHIBIT 3.3
PNC FUNDING CORP
ARTICLES OF INCORPORATION
(Composite, reflecting amendments)
1. The name of the corporation is: "PNC FUNDING CORP".
2. The location and post office address of its registered office in this
Commonwealth is 1600 Market Street, Philadelphia, Pennsylvania, Philadelphia
County, 19101.
3. The purpose or purposes of the corporation, as initially organized under
the Act, are as follows:
To have unlimited power to engage in and to do any lawful act
concerning any or all lawful business for which corporations may be
incorporated under the Business Corporation Law of the Commonwealth of
Pennsylvania, Act of May 5, 1933, P.L. 364, as amended.
4. The term of its existence is: Perpetual.
5. The aggregate number of shares which the corporation shall have
authority to issue is:
Ten (10) shares of Common Stock, having a par value of $100.00 per
share.
6. The names and addresses of each of the incorporators and the number and
class of shares subscribed by each are:
NUMBER AND
NAME ADDRESS CLASS OF SHARES
- ---- ------- ---------------
Everett K. Dilworth 1200 Pittsburgh National Building One (1) share of
Pittsburgh, PA 15222 Common Stock, Par
Value of $100.00
James M. Ferguson 1200 Pittsburgh National Building One (1) share of
Pittsburgh, PA 15222 Common Stock, Par
Value of $100.00
Henry S. Pool 1200 Pittsburgh National Building One (1) share of
Pittsburgh, PA 15222 Common Stock, Par
Value of $100.00
<PAGE> 1
Exhibit 3.4
BY-LAWS
OF
PNC FUNDING CORP
Formerly
PITTSBURGH NATIONAL DISCOUNT CORPORATION
(a Pennsylvania Corporation)
Amended 8/21/97
ARTICLE I
Office
------
Section 1. - The general office of this Corporation shall be located
in the Pittsburgh National Building, Pittsburgh, Pennsylvania.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Annual Meeting
--------------
Section 1. - The annual meeting of the shareholders of the Corporation
shall be held at the general office of the Corporation or at such other place
as the Board of Directors may designate on the first Tuesday in May of each
year at 11:00 o'clock a.m. or on such other date as may be fixed by the Board
of Directors.
Special Meeting of Shareholders
-------------------------------
Section 2. - Special meetings of the shareholders may be called at any
time by the Board of Directors, the Chairman of the Board, or the President or
when requested in writing by one or more shareholders owning in the aggregate
not less than twenty (20) per centum of all the shares outstanding and entitled
to vote at the particular meeting.
Notice to Shareholders
----------------------
Section 3. - Written notice of every shareholders' meeting shall be
given by mail to each shareholder of record entitled to vote at the meeting, at
least five (5) days prior to the day named for the meeting, unless a greater
period of notice is required by law to be given in any particular case. Such
notice shall state the time and place of such meeting, and, if a special
meeting, the purposes of such meeting. Notice of any meeting my be waived in
writing by the shareholders
<PAGE> 2
and attendance at the meeting shall itself constitute a waiver of notice of the
meeting. The Board of Directors shall fix a date not more than fifty (50) days
prior to the date of the meeting as the record date for determining
shareholders entitled to vote at any meeting.
Quorum of Shareholders Necessary
--------------------------------
Section 4. - The presence, in person or by proxy, of the holders of a
majority of the outstanding share entitled to vote shall be necessary to
constitute a quorum and a shareholders' meeting shall not be organized for the
transaction of business unless a quorum is present. A majority of the votes
cast shall decide every question submitted to the shareholders unless otherwise
provided by law.
Election of Directors
---------------------
Section 5. - At the annual meeting of the shareholders the election of
Directors for the ensuing year shall be held and such other business transacted
as shall properly be brought before the meeting. Election of Directors need not
be by ballot.
Consent of Shareholders Without Meeting
---------------------------------------
Section 6. - Any action which may be taken at a meeting of the
shareholders of the corporation may be taken without a meeting if a consent in
writing setting forth the action so taken, signed by all the shareholders who
would be entitled to vote at a meeting for such purpose, shall be filed with
the Secretary of the Corporation.
ARTICLE III
DIRECTORS
Board of Directors
------------------
Section 1. - The business and affairs of the Corporation shall be
managed by the Board of Directors of not less than three nor more than ten
persons who need not be shareholders, as from time to time shall be determined
by the Board of Directors or by the majority of the votes to which all
shareholders are at the time entitled at any meeting of shareholders at which
Directors are elected. If the number of Directors shall not be changed at any
such meeting, it shall remain as theretofore established, except that the Board
of Directors by vote of a majority of the number of Directors then in office
may between annual meetings increase the membership of the Board within the
maximum of the above prescribed by not more than two members, and by like vote
appoint Directors to fill the vacancies created thereby. The Directors shall
hold office until the next succeeding annual meeting and until their successors
shall be elected and qualified.
<PAGE> 3
Organization of Board of Directors
----------------------------------
Section 2. - After the Board of Directors shall have been elected they
shall meet and elect those officers as are authorized by these by-laws. Any
officer or agent elected or appointed by the Board of Directors may be removed
by the Board of Directors whenever, in its best judgment, the best interests of
the corporation will be served thereby, without prejudice, however, to any
contract rights the person so removed may have.
Vacancy in Board of Directors
-----------------------------
Section 3. - Any vacancy in the Board of Directors shall be filled by
a majority of the remaining members of the Board, though less than a quorum,
and each person so elected shall be a Director until his successor is elected
by the shareholders, who may make such election at the next annual meeting of
the shareholders or at any special meeting duly called for that purpose.
Directors Meetings
------------------
Section 4. - Regular meetings of the Board of Directors may be held
without notice at such times and at such places as the Board of Directors, by
resolution, shall establish. When a regular meeting falls on a business
holiday, it shall be held on the preceding or next following business day, as
the Chief Executive Officer shall select.
Participation by Telephone
---------------------------
Section 5. - At the discretion of the Chairman of the Board, or other
presiding officer, one or more directors may participate in a meeting of the
Board of Directors or in a meeting of a committee of the Board by means of
conference telephone or similar communication equipment by means of which all
persons participating in the meeting can hear each other.
Quorum of Board of Directors
----------------------------
Section 6. - Two fifths (2/5) of the Directors in office shall be
necessary to constitute a quorum for the transaction of business, but a lesser
number may adjourn any meeting from time to time, and the meeting may be held
as adjourned without further notice.
<PAGE> 4
Written Consent to Action Without Meeting
-----------------------------------------
Section 7. - If all the Directors shall severally or collectively
consent in writing to any action to be taken by the corporation, such action
shall be as valid corporate action as though it had been authorized at a
meeting of the Board of Directors.
Removal of Directors
--------------------
Section 8. - The entire Board of Directors or any individual Director
may be removed from office by a majority vote of the holders of the outstanding
shares entitled to vote at an election of Directors. In case the Board or any
one or more Directors be so removed, new Directors may be elected at the same
meeting.
ARTICLE IV
OFFICERS
Designation
-----------
Section 1. - The Officers of the Corporation shall be a Chairman of
the Board, a President, a Secretary, and a Treasurer, and such other Officers
and Assistant Officers as the Board of Directors may authorize.
Chairman of the Board
---------------------
Section 2. - The Chairman of the Board shall be the chief executive
officer of the Corporation; he shall preside at all meetings of the
shareholders, of the Board of Directors, and of the Executive Committee at
which he is present and shall be ex officio a member of all Committees and,
subject to the direction of the Board of Directors, he shall have the general
supervision of the policies, business and operations of the corporation and of
the other officers, agents and employees of the corporation; he shall have all
other powers and duties as are usually incident to the chief executive officer
of a corporation and shall perform the duties of the President in the event the
President is not available.
President
---------
Section 3. - The President shall be the chief administrative officer
of the corporation and shall have general supervision under the direction of
the Chairman of the Board of the operations of the corporation and of the other
officers, agents and employees and shall be ex officio a member of all
Committees; he shall have all the administrative powers and duties that are
usually incident to the office of the President of a corporation and shall
cooperate and advise with the Chairman of the Board and shall have all of the
powers and duties of the Chairman of the Board in the event that the Chairman
of the Board is absent or unable to serve, and shall have such other duties as
<PAGE> 5
may be assigned to him from time to time by the Board of Directors or the
Chairman of the Board. In the absence of the Chairman of the Board he shall
preside at the meetings of the shareholders, of the Board of Directors, and of
the Executive committee unless some other person shall be appointed by the
Board of Directors.
Vice Presidents
---------------
Section 4. - The Vice Presidents, if such are elected, shall have the
duties and powers as may from time to time be assigned to them by the Board of
Directors or by the Chairman of the Board in the absence of any assignment by
the Board of Directors.
Treasurer
---------
Section 5. - The Treasurer shall be responsible for all moneys, funds,
securities, fidelity and indemnity bonds and other valuables belonging to the
corporation, shall cause to be kept proper records of the transactions of the
corporation; and shall perform such other duties as may be assigned to him from
time to time by the Board of Directors or the Chairman of the Board.
Secretary
---------
Section 6. - The Secretary shall attend the meetings of the
shareholders, of the Board of Directors, and of the Executive Committee and
shall keep minutes thereof in suitable minute books. He shall have charge of
the corporate records, papers and the corporate seal. He shall have charge of
the stock and transfer records of the corporation and shall keep a record of
all shareholders and give notices of all meetings of shareholders, special
meetings of the Board of Directors and of special meetings of the Executive
Committee. He shall have such other duties as the Board of Directors or the
Chairman of the Board shall assign to him.
Comptroller
-----------
Section 7. - The Comptroller, if a Comptroller is elected, shall be
the chief accounting officer and shall supervise systems and accounting records
and shall be responsible for the preparation of financial reports.
Auditor
-------
Section 8. - The Auditor, if an Auditor is elected, shall have charge
of auditing the books, records and accounts. He shall report directly to the
Board of Directors or a committee thereof.
<PAGE> 6
Assistant Officers
------------------
Section 9. - Each Assistant Officer as shall be elected shall assist
in the performance of the duties of the officer to whom he is assistant and
shall perform such duties in the absence of the officer. He shall perform such
additional duties as the Board of Directors, the Chairman of the Board, or the
officer to whom he is assistant, may from time to time assign to him.
ARTICLE V
COMMITTEES
Standing Committees
-------------------
Section 1. - The Standing Committees which may be appointed from time
to time by the Board of Directors may be an Executive Committee, and such other
Committees as the Board of Directors or the Chairman of the Board shall deem
advisable.
Executive Committee
-------------------
Section 2. - The Executive Committee, if one shall be appointed, shall
consist of not less than two Directors, who from time to time shall be
appointed by the Board of Directors or the Chairman of the Board. The Committee
shall meet at such time or times as may be fixed by the Board of Directors or
upon the call of the Chairman of the Board. Any other member of the Board of
Directors who may see fit to attend, may participate in any or all meetings of
the Executive Committee without formal appointment, and, when in attendance,
shall be deemed and treated for all purposes as a member of the Committee. The
Chairman of the Board shall act as Chairman of the Executive Committee and in
his absence the President, unless the Board of Directors shall appoint some
other person. The Executive Committee shall have and exercise in the intervals
between the meetings of the Board of Directors all the powers of the Board of
Directors so far as may be permitted by law. All acts done and powers conferred
by the Executive Committee from time to time shall be deemed to be, and may be
certified as being, done and conferred under authority of the Board of
Directors. A number of directors equal to a majority of the number of directors
from time to time formally appointed to the Executive Committee shall
constitute a quorum regardless of whether the directors present shall have been
formally appointed to the Executive Committee, and the action of a majority of
the directors present at a meeting shall decide any matter or question
submitted to the Executive Committee.
<PAGE> 7
Minutes
-------
Section 3. - The Executive Committee shall keep minutes of its
meetings, and such minutes shall be submitted at the next regular meeting of
the board of Directors, and any action taken by the Board of Directors with
respect thereto shall be entered in the minutes of the Board of Directors. All
other Committees shall keep minutes of their meetings which shall be accessible
to inspection by the Board of Directors at all times.
Procedure
---------
Section 4. - Except as otherwise expressly provided for herein, each
Committee may appoint a secretary, adopt its own rules of procedure and, unless
the Board of Directors has acted with respect thereto, determine the date,
place and hour for its meetings. In the absence of any other specific
provisions therefor all meetings of committees shall be governed by "Roberts
Rules of Order" and a majority of the members of any committee shall constitute
a quorum, and the action of a majority of the members in attendance at a
meeting shall constitute the action of the body. A special meeting of any
Committee may be called by the Chairman of the Board at any time. Notice of
such special meeting shall be given to each member personally, or by mail or
telegraph to his address appearing on the books of the Corporation by deposit
in any post office or telegraph office, on or before the day preceding the
meeting.
Attendance
----------
Section 5. - In the event of the absence or inability of any member of
any Committee to attend any meeting of the Committee the Chairman of the Board
may appoint any director who is not a member of the Committee as a temporary
member to take the place at any meeting or meetings of any director member who
is absent or unable to attend.
ARTICLE VI
GENERAL POWERS OF OFFICERS
The Seal
--------
Section 1. - The Chairman of the Board, the President, each Vice
President, the Treasurer and each Assistant Treasurer, the Secretary and each
Assistant Secretary, shall have authority to affix and attest the corporate
seal of the corporation adopted by the Board of Directors.
<PAGE> 8
Sale, Assignment, Receipt, Satisfaction, and Execution of
Documents by Corporate Attestation
----------------------------------
Section 2. - The Chairman of the Board, the President, any Vice
President, the Treasurer or any Assistant Treasurer, the Secretary or any
Assistant Secretary and any other officers or agents authorized by the Board of
Directors are and each of them acting above is hereby authorized and empowered:
a. To sell, assign and transfer any and all shares of stock,
bonds or other personal property standing in the name of the corporation or
held by the corporation either in its own name or in any fiduciary capacity or
as agent;
b. To assign and transfer any and all registered bonds of the
United States or its instrumentalities and the bonds of any state, city,
county, borough or other municipality and the bonds of any corporation and to
execute requests for payment or reissue of any such bonds that may be issued
now or hereafter and held by the corporation in its own right or in any
fiduciary capacity or as agent;
c. To sell at public or private sale, lease, mortgage or
otherwise dispose of, for such price or prices and upon such terms and
conditions as may be deemed advisable, any real estate or any interest therein
now held or which may be hereafter acquired or held by the corporation in its
own right or in any fiduciary capacity or as agent; and for and on behalf of
the corporation and as its corporate act and deed to execute and deliver any
conveyances of any such real estate, agreements, contracts, bills of sale,
assignments of mortgages, judgments, claims, powers of attorney or other
instruments which may be necessary in relation to any estate or property, real
or personal, standing in the name of this corporation in its own right or in
any fiduciary capacity or as agent and to affix the corporate seal of the
corporation to any or all such instruments in writing and to acknowledge the
same before any person having authority to take such acknowledgements on such
instruments to the intent that they may be duly recorded;
d. To receive and receipt for any sums of money or property
due or owing to this corporation in its own right or in any fiduciary capacity
or as agent and to execute any instrument of satisfaction therefor or of any
mortgage, judgment or other lien of record in the Office of the Recorder of
Deeds, the Prothonotary or other office or Court of Record in Allegheny County
or elsewhere;
e. To execute and deliver any and all deeds, contracts,
agreements, leases, conveyances, bills of sale, petitions, writings,
instruments, releases, acquittances and obligations necessary in the exercise
of the corporate powers of the corporation.
<PAGE> 9
Signatures without Corporate Attestation
----------------------------------------
Section 3. - The Chairman of the Board, the President, any Vice
President, the Treasurer or any Assistant Treasurer, the Secretary or any
Assistant Secretary, and such other officers, employees and agents as the Board
of Directors or the Executive Committee may appoint are each hereby authorized
and empowered:
a. To sign or countersign checks, drafts, acceptances,
promissory notes, and correspondence and other papers or documents not
ordinarily requiring execution under the seal of the corporation;
b. To receive and receipt for any sums of money or property
due or owing to this corporation in its own right or in any fiduciary capacity
or as agent and, either as Attorney-in-Fact for the corporation or otherwise,
to enter satisfaction therefor or of any mortgage, judgment or other lien in
the Office of the Recorder of Deeds or the Prothonotary or other office or
Court of Record in Allegheny County or elsewhere.
ARTICLE VII
STOCK CERTIFICATES
Signatures
----------
Section 1. - Certificates of stock of the corporation shall be signed
by the Chairman of the Board, or the President, or a Vice President, and
countersigned by the Treasurer or an Assistant Treasurer, or by the Secretary
or an Assistant Secretary and shall be sealed with the seal of the corporation.
The seal may be a facsimile. Where any such certificate is manually signed by
the transfer agent or the Registrar, the signatures of the officers of the
corporation upon such certificate may be facsimiles. In case any such officer
who has signed or countersigned, or whose facsimile signature has been placed
upon, such certificate shall have ceased to be an officer before such
certificate is issued, it may be issued by the corporation with the same effect
as if such officer were still an officer at the time of its issue.
Transfer
--------
Section 2. - The shares of stock of the corporation shall be
transferable only on its books upon surrender of the stock certificate for such
shares properly endorsed. The Board of Directors shall have power to appoint
one or more Transfer Agents and Registrars for the transfer and registration of
certificates of stock of any class, and may require that stock certificates
shall be countersigned and registered by one or more such Transfer Agents and
Registrars.
<PAGE> 10
Record Date
-----------
Section 3. - Transfers of stock shall not be suspended preparatory to
the declaration of dividends but dividends shall be paid to the shareholders in
whose name the stock is standing on the records of the Corporation at the close
of business on such day subsequent to the date of declaration of the dividend
as the Board of Directors may designate.
Lost Certificate
----------------
Section 4. - If a stock certificate shall be lost, stolen, or
destroyed, the shareholder may file with the corporation a affidavit stating
the circumstances of the loss, theft, or destruction and may request the
issuance of a new certificate. He shall give to the corporation a bond which
shall in such sum, contain such terms and provisions and have such surety or
sureties as the Board of Directors may direct. The corporation may thereupon
issue a new certificate replacing the certificate lost, stolen or destroyed.
Form of Certificate
-------------------
Section 5. - Certificates evidencing the shares of stock of the
corporation shall be in the form as the Board of Directors shall from time to
time direct.
ARTICLE VIII
EXERCISE OF AUTHORITY DURING EMERGENCIES
Section 1. - The Board of Directors or the Executive Committee may
from time to time adopt resolutions authorizing certain persons and entities to
exercise authority on behalf of this corporation in time of emergency, and in
the time of emergency any such resolutions will be applicable, notwithstanding
any provisions as to the contrary contained in these By-laws.
ARTICLE IX
CHARITABLE CONTRIBUTIONS
Section 1. - The Board of Directors may authorize contributions to
community funds, or to charitable, philanthropic, or benevolent
instrumentalities conducive to public welfare in such sums as the Board of
Directors may deem expedient and in the interests of the corporation.
<PAGE> 11
ARTICLE X
AMENDMENTS
Section 1. - These By-laws may be altered, amended, added to or
repealed by a vote of a majority of the Board of Directors at any regular
meeting of the Board of Directors, or at any special meeting of the board of
Directors called for that purpose.
ARTICLE XI
DIRECTOR LIABILITY LIMITATION AND INDEMNIFICATION
Section 1. Limitation of Director Liability
A director of the Corporation shall, to the maximum extent permitted
by the laws of the Commonwealth of Pennsylvania, have no personal liability for
monetary damages for any action taken, or any failure to take any action as a
director, provided that this Section 1, Article XI shall not eliminate the
liability of a director in any case where such elimination is not permitted by
law.
Section 2. Indemnification
Each person who at any time is or shall have been a director or
officer of the Corporation, or is serving or shall have served at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, and his or
her heirs, executors and administrators, shall be indemnified by the
Corporation in accordance with and to the full extent permitted by the laws of
the Commonwealth of Pennsylvania as in effect at the time of such
indemnification. The foregoing right of indemnification shall constitute a
contract between the Corporation and each of its directors and officers and
shall not be deemed exclusive of other rights to which any director, officer,
employee, agent or other person may be entitled in any capacity as a matter of
law or under any by-law, agreement, vote of shareholders or directors, or
otherwise. If authorized by the Board of Directors, the Corporation may
purchase and maintain insurance on behalf of any person to the full extent
permitted by the laws of the Commonwealth of Pennsylvania.
<PAGE> 1
EXHIBIT 4.1
Form of Common Stock Certificate
COMMON [PICTURE OF WOMAN WITH ANCIENT GREEK LYRE COMMON
APPEARS IN TOP/CENTER
OF CERTIFICATE; RIBBON BORDER RUNS DOWN
LEFT AND RIGHT MARGINS]
SHARES
<TABLE>
<S> <C> <C>
INCORPORATED UNDER THE LAWS OF THE THIS CERTIFICATE IS TRANSFERABLE
NUMBER COMMONWEALTH OF PENNSYLVANIA IN NEW YORK, N.Y.
CPT
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 693475 10 5
</TABLE>
PNCBANK(SM)
PNC BANK CORP.
- --------------------------------------------------------------------------------
This Certifies that
is the owner of
- --------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $5.00 EACH OF THE
COMMON STOCK OF
[IN LIGHT TYPE "CERTIFICATE OF STOCK"]
PNC Bank Corp., transferable on the books of the Corporation in person or by a
duly authorized attorney upon surrender of this certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar. Witness the facsimile seal of
the Corporation and the facsimile signatures of its duly authorized
officers.
Dated /s/ Thomas H. O'Brien
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
THE CHASE MANHATTAN BANK
TRANSFER AGENT AND REGISTRAR,
BY /s/ John F. Fulgoney
CORPORATE SECRETARY
AUTHORIZED SIGNATURE
[PNC Bank Corp. Corporate Seal appears left of Transfer Agent and
Registrar signature block]
<PAGE> 2
[REVERSE SIDE OF COMMON STOCK CERTIFICATE]
PNC BANK CORP.
--------------------------
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER, UPON REQUEST AND
WITHOUT CHARGE, A FULL OR SUMMARY STATEMENT OF (1) THE DESIGNATIONS,
PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS
AUTHORIZED TO BE ISSUED, (2) THE VARIATIONS IN THE RELATIVE RIGHTS AND
PREFERENCES BETWEEN THE SHARES OF EACH SERIES OF PREFERRED STOCK SO FAR AS THE
SAME HAVE BEEN FIXED AND DETERMINED, AND (3) THE AUTHORITY OF THE BOARD OF
DIRECTORS TO FIX AND DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF
SUBSEQUENT SERIES, SUCH REQUEST MAY BE MADE TO THE TRANSER AGENT NAMED ON THE
FACE HEREOF OR TO THE SECRETARY OF THE CORPORATION.
--------------------------
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR
DESTROYED THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFCATE.
--------------------------
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - Custodian
------------------------- -----------------
(Cust) (Minor)
under Uniform Gifts to Minors
Act
-------------------------------------------------
(State)
Additional abbreviations may also be used though not
in the above list.
For value received, hereby sell,
----------------------
assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-----------------------------------
-----------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------
shares
- --------------------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
________________________________________________________________________Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated _____________________
----------------------------------------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) MUST BE GUARANTEED BY A MEMBER FIRM OF NEW YORK STOCK
EXCHANGE OR BY A COMMERCIAL BANK OR TRUST COMPANY.
<PAGE> 1
Exhibit 4.5
================================================================================
PNC BANK CORP.,
[NAME OF DEPOSITARY BANK], as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
---------------
Deposit Agreement
relating to [insert designation]
Preferred Stock of PNC Bank Corp.
---------------
Dated as of ,
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . .
RECITALS. . . . . . . . . . . . . . . . . . . . . .
ARTICLE I
Definitions
Certificate . . . . . . . . . . . . . . . . . . . .
Depositary Shares . . . . . . . . . . . . . . . . .
Depositary's Agent. . . . . . . . . . . . . . . . .
Depositary's Office . . . . . . . . . . . . . . . .
Receipt . . . . . . . . . . . . . . . . . . . . . .
Record holder . . . . . . . . . . . . . . . . . . .
Registrar . . . . . . . . . . . . . . . . . . . . .
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts . . . . . . . . . .
SECTION 2.02. Deposit of Preferred Stock;
Execution and Delivery of
Receipts in Respect Thereof. . . . . . . . . . .
SECTION 2.03. Redemption of Preferred Stock . . . .
SECTION 2.04. Registration of Transfer of
Receipts . . . . . . . . . . . . . . . . . . . .
SECTION 2.05. Split-ups and Combinations of
Receipts; Surrender of Receipts
and Withdrawal of Preferred
Stock. . . . . . . . . . . . . . . . . . . . . .
SECTION 2.06. Limitations on Execution and
Delivery, Transfer, Surrender and
Exchange of Receipts . . . . . . . . . . . . . .
SECTION 2.07. Lost Receipts, etc. . . . . . . . . . . . . . . .
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . . . . . . .
[SECTION 2.09. Conversion of Preferred Stock. . . . . . . . . . .
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and
Other Information. . . . . . . . . . . . . . . .
SECTION 3.02. Payment of Taxes or Other
Governmental Charges . . . . . . . . . . . . . .
SECTION 3.03. Warranty as to Preferred Stock. . . . . . . . . . .
[SECTION 3.04. Covenants and Warranties as
to Common Stock] . . . . . . . . . . . . . . . .
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. . . . . . . . . . . . . . . . .
SECTION 4.02. Distributions Other Than Cash,
Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . . . .
SECTION 4.03. Subscription Rights, Preferences
or Privileges. . . . . . . . . . . . . . . . . .
SECTION 4.04. Notice of Dividends, etc.; Fixing
of Record Date for Holders
of Receipts. . . . . . . . . . . . . . . . . . .
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . .
SECTION 4.06. Changes Affecting Deposited
Securities and Reclassifications,
Recapitalizations, etc.. . . . . . . . . .
SECTION 4.07. Inspection of Reports . . . . . . . . . . . .
SECTION 4.08. Lists of Receipt Holders. . . . . . . . . . .
SECTION 4.09. Tax and Regulatory Compliance . . . . . . . .
SECTION 4.10. Withholding . . . . . . . . . . . . . . . . .
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices,
Agencies and Transfer Books
by the Depositary; Registrar . . . . . . .
SECTION 5.02. Prevention of or Delay in
Performance by the Depositary,
the Depositary's Agents, the
Registrar or the Company . . . . . . . . .
SECTION 5.03. Obligations of the Depositary,
the Depositary's Agents, the
Registrar and the Company. . . . . . . . .
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary . . . . . . . . . . .
SECTION 5.05. Corporate Notices and Reports . . . . . . . .
SECTION 5.06. Indemnification by the Company . . . . . . .
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 5.07. Charges and Expenses. . . . . . . . .
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment . . . . . . . . . . . . . .
SECTION 6.02. Termination . . . . . . . . . . . . .
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. . . . . . . . . . . . .
SECTION 7.02. Exclusive Benefit of Parties. . . . .
SECTION 7.03. Invalidity of Provisions. . . . . . .
SECTION 7.04. Notices . . . . . . . . . . . . . . .
SECTION 7.05. Depositary's Agents . . . . . . . . .
SECTION 7.06. Holders of Receipts Are Parties . . .
SECTION 7.07. Governing Law . . . . . . . . . . . .
SECTION 7.08. Inspection of Agreement . . . . . . .
SECTION 7.09. Headings. . . . . . . . . . . . . . .
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A: Form of Depositary Receipt
</TABLE>
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<PAGE> 6
DEPOSIT AGREEMENT dated as of , , among PNC Bank Corp., a
Pennsylvania corporation (the "Company"), [NAME OF DEPOSITARY BANK], a
, as depositary (the "Depositary"), and the holders from time to time
of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Agreement, for the deposit of [insert designation of preferred shares], $1.00
par value (the "Preferred Stock") of the Company with the Depository for the
purposes set forth in this Agreement and for the issuance hereunder of Receipts
(as defined below) evidencing Depositary Shares (as defined below) in respect
of the Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated or the context otherwise, apply to the respective terms used in this
Agreement:
"Certificate" shall mean the statement filed with the Department of
State of the Commonwealth of Pennsylvania establishing the Preferred Stock as a
series of preferred shares of the Company.
"Depositary Shares" shall mean Depositary Shares, each representing
[SPECIFY FRACTION] of a share of Preferred Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
depositary in [LOCATION], at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
<PAGE> 7
"Record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Registrar" shall mean any bank or trust company that shall be
appointed to register ownership and transfers of Receipts as herein provided.
ARTICLE II
Form of Receipts, Deposit of Preferred Stock,
Execution and Delivery, Transfer, Surrender and
Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company or any holder of Preferred Stock, as the case may be, delivered for
deposit in compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at an office
described in the second to last paragraph of Section 2.02, without charge to
the holder. Upon surrender for cancellation of any one or more temporary
Receipts, the Depositary shall execute and delivery in exchange therefor
definitive Receipts representing the same number of Depositary Shares as
represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without
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<PAGE> 8
any charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Agreement, and with
respect to the Preferred Stock deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No Receipt
shall be entitled to any benefits under this Agreement or be valid or
obligatory for any purpose unless it shall have been executed manually by a
duly authorized officer of the Depositary or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by manual or facsimile
signature of a duly authorized officer of the Depositary and countersigned
manually by a duly authorized officer of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as hereinafter
provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Agreement as may be required by the Depositary or required to comply with
any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such
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<PAGE> 9
time as the absolute owner thereof for the purpose of determining the person
entitled to distributions of dividends or other distributions or to any notice
provided for in this Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Agreement, the Company or any holder of Preferred Stock may from time to time
deposit shares of Preferred Stock under this Agreement by delivery to the
Depositary of (i) a certificate or certificates for the shares of Preferred
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, (ii) all certifications as may be required by
the Depositary in accordance with the provisions of this Agreement, and (iii) a
written order of the Company or such holder, as the case may be, directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited shares of Preferred Stock.
Upon receipt by the Depositary of a certificate or certificates for
the shares of Preferred Stock deposited in accordance with the provisions of
this Section, together with the other documents required, and upon registration
of such shares of Preferred Stock on the books of the Company in the name of
the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Agreement, shall execute and deliver, to or upon the order
of the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares representing such shares of Preferred Stock and
registered in such name or names as may be requested by such person or persons.
Certificates in the name of the Depositary for the deposited shares of
Preferred Stock shall be held by the Depositary at the Depositary's Office or
at such other place or places as the Depositary shall determine.
The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
- 4 -
<PAGE> 10
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than [NUMBER] shares of Preferred Stock.
SECTION 2.03. Redemption of Preferred Stock. Whenever the Company
shall elect to redeem shares of Preferred Stock deposited hereunder in
accordance with the provisions of the Certificate, if the Certificate provides
for such redemption, it shall (unless otherwise agreed in writing with the
Depositary) give the Depositary not less than 40 nor more than 70 days' notice
of the date of such proposed redemption of the Preferred Stock, which notice
shall be accompanied by a certificate from the Company stating that such
redemption of the Preferred Stock is in accordance with the provisions of the
Certificate. Such notice, if given more than 60 days prior to the redemption
date, shall be in addition to the notice required to be given for redemption
pursuant to the Certificate. On the date of such redemption, provided that the
Company shall then have paid in full to the Depositary the redemption price of
any deposited shares of Preferred Stock to be redeemed, plus any accrued and
unpaid dividends thereon, the Depositary shall redeem the number of Depositary
Shares representing such shares of Preferred Stock. The Depositary shall mail
notice of such redemption and the proposed simultaneous redemption of the
number of Depositary Shares representing the deposited shares of Preferred
Stock to be redeemed, first-class postage prepaid, not less than 30 and not
more than 60 days prior to the date fixed for redemption of such Preferred
Stock and Depositary Shares (the "Redemption Date"), to the record holders of
the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as they appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency
of the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depository Shares held by any such holder
are to be redeemed, the number of such
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<PAGE> 11
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends
in respect of the shares of Preferred Stock represented by the Depositary
Shares to be redeemed will cease to accumulate and that conversion rights, if
any, in respect thereof will terminate at the close of business on such
Redemption Date. In case less than all the outstanding Depositary Shares are to
be redeemed, the Depositary Shares to be so redeemed shall be selected by lot
or pro rata as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
deposited shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all dividends in
respect of the deposited shares of Preferred Stock so called for redemption
shall cease to accumulate, the Depositary Shares being redeemed from such
proceeds shall be deemed no longer to be outstanding, all rights of the holders
of Receipts evidencing such Depositary Shares (except the right to receive the
redemption price) shall, to the extent of such Depositary Shares cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
[SPECIFY FRACTION] of the redemption price per share paid in respect of the
redeemed deposited shares of Preferred Stock plus all money and other property,
if any, represented by such Depositary Shares, including all amounts paid by
the Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Preferred Stock to be so redeemed and have not
theretofore been paid.
If less than all the Depositary Shares evidenced by a single Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption, together with the redemption payment.
- 6 -
<PAGE> 12
SECTION 2.04. Registration of Transfer of Receipt. Subject to the
terms and conditions of this Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Preferred Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this Agreement,
the Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denomination or denominations requested, evidencing the aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing a whole number of
deposited shares of Preferred Stock may withdraw such shares of Preferred Stock
and all money and other property, if any, represented thereby by surrendering
such Receipt or Receipts at the Depositary's Office or at such other offices as
the Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided the number
of shares of Preferred Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such shares of Preferred Stock will not thereafter be entitled to
deposit such shares of Preferred Stock hereunder or to receive Depositary
Shares therefor. If a Receipt delivered by the holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in
excess of the number of deposited Depositary Shares representing the number of
shares of Preferred Stock to be so withdrawn, the Depositary shall at the same
time, in addition to such number of shares of Preferred Stock and such money
and other property, if any, to be so withdrawn,
- 7 -
<PAGE> 13
deliver to such holder, or (subject to Section 2.03) upon his order, a new
Receipt evidencing such excess number of Depositary Shares. Delivery of the
shares of Preferred Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
If the shares of Preferred Stock and the money and other property, if
any, being withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for withdrawal of
the Preferred Stock, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of such
shares of Preferred Stock be appropriately endorsed or accompanied by a
properly executed instrument of transfer.
Delivery of the shares of Preferred Stock and the money and other
property, if any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except that, at the request,
risk and expense of the holder surrendering such Receipt or Receipts and for
the account of the holder thereof, such delivery may be made at such other
place as may be designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Agreement.
- 8 -
<PAGE> 14
The deposit of shares of Preferred Stock may be reused, the delivery
of Receipts against Preferred Stock may be suspended, the registration of
transfer of Receipts may be refused and the registration of transfer, surrender
or exchange of outstanding Receipts may be suspended (i) during any period when
the register of shareholders of the Company is closed or (ii) if any such
action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission
or under any provisions of this Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or less or theft of such Receipt, of the authenticity thereof and
of his or her ownership thereof, and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
[SECTION 2.09. Conversion of Preferred Stock. The Company hereby
agrees to accept the delivery of Receipts for purposes of effecting conversions
of the Preferred Stock utilizing the same procedures as those provided for
delivery of certificates for the Preferred Stock to effect such conversions in
accordance with the terms and conditions of the Preferred Stock as provided in
the Certificate. If the Depositary Shares represented by a Receipt are to be
converted in part only, a new Receipt or Receipts will be issued by the
Depositary for the Depositary Shares not to be converted. For this purpose, a
holder of a Receipt or Receipts must surrender such Receipt or Receipts to the
Company, in care of the Depositary at its Office together with a duly completed
and executed notice
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<PAGE> 15
of conversion. In all cases the foregoing shall be conditioned upon compliance
in full by the holders with the terms and conditions of the Preferred Stock as
provided in the Certificate and of this Deposit Agreement. The Company and the
Depositary will thereafter effect the cancellation of each Receipt surrendered
for such conversion and of the related Preferred Stock so converted and any
certificate(s) therefor.]
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Shares of Preferred Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt or any withdrawal of shares of Preferred Stock and all money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or any part of or all
the shares of Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means
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<PAGE> 16
to notify such holder prior to such sale), and such dividends, interest
payments or other distributions or the proceeds of any such sale may be applied
to any payment of such charges or expenses, the holder of such Receipt
remaining liable for any deficiency.
SECTION 3.03. Warranty as to Preferred Stock. The Company hereby
represents and warrants that the shares of Preferred Stock, when issued, will
be validly issued, fully paid and nonassessable. Such representation and
warranty shall survive the deposit of any shares of Preferred Stock and the
issuance of Receipts.
[SECTION 3.04. Covenants and Warranties as to Common Stock. The
Company covenants that it will keep reserved or otherwise available a
sufficient number of authorized and unissued shares of Common Stock to meet
conversion requirements in respect of the Preferred Stock and that it will give
written notice to the Depositary of any adjustments in the conversion price as
set forth in the Certificate. The Company represents and warrants that the
Common Stock issued upon conversion of Preferred Stock will be validly issued,
fully paid and nonassessable.]
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on deposited shares of
Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of such dividend or distribution as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required to withhold and shall withhold
from any cash dividend or other cash distribution in respect of the Preferred
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly.
The Depositary shall distribute or make available for distribution, as the case
may be,
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<PAGE> 17
only such amount, however, as can be distributed without attributing to any
holder of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon deposited shares of Preferred
Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the Receipts
held by such holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary deems,
after consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed or made available for distribution, as
the case may be, by the Depositary to record holders of Receipts as provided by
Section 4.01 in the case of a distribution received in cash. The Company shall
not make any distribution of such securities unless the Company shall have
provided an opinion of counsel stating that such securities have been
registered under the Securities Act of 1933 or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names the shares of Preferred Stock are recorded on the books of the Company
- 12 -
<PAGE> 18
any rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall in each such instance be made available
by the Depositary to the record holders of Receipts in such manner as the
Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if at the time of issue or offer of
any such rights, preferences or privileges the Depositary determines that it is
not lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws and the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of any such rights,
preferences or privilege unless the Company shall have provided an opinion of
counsel stating that such rights, preferences or privileges have been
registered under the Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that
it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall
- 13 -
<PAGE> 19
the Depositary make available to the holders of Receipts any right, preference
or privilege to subscribe for or to purchase any securities unless and until
such a registration statement shall have become effective, or unless the
offering and sale of such securities to such holders are exempt from
registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
the Preferred Stock, or whenever the Depositary shall receive notice of any
meeting at which holders of shares of Preferred Stock are entitled to vote or
of which holders of shares of Preferred Stock are entitled to notice, or
whenever the Depositary and the Company shall decide it is appropriate, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Preferred
Stock) for the determination of the holders of Receipts who shall be entitled
to receive such dividend, distribution, rights, preferences or privileges or
the net proceeds of the sale thereof, or to give instructions for the exercise
of voting rights at any such meeting, or who shall be entitled to notice of
such meeting or for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of shares of Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice which shall contain (i) such information as is contained
in such notice of meeting and (ii) a statement that the holders may, subject to
any
- 14 -
<PAGE> 20
applicable restrictions, instruct the Depositary as to the exercise of the
voting rights pertaining to the number of shares of Preferred Stock represented
by their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to a
person designated by the Company) and a brief statement as to the manner in
which such instructions may be given. Upon the written request of the holders
of Receipts on the relevant record date, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum whole number of shares of
Preferred Stock represented by the Depositary Shares evidenced by all Receipts
as to which any particular voting instructions are received. The Company hereby
agrees to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to vote such shares of Preferred Stock or cause
such shares of Preferred Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting (but, at its discretion, not from appearing at any meeting with respect
to such shares of Preferred Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the number of shares of Preferred
Stock represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval of, and shall upon the instructions of,
the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of any interest represented by one Depositary Share in one share of
Preferred Stock, and (y) the ratio of the redemption price per Depositary Share
to the redemption price per share of Preferred Stock, in each case as may be
necessary fully to reflect the effects of such changes in par or stated value,
split-up, combination or other reclassification of the Preferred Stock, or of
such recapitalization, reorganization, merger, amalgamation or consolidation,
and (ii) treat any securities which shall be received by the Depositary in
exchange for or upon
- 15 -
<PAGE> 21
conversion of or in respect of deposited shares of Preferred Stock as new
deposited securities so received in exchange for or upon conversion or in
respect of such shares of Preferred Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
changing par or stated value, split-up, combination or other reclassification
of the Preferred Stock or any such recapitalization, reorganization, merger,
amalgamation or consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the shares of Preferred Stock
represented thereby only into or for, as the case may be, the kind and amount
of shares of Preferred Stock and other securities and property and cash into
which the Preferred Stock represented by such Receipts might have been
converted or for which such Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depository shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports
and communications received from the Company which are received by the
Depositary as the holder of Preferred Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of form 1099s (or successor forms)
for all open and closed accounts, (ii) foreign tax withholding, (iii)
withholding of tax on dividends payable to eligible holders of Receipts, (iv)
mailing W-9 forms (or successor forms) to new holders of Receipts without a
certified taxpayer identification number, (v) processing certified W-9 forms
(or
- 16 -
<PAGE> 22
successor forms), (vi) preparation and filing of state information returns, and
(vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
to withhold, the Depositary may, after consultation with the Company, dispose
of all or a portion of such property in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes, by public or
private sale at such place or places and upon such terms as it shall deem
proper after consultation with the Company, and the Depositary shall distribute
the net proceeds of any such sale or the balance of any such property after
deduction of such taxes to the holders of Receipts entitled thereto in
proportion to the number of Depositary Shares held by them respectively.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Agreement, the Depositary
shall maintain at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of
Receipts; provided, however, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related
- 17 -
<PAGE> 23
to such person's interests as an owner of Depositary Shares evidenced by
Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on the
New York Stock Exchange, the Depositary may, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of such Exchange. Such Registrar (which may be
the Depositary if so permitted by the requirements of such Exchange) may be
removed and a substituted registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, the Depositary
Shares or the Preferred Stock shall be listed on one or more other stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of the Receipts, the Depositary Shares or the Preferred Stock as
may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of a Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Company's Articles of Incorporation
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from, or subjected to any penalty on account of, doing or performing
any act or thing which the terms of this Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any
- 18 -
<PAGE> 24
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Agreement to holders of Receipts other than
for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation under this Agreement to appear
in, prosecute or defend any action, suit or other proceeding in respect of
deposited shares of Preferred Stock, the Depositary Shares or the Receipts that
in its opinion may involve it in expense or liability unless indemnity
satisfactory to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting shares of Preferred Stock for deposit,
any holder of a Receipt or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
Notwithstanding the first paragraph of this Section, the Depositary
shall not be responsible for any failure to carry out any instruction to vote
any of the deposited shares of Preferred Stock or for the manner or effect of
any such vote made, as long as any such action or nonaction is in good faith or
in accordance
- 19 -
<PAGE> 25
with this Agreement. The Depositary undertakes, and any Registrar shall be
required to undertake, to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied covenants or
obligations shall be read into this Deposit Agreement against the Depositary or
any Registrar. The Depositary will indemnify the Company against any liability
that may arise out of acts performed or omitted by the Depositary or its agents
due to its or their negligence or bad faith. The Depositary, the Depositary's
Agents and any Registrar may own and deal in any class of securities of the
Company and its affiliates and Receipts. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depository may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of competent
jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and delivery to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the
- 20 -
<PAGE> 26
Depositary under this Agreement, and such predecessor, upon payment of all sums
due it and on the written request of the Company, shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Preferred Stock and any moneys or property held hereunder
to such successor, and shall deliver to such successor a list of the record
holders of all outstanding Receipts. Any successor Depositary shall promptly
mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof
shall not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
Section 5.05. Corporate Notices and Reports. The Company agrees that
it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts are listed or by the Company's Articles of
Incorporation (including the Certificate) to be furnished by the Company to
holders of shares of Preferred Stock. Such transmission will be at the
Company's expense.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) that may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence or bad faith on the respective parts of any such person or persons,
or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Receipts or the
- 21 -
<PAGE> 27
Preferred Stock pursuant to the provisions hereof. The obligations of the
Company set forth in this Section 5.06 shall survive any succession of any
Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all charges of the
Depositary in connection with the initial deposit of the Preferred Stock and
the initial issuance of the Depositary Shares, redemption of the Preferred
Stock at the option of the Company and all withdrawals of shares of the
Preferred Stock by owners of Depositary Shares. All other transfer and other
taxes and governmental charges shall be at the expense of holders of Depositary
Shares. If, at the request of a holder of Receipts, the Depositary incurs
charges or expenses for which it is not otherwise liable hereunder, such holder
will be liable for such charges and expenses. All other charges and expenses of
the Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Company once every three months
or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment (other than
any change in the fees of any Depositary, Registrar or Transfer Agent (as
hereinafter defined), which shall go into effect not sooner than three months
after notice thereof to the holders of the Receipts) that shall materially and
- 22 -
<PAGE> 28
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least a majority
of the Depositary Shares then outstanding. Every holder of an outstanding
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by this Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 or (ii) there shall have been
made a final distribution in respect of the Preferred Stock in connection with
any liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or Section 4.02, as applicable.
Upon the termination of this Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07. The Depositary's indemnity under Section 5.03 shall
survive the termination of this Agreement and the resignation or removal of
such Depositary.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Agreement is for the
exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
- 23 -
<PAGE> 29
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to the Company at One PNC Plaza, 249 Fifth
Avenue, Pittsburgh, Pennsylvania 15222 to the attention of the Secretary, or at
any other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at [ADDRESS OF
DEPOSITARY], or at any other address of which the Depositary shall have
notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended
for such holder be mailed to some other address, at the address designated in
such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it
from the other or from any holder of a Receipt, notwithstanding that such
- 24 -
<PAGE> 30
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be parties to this Agreement and shall be bound by all
of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. This Agreement and the Receipts and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the Commonwealth of
Pennsylvania.
SECTION 7.08. Inspection of Agreement. Copies of this Agreement shall
be filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Depositary's Office and the respective
offices of the Depositary's Agents, if any, by an holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this
Agreement and in the form of the Receipt set forth in Exhibit A hereto have
been inserted for convenience only and are not to be regarded as a part of this
Agreement or the Receipts or have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all
- 25 -
<PAGE> 31
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
PNC Bank Corp.
Attested by By _______________________
___________________
[SEAL]
[NAME OF DEPOSITARY], as
Depositary
Attested by By _______________________
___________________]
[SEAL]
- 26 -
<PAGE> 1
EXHBIT 4.6
FORM OF
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING
[INSERT DESIGNATION] PREFERRED STOCK
($1.00 PAR VALUE)
OF
PNC BANK CORP.
(INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA)
--------------------------
[This Receipt is transferable in New York, N.Y.]
No.
[Name of Depositary], a [national banking association] with its principal
offices at the time of the execution of the Deposit Agreement (as defined
below) at [address], as Depositary (the "Depositary"), hereby certifies that
is the registered owner of Depositary Shares, each Depositary Share
representing [specify fraction] of one [insert designation] share of Preferred
Stock, $1.00 par value per share, of PNC Bank Corp., a corporation duly
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Corporation"), on deposit with the Depositary subject to the terms and
entitled to the benefits of the Deposit Agreement, dated as of [date] (the
"Deposit Agreement"), between the Corporation and the Depositary.
This Receipt shall not be valid or obligatory for any purpose or entitled
to any benefits under the Deposit Agreement unless it shall have been executed
by the Depositary by the manual signature of a duly authorized officer or, if
executed in facsimile by the Depositary, countersigned by a registrar in
respect of this Receipt by the manual signature of a duly authorized officer
thereof.
Dated: NAME OF DEPOSITARY,
Depositary
By:
-----------------------------
Authorized Officer
Countersigned:
[Registrar]
By:
---------------------------------
Authorized Officer
A COPY OF THE DEPOSIT AGREEMENT AND A FULL STATEMENT OF THE DESIGNATION,
RELATIVE RIGHTS, INTERESTS, PREFERENCE AND RESTRICTIONS OF THE SHARES
REPRESENTED BY THIS RECEIPT AND OF EACH CLASS OF SHARES OR SERIES THEREOF THAT
THE CORPORATION IS AUTHORIZED TO ISSUE WILL BE FURNISHED BY THE CORPORATION,
WITHOUT CHARGE, TO EACH HOLDER OF A RECEIPT UPON WRITTEN REQUEST TO THE
SECRETARY OF THE CORPORATION.
<PAGE> 2
The following abbreviations, when used in the inscription on the face of
this receipt, shall be construed as though they were written out in full
according to applicable laws and regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - Custodian
-------------------- ------------------------
(Cust) (Minor)
under Uniform Gifts to Minors
Act
----------------------------------------------------
(State)
Additional abbreviations may also be used though not in
the above list.
FOR VALUE RECEIVED,
--------------------------------------------------------
hereby sell, assign and transfer unto
- -------------------------------------------------------------------------------
Please Print or Type Name and Address Including Zip Code of Assignee
- -------------------------------------------------------------------------------
- ----------------------------------
Please insert Social Security or Other
Identifying Number of Assignee
Depositary
- ----------------------------------------------------------------------
Shares represented by the written Receipt, and do hereby irrevocably
constitute and appoint
-----------------------------------------------
Attorney to transfer said receipt on the books of the within named Corporation
with full power of substitution in the premises.
Dated: Signature
--------------------------- -------------------------
NOTE: The signature of this assignment
must correspond with the name as
written upon the face of the Receipt
in every particular, without
alteration or enlargement, or any
change whatever.
<PAGE> 1
Exhibit 4.7
- --------------------------------------------------------------------------------
PNC FUNDING CORP,
Issuer,
PNC FINANCIAL CORP,
Guarantor,
AND
Manufacturers Hanover Trust Company,
Trustee
-------
INDENTURE
---------
Dated as of December 1, 1991
---------
Guaranteed Debt Securities
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS*
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Page
----
SECTION 1.01. Definitions ............................................. 2
"this Indenture" and certain other terms ................ 2
"Act" ................................................... 2
"Affiliate" ............................................. 2
"Authorized Newspaper" .................................. 3
"Board of Directors" .................................... 3
"Board Resolution" ...................................... 3
"Business Day" .......................................... 3
"Capital Stock" ......................................... 3
"Commission" ............................................ 3
"Company" ............................................... 3
"Company Request," "Company Order,"
"Guarantor Request" and "Guarantor
Order" ............................................... 4
"Component Currency" .................................... 4
"Consolidated Banking Assets" ........................... 4
"Conversion Date" ....................................... 4
"Conversion Rate" ....................................... 4
"Corporate Trust Office" ................................ 4
"Coupon" ................................................ 4
"Coupon Security" ....................................... 4
"Default" ............................................... 4
"Defaulted Interest" .................................... 4
"Depositary" ............................................ 4
"Dollar" ................................................ 5
"Dollar Determination Agent" ............................ 5
"Dollar Equivalent of the Currency Unit" ................ 5
"Dollar Equivalent of the Foreign Currency" ............. 5
"ECU" ................................................... 5
"European Communities" .................................. 5
"Event of Default" ...................................... 5
"Exchange Rate Officer's Certificate" ................... 5
"Foreign Currency" ...................................... 5
"Fully Registered Security" ............................. 5
"Global Security" ....................................... 5
"Government Obligations" ................................ 6
"Guarantees" ............................................ 6
"Guarantor" ............................................. 6
- --------------
* The Table of Contents is not part of the Indenture.
-i-
<PAGE> 3
Page
----
"Holder" ................................................ 6
"Indenture" ............................................. 7
"Interest Payment Date" ................................. 7
"Market Exchange Rate" .................................. 7
"Maturity" .............................................. 7
"Officers' Certificate" ................................. 7
"Official Currency Unit Exchange Rate" .................. 7
"Opinion of Counsel" .................................... 7
"Original Issue Discount Security" ...................... 7
"Outstanding" ........................................... 7
"Paying Agent" .......................................... 8
"Person" ................................................ 8
"Place of Payment" ...................................... 9
"Predecessor Securities" ................................ 9
"Principal Corporate Trust Office" ...................... 9
"Principal Subsidiary Bank" ............................. 9
"Redemption Date" ....................................... 9
"Redemption Price" ...................................... 9
"Registered Holder" ..................................... 9
"Registered Security" ................................... 10
"Regular Record Date" ................................... 10
"Repayment Date" ........................................ 10
"Repayment Price" ....................................... 10
"Required Currency" ..................................... 10
"Responsible Officer" ................................... 10
"Security" or "Securities" .............................. 10
"Security Register" or Security Registrar" .............. 10
"Senior Debt Securities" ................................ 10
"Senior Company Indebtedness" ........................... 10
"Senior Guarantor Indebtedness" ......................... 11
"Special Record Date" ................................... 11
"Specified Amount" ...................................... 12
"Stated Maturity" ....................................... 12
"Subordinated Debt Securities" .......................... 12
"Subsidiary" ............................................ 12
"Subsidiary Bank" ....................................... 12
"Trust Indenture Act" or "TIA" .......................... 12
"Trustee" ............................................... 12
"Unregistered Security" ................................. 12
"Valuation Date" ........................................ 12
"Vice President" ........................................ 12
"Voting Shares" ......................................... 13
SECTION 1.02. Compliance Certificates and Opinions .................... 13
SECTION 1.03. Form of Documents Delivered to Trustee .................. 14
SECTION 1.04. Acts of Security Holders ................................ 15
SECTION 1.05. Notices, etc., to Trustee, Company
and Guarantor ......................................... 16
SECTION 1.06. Notices to Holders; Waiver .............................. 16
SECTION 1.07. Conflict with Trust Indenture Act ....................... 17
SECTION 1.08. Effect of Headings and Table of Contents ................ 18
SECTION 1.09. Successors and Assigns .................................. 18
-ii-
<PAGE> 4
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SECTION 1.10. Separability Clause ..................................... 18
SECTION 1.11. Benefits of Indenture ................................... 18
SECTION 1.12. Legal Holidays .......................................... 18
SECTION 1.13. Governing Law ........................................... 19
SECTION 1.14. Moneys of Different Currencies To Be
Segregated ............................................ 19
SECTION 1.15. Payment To Be in Proper Currency ........................ 19
ARTICLE TWO
FORMS
SECTION 2.01. Forms Generally ......................................... 20
SECTION 2.02. Form of Trustee's Certificate of
Authentication ......................................... 20
SECTION 2.03. Forms of Security ....................................... 21
SECTION 2.04. Form of Guarantee ....................................... 21
SECTION 2.05. Securities Issuable in the Form
of a Global Security ................................... 22
ARTICLE THREE
THE SECURITIES AND THE GUARANTEES
SECTION 3.01. Title and Terms ......................................... 24
SECTION 3.02. Denominations ........................................... 29
SECTION 3.03. Execution, Authentication and Delivery .................. 29
SECTION 3.04. Temporary Securities .................................... 31
SECTION 3.05. Registration, Registration of Transfer
and Exchange .......................................... 32
SECTION 3.06. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities or Coupons .......................... 34
SECTION 3.07. Payment of Interest; Interest
Rights Preserved ....................................... 35
SECTION 3.08. Persons Deemed Owners ................................... 37
SECTION 3.09. Cancellation of Securities; Destruction
Thereof ............................................... 38
SECTION 3.10. Computation of Interest ................................. 38
SECTION 3.11. Currency and Manner of Payments in Respect
of Securities ......................................... 38
SECTION 3.12. Unconditional Guarantee ................................. 43
SECTION 3.13. Execution of Guarantees ................................. 45
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ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article ................................ 45
SECTION 4.02. Notice of Redemption; Selection of
Securities ............................................ 45
SECTION 4.03. Payment of Securities Called for
Redemption ............................................. 47
SECTION 4.04. Sinking Funds ........................................... 48
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and
Interest; Compliance with Terms ....................... 50
SECTION 5.02. Maintenance of Agency ................................... 51
SECTION 5.03. Money for Security Payments To Be
Held in Trust .......................................... 52
SECTION 5.04. Certification of Compliance of the
Company and the Guarantor ............................. 53
SECTION 5.05. Corporate Existence ..................................... 54
SECTION 5.06. Limitation on Sale or Issuance
of Voting Stock of Principal
Subsidiary Banks ...................................... 54
SECTION 5.07. Ownership of the Company ................................ 56
SECTION 5.08. Liens ................................................... 56
SECTION 5.09. Waiver of Covenants ..................................... 58
ARTICLE SIX
SECURITY HOLDERS' LISTS AND REPORTS
BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 6.01. Company and Guarantor To Furnish
Trustee Names and Addresses
of Security Holders ................................... 58
SECTION 6.02. Preservation of Information;
Communications to Security Holders .................... 59
SECTION 6.03. Reports by Trustee ...................................... 59
SECTION 6.04. Reports by Company and Guarantor ........................ 59
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ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default and Defaults .......................... 59
SECTION 7.02. Acceleration of Maturity; Rescission
and Annulment ......................................... 62
SECTION 7.03. Collection of Indebtedness and Suits
for Enforcement by Trustee ............................ 64
SECTION 7.04. Trustee May File Proofs of Claim ........................ 65
SECTION 7.05. Trustee May Enforce Claims Without
Possession of Securities .............................. 66
SECTION 7.06. Application of Money Collected .......................... 67
SECTION 7.07. Limitation on Suits ..................................... 67
SECTION 7.08. Unconditional Right of Security
Holders To Receive Principal,
Premium and Interest .................................. 68
SECTION 7.09. Restoration of Rights and Remedies ...................... 69
SECTION 7.10. Rights and Remedies Cumulative .......................... 69
SECTION 7.11. Delay or Omission Not Waiver ............................ 69
SECTION 7.12. Control by Security Holders ............................. 69
SECTION 7.13. Waiver of Past Defaults ................................. 70
SECTION 7.14. Undertaking for Costs ................................... 70
SECTION 7.15. Waiver of Stay or Extension Laws ........................ 71
SECTION 7.16. Judgment Currency ....................................... 71
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities ..................... 72
SECTION 8.02. Notice of Defaults ...................................... 73
SECTION 8.03. Certain Rights of Trustee ............................... 73
SECTION 8.04. Not Responsible for Recitals or Issuance
of Securities and Guarantees .......................... 74
SECTION 8.05. May Hold Securities ..................................... 75
SECTION 8.06. Money Held in Trust ..................................... 75
SECTION 8.07. Compensation and Reimbursement .......................... 75
SECTION 8.08. Qualification of Trustee; Conflicting
Interests ............................................. 76
SECTION 8.09. Persons Eligible for Appointment
as Trustee ............................................ 76
SECTION 8.10. Resignation and Removal; Appointment
of Successor .......................................... 77
SECTION 8.11. Acceptance of Appointment by Successor .................. 79
SECTION 8.12. Merger, Conversion, Consolidation
or Succession to Business of Trustee .................. 80
SECTION 8.13. Preferential Collection of Claims
Against Company and Guarantor ......................... 80
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent
of Security Holders ................................... 80
SECTION 9.02. Supplemental Indentures with Consent
of Security Holders ................................... 82
SECTION 9.03. Execution of Supplemental Indentures .................... 83
SECTION 9.04. Effect of Supplemental Indentures ....................... 83
SECTION 9.05. Conformity with Trust Indenture Act ..................... 84
SECTION 9.06. Reference in Securities to Supplemental
Indentures ............................................ 84
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on
Certain Terms ......................................... 84
SECTION 10.02. Successor Corporation Substituted for
Company ............................................... 85
SECTION 10.03. Guarantor May Consolidate, etc., Only on
Certain Terms ......................................... 85
SECTION 10.04. Successor Corporation Substituted for
Guarantor ............................................. 86
SECTION 10.05. Company May Consolidate, etc.
with Guarantor, Only on
Certain Terms ......................................... 86
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Satisfaction and Discharge of Securities
of Any Series ......................................... 87
SECTION 11.02. Satisfaction and Discharge of Indenture ................. 90
SECTION 11.03. Application of Trust Money .............................. 90
SECTION 11.04. Repayment of Moneys Held by Paying Agent ................ 91
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Subordinated Debt Securities Subordinated
to Senior Company Indebtedness ......................... 91
SECTION 12.02. Payments upon Dissolution of the Company ................ 91
SECTION 12.03. No Payment When Senior Company
Indebtedness in Default ............................... 95
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SECTION 12.04. Guarantees of Subordinated Debt Securities
Subordinated to Senior Guarantor
Indebtedness ........................................... 96
SECTION 12.05. Payments Upon Dissolution of the
Guarantor .............................................. 96
SECTION 12.06. No Payment When Senior Guarantor
Indebtedness in Default; ............................... 100
SECTION 12.07. No Impairment of Holders' Rights ......................... 101
SECTION 12.08. Effectuation of Subordination by
Trustee ................................................ 102
SECTION 12.09. Knowledge of Trustee ..................................... 102
SECTION 12.10. Trustee's Relation to Senior Company
Indebtedness or Senior Guarantor
Indebtedness ........................................... 102
SECTION 12.11. No Waiver of Default or Event of
Default ................................................. 103
SECTION 12.12. Claims of the Trustee .................................... 103
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability ...................... 104
ARTICLE FOURTEEN
HOLDERS' MEETINGS
SECTION 14.01. Purposes of Meetings ..................................... 104
SECTION 14.02. Call of Meetings by Trustee .............................. 104
SECTION 14.03. Call of Meetings by Company, Guarantor
or Holders ............................................. 105
SECTION 14.04. Qualifications for Voting ................................ 105
SECTION 14.05. Regulations .............................................. 105
SECTION 14.06. Voting ................................................... 106
SECTION 14.07. No Delay of Rights by Meeting ............................ 107
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Cross Reference Table
---------------------
Showing Reflection of Certain Provisions
Required Pursuant to Section 310 through 318(a)
of Trust Indenture Act of 1939, as Amended, (Including
Cross-References to Provisions of Sections 310 through 318(a)
which, Pursuant to
Section 318(c) of the Trust Indenture Act of 1939,
as Amended, are Part of and Govern Such Provisions
of the Indenture Whether or not Physically Contained Therein*
---------------------
TIA Section
-------
SECTION 310 (a)(1) ....................................... 8.09
(a)(2) ....................................... 8.09
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(a)(5) ....................................... 8.09
(b) .......................................... 8.08, 8.10(a),
(b) and (d)
(c) .......................................... Not Applicable
SECTION 311 (a) .......................................... 8.13(a) and
(c) (1) and (2)
(b) .......................................... 8.13(b)
(c) .......................................... Not Applicable
SECTION 312 (a) .......................................... 6.01
6.02(a)
6.02(b)
(b) .......................................... 6.02(a) and (b)
SECTION 313 (a) .......................................... 6.03(a)
6.03 (b)
(c) .......................................... 1.06
6.03(a)
6.03(c)
6.04(3)
8.02
(d) .......................................... 6.03(c)
SECTION 314(a) (1), (2) and (3) ............................. 6.04
(a) (4) ...................................... 5.04
- -----------
* This Table is not part of the Indenture.
-viii-
<PAGE> 10
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(b) .......................................... Not Applicable
(c)(1) ....................................... 1.02
(c)(2) ....................................... 1.02
(c)(3) ....................................... Not Applicable
(d) .......................................... Not Applicable
(e) .......................................... 1.02
(f) .......................................... Not Applicable
SECTION 315 (a) .......................................... 8.01(a)
8.01(c)
(b) .......................................... 8.02
(c) .......................................... 8.01(b)
(d) .......................................... 8.01
(d)(1) ....................................... 8.01(a)
(d)(2) ....................................... 8.01(c)(2)
(d)(3) ....................................... 8.01(c)(3)
(e) .......................................... 7.14
SECTION 316 (a)(1)(A) .................................... 7.02
7.12
(a)(1)(B) .................................... 7.13
(a)(2) ....................................... Not Applicable
(a) last sentence ............................ 3.08
(b) .......................................... 7.08
SECTION 317 (a)(1) ....................................... 7.03
(a)(2) ....................................... 7.04
(b) .......................................... 5.03
SECTION 318 (a) .......................................... 1.07
-ix-
<PAGE> 11
INDENTURE, dated as of December 1, 1991, among PNC Funding Corp, a
Pennsylvania Corporation (hereinafter called the "Company," which term shall
include any successors and assigns pursuant to the terms of this Indenture),
having its principal executive office at the Marine Bank Building, Ninth and
State Streets, Erie, Pennsylvania 16501, PNC Financial Corp, a Pennsylvania
corporation (hereinafter called the "Guarantor," which term shall include any
successors and assigns pursuant to the terms of this Indenture), having its
principal executive office at Fifth Avenue and Wood Street, Pittsburgh,
Pennsylvania 15222, and Manufacturers Hanover Trust Company, a New York
corporation (hereinafter called the "Trustee"), having its Principal Corporate
Trust Office at 450 West 33rd Street, New York, New York 10001.
WHEREAS, the Company deems it appropriate from time to time to issue
its unsecured debentures, notes, bonds or other evidences of indebtedness, to
be issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture;
WHEREAS, the Guarantor deems it appropriate to guarantee (hereinafter
called the "Guarantees") the Securities on the terms hereinafter provided, and
to provide therefor, the Guarantor has duly authorized the execution and
delivery of this Indenture;
WHEREAS, the Trustee deems it appropriate to serve as trustee on the
terms hereinafter provided, and to provide therefor, the Trustee has duly
authorized the execution and delivery of this Indenture;
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Guarantor, in accordance with its terms, have been done.
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Trustee, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders and the Securities, as
follows:
<PAGE> 12
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the term "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated
hereunder;
(2) all references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument; the words "herein,"
"hereof" and "thereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(3) the terms defined in this Indenture have the meanings
assigned to them in this Indenture and include the plural as well as
the singular;
(4) all other terms used herein which are defined in the Trust
Indenture Act, or in Commission rules thereunder, either directly or by
reference therein, have the meanings assigned to them therein; and
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles.
Certain terms, used principally in Article Eight, are defined in that
Article.
"Act," when used with respect to any Security Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
<PAGE> 13
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otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities as may be provided elsewhere in this
Indenture or specified as contemplated by Section 3.01 with respect to the
Securities of any series the terms of which permit Unregistered Securities or
Coupon Securities. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day in such city.
"Board of Directors" means, with respect to the Company or the
Guarantor, either the Board of Directors of the Company or the Guarantor, as
the case may be, or the executive committee of such Board of Directors or other
committee duly authorized to act on behalf of the Board of Directors with
regard to a given matter.
"Board Resolution" means, with respect to the Company or the Guarantor,
a copy of a resolution certified by the Secretary or an Assistant Secretary of
the Company or the Guarantor, as the case may be, to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday nor
other day on which banking institutions or trust companies in the Place of
Payment are authorized or required by law or executive order to be closed.
"Capital Stock" means, as to shares of a particular corporation,
outstanding shares of stock of any class whether now or hereafter authorized,
irrespective of whether such class shall be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if
at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until any successor corporation
<PAGE> 14
- 4 -
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request," "Company Order," "Guarantor Request" and "Guarantor
Order" mean, respectively, a written request or order signed in the name of the
Company or the Guarantor, as the case may be, by its Chairman or any Vice
Chairman of the Board of Directors, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Component Currency": See Section 3.11(i).
"Consolidated Banking Assets" means the aggregate of the assets of all
Subsidiary Banks (including Subsidiaries of such Subsidiary Banks).
"Conversion Date": See Section 3.11(e).
"Conversion Rate": See Section 7.16.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, except that with respect to presentation of Registered Securities
for payment or for registration of transfer and exchange, presentation of
Unregistered Securities for registration and the location of the Securities
Register, such term shall mean such office or the agency of the Trustee
designated for such purpose.
"Coupon" means any interest coupon appertaining to any Security.
"Coupon Security" means any Security authenticated and delivered with
one or more Coupons appertaining thereto.
"Default" has the meaning specified in Section 7.01(c).
"Defaulted Interest" has the meaning specified in
Section 3.07.
"Depositary" means (i) with respect to any series of Securities for
which the Company shall determine that such Securities will be issued as a
Global Security and as a Registered Security, The Depository Trust Company, New
York, New York, another clearing agency or any successor registered under the
Securities and Exchange Act of 1934, as amended, or other applicable statute or
regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.05 or 3.01, or (ii) with respect to any series of Securities
for which the
<PAGE> 15
- 5 -
Company shall determine that such Securities will be issued as a Global
Security and as an Unregistered Security, such person as the Company shall
designate pursuant to Section 2.05 or 3.01, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of
any such series shall mean the Depositary with respect to the Securities of
that series.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Dollar Determination Agent" means the New York clearing house bank, if
any, from time to time selected by the Company for purposes of Section 3.11.
"Dollar Equivalent of the Currency Unit": See Section 3.11(h).
"Dollar Equivalent of the Foreign Currency": See Section 3.11(g).
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Seven.
"Exchange Rate Officer's Certificate" means a telex or a certificate
setting forth (i) the applicable Official Currency Unit Exchange Rate and (ii)
the Dollar or Foreign Currency amounts of principal, premium, if any, and
interest, if any, respectively (on an aggregate basis and on the basis of a
Security having a principal amount of 1,000 in the relevant currency unit),
payable on the basis of such Official Currency Unit Exchange Rate, sent (in the
case of a telex) or signed (in the case of a certificate) by the Treasurer or
any Assistant Treasurer of the Company and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States.
"Fully Registered Security" means any Security registered as to
principal and interest, if any.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and authenticated
<PAGE> 16
- 6 -
and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and pursuant to a Company
Order, which shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of such
series or any portion thereof, in either case having the same terms, including,
without limitation, the same issue date, date or dates on which principal is
due, and interest rate or method of determining interest and which, if the
Securities of the series are Registered Securities, shall be registered in the
name of the Depositary, or its nominee.
"Government Obligations" means, with respect to the Securities of any
series, securities which are (i) direct obligations of the government which
issued the currency in which the Securities of such series are denominated or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government which issued the currency in which
the Securities of such series are denominated the timely payment of which is
unconditionally guaranteed by such government, and which, in either case, are
full faith and credit obligations of such government and are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account of the holder
of such depositary receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of interest on
or principal of the Government Obligation evidenced by such depositary receipt.
"Guarantees" means the guarantees of the Guarantor to be endorsed on
the Securities authenticated and delivered hereunder.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture and thereafter
"Guarantor" shall mean such successor corporation.
"Holder" means, with respect to a Registered Security, any person in
whose name at the time a particular Registered Security is registered in the
Securities Register, and with respect to an Unregistered Security, the bearer
of such Unregistered Security, and, with respect to a Coupon, the bearer
thereof.
<PAGE> 17
- 7 -
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the forms and terms of particular series of
Securities as contemplated hereunder, regardless of the currency or currency
unit in which such securities are denominated.
"Interest Payment Date," when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on the
Securities of such series.
"Market Exchange Rate": See Section 3.11(i).
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman or
any Vice Chairman of the Board of Directors, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company or the
Guarantor, as the case may be. Each Officers' Certificate shall include the
statements required by Section 1.02.
"Official Currency Unit Exchange Rate" means, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the Dollar calculated by the agency specified pursuant to Section 3.01
for the Securities of the relevant series (in the case of the ECU, calculated
by the Commission of the European Communities, and currently based on the rates
in effect at 2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of the ECU), on the second Business Day (in the city in which such
agency has its principal office) immediately preceding the applicable payment
date.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or the Guarantor and who shall be
satisfactory to the Trustee. Each Opinion of Counsel shall include the
statements required by Section 1.02.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding," when used with respect to Securities of any or all
series, means, as of the date of determination, all such
<PAGE> 18
- 8 -
Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent in trust for the Holders of such Securities,
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered, or Securities which have been paid,
pursuant to this Indenture, unless proof satisfactory to the Trustee is
presented that any such Securities are held by bona fide purchasers;
provided, however, that in determining whether the Holders of the requisite
principal amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02 and (ii)
Securities owned by the Company, the Guarantor or any other obligor upon the
Securities or by any Affiliate of the Company, the Guarantor or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company, the Guarantor or any other obligor upon the Securities or
any Affiliate of the Company, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company or the
Guarantor to pay the principal of, premium, if any, or interest on any
Securities on behalf of the Company in accordance with Section 5.02.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust,
<PAGE> 19
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unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of, and premium, if any
and interest if any on, the Securities of such series are payable as specified
pursuant to Section 3.01.
"Predecessor Securities" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security, and for the purposes of this definition
any Security authenticated and delivered under Section 3.06 in lieu of a lost,
destroyed or stolen security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee at the location set forth in the first paragraph of this
Indenture, or at such other location as the Trustee may from time to time
designate by written notice to the Company and the Guarantor.
"Principal Subsidiary Bank" means each of (i) Pittsburgh National Bank,
(ii) any other Subsidiary Bank the consolidated assets of which constitute 20%
or more of the consolidated assets of the Guarantor and its Subsidiaries, (iii)
any other Subsidiary Bank designated as a Principal Subsidiary Bank pursuant to
a Board Resolution and set forth in an Officers' Certificate, and (iv) any
Subsidiary that owns, directly or indirectly, any Voting Shares, or securities
convertible into, or options, warrants or rights to subscribe for or purchase
Voting Shares, of any Principal Subsidiary Bank under clause (i), (ii) or
(iii), and in the case of clause (i), (ii), (iii) or (iv) their respective
successors (whether by consolidation, merger, conversion, transfer of
substantially all their assets and business or otherwise) so long as any such
successor is a Subsidiary Bank (in the case of clause (i), (ii) or (iii)) or a
Subsidiary (in the case of clause (iv)).
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed means the price, in the Dollars or the Foreign Currency or currency
unit in which such Security is denominated or which is otherwise provided for
pursuant to this Indenture, at which it is to be redeemed pursuant to this
Indenture.
"Registered Holder" means, with respect to a Registered Security, the
Person in whose name such Security is registered in the Securities Register.
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"Registered Security" means any Security registered as to principal.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date."
"Repayment Date," when used with respect to any Security to be repaid,
means the date fixed for which repayment pursuant to the terms of such
Security.
"Repayment Price," when used with respect to any Security to be repaid,
means the price, in the Dollars or the Foreign Currency or currency unit in
which such Security is denominated or which is otherwise provided for pursuant
to this Indenture, at which it is to be repaid pursuant to the terms of such
Security.
"Required Currency": See Section 1.15.
"Responsible Officer," when used with respect to the Trustee, shall
mean the Chairman or Vice Chairman of the Board of Directors, the Chairman or
Vice Chairman of the Executive Committee of the Board of Directors, the
President, any Vice President, any Second or Assistant Vice President, the
Cashier, any Assistant Cashier, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Senior Trust Officer, any Trust
Officer, any Assistant Trust Officer, the Controller, any Assistant Controller
or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning specified in the second
paragraph of this Indenture and more particularly shall mean any Registered or
Unregistered Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the meanings
specified in Section 3.05.
"Senior Debt Securities" means any series of securities designated as
such pursuant to Section 3.01, and the Coupons, if any, appertaining thereto.
"Senior Company Indebtedness" means the principal of and premium, if
any, and interest on (i) all indebtedness of the Company for money borrowed,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, including any series of Securities designated as
Senior
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Debt Securities pursuant to Section 3.01 hereof, and Coupons, if any,
appertaining thereto except (A) such indebtedness as is by its terms expressly
stated not to be superior in right of payment to any series of Securities
designated as Subordinated Debt Securities pursuant to Section 3.01 hereof or
to rank pari passu with any series of Securities designated as Subordinated
Debt Securities pursuant to Section 3.01 hereof, and (B) any series of
Securities designated as Subordinated Debt Securities pursuant to Section 3.01
hereof, and the Company's 9-7/8% Subordinated Notes Due 2001, and (ii) any
deferrals, renewals or extensions of any such Senior Company Indebtedness. The
term "indebtedness for money borrowed" means any obligation of, or any
obligation guaranteed by, the Company for the repayment of money borrowed,
whether or not evidenced by bonds, debentures, notes or other written
instruments, any capitalized lease obligation and any deferred obligation for
payment of the purchase price of any property or assets.
"Senior Guarantor Indebtedness" means the principal of and premium, if
any, and interest on (i) all indebtedness of the Guarantor for money borrowed,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, including the Guarantees of any series of
Securities designated as Senior Debt Securities pursuant to Section 3.01
hereof, and Coupons, if any, appertaining thereto except (A) such indebtedness
as is by its terms expressly stated not to be superior in right of payment to
the Guarantees of any series of Securities designated as Subordinated Debt
Securities pursuant to Section 3.01 hereof or to rank pari passu with the
Guarantees of any series of Securities designated as Subordinated Debt
Securities pursuant to Section 3.01 hereof, (B) the Guarantor's 8-1/4%
Convertible Subordinated Debentures Due 2008, the Guarantor's Floating Rate
Subordinated Notes Due 1997 and the Citizens Fidelity Corporation Convertible
Subordinated Debentures Due 2005, and (C) the Guarantees of any series of
Securities designated as Subordinated Debt Securities pursuant to Section 3.01
hereof, and the Guarantees of the Company's 9-7/8% Subordinated Notes Due 2001,
and (ii) any deferrals, renewals or extensions of any such Senior Guarantor
Indebtedness. The term "indebtedness for money borrowed" means any obligation
of, or any obligation guaranteed by the Guarantor for the repayment of money
borrowed, whether or not evidenced by bonds, debentures, notes or other written
instruments, any capitalized lease obligation and any deferred obligation for
payment of the purchase price of any property or assets.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
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"Specified Amount": See Section 3.11(i).
"Stated Maturity," when used with respect to any Security or any
installment of principal or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subordinated Debt Securities" means any series of Securities
designated as such pursuant to Section 3.01, and the Coupons, if any,
appertaining thereto.
"Subsidiary" means any corporation a majority of the Voting Shares of
which at the time are owned directly or indirectly by the Guarantor or by one
or more other Subsidiaries or by the Guarantor and one or more other
Subsidiaries.
"Subsidiary Bank" means any Subsidiary that is organized under the laws
of the United States, any State of the United States, the District of Columbia,
any territory of the United States, Puerto Rico, Guam, American Samoa or the
Virgin Islands and either (i) accepts deposits that the depositor has a legal
right to withdraw on demand and engages in the business of making commercial
loans or (ii) is a trust company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and as in force at the
date as of which this instrument was executed, except as provided in Sections
5.08 and 9.05.
"Trustee" means the Person designated as the Trustee for any series of
Securities pursuant to Section 3.01 of this Indenture until any successor
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor Trustee,
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to the Securities of that series.
"Unregistered Security" means any Security that is not registered as to
principal.
"Valuation Date": See Section 3.11(e).
"Vice President," when used with respect to the Company, the Guarantor
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
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"Voting Shares" means, as to shares of a particular corporation,
outstanding shares of Capital Stock of any class or classes having voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation (irrespective of whether at
the time stock of any other class or classes shall have or might have voting
power by reason of the failure to pay a dividend or other amount or by reason
of the occurrence of any other contingency).
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of the Indenture, the Company or
the Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which constitutes a
condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 5.04) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by an opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Company or Guarantor, unless such
officer or counsel, as the case may be, knows that the certificate or opinion
or representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 1.04. Acts of Security Holders.
(a) Any request, demand, authorization, direction, notice consent,
waiver or other action provided by this Indenture to be given or taken by
Security Holders may be embodied in and evidenced (1) by one or more
instruments of substantially similar tenor signed by such Security Holders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company and the Guarantor, (2) by the record of Holders voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Fourteen, or (3) by a combination of
such instrument or instruments and any such record of such a meeting of
Holders. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Security Holders signing such instrument or instruments and so
voting at any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 8.01) conclusive in favor of the Trustee and
the Company and the Guarantor, if made in the manner provided in this Section.
With respect to Registered Securities, the Company may set a record date for
purposes of determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 10 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 8.01 of this Indenture prior to such solicitation.
If a record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall
be entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date. No such vote or consent shall be valid or effective for
more than 120 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Registered Securities of any series shall be
proved by the Security Register for such series or by a certificate of the
Security Register for such series; the ownership of unregistered Securities of
any series and Coupons shall be proved by proof of possession reasonably
satisfactory to the Trustee.
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(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, offered to be done or
omitted to be done by the Trustee, the Company or the Guarantor in reliance
thereon, whether or not notation of such action is made upon such Security.
(e) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 1.05. Notices, etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Security Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Security Holder or by the Company or the
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at the
Principal Corporate Trust Office, and, in respect of Unregistered
Securities or Coupons, at the Corporate Trust office of the Trustee
referred to in Section 5.02, or
(2) the Company or the Guarantor by the Trustee or by any
Security Holder shall be sufficient for every purpose hereunder (except
as provided in Section 7.01(a)(3)) if in writing and mailed, first
class, postage prepaid, to the Company or the Guarantor, as the case
may be, addressed to it at the address of its principal executive
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company or the Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or Act
of Security Holders or other document provided or permitted by this Indenture
shall be in the English language, except that any published notice may be in
the official language of the country of publication.
SECTION 1.06. Notices to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1)
if any of the Securities affected by such event are Fully Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing
<PAGE> 27
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and mailed by first class mail, postage prepaid, to such Holders as their names
and addresses appear in the Security Register within the time prescribed and
(2) if any of the Securities affected by such event are Unregistered
Securities, or Coupon Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed by first
class mail, postage prepaid, to such Holders in the manner and the extent
provided in Section 313(c) of the Trust Indenture Act and if published in an
Authorized Newspaper or Newspapers in such city or cities as may be provided
elsewhere in this Indenture or specified as contemplated by Section 3.01 on a
Business Day at least twice, the first such publication to be not earlier than
the earliest date and not later than the latest date prescribed for the giving
of such notice. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance on such waiver. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given. In the
event of suspension of regular mail service or for any other reason it shall be
impracticable to give such notice to Registered Holders by mail, then such a
notification as shall be made to Registered Holders with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized Newspaper
or by reason of any other cause it shall be impracticable to publish any notice
to Holders of Unregistered Securities or of Coupons as provided above then said
notification to Holders of Unregistered Securities or of Coupons as shall be
given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317 of TIA, through operation of Section
318(c) thereof, such imposed duties shall control.
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SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities or any
Coupons appertaining thereto shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities or Coupons express or
implied shall give to any Person, other than the parties hereto and their
successors and assigns hereunder, the Holders of the Securities and the Holders
of the Coupons, any benefit of any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. Legal Holidays.
In any case where the date of an Interest Payment Date, a Redemption
Date or a Repayment Date or the Stated Maturity of any Security or Coupon shall
not be a Business Day at any Place of Payment with respect to the Securities of
that series, then (notwithstanding any other provision of the Securities, the
Coupons appertaining thereto or this Indenture) payment of the principal of or
interest on any such Securities or Coupons need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the nominal date of any such Interest Payment Date, Redemption
Date or Repayment Date or Stated Maturity, and no interest shall accrue for the
period from and after such nominal date.
<PAGE> 29
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SECTION 1.13. Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
except that the rights, duties and liabilities of the Trustee as a trustee and
any rights and immunities limiting such liability shall be governed by the laws
of the state in which the principal office of the Trustee shall be located
without regard to principles of conflicts of laws.
SECTION 1.14. Moneys of Different Currencies To Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any money, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
SECTION 1.15. Payment To Be in Proper Currency.
Each reference in any Security, or in the Board Resolution relating
thereto, to any currencies or currency units shall be of the essence. Subject
to Section 3.11, the Company and the Guarantor agree, to the fullest extent
that they may effectively do so under applicable law, that their obligation to
make any payment of principal of (and premium, if any) and interest on any
Security or any Coupon (i) shall not be discharged or satisfied by any tender
by the Company or the Guarantor, or recovery by the Trustee, either pursuant to
any judgment (whether or not entered into in accordance with Section 7.16 or
otherwise) in any currencies or currency units other than the currencies or
currency units then due and payable (the "Required Currency"), except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. Except as permitted under Section 3.11, if any such tender or
recovery is in a currency other than the Required Currency, the Trustee may
take such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company and the Guarantor, and the Company and the Guarantor shall remain
fully liable for any shortfall or delinquency in the full amount of Required
Currency
<PAGE> 30
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then due and payable, and in no circumstances shall the Trustee be liable
therefor. The Company and the Guarantor hereby waive any defense of payment
based upon any such tender or recovery which is not in the Required Currency,
or which, when exchanged for the Required Currency by the Trustee, is less than
the full amount of Required Currency then due and payable.
ARTICLE TWO
FORMS
SECTION 2.01. Forms Generally.
The Guarantees and the Securities of each series, and the Coupons, if
any, to be attached thereto, and the certificates of authentication on the
Securities shall be in substantially the form as shall be established pursuant
to this Article and Section 3.01 in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture or as may be required to comply with any law or
with any rules or regulations made pursuant thereto or with any rules or
regulations of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Guarantees, Securities and Coupons,
if any, as evidenced by their execution of the Guarantees, Securities and
Coupons, if any.
The definitive Guarantees, Securities and Coupons, if any, of each
series shall be printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the officers
executing such Guarantees, Securities and Coupons, if any, as evidenced by
their execution of such Guarantees, Securities and Coupons, if any, subject,
with respect to the Securities and Guarantees of any series, to the rules of
any securities exchange on which the Securities of such series are listed.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall be
in substantially the following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
[NAME OF TRUSTEE], as Trustee
By________________________________
Authorized Officer
SECTION 2.03. Forms of Security.
Each Security shall be in a form approved from time to time by or
pursuant to a Company Board Resolution, or established in one or more
indentures supplemental hereto. Prior to the delivery of a Security to the
Trustee for authentication in any form approved by or pursuant to a Company
Board Resolution, the Company shall deliver to the Trustee the Company Board
Resolution by or pursuant to which such form of Security has been approved,
which Company Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved by or pursuant thereto,
and, if a Company Board Resolution authorizes a specific officer or officers of
the Company to approve a form of Security, a certificate of such officer or
officers approving the form of Security attached thereto. Any form of Security
approved by or pursuant to a Company Board Resolution must be acceptable as to
form to the Trustee, such acceptance to be evidenced by a certificate signed by
a Responsible Officer of the Trustee and delivered to the Company or by the
Trustee's execution of the certificate of authentication appearing thereon.
SECTION 2.04. Form of Guarantee.
Each Guarantee shall be in a form approved from time to time by or
pursuant to a Guarantor Board Resolution, or established in one or more
indentures supplemental hereto. Prior to the execution of a Guarantee in any
form approved by or pursuant to a Guarantor Board Resolution, the Guarantor
shall deliver to the Trustee the Guarantor Board Resolution by or pursuant to
which such form of Guarantee has been approved, which Guarantor Board
Resolution shall have attached thereto a true and correct copy of the form of
Guarantee which has been approved by or pursuant thereto, and, if a Guarantor
Board Resolution authorizes a specific officer or officers of the Guarantor to
approve a form of Guarantee, a certificate of such officer or officers
approving the form of Guarantee attached thereto. Any form of Guarantee
approved by or pursuant to a Guarantor Board Resolution must be acceptable as
to form to the Trustee, such
<PAGE> 32
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acceptance to be evidenced by a certificate signed by a
Responsible Officer of the Trustee and delivered to the Guarantor.
SECTION 2.05. Securities Issuable in the Form
of a Global Security.
(a) If the Company shall establish pursuant to Section 3.01 that the
Securities of a particular series are to be issued in whole or in part in one
or more Global Securities as Registered Securities or Unregistered Securities,
then the Company shall execute and the Trustee shall, in accordance with
Section 3.03 and the Company Order delivered to the Trustee thereunder,
authenticate and deliver a Global Security or Securities which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered in
the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction, and (iv) shall bear a legend substantially to
the following effect: "Except as otherwise provided in Section 2.05 of the
Indenture, this Security may be transferred, in whole but not in part, only to
a nominee of the Depositary, or by a nominee of the Depositary to the
Depositary, or to a successor Depositary or to a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 3.01 for a Global
Security that is a Registered Security must at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered
under the Securities and Exchange Act of 1934, as amended, and any other
applicable statute or regulation.
(b) Notwithstanding any other provision of this Section 2.05 or of
Section 3.05, the Global Security of a series may be transferred, in whole but
not in part and in the manner provided in Section 3.05, only to a nominee of
the Depositary for such series or by a nominee of the Depositary to the
Depositary, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
eligible under Section 2.05(a) and a successor Depositary for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section
2.05 shall no longer be applicable to the
<PAGE> 33
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Securities of such series and the Company will execute, and the Trustee will,
in accordance with Section 3.03 and a Company Order delivered to the Trustee,
authenticate and deliver, Securities of such series, in like tenor and terms in
definitive form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in
exchange for such Global Security. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section 2.05 shall no longer
apply to the Securities of such series. In such event the Company will execute
and the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver Securities of such
series, in like tenor and terms in definitive form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. If specified by the Company pursuant to Section 3.01 with respect to
a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee, upon
receipt of an Officer's Certificate evidencing such determination by the
Company, will authenticate and deliver definitive Securities of such series
without service charge:
(1) to the Depositary or to each Person specified by such
Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(2) to such Depositary a new Global Security of like tenor and
terms and in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security
and the aggregate principal amount of Securities delivered to Holders
thereof.
In any exchange provided for in this Section 2.05(c), the Company will
execute and the Trustee, pursuant to a Company Order, will authenticate and
deliver Securities
(i) as Registered Securities in authorized denominations, if
the Securities of such series are issuable as Registered Notes;
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(ii) as Unregistered Securities in authorized denominations,
with Coupons, if the Securities of such series are issuable as
Unregistered Securities; or
(iii) as either Registered or Unregistered Securities, if the
Securities of such series are issuable in either form.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations, and
delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such
Registered Securities to the persons in whose names such Securities are so
registered or to the Depositary in accordance with a Company Order. The Trustee
shall deliver Unregistered Securities issued in exchange for a Global Security
pursuant to this Section to the Depositary or to the Persons at such addresses,
and in such authorized denominations, as the Depositary for such global Note,
pursuant to instructions from its direct or indirect participants or otherwise
shall instruct the Trustee in writing.
ARTICLE THREE
THE SECURITIES AND THE GUARANTEES
SECTION 3.01. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
up to the aggregate principal amount of Securities from time to time authorized
by or pursuant to a Company Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Company Board Resolution, and
set forth in an Officers' Certificate of the Company, or established in one or
more indentures supplemental hereto, which shall be delivered to the Trustee
prior to the issuance of Securities of any series:
<PAGE> 35
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(1) the form of the Securities of the series and the Coupons,
if any, appertaining thereto;
(2) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(3) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to this Article Three and Sections
2.05, 3.05, 3.06 and 4.03);
(4) the date or dates on which such Securities may be issued;
(5) the date or dates, which may be serial, on which the
principal of, and premium, if any, on the Securities of such series
shall be payable;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of such series shall bear interest, if any, the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and, in the case
of Registered Securities, the record dates, if other than as set forth
in Section 3.07, for the determination of Holders to whom interest is
payable, whether any special terms and conditions relating to the
payment of additional amounts in respect of payments on the Securities
of such series shall in the event of certain changes in the United
States Federal income tax laws apply to Unregistered Securities of such
series or to Registered Securities of such series, and the
circumstances, if any, under which a Holder may elect to receive
interest in a form other than as provided in Sections 3.11(a)(1),
3.11(b)(1) or 5.01;
(7) whether Securities of the series shall be designated as
Senior Debt Securities or Subordinated Debt Securities;
(8) the place or places where the principal of, and premium, if
any, and interest, if any, on Securities of the series shall be payable
(if other than as provided in Section 5.02);
(9) the provisions, if any, establishing the price or prices at
which, the period or periods within which and the terms and conditions
upon which Securities of the series
<PAGE> 36
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may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise, and whether any special
terms and conditions of redemption shall apply to Unregistered
Securities of such series or to Registered Securities of such series;
(10) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to the sinking fund or
analogous provisions or at the option of a Holder thereof and the price
or prices, in the currency or currency unit in which the Securities of
such series are payable, at which and the period or periods within
which and the terms and conditions upon which Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(11) if other than denominations of 1,000 and any integral
multiple thereof, in Dollars or the Foreign Currency or currency unit
in which the Securities of such series are denominated, the
denominations in which Securities of such series shall be issuable;
(12) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.01 or provable in bankruptcy pursuant to Section
7.04;
(13) whether payment of the principal of, premium, if any, and
interest, if any, on the Securities of such series shall be with or
without deduction for taxes, assessments or governmental charges, and
with or without reimbursement of taxes, assessments or governmental
charges paid by Holders;
(14) any Events of Default or Defaults with respect to the
Securities of such series, if not set forth herein;
(15) in case the Securities of such series do not bear
interest, the applicable dates for the purpose of clause (a) of Section
6.01;
(16) whether the Securities of such series are to be issued as
Registered Securities (with or without Coupons) or Unregistered
Securities or both, and, if Unregistered Securities or Coupon
Securities are issued, whether Unregistered Securities or Coupon
Securities of such series may be exchanged for Registered Securities or
Fully Registered Securities of such series and whether Registered
Securities or Fully Registered Securities of such series may be
exchanged for Unregistered Securities of such series
<PAGE> 37
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and the circumstance under which and the place or places
where any such exchanges, if permitted, may be made;
(17) the currency or currencies, or currency unit or currency
units, whether in Dollars or a Foreign Currency or currency unit, in
which the principal of, and premium, if any, and interest, if any, on
the Securities of such series or any other amounts payable with respect
thereto, including, without limitation, Coupons, are to be denominated,
payable, redeemable or repurchaseable, as the case may be, and whether
such principal, premium, if any, and interest, if any, payable
otherwise than in Dollars may, at the option of the Holders of any
Security of such series, also be payable in Dollars;
(18) if other than as set forth in Section 11.01, provisions
for the satisfaction and discharge of the indebtedness represented by
the Securities of such series;
(19) whether the Securities of such series are issuable as a
Global Security and, in such case, the identity of the Depositary for
such series;
(20) if the amount of payment of principal of (and premium, if
any) or interest on the Securities of such series may be determined
with reference to an index, formula or other method based on a coin,
currency or currency unit other than that in which the Securities are
stated to be payable or otherwise, the manner in which such amounts
shall be determined;
(21) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(22) any trustees, paying agents, transfer agents or registrars
with respect to the Securities of such series, and, if the Securities
of such series are to be denominated and payable in any currency other
than Dollars, the initial Dollar Determination Agent.
The payment of principal of and premium, if any, and interest on the
Securities of each series shall be unconditionally guaranteed by the Guarantor.
The Trustee shall be entitled to receive and shall be fully protected
in relying on, in addition to the Opinion of Counsel to be furnished to the
Trustee pursuant to Section 1.02 with the Officers' Certificate relating to the
issuance of any series of Securities, an Opinion of Counsel stating that:
<PAGE> 38
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(i) all instruments furnished to the Trustee conform to the
requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(ii) all laws and requirements with respect to the form and
execution by the Company and the Guarantor of the supplemental
indenture, if any, have been complied with and that the execution and
delivery of the supplemental indenture, if any, by the Trustee will not
violate this Indenture, the Company and the Guarantor have corporate
power to execute and deliver any such supplemental indenture and have
taken all necessary corporate action for those purposes and any such
supplemental indenture has been executed and delivered and constitutes
the legal, valid and binding obligation of the Company and the
Guarantor enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect);
(iii) the form and terms of such Securities have been
established in conformity with the provisions of this Indenture;
(iv) all laws and requirements with respect to the execution
and delivery by the Company of such Securities and by the Guarantor of
the Guarantees endorsed thereon have been complied with and the
authentication and delivery of any such Securities by the Trustee will
not violate the terms of the Indenture, the Company has the corporate
power to issue such Securities and the Guarantor has the corporate
power to issue such Guarantees, and such Securities and Guarantees have
been duly authorized and delivered by the Company and the Guarantor,
respectively, and, assuming due authentication and delivery of such
Securities by the Trustee, such Securities and Guarantees constitute
legal, valid and binding obligations of the Company and the Guarantor,
respectively, enforceable in accordance with their terms (subject, as
to enforcement of remedies to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect) and entitled to the benefits of
this Indenture, equally and ratably with all other Guarantees and all
other Securities, if any, of such series Outstanding;
(v) the amount of the Securities Outstanding, including such
Securities, does not exceed the amount at the time permitted by law;
<PAGE> 39
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(vi) this Indenture is qualified under the Trust Indenture Act;
and
(vii) the issuance of such Securities will not contravene the
Articles of Incorporation or the By-Laws of the Company or the
Guarantor or result in any violation of any of the terms or the
provisions of any indenture, mortgage or other agreement known to such
counsel by which the Company, the Guarantor or any of its subsidiaries
is bound.
In addition, the opinion and the Officers' Certificate will cover such
other matters as the Trustee may reasonably request.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified in the form of Security for such series approved or
established pursuant to Section 2.03 or in the Officers' Certificate delivered
pursuant to Section 3.01. In the absence of any specification with respect to
the Securities of any series, the Securities of such series shall be issuable
as Fully Registered Securities in denominations of $1,000 or any integral
multiple thereof, and shall be payable in Dollars.
SECTION 3.03. Execution, Authentication and Delivery.
The Securities and Coupons, if any, appertaining thereto, shall be
executed on behalf of the Company and the Guarantees endorsed thereon shall be
executed on behalf of the Guarantor by, respectively, its Chairman, Vice
Chairman, President or one of its Executive Vice Presidents or Senior Vice
Presidents under its corporate seal, which may be in facsimile form and may be
imprinted or otherwise reproduced thereon and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities and Coupons, if any, appertaining thereto, or Guarantees may be
manual or facsimile. Typographical and other minor errors or defects in any
such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security or Coupon that has been duly
authenticated and delivered by the Trustee.
Securities and Coupons, if any, appertaining thereto, and Guarantees
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company or the Guarantor, respectively, shall bind
the Company and the Guarantor, respectively, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities, and Coupons, if
<PAGE> 40
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any, appertaining thereto, or did not hold such offices at the date of such
Securities and Guarantees.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, and Coupons, if any,
appertaining thereto, of any series executed by the Company with Guarantees
endorsed thereon executed by the Guarantor to the Trustee for authentication;
and the Trustee shall authenticate and deliver such Securities, and Coupons, if
any, appertaining thereto, to or upon a Company Order, an Officers' Certificate
and an Opinion of Counsel without any further action by the Company or the
Guarantor.
The Trustee shall have the right to decline to authenticate and deliver
any Security under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or vice presidents shall determine that
such action would expose the Trustee to personal liability.
All Registered Securities shall be dated the date of their
authentication, provided, however, that if provided for in the form of
Security, interest may accrue from a date other than the authentication date.
No Security or Coupon appertaining thereto or Guarantee endorsed
thereon shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Notwithstanding the provisions of Section 3.01 and of this Section
3.03, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate or
supplemental indenture otherwise required pursuant to Section 3.01 or the
Company Order, Officers' Certificate and Opinion of Counsel required pursuant
to this Section 3.03 at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the time of
authentication upon original issuance of the first Security of such series to
be issued; provided, however, that any subsequent request by the Company to the
Trustee to authenticate Securities of such series shall constitute a
representation and warranty by the Company that as of the date of such request
the statements made in the Officers' Certificate delivered pursuant to Section
3.01 shall be true and correct on the date thereof as if made on and as of the
date thereof and that
<PAGE> 41
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the Opinion of Counsel delivered at or prior to such time of authentication
shall relate to all subsequent issuances of Securities of such series that are
identical to the Securities issued in the first issuance of Securities of such
series.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities for any series, the
Company may execute and upon Company Order the Trustee shall authenticate and
deliver temporary Securities (having duly executed Guarantees thereon) for such
series (printed, lithographed, typewritten or otherwise reproduced, in each
case in form satisfactory to the Trustee). Temporary Securities of any series
shall be issuable in any authorized denomination, and substantially in the form
of the definitive Securities of such series in lieu of which they are issued
but with such omissions, insertions and variations as may be appropriate for
temporary securities, all as may be determined by the Company with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Company and the Guarantee thereon shall be
executed by the Guarantor and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. Temporary Securities may be issued as Registered
Securities, or Unregistered Securities, with or without one or more Coupons
attached. Without unreasonable delay the Company shall execute and shall
furnish definitive Securities of such series and the Guarantor shall execute
the Guarantee thereon and thereupon temporary Securities of such series may be
surrendered in exchange therefor without charge to a Holder at the Corporate
Trust Office of the Trustee, or, in the case of temporary Securities issued in
respect of Unregistered Securities of any series, at the Corporate Trust Office
of the Trustee located in a city specified elsewhere in this Indenture or
pursuant to Section 3.01, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same series with appropriate Coupons, if any,
attached. Such exchange shall be made by the Company at its own expense and
without any charge therefor to a Holder except that in case of any such
exchange involving any registration of transfer the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Securities of
any series and the Guarantees endorsed thereon shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and the Guarantees endorsed thereon authenticated and delivered
hereunder.
<PAGE> 42
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SECTION 3.05. Registration, Registration of Transfer and Exchange.
Subject to the conditions set forth below, Securities of any series may
be exchanged for a like aggregate principal amount of Securities of the same
series (having Guarantees endorsed thereon) of other authorized denominations.
Securities to be exchanged shall be surrendered together, in the case of Coupon
Securities, with all unmatured Coupons and matured Coupons in default
appertaining thereto, at the offices or agencies to be maintained by the
Company for such purposes as provided in Section 5.02, and the Company shall
execute and register, the Guarantor shall execute the Guarantees endorsed
thereon, and the Trustee shall authenticate and deliver in exchange therefor
the Security or Securities which the Holder making the exchange shall be
entitled to receive.
The Company shall keep or cause to be kept, at one of its said offices
or agencies, a register for each series of Securities issued hereunder which
may include Registered Securities (hereinafter collectively referred to as the
"Securities Register") in which, subject to such reasonable regulations as it
may prescribe, and subject also to the provisions of Section 2.05, the Company
shall provide for the registration of Registered Securities of such series and
shall register the transfer of Registered Securities of such series as in this
Article Three provided. The Securities Register shall be in written form or in
any other form capable of being converted into written form within a reasonable
time. The Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Registered Securities and registering transfers of Registered
Securities as herein provided. Subject to the provisions of Section 2.05, upon
due presentment for registration of transfer of any Security of any series at
any such office or agency, the Company shall execute and register, the
Guarantor shall execute the Guarantees endorsed thereon, and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Securities of the same series (having Guarantees
endorsed thereon) for an equal aggregate principal amount.
Subject to the provisions of Section 2.05, at the option of the Holder
thereof, Securities of any series, whether Registered Securities or
Unregistered Securities, which by their terms are registrable as to principal
only or as to principal and interest, may, to the extent and under the
circumstances specified pursuant to Section 3.01, be exchanged for such
Registered Securities with Coupons or Fully Registered Securities of such
series, as may be issued by the terms thereof. Securities of any series,
whether Registered Securities or Unregistered Securities, which by their terms
provide for the issuance of Unregistered Securities, may not, except to the
extent and under the circumstances specified
<PAGE> 43
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pursuant to Section 3.01, be exchanged for Unregistered Securities of such
series. Unregistered Securities of any series issued in exchange for Registered
Securities of such series between the record date for such Registered
Securities and the next Interest Payment Date will be issued without the Coupon
relating to such Interest Payment Date, and Unregistered Securities surrendered
in exchange for Registered Securities between such dates shall be surrendered
without the Coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Unregistered Security, but will be payable only to
the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company and Guarantor to be maintained as provided in Section
5.02, such Security shall be registered as to principal in the name of the
Holder thereof, and such registration shall be noted on such Security. Any
Security so registered shall be transferable on the Securities Register of the
Company upon presentation of such Security at such office or agency for similar
notation thereon, but, to the extent permitted by law, such Security may be
discharged from registration by being in a like manner transferred to bearer,
whereupon transferability by delivery shall be restored. To the extent
permitted by law, Unregistered Securities shall continue to be subject to
successive registrations and discharges from registration at the option of the
Holders thereof.
Unregistered Securities and Coupons shall be transferred by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the Securities
Registrar) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing.
Each Security and Guarantee endorsed thereon issued upon registration
of transfer or exchange of Securities pursuant to this Section 3.05 shall be
the valid obligation of the Company and Guarantor, evidencing the same
indebtedness and entitled to the same benefits under this Indenture as the
Security or Securities surrendered upon registration of such transfer or
exchange.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other
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than exchanges pursuant to Section 3.04, 4.03 or 9.06 not involving
any transfer.
The Company shall not be required (a) to issue, exchange or register
the transfer of any Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series and ending at the close of business on
the day of such mailing, or (b) to exchange or register the transfer of any
Securities selected, called or being called for redemption except, in the case
of any Security to be redeemed in part, the portion thereof not to be so
redeemed.
None of the Company, the Trustee, any Paying Agent or Securities
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
SECTION 3.06. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities or Coupons.
In case any temporary or definitive Security or Coupon shall become
mutilated or defaced or be destroyed, lost or stolen, and in the absence of
notice to the Company, the Guarantor, or the Trustee that such Security or
Coupon has been acquired by a bona fide purchaser, the Company in the case of a
mutilated Security or Coupon shall, and in the case of a lost, stolen or
destroyed Security or Coupon may in its discretion, execute, and upon a Company
Request, the Trustee shall authenticate and deliver, a new Security with like
Coupons, if any, as those attached to the mutilated, destroyed, lost or stolen
Security (so that neither gain nor loss in interest shall result), of the same
series, with a duly executed Guarantee thereon, of like tenor and principal
amount, and bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, or a new Coupon, as appropriate, in exchange and
substitution for the mutilated Security or Coupon, or in lieu of and in
substitution for the Security or Coupon so destroyed, lost or stolen, or if any
such Security or Coupon shall have matured or shall be about to mature, instead
of issuing a substituted Security or Coupon, the Company in its discretion may
pay or authorize the payment of the same without surrender thereof (except in
the case of a mutilated Security or Coupon) instead of issuing a new Security
or Coupon; provided, however, that interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside of the United States, unless otherwise provided pursuant
to Section 3.01. In every case the applicant for a substituted Security or
Coupon shall furnish to
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the Company, the Guarantor and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company,
the Guarantor, and the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Upon the issuance of any substitute Security or Coupon under this
Section 3.06, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section 3.06 by virtue of the fact that any such
Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, guaranteed by the Guarantor, whether or
not the destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall
be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities and Coupons of
such series duly authenticated and delivered hereunder. All Securities and
Coupons shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions of this Section 3.06 are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall, to the fullest extent
permitted under applicable law, preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 3.01, interest on
any Fully Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest if provided for
in the Board Resolution pursuant to Section 3.01. In the case of a Security
issued between a record date and the initial Interest Payment Date relating to
such record date, interest for the period beginning on the date of issue and
ending on such initial Interest Payment Date shall be paid to the person to
whom such Security shall have been originally issued. In the case of
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Coupon Securities, the Holder of any Coupon shall be entitled to receive the
interest, if any, payable on such Interest Payment Date, upon surrender on such
Interest Payment Date of the Coupon appertaining thereto in respect of such
interest.
Any interest on any Fully Registered Security which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company or the Guarantor at its
election in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company or the Guarantor may elect to make payment of
any Defaulted Interest to the Persons in whose names such Fully
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company or the Guarantor shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on
each Fully Registered Security and the date of the proposed payment,
and at the same time the Company or the Guarantor, as the case may be,
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company or the
Guarantor, as the case may be, of such Special Record Date, and, in the
name and at the expense of the Company or the Guarantor, as the case
may be, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Fully Registered Security
at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company or the
Guarantor, as the case may be, cause a similar notice to be published
at least once in an Authorized Newspaper in the Place of Payment, but
such publication shall not be a condition precedent to the
establishment of such Special
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Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been given as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Fully Registered Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company or the Guarantor may make payment of any
Defaulted Interest on any such Fully Registered Security in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Fully Registered Securities of that series may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company or the Guarantor to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security of
any series delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
SECTION 3.08. Persons Deemed Owners.
The Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor, or the Trustee may deem and treat the Person in whose name any
Registered Security shall be registered upon the Security Register for such
series as the absolute owner of such Security (notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.07), if such
registered Security is a Fully Registered Security, interest, if any, on, such
Registered Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Guarantor, the Trustee nor
any agent of the Company, the Guarantor, or the Trustee shall be affected by
notice to the contrary. The Company, the Guarantor, the Trustee, and any agent
of the Company, the Guarantor, or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon, whether or not the Security
to which such Coupon appertained be registered, as the absolute owner of such
Security or Coupon for the purposes of receiving payment thereof or on account
thereof and for all other purposes whatsoever whether or not such Security or
Coupon be overdue, and neither the Company, the Guarantor, the Trustee, any
Paying Agent nor any Security Registrar shall be
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affected by notice to the contrary. All such payments so made to any Holder for
the time being, or upon his order shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon such Security or Coupon.
SECTION 3.09. Cancellation of Securities; Destruction Thereof.
All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, and all Coupons surrendered for payment or exchange, if
surrendered to the Company, the Guarantor, or any Paying Agent or any
Securities Registrar, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities or
Coupons shall be authenticated and delivered in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy cancelled Securities and Coupons held by it and deliver a
certificate of destruction to the Company. If the Company or the Guarantor
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such securities,
or the Guarantee endorsed thereon, unless and until the same are delivered to
the Trustee for cancellation.
SECTION 3.10. Computation of Interest.
Except as otherwise specified in the form of Security for any series
approved or established pursuant to Section 2.03 or in the Officers'
Certificate delivered pursuant to Section 3.01 with respect to Securities of
any series, interest on the Securities of each series shall be computed on the
basis of a year of twelve 30-day months.
SECTION 3.11. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series denominated in
Dollars or in Foreign Currency or in any currency unit, which hereafter shall
include without limitation ECU, with respect to which the Holders of Securities
of such series have not made the election provided for in paragraph (b) below,
the following payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph
(e) below, payment of the principal of and premium, if any, on any
Registered Security will be made at the Place of Payment by delivery of
a check in the currency
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or currency unit in which the Security is payable on the payment date
against surrender of such Registered Security, and any interest on any
Fully Registered Security will be paid at the Place of Payment by
mailing a check in the currency or currency unit in which such interest
is payable to the Person entitled thereto at the address of such Person
appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest on such Security
may also, subject to applicable laws and regulations, be made at such
other place or places as may be designated by the Company or Guarantor
by any appropriate method.
(b) With respect to Registered Securities of any series denominated in
any Foreign Currency or currency unit the following payment provisions shall
apply, except as otherwise provided in paragraphs (e) and (f) below:
(1) It may be provided pursuant to Section 3.01 with respect to
the Securities of such series that Holders shall have the option to
receive payments of principal of, premium, if any, and (with respect to
Fully Registered Securities only) interest, if any, on such Securities
in any of the currencies which may be designated for such election in
such Securities by delivering to the Trustee a written election, to be
in form and substance satisfactory to the Trustee, prior to the close
of business on the record date immediately preceding the applicable
payment date. Such election will remain in effect for such Holder until
changed by the Holder by written notice to the Trustee (but any such
change must be made prior to the close of business on the record date
immediately preceding the next payment date to be effective for the
payment to be made on such payment date and no such change may be made
with respect to payments to be made on any Security of such series with
respect to which notice of redemption has been given by the Company
pursuant to Article Four). Any Holder of any such Security who shall
not have delivered any such election to the Trustee prior to the close
of business on the applicable record date will be paid the amount due
on the applicable payment date in the relevant currency unit as
provided in paragraph (a) of this Section 3.11. Payment of principal of
and premium, if any, shall be made on the payment date against
surrender of such Security. Payment of interest, if any, shall be made
at the Place of Payment by mailing at such location a check, in the
applicable currency or currency unit, to the Person entitled thereto at
the address of such Person appearing on the Securities Register.
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(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on such
Security may also, subject to applicable laws and regulations, be made
at such other place or places as may be designated by the Company or
Guarantor by any appropriate method.
(c) Payment of the principal of and premium, if any, on any
Unregistered Security and of interest on any Coupon Security will be made
unless otherwise specified pursuant to Section 3.01 or Section 9.01(6) by a
Paying Agent at such place or places outside the United States as may be
designated by the Company or Guarantor pursuant to any applicable laws or
regulations by any appropriate method in the currency or currency unit in which
the Security is payable (except as provided in paragraph (e) below) on the
payment date against surrender of the Unregistered Security, in the case of
payment of principal and premium, if any, or the relevant Coupon, in the case
of payment of interest, if any. Except as provided in paragraph (e) below,
payment with respect to Unregistered Securities and Coupons will be made by
check, subject to any limitations on the methods of effecting such payment as
shall be specified in the terms of the Security established as provided in
Section 3.01 and Section 9.01(6) and as shall be required under applicable laws
and regulations.
(d) Not later than the fourth Business Day after the record date for
each payment date, the Trustee will deliver to the Company and the Guarantor a
written notice specifying, in the currency or currency unit in which each
series of the Securities is payable, the respective aggregate amounts of
principal of, premium, if any, and interest, if any, on the Securities to be
made on such payment date, specifying the amounts so payable in respect of
Fully Registered Securities, Registered Securities with Coupons and
Unregistered Securities and in respect of the Registered Securities as to which
the Holders of Securities denominated in any currency unit shall have elected
to be paid in another currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant to
Section 3.01 and if at least one Holder has made such election, then, not later
than the second Business Day preceding each payment date the Company will
deliver to the Trustee and each Paying Agent an Exchange Rate Officer's
Certificate in respect of the Dollar or Foreign Currency payments to be made on
such payment date. The Dollar or Foreign Currency amount receivable by Holders
of Registered Securities denominated in a currency unit who have elected
payment in such currency as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Official Currency Unit Exchange
Rate set forth in the applicable Exchange Rate Officer's Certificate.
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(e) If a Foreign Currency in which any of the Securities are
denominated or payable ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if the ECU
ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, or if any other currency unit in which a Security is denominated
or payable ceases to be used for the purposes for which it was established,
then with respect to each date for the payment of principal of, or premium, if
any, and interest, if any, on the applicable Securities denominated or payable
in such Foreign Currency, the ECU or such other currency unit occurring after
the last date on which such Foreign Currency, the ECU or such other currency
unit was so used (the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date. The Dollar amount to be paid by the
Company or the Guarantor to the Paying Agent and by the Paying Agent to the
Holders of such Securities with respect to such payment date shall be the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit as determined by the Dollar
Determination Agent as of the record date, if any, with respect to any Interest
Payment Date, or the fifteenth day before the Maturity of an installment of
principal (the "Valuation Date"), in the manner provided in paragraph (g) or
(h) below.
(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency as provided for by
paragraph (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, such Holder shall receive payment in such currency unit, and if ECU
ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, or if any other such currency unit ceases to be used for the
purposes for which it was established, such Holder shall receive payment in
Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined
by, and shall be set forth in a certificate delivered to the Company, the
Guarantor, the Trustee and each Paying Agent of, the Dollar Determination Agent
as of each Valuation Date and shall be obtained by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Valuation
Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by, and shall be set forth in a certificate delivered to the Company, the
Guarantor, the Trustee and each Paying Agent
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of, the Dollar Determination Agent as of each Valuation Date and shall be the
sum obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate on the Valuation Date for such Component Currency.
(i) For purposes of Section 3.11 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit.
A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the
relevant currency unit on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided
or multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified amounts of
such two or more currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency divided by the number of
currencies into which such Component Currency was divided, and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted in New York City on
the Valuation Date as certified for customs purposes by the Federal Reserve
Bank of New York. If such rates are not available for any reason with respect
to one or more currencies for which an Exchange Rate is required, the Dollar
Determination Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City or in the country of issue of the currency in question, or such other
quotations as the Dollar Determination Agent shall deem appropriate. Unless
otherwise specified by the Dollar Determination Agent, if there is
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more than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.
All decisions and determinations of the Dollar Determination Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit and the Market Exchange Rate shall be in its sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Company, the Guarantor, the Trustee,
any Paying Agent and all Holders of the Securities and Coupons denominated or
payable in the relevant currency or currency units. In the event that a Foreign
Currency ceases to be used both by the government of the country which issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.06 to
the Holders) specifying the Conversion Date. In the event the ECU ceases to be
used both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities, or
any other currency unit in which Securities or Coupons are denominated or
payable, ceases to be used for the purposes for which it was established, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 1.06 to the Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning thereof, will
similarly give notice to the Trustee. The Trustee shall be fully justified and
protected in relying conclusively and acting upon information received by it
from the Company and the Dollar Determination Agent, if any, and shall not have
any duty or obligation to determine such information independently.
SECTION 3.12. Unconditional Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security and Coupons, if any, appertaining thereto authenticated and delivered
by the Trustee and to the Trustee, the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, and interest on
such Security and Coupons, if any, appertaining thereto, net of any taxes
required to be withheld, when and as the same shall become due and
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payable, whether by declaration thereof or otherwise, in accordance with the
terms of such Security or Coupons, if any, appertaining thereto and of this
Indenture. In case of default by the Company in the payment of any such
principal, sinking fund payment, premium or interest, the Guarantor agrees duly
and punctually to pay the same. The Guarantor hereby agrees that its
obligations hereunder or under any Guarantee shall be absolute and
unconditional irrespective of any invalidity, irregularity or unenforceability
of any such Security, or Coupons, if any, appertaining thereto or this
Indenture, any failure to enforce the provisions of any such Security, or
Coupons, if any, appertaining thereto or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto by the
holder of such Security, or Coupons, if any, appertaining thereto or the
Trustee, 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 merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest or notice with respect to any such Security,
or Coupons, if any, appertaining thereto or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that its obligation hereunder or
under any Guarantee will not be discharged as to any such Security, or Coupons,
if any, appertaining thereto except by payment in full of the principal thereof
and premium, if any, and interest thereon.
The Guarantor shall be subrogated to all rights of the holder of any
Security and Coupons, if any, appertaining thereto against the Company in
respect of any amounts paid by the Guarantor pursuant to the provisions of any
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 and Coupons, if any, appertaining thereto shall have been
paid in full.
The Guarantee set forth in this Section shall not be valid or become
obligatory for any purpose with respect to a Security, or Coupons, if any,
appertaining thereto until the certificate of authentication on such Security,
or Coupons, if any, appertaining thereto shall have been signed by the Trustee.
The rights and claims of the Trustee and the Holders of Securities and
Coupons, if any, appertaining thereto against the Guarantor under this Section
3.12 will be subordinated to the extent provided in Section 12.04.
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SECTION 3.13. Execution of Guarantees.
To evidence its Guarantee to the Holders of Securities and Coupons, if
any, appertaining thereto, specified in Section 3.12, the Guarantor hereby
agrees to execute the Guarantees, in substantially the form above described, to
be endorsed on each security and endorsed or referenced on each Coupon, if
any, appertaining thereto authenticated and delivered by the Trustee. Each
such Guarantee shall be signed on behalf of the Guarantor as set forth in
Section 3.03, prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of the Guarantor.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
SECTION 4.02. Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Securities of any series (or all or
part of the Unregistered Securities of such series or all or any part of the
Registered Securities of such series, if the terms and conditions of redemption
shall differ with respect to Unregistered Securities and Registered Securities
of such series as specified in the terms of such Securities established
pursuant to Section 3.01) in accordance with their terms, it shall fix a
Redemption Date and shall provide notice of such redemption to the Trustee at
least 60 days prior to such Redemption Date, and at least 30 and not more than
60 days prior to such Redemption Date to the Holders of Securities of such
series so to be redeemed as a whole or in part in the manner provided in
Section 1.06.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture
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establishing such series, if such be the case, together with a brief statement
of the facts permitting such redemption, that payment will be made upon
presentation and surrender of the applicable Securities, that, unless otherwise
specified in such notice, Coupon Securities of any series, if any, surrendered
for payment must be accompanied by all Coupons, if any, maturing subsequent to
the date fixed for redemption, failing which the amount of any such missing
Coupon or Coupons will be deducted from the sum due for payment, that any
interest accrued to the Redemption Date will be paid as specified in said
notice, and that on and after said Redemption Date any interest thereon or on
the portions thereof to be redeemed will cease to accrue. If less than all the
Securities of any series are to be redeemed the notice of redemption shall
specify the numbers of the Securities of such series to be redeemed, and, if
only Unregistered Securities of any series are to be redeemed, and if such
Unregistered Securities may be exchanged for Registered Securities, the last
date on which exchanges of Unregistered Securities for Registered Securities
not subject to redemption may be made. In case any Security of any series is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the Redemption Date, upon surrender of such Security and any Coupons
appertaining thereto, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof and with appropriate Coupons
will be issued, or, in the case of Securities providing appropriate space for
such notation, at the option of the Holders, the Trustee, in lieu of delivering
a new Security or Securities as aforesaid, may make a notation on such Security
of the payment of the redeemed portion thereof.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) the
Redemption Date with respect to the Securities of any series stated in the
notice of redemption given as provided in this Section 4.02, the Company will
deposit with the Trustee or with one or more Paying Agents an amount of money
in the currency or currency unit in which the Securities of such series and any
Coupons appertaining thereto are payable (except as otherwise specified as
contemplated by Section 3.01 for the Securities of such series and except as
provided in Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) sufficient
to redeem on such Redemption Date all the Securities or portions thereof so
called for redemption at the applicable Redemption Price, together with accrued
interest to such Redemption Date.
If fewer than all the Securities of a series are to be redeemed (except
in the case of a redemption in whole of the Unregistered Securities, the Coupon
Securities, the Registered Securities or the Fully Registered Securities of
such series), the Company will give the Trustee written notice not less than 60
days
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prior to the Redemption Date as to the aggregate principal amount of Securities
to be redeemed and the Trustee shall select, not more than 60 days prior to the
Redemption Date and in such manner as in its sole discretion it shall deem
appropriate and fair, the Securities of such series or portions hereof (in
multiples of 1,000 in the currency or currency unit in which the Securities of
such series are denominated, except as otherwise set forth in the applicable
form of Security) to be redeemed.
SECTION 4.03. Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the
Securities or portions of Securities of the series specified in such notice
shall become due and payable on the Redemption Date and at the place or places
stated in such notice at the applicable Redemption Price, together with any
interest accrued to such Redemption Date, and on and after said Redemption Date
(unless the Company shall default in the payment of such Securities at the
applicable Redemption Price, together with any interest accrued to said
Redemption Date) any interest on the Securities or portions of Securities of
any series so called for redemption shall cease to accrue. On presentation and
surrender of such Securities and all Coupons, if any, appertaining thereto at a
Place of Payment in such notice specified, such Securities and Coupons or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with any interest accrued thereon to the
applicable Redemption Date in the currency or currency unit in which the
Securities of such series and the Coupons, if any, appertaining thereto are
payable (except as otherwise specified as contemplated by Section 3.01 for the
Securities of such series and except as provided in Sections 3.11(b), 3.11(e)
and 3.11(f) of this Indenture).
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or after the Redemption
Date, such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing Coupons or the surrender of
such missing Coupon or Coupons may be waived by the Company, the Guarantor, and
the Trustee, if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that, unless otherwise provided pursuant to
Section 3.01 or Section 9.01(6), interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside of the United States.
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Upon presentation of any Security redeemed in part only and the
Coupons, if any, appertaining thereto, the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities of such
series and the Coupons, if any, appertaining thereto, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Securities so presented.
SECTION 4.04. Sinking Funds.
(a) The provisions of this Section shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is hereinafter referred to as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of the Securities of any series is herein
referred to as "optional sinking fund payment."
(b) In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may, at
its option, deliver to the Trustee Outstanding Securities of such series
(together with the unmatured Coupons, if any, appertaining thereto) theretofore
purchased or otherwise acquired by the Company, except Securities of such
series which have been redeemed or previously called for redemption through the
application of mandatory or optional sinking fund payments pursuant to the
terms of the Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the
Securities of such series were originally issued by the Company by way of bona
fide sale or other negotiation for value; provided that such Securities have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
(c) Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee a certificate
signed by the Treasurer or any Assistant Treasurer of the Company specifying
the amount of the next ensuing sinking fund payment for such series pursuant to
the terms of such series, the portion thereof, if any, which is to be satisfied
by payment of cash in the currency or currency unit in which the Securities of
such series and the Coupons, if any,
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appertaining thereto are payable (except as otherwise specified as contemplated
by Section 3.01 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of such series pursuant to subsection (b) of this Section and which
Securities are to be delivered and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments (in the currency or
currency unit described above) therein referred to, if any, on or before the
next succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate (or to deliver the Securities and Coupons,
if any, specified in such certificate within the time period specified in
subsection (b) of this Section), the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash (in the currency or currency unit described above) and shall be sufficient
to redeem the principal amount of the Securities of such series subject to a
mandatory sinking fund payment without the right to deliver or credit
Securities as provided in subsection (b) of this Section and without the right
to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash (in the currency or currency unit described above) plus any unused balance
of any preceding sinking fund payments made with respect to the Securities of
any particular series shall be applied by the Trustee on the sinking fund
payment date on which such payment is made (or, if such payment is made before
a sinking fund payment date, on the sinking fund payment date following the
date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund
together with accrued interest, if any, to the applicable Redemption Date. Any
excess sinking fund moneys not so applied or allocated by the Trustee to the
redemption of Securities shall be added to the next sinking fund payment
received by the Trustee for such series and, together with such payment (or
such amount so segregated) shall be applied in accordance with the provisions
of this subsection (c) of this Section 4.04. Any and all sinking fund moneys
with respect to the Securities of any particular series held by The Trustee on
the last sinking fund payment date with respect to Securities of such series
and not held for the payment or redemption of particular Securities of such
series shall be applied by the Trustee together with other moneys, if
necessary, to be deposited (or segregated) sufficient for the purpose, to the
payment of the principal of the Securities of such series at Maturity. The
Trustee shall not convert any currency or currency
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unit in which the Securities of such series are payable for the purposes of
such sinking fund application unless specifically requested to do so by the
Company, and any such conversion agreed to by the Trustee in response to such
request shall be for the account and at the expense of the Company and shall
not affect the Company's obligation to pay the Holders in the currency or
currency unit to which such Holders may be entitled.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the
last paragraph of Section 4.02 and the Company shall cause notice of the
redemption thereof to be given in the manner provided in Section 4.02 except
that the notice of redemption shall also state that the Securities are being
redeemed by operation of the sinking fund and whether the sinking fund payment
is mandatory or optional, or both, as the case may be. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 4.03.
On or before the opening of business on (but at least one Business Day
before, in the case of payments made in a currency or currency unit other than
Dollars) each sinking payment date, the Company shall pay to the Trustee in
cash (in the currency or currency unit described in the first paragraph of this
subsection 4.04(c)) a sum equal to the principal and any interest accrued to
the Redemption Date for Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest;
Compliance with Terms.
With respect to each series of Securities, the Company will duly and
punctually pay the principal of, premium, if any, and interest on the
Securities of such series in accordance with the terms of the Securities of
such series of Securities, any Coupons appertaining thereto and this Indenture,
net of any taxes required to be withheld, and will duly comply with all the
other terms, agreements and conditions contained in, or made in this Indenture
for the benefit of, the Securities of such series. Each installment of interest
on the Registered Securities of any series may be paid by mailing checks for
such interest payable to or upon the written order of the Holders of Registered
Securities entitled thereto as they shall appear on the registry books of the
Company.
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The interest on Coupon Securities shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. The interest,
if any, on any temporary Unregistered Security shall be paid, as to any
installment of interest evidenced by a Coupon attached thereto, if any, only
upon presentation and surrender of such Coupon, and, as to other installments
of interest, if any, only upon presentation of such Security for notation
thereon of the payment of such interest.
SECTION 5.02. Maintenance of Agency.
The Company and the Guarantor will maintain an office or agency in the
Borough of Manhattan, The City of New York, where Registered Securities may be
presented or surrendered for payment and for registration of transfer or
exchange and an agency where notices and demands to or upon the Company and the
Guarantor in respect of the Securities, the Guarantees and this Indenture may
be served. The Company and the Guarantor hereby respectively appoint the
Trustee its initial office or agency for the purpose of this Section 5.02. So
long as any Coupon Securities or Unregistered Securities of any series remain
Outstanding, the Company will (except as specified pursuant to Section 3.01 or
Section 9.01(6)) maintain one or more offices or agencies outside the United
States in such city or cities as may be specified elsewhere in this Indenture
or as contemplated by Section 3.01, with respect to such series, where Coupons
appertaining to Securities of such series or Unregistered Securities of such
series may be surrendered or presented for payment, or surrendered for exchange
pursuant to Section 3.05 and where notices and demands to or upon the Company
or the Guarantor in respect of Coupons appertaining to Securities of such
series or the Unregistered Securities of such series or of this Indenture may
be served. The company and the Guarantor will give prompt written notice to
the Trustee of any change in the location of any such office or agency. If at
any time the Company or the Guarantor shall fail to maintain such agency or
shall fail to furnish the Trustee with the address thereof, presentations,
surrenders, notices and demands in respect of Registered Securities may be
made or served at the Principal Corporate Trust Office, and presentations,
surrenders, notices and demands in respect of Coupons appertaining to
Securities of any series and Unregistered Securities may be made or served at
the Principal Corporate Trust Office in the other city or cities referred to
above, if any; and the Company and the Guarantor hereby appoint the Trustee
their agent to receive all such presentations, surrenders, notices and demands.
The Company and the Guarantor agree to appoint and continue to maintain the
appointment of a Dollar Determination Agent, if necessary, to perform the
functions set forth herein for the Dollar Determination Agent.
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The Company and the Guarantor, by written notice to the Trustee, may
also from time to time designate one or more other offices or agencies where
Securities may be presented for any or all such purposes, and, by like notice,
may from time to time rescind such designations.
SECTION 5.03. Money for Security Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent for any
series of Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of such series, and the
Coupons, if any, appertaining thereto, set aside, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of,
premium, if any, or interest on any Securities of such series, and Coupons, if
any, appertaining thereto, deposit, subject to Section 4.04(c), with a Paying
Agent a sum sufficient to pay the principal, premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee and the Company, subject
to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of or
premium, if any, or any interest on Securities of such series or any
Coupon appertaining thereto in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to said Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company or
the Guarantor (or any other obligor upon the Securities of such series)
in the making of any payment of principal of, premium or interest on
the Securities of such series or Coupon, if any, appertaining thereto;
and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or premium, if
any, or interest on any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for 2 years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or Coupon, if any, appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company and the
Guarantor for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the company cause to be published once, in an Authorized Newspaper
in the Place of Payment, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company. The Trustee may also adopt and employ, at the
expense of the Company, any other reasonable means of notification of such
proposed repayment (including, but not limited to, mailing notice of such
proposed repayment to Registered Holders whose names appear on the Security
Register and whose holdings of Registered Securities have not yet been
surrendered for redemption or whose right to interest moneys due and payable
but not claimed is determinable from the records of any Paying Agent or the
Trustee, at the last address of record for each such Holder).
SECTION 5.04. Certification of Compliance of the Company
and the Guarantor.
Each of the Company and the Guarantor will promptly (and in any event
within 3 Business Days) notify the Trustee, upon
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obtaining knowledge of any default under this Indenture and shall comply with
the provisions of Section 314(a)(4) of the Trust Indenture Act.
SECTION 5.05. Corporate Existence.
Subject to Article Ten, the Company and the Guarantor will do or cause
to be done all things necessary to preserve and keep in full force and effect
their respective corporate existence, rights (charter and statutory) and
franchises and the corporate existence, rights (charter and statutory) and
franchises of all Subsidiaries other than the Company; provided, however, that
the Company and the Guarantor shall not be required to, or to cause any such
Subsidiary to, preserve any right or franchise or to keep in full force and
effect the corporate existence of any such Subsidiary if the Company (in the
case of the Company) or the Guarantor (in all other cases) shall determine that
the keeping in existence or preservation thereof is no longer desirable in the
conduct of the business of the Company or the Guarantor, as the case may be,
and that the loss thereof is not disadvantageous in any material respect to the
Holders of Securities or Coupons, if any, appertaining thereto.
SECTION 5.06. Limitation on Sale or Issuance of Voting
Shares of Principal Subsidiary Banks.
The Guarantor will not (a) permit the issue, sale or other disposition
of any Voting Shares, or securities convertible into, or options, warrants or
rights to subscribe for or purchase Voting Shares, of any Principal Subsidiary
Bank, (b) permit the merger of consolidation of any Principal Subsidiary Bank
with or into any other corporation, or (c) permit the sale or other disposition
of all or substantially all of the assets of any Principal Subsidiary Bank, if,
after giving effect to any such transaction (specified in clauses (a), (b) or
(c) above) and the issuance of the maximum number of Voting Shares issuable
upon the conversion or exercise of all such convertible securities, options,
warrants or rights, the Guarantor would own, directly or indirectly, less than
80% of the Voting Shares of such Principal Subsidiary Bank (and of any other
Principal Subsidiary Bank any Voting Shares of which are owned, directly or
indirectly, by such Principal Subsidiary Bank); provided, however, that the
foregoing shall not prohibit any such issuance, sale or disposition of shares
or securities, any such merger or consolidation or any such sale or disposition
of assets if:
(i) required by any law or any regulation or order of any
governmental authority;
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(ii) required as a condition imposed by any law or any
regulation or order of any governmental authority to the acquisition by
the Guarantor, directly or indirectly, of any other corporation or
entity, if thereafter, (x) the Guarantor would own, directly or
indirectly, at least 80% of the Voting Shares of such other corporation
or entity, and (y) the Consolidated Banking Assets of the Guarantor
would be at least equal to the Consolidated Banking Assets of the
Guarantor prior thereto, and (z) by a Board Resolution, such other
corporation or entity shall have been designated a Principal Subsidiary
Bank for all purposes or this Indenture;
(iii) upon consummation of such transaction, the Guarantor
owns, directly or indirectly, not less than the percentage of Voting
Shares of such Principal Subsidiary Bank (and of any other Principal
Subsidiary Bank any Voting Shares of which are owned, directly or
indirectly, by such Principal Subsidiary Bank) it owned prior to such
transaction; or
(iv) the proceeds of any such issuance, sale or other
disposition are invested within 180 days after such issuance, sale or
other disposition in any one or more Subsidiary Banks (including any
previously existing Subsidiary Bank or any other corporation which upon
such investment becomes a Subsidiary Bank), or if within 180 days after
such issuance, sale or other disposition the Guarantor has entered into
an agreement to invest such proceeds in any one or more Subsidiary
Banks (including any previously existing Subsidiary Bank or any other
corporation which upon such investment would become a Subsidiary Bank),
but such investment has not been made because all regulatory or other
approvals have not been obtained but are in the process of being
obtained, and if, in each case, the consolidated assets of the
Subsidiary Bank(s) acquired or to be acquired or invested in (including
any one or more corporations which upon such investment would become
Subsidiary Banks) would be at least equal to 80% of the consolidated
assets of the Principal Subsidiary Bank being disposed of; provided,
however, that if the Guarantor makes a subsequent acquisition as
described in this paragraph using its common stock and preferred stock,
with a fair market value at least equal to the proceeds of any sale,
assignment, transfer or disposition of a Principal Subsidiary Bank, it
will not also be required to invest the proceeds of any sale
assignment, transfer or disposition as otherwise required by this
paragraph; provided, further, that the Guarantor will, for the purpose
of satisfying this covenant, only issue preferred shares in a
subsequent acquisition in an amount needed to replace any preferred
stock of the acquired company;
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provided, however, that nothing herein shall be deemed to restrict or
prohibit the merger of a Principal Subsidiary Bank with and into a
Principal Subsidiary Bank or the Guarantor, the consolidation of
Principal Subsidiary Banks into a Principal Subsidiary Bank or the
Guarantor, or the sale or other disposition or all or substantially all
of the assets of any Principal Subsidiary Bank to another Principal
Subsidiary Bank or the Guarantor, if, in any such case in which the
surviving, resulting or acquiring entity is not the Guarantor, the
Guarantor would own, directly or indirectly, at least 80% of the Voting
Shares of the Principal Subsidiary Bank (and of any other Principal
Subsidiary Bank any Voting Shares of which are owned, directly or
indirectly, by such Principal Subsidiary Bank) surviving such merger,
resulting from such consolidation or acquiring such assets.
SECTION 5.07. Ownership of the Company.
Subject to Article Ten, the Guarantor will at all times continue to
own, directly or indirectly, all of the issued and outstanding Voting Shares of
the Company.
SECTION 5.08. Liens.
The Guarantor will not, and it will not permit any Subsidiary to,
pledge, mortgage or hypothecate or permit to exist any pledge, mortgage or
hypothecation or other lien upon Voting Shares of any Principal Subsidiary Bank
owned by the Guarantor or any Subsidiary to secure any indebtedness for
borrowed money without making effective provisions whereby any Senior Debt
Securities shall be equally and ratably secured with any and all such
indebtedness; provided, however, that this restriction shall not apply to or
prevent:
(a) the mortgage, pledge, or hypothecation of, or the
establishment of a lien on, any such Voting Shares to secure
indebtedness of the Guarantor or a Subsidiary as part of the purchase
price of such Voting Shares, or incurred prior to, at the time of or
within 120 days after acquisition thereof for the purpose of financing
all or any part of the purchase price thereof;
(b) the acquisition by the Guarantor or any Subsidiary of any
Voting Shares subject to mortgages, pledges, hypothecations or other
liens existing thereon at the time of acquisition (whether or not the
obligations secured thereby are assumed by the Guarantor or such
Subsidiary);
(c) the assumption by the Guarantor or a Subsidiary of
obligations secured by mortgages on, pledge or hypothecations of, or
other liens on, any such Voting Shares, existing at the time of the
acquisition by the Guarantor or such Subsidiary of such Voting Shares;
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(d) the extension, renewal or refunding (or successive
extensions, renewals or refundings), in whole or in part, of any
mortgage, pledge, hypothecation or other lien referred to in the
foregoing clauses (a), (b) and (c); provided, however, that the
principal amount of any and all other obligations and indebtedness
secured thereby shall not exceed the principal amount so secured at the
time of such extension, renewal or refunding, and that such extension,
renewal or refunding shall be limited to all or a part of the Voting
Shares that were subject to the mortgage, pledge, hypothecation or
other lien so extended, renewed or refunded; or
(e) liens to secure loans or other extensions of credit by a
Subsidiary Bank subject to Section 23A of the Federal Reserve Act or
any successor or similar federal law or regulations promulgated
thereunder;
and provided, further, that, notwithstanding the foregoing, the Guarantor may
incur or permit to be incurred or to exist upon such Voting Shares (a) liens
for taxes, assessments or other governmental charges or levies which are not
yet due or are payable without penalty or of which the amount, applicability or
validity is being contested by the Guarantor or a Subsidiary in good faith by
appropriate proceedings and the Guarantor or such Subsidiary shall have set
aside on its books adequate reserves with respect thereto (segregated to the
extent required by generally accepted accounting principles), or (b) the lien
of any judgment, if such judgment shall not have remained undischarged, or
unstayed on appeal or otherwise, for more than 60 days.
In case the Guarantor or any Subsidiary shall propose to pledge,
mortgage or hypothecate any voting Shares at any time owned by it to secure any
indebtedness, other than as permitted by subdivisions (a) to (e), inclusive, of
this Section, the Guarantor will prior thereto give written notice thereof to
the Trustee, and will prior to or simultaneously with such pledge, mortgage or
hypothecation, by supplemental indenture delivered to the Trustee, in form
satisfactory to it, effectively secure all the Senior Debt Securities equally
and ratably with such indebtedness, by pledge, mortgage or hypothecation of
such Voting Shares. Such supplemental indenture shall contain the provisions
concerning the possession, control, release and substitution of mortgaged and
pledged property and securities and other appropriate matters which are
required or are permitted by the Trust Indenture Act (as in effect at the date
of execution of such supplemental indenture) to be included in a secured
indenture qualified under said Act, and may also contain such additional and
amendatory provisions permitted by said Act as the Guarantor and the Trustee
shall deem advisable or appropriate or as the Trustee shall deem necessary in
connection with such pledge, mortgage or hypothecation.
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SECTION 5.09. Waiver of Covenants.
The Company or the Guarantor, as the case may be, may omit in respect
of any series of Securities in any particular instance to comply with any
covenant or condition set forth in Section 5.05 through 5.08 hereof, if before
or after the time for such compliance the Holders of a majority in principal
amount of the Securities of such series at the time Outstanding shall, by Act
of such Holders of Securities, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and
effect.
ARTICLE SIX
SECURITY HOLDERS' LISTS AND REPORTS BY TRUSTEE,
COMPANY AND GUARANTOR
SECTION 6.01. Company and Guarantor To Furnish Trustee Names
and Addresses of Security Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company and the Guarantor will furnish or cause to be furnished to the Trustee
(a) semiannually and not more than 10 days after the Regular Record Date for
each series, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Registered Securities of such series as
of such date, and on dates to be determined pursuant to Section 3.01 for
noninterest bearing Securities of such series in each year, and (b) at such
other times as the Trustee may request in writing, within 30 days after receipt
by the Company or the Guarantor of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished, except that, so long as the Trustee is Security Registrar, no such
list need be furnished.
The Company and the Guarantor shall also be required to furnish such
information which is known to it concerning the Holders of Coupons and
Unregistered Securities; provided, however, that the Company and the Guarantor
shall have no obligation to investigate any matter relating to the name and
address of any Holder of an Unregistered Security or any Holder of a Coupon.
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SECTION 6.02. Preservation of Information; Communications to
Security Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of The Trust Indenture Act, subject to the exculpation from
liability contained in Section 312(c) of such Act.
SECTION 6.03. Reports by Trustee.
The Trustee shall comply with the provisions of Section 313 of the
Trust Indenture Act.
SECTION 6.04. Reports by Company and Guarantor.
The Company or the Guarantor shall Comply with the provisions of
Section 314(a)(1)(2) and (3) of the Trust Indenture Act.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default and Defaults.
(a) "Event of Default", with respect to any Senior Debt Securities,
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body) unless such event is either inapplicable to a particular
series or is specifically deleted or modified in the applicable Board
Resolution or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated by Section 3.01:
(1) default in the payment of any interest upon any Security of
such series when such interest becomes due and payable, and continuance
of such default for a period of 30 days;
(2) default in the payment of the principal of (including any
sinking fund payment or analogous obligation) or premium, if any, on
any Security of such series as and when the same shall become due and
payable either at Maturity, upon redemption, by declaration or
otherwise;
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(3) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in respect of the Securities
of such series (other than a covenant or warranty a default in the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given to the
Company and the Guarantor by the Trustee, by registered or certified
mail, or to the Company, the Guarantor and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of
such series, a written notice specifying such default or breach and
requiring it to be remedied;
(4) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company, the
Guarantor or any Principal Subsidiary Bank under Title 11 of the United
States Code, as now constituted or as hereafter amended, or any other
applicable Federal or State bankruptcy law or other similar law, or
appointing a receiver, trustee or other similar official of the
Company, the Guarantor or any principal Subsidiary Bank or of any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days;
(5) the filing by the Company, the Guarantor or any Principal
Subsidiary Bank of a petition or answer or consent seeking relief under
Title 11 of the United States Code, as now constituted or as
hereinafter amended, or any other applicable Federal or State
bankruptcy law or other similar law, or the consent by it to the
institution of proceedings thereunder or to the filing of any such
petition or to the appointment or taking possession of a receiver,
trustee, custodian or other similar official of the Company, the
Guarantor or any Principal Subsidiary Bank or of any substantial part
of its property, or the Company, the Guarantor or any Principal
Subsidiary Bank shall fail generally to pay its debts as such debts
become due or shall take any corporate action in furtherance of any
such action; or
(6) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series.
(b) "Event of Default," with respect to any Subordinated Debt
Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default
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and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body) unless such
event is either inapplicable to a particular series or is specifically deleted
or modified in the applicable Board Resolution or in the supplemental indenture
under which such series of Securities is issued, as the case may be, as
contemplated by Section 3.01:
(1) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company, the
Guarantor or any Principal Subsidiary Bank under Title 11 of the United
States Code, as now constituted or as hereafter amended, or any other
applicable Federal or State bankruptcy law or other similar law, or
appointing a receiver, trustee or other similar official of the
Company, the Guarantor or any principal Subsidiary Bank or of any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days;
(2) the filing by the Company, the Guarantor or any Principal
Subsidiary Bank of a petition or answer or consent seeking relief under
Title 11 of the United States Code, as now constituted or as
hereinafter amended, or any other applicable Federal or State
bankruptcy law or other similar law, or the consent by it to the
institution of proceedings thereunder or to the filing of any such
petition or to the appointment or taking possession of a receiver,
trustee, custodian or other similar official of the Company, the
Guarantor or any Principal Subsidiary Bank or of any substantial part
of its property, or the Company, the Guarantor or any Principal
Subsidiary Bank shall fail generally to pay its debts as such debts
become due or shall take any corporate action in furtherance of any
such action; or
(3) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series .
(c) "Default" with respect to any Subordinated Debt Securities,
wherever used herein, means any one of the following events (whatever the
reason for such Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body) unless such Default is either inapplicable to a particular
series or is specifically deleted or modified in the applicable
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Board Resolution or in the supplemental indenture under which such series of
Securities is issued, as the case may be, as contemplated by Section 3.01:
(1) default in the payment of any interest upon any Security of
such series when such interest becomes due and payable, and continuance
of such default for a period of 30 days;
(2) default in the payment of the principal of (including any
sinking fund payment or analogous obligation) or premium, if any, on
any Security of such series as and when the same shall become due and
payable either at Maturity, upon redemption, by declaration or
otherwise;
(3) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in respect of the Securities
of such series (other than a covenant or warranty a default in the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given to the
Company and the Guarantor by the Trustee, by registered or certified
mail, or to the Company, the Guarantor and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of
such series, a written notice specifying such default or breach and
requiring it to be remedied; or
(4) any other Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of
Security for such series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any series of Securities occurs
and is continuing, then and in every such case the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Securities Outstanding
of such series may declare the principal (or, if Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of the Securities of such series) of all the
Securities of such series to be due and payable immediately, by a notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Holders of Securities), and upon any such declaration the same shall become
immediately due and payable.
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At any tine after such a declaration of acceleration with respect to
any series of Securities has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay in the currency or currency unit in
which the Securities of such series are payable (except as otherwise
specifically contemplated by Section 3.01 for the Securities of such
series and except as provided in Sections 3.11(b), 3.11(e) and 3.11(f)
of this Indenture)
(A) all overdue installments of interest on all Securities of
such series,
(B) (in the currency or currency unit described above) the
principal of (and premium, if any, on) any Securities of such series
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series, and
(D) in Dollars all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, except as a result of
negligence or bad faith; and
(2) all Events of Default or Defaults, other than the
nonpayment of the principal of Securities of such series which have
become due solely by such acceleration, have been cured or waived as
provided in Section 7.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the
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Guarantor and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and payment of such
portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any
Security of any series when such interest becomes due and payable, and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(including any sinking fund payment or analogous obligation) or
premium, if any, on any Security of any series, whether upon Maturity
or upon any redemption or by declaration or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Securities of such series, and Coupons, if any, appertaining
thereto, the whole amount then due and payable on Securities of such series and
matured Coupons, if any, appertaining thereto for principal, premium, if any,
and interest, with interest upon the overdue principal and premium, if any, and
to the extent that payment of such interest is lawful, upon overdue
installments of interest, at the rate or rates prescribed therefor by the terms
of the Securities of such series; and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, the Guarantor or any other obligor upon such Securities
and Coupons and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor or any
other obligor upon such Securities and Coupons, wherever situated.
If an Event of Default or a Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantor or any other obligor
upon the Securities and Coupons, if any, appertaining thereto or the property
of the Company, the Guarantor or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any Securities and any
amounts owed pursuant to Coupons, if any, appertaining thereto shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
or the Guarantor for payment of overdue principal, premium or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
any Securities and Coupons, if any, appertaining thereto and to file
such other papers or documents as may be necessary or advisable in
order to have the claim of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Securities of
any series and Coupons, if any, appertaining thereto allowed in such
judicial proceeding, and
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(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder
of Securities or Coupons, if any, appertaining thereto to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Security Holders, to pay to the Trustee any
amount due to it for the reasonable compensation expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 8.07. To the extent that such payment of reasonable
compensation, expenses, disbursements, advances and other amounts out of the
estate in any such proceedings shall be denied for any reason, payment of the
same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, moneys, securities and other property which the
Holders of the Securities or Coupons may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of
Securities or Coupons, if any, appertaining thereto any plan of reorganization,
arrangement, adjustment or composition affecting the Securities and Coupons, if
any, appertaining thereto or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of Securities or
Coupons, if any, appertaining thereto in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture or under the
Securities of any series or Coupons, if any, appertaining thereto may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or Coupons, if any, appertaining thereto or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities or Coupons in respect of which such judgment has been
recovered.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this
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Indenture to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Securities and Coupons in respect of which
such action was taken, and it shall not be necessary to make any Holders of
such Securities or Coupons parties to any such proceedings.
SECTION 7.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with
respect to a series of Securities or Coupons, if any, appertaining thereto
(other than sums held in trust for the benefit of the Holders of particular
Securities or Coupons) shall be applied in the following order, at the date or
dates fixed by the Trustee and in the case of the distribution of such money on
account of principal, premium, if any, or interest, upon presentation (except
in respect of Subdivision FIRST below) of the Securities of such series and
Coupons, if any, appertaining thereto, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 8.07.
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of such series and Coupons, if any, appertaining thereto
for principal, premium, if any, and interest, in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Securities of such series and Coupons, if any,
appertaining thereto, for principal, premium, if any, and interest,
respectively.
THIRD: The balance, to the Person or Persons lawfully entitled
thereto, or as a court of competent jurisdiction may direct.
SECTION 7.07. Limitation on Suits.
No Holder of any security of any series or Coupon, if any, appertaining
thereto shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continued Event of Default or a Default with respect to
Securities of such series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default or Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceedings; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series or Coupons, if any, appertaining thereto shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb, or prejudice the rights of any other Holders of
Securities of such series or Coupons, if any, appertaining thereto or to obtain
or to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of Securities of such
series and Coupons, if any, appertaining thereto.
SECTION 7.08. Unconditional Right of Security Holders To
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon, if any, appertaining thereto shall have the right which
is absolute and unconditional to receive payment of the principal of and
premium, if any, and (subject to Section 3.07) interest on such Security or a
Coupon on the respective Stated Maturities expressed in such Security or Coupon
(or, in the case of redemption or repayment, on the Redemption Date or
Repayment Date, as the case may be) at the respective places, at the respective
times, at the respective rates, in the respective amounts and in the coin,
currency, or currency unit therein and herein prescribed, and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
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SECTION 7.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or Coupon, if any,
appertaining thereto has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder of any Security or Coupon, if any, appertaining thereto, then and
in every such case the Company, the Guarantor, the Trustee and the Holders of
any Security or Coupons, if any, appertaining thereto shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and such Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders of any Securities or Coupons, if any, appertaining thereto is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon, if any, appertaining thereto to exercise any right or remedy accruing
upon any Event of Default or any Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders of any Security or Coupon, if any, appertaining
thereto may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by such Holders, as the case may be.
SECTION 7.12. Control by Security Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or
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power conferred on the Trustee under this Indenture with respect
to Securities of such series, provided that
(1) such direction shall not be in conflict with any statute or
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which it determines
might involve it in personal liability or would be unduly prejudicial
to the Holders of Securities of such series not joining in such
direction.
SECTION 7.13. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of or premium, if any, or
interest on any Security of such series or Coupon, if any, appertaining
thereto, or in the payment of any sinking fund installment or analogous
obligation with respect to Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default or Default arising therefrom shall be deemed to have been cured, for
every purpose in respect of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
SECTION 7.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
Coupon, if any, appertaining thereto by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
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of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder of
any Security, or group of Holders of any Security, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or Coupons, if any,
appertaining thereto for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security or Coupon, if any, appertaining
thereto on or after the respective Stated Maturities expressed in such Security
or Coupon (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date, as the case may be).
SECTION 7.15. Waiver of Stay or Extension Laws.
The Company and the Guarantor covenant (to the extent that they may
lawfully do so) that they will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of any stay or
extension law wherever enacted, now or any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
the Guarantor (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and covenant that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 7.16. Judgment Currency.
If for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company or the Guarantor hereunder or under any Security
or Coupon it shall become necessary to convert into any other currency or
currency unit any amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall be made at the
Conversion Rate as in effect on the date the Company or the Guarantor shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than the date payment
is made and there shall occur a change between such Conversion Rate and the
Conversion Rate as in effect on the date of payment, the Company and the
Guarantor agree to pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is the amount in such other currency or currency
unit which, when converted at the
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Conversion Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Security or Coupon. Any amount due from
the Company or the Guarantor under this Section 7.16 shall be due as a separate
debt and is not to be affected by or merged into any judgment being obtained
for any other sums due hereunder or in respect of any Security or Coupon. In no
event, however, shall the Company or the Guarantor be required to pay more in
the currency or currency unit due hereunder or under such Security or Coupon at
the Conversion Rate as in effect when payment is made than the amount of
currency or currency unit stated to be due hereunder or under such Security or
Coupon so that in any event the Company's and the Guarantor's obligations
hereunder or under such Security or Coupon will be effectively maintained as
obligations in such currency or currency unit.
For purposes of this Section 7.16, "Conversion Rate" shall mean the
spot rate at which in accordance with normal banking procedures the currency or
currency unit into which an amount due hereunder or under any Security or
Coupon is to be converted could be purchased with the currency or currency unit
due hereunder or under any Security or Coupon from major banks located in New
York, London or any other principal market for such purchased currency or
currency unit.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.
(a) The Trustee shall comply with, and be subject to, the provisions of
Section 315 of the Trust Indenture Act.
(b) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
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SECTION 8.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to any series of Securities, the Trustee shall transmit in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, notice
of such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of or premium, if any, or interest on any
Security of such series, or in the payment of any sinking fund installment or
analogous obligation with respect to the Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of Securities of
such series and any Coupons appertaining thereto; and provided, further, that
in the case of any default of the character specified in Section 7.01(3) no
such notice to Holders of Securities of such series shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default or a Default.
SECTION 8.03. Certain Rights of Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, direction, consent, order, bond,
debenture or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request
or Company Order or a Guarantor Request or a Guarantor Order and any
resolution of a Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate and an
Opinion of Counsel;
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(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities or Coupons, if any,
appertaining thereto pursuant to this Indenture, unless such Holders of
Securities or Coupons, if any, appertaining thereto shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company and the Guarantor, personally or by agent or attorney;
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 8.04. Not Responsible for Recitals or Issuance
of Securities and Guarantees.
The recitals contained herein and in the Securities and Guarantees,
except the certificates of authentication, shall be taken as the statement of
the Company or the Guarantor, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities or
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Coupons, if any, appertaining thereto or the Guarantees. The Trustee shall not
be accountable for the use or application by the Company or the Guarantor of
Securities or the proceeds thereof.
SECTION 8.05. May Hold Securities.
The Trustee, any Paying Agent, Securities Registrar, or any other agent
of the Company or the Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons and, subject to Sections
8.08 and 8.13, may otherwise deal with the Company and the Guarantor with the
same rights it would have if it were not Trustee, Paying Agent, Securities
Registrar or such other agent.
SECTION 8.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor.
SECTION 8.07. Compensation and Reimbursement.
The Company and the Guarantor jointly and severally agree:
(1) to pay to the Trustee from time to time in Dollars
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee in Dollars upon its request for
all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with
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the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company and
the Guarantor under this Section the Trustee shall have a lien prior to the
Securities and Coupons, if any, appertaining thereto and Guarantees upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of or premium or interest on particular
Securities and Coupons, if any, appertaining thereto.
SECTION 8.08. Qualification of Trustee; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series other than that
series. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 8.09. Persons Eligible for Appointment as Trustee.
There shall at all times be a Trustee for each series of Securities
hereunder which shall at all times be either
(i) a corporation organized and doing business under the laws
of the United States of America or of any State or the District of
Columbia which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority; or
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees'
in either case having a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition
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at least annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company, the Guarantor, nor any person
directly or indirectly controlling, controlled by, or under common control with
the Company or the Guarantor shall serve as trustee for the Securities of any
series issued hereunder. In case at any time the Trustee for the Securities of
any series shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.10.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any
series and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
under Section 8.11.
(b) The Trustee may resign with respect to one or more series at any
time by giving written notice thereof to the Company and the Guarantor. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of Securities
at any time by Act of the Holders of a majority in principal amount of the
outstanding Securities of such series delivered to the Trustee and to the
Company and the Guarantor.
(d) It at any time
(1) the Trustee shall fail to comply with Section 8.08 with
respect to any series of Securities after written request therefor by
the Company or the Guarantor or by any Security Holder who has been a
bona fide Holder of a Security of such series for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 8.09
with respect to any series of Securities and shall fail to resign after
written request therefor by the Company or the Guarantor or by any such
Security Holder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Securities or shall be adjudged a
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bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company or the Guarantor, by a Board
Resolution, may remove the Trustee with respect to such series or (ii) subject
to Section 7.14, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee with
respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company or the Guarantor, by a Board Resolution, shall promptly appoint a
successor Trustee with respect to such series of Securities. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company, the Guarantor
and the retiring Trustee with respect to such series, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to such series and supersede the successor
Trustee appointed by the Company or the Guarantor. If no successor Trustee with
respect to such series shall have been so appointed by the Company, the
Guarantor or the Holders of Securities of such series and have accepted
appointment in the manner hereinafter provided, any Security Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(f) The Company or the Guarantor shall give notice of each resignation
and each removal of the Trustee with respect to any series and each appointment
of a successor Trustee with respect to any series, in the manner specified in
Section 1.06, to the Holders of Securities, and Coupons, if any, appertaining
thereto, of such series. Each notice shall include the name of the successor
Trustee and the address of its Principal Corporate Trust Office.
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SECTION 8.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company, the Guarantor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective with respect to all series as to
which it is thereby resigning as Trustee and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the resigning Trustee with respect to all or any
such series; but, on request of the Company, the Guarantor or such successor
Trustee, such resigning Trustee shall, upon payment of its outstanding charges
and expenses, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee with respect
to all or any such series, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 8.07. Upon request of any such successor
Trustee, the Company and the Guarantor shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of any applicable series may execute and deliver an indenture
supplemental hereto containing such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of any series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and adding to or changing any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in any such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to such series under this
Article.
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SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee.
Any corporation into which the Trustee for the Securities of any series
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims
Against Company and Guarantor.
The Trustee shall comply with the requirements of Section 311 of the
Trust Indenture Act and any rules or regulations promulgated by the Commission
thereunder.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without
Consent of Security Holders.
Without the consent of the Holders of any Securities, the Company and
the Guarantor, when authorized by a Board Resolution, and the Trustee for the
Securities of any or all series, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the Guarantor, and the assumption by any such successor of
the covenants and obligations of the Company or the Guarantor herein
and in the Securities or the Guarantees contained;
(2) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder with respect to
one or more series of Securities
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and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to Section
8.11;
(3) to add to the covenants and agreements of the Company or
the Guarantor for the benefit of the Holders of all or any series of
Securities and the Coupons, if any, appertaining thereto (if such
covenants are for less than all series, stating that such covenants are
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company or the Guarantor provided that such
action shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding and the Holders of the
Coupons, if any, appertaining thereto;
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture provided such other
provisions shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding and Coupons, if any,
appertaining thereto;
(5) to secure the Securities in accordance with the provisions
of Section 5.08;
(6) to establish any additional form of Security, as permitted
by Section 2.03, and to provide for the issuance of any additional
series of Securities and Coupons, if any, appertaining thereto as
permitted by Section 3.01, and to set forth the terms thereof;
(7) to permit payment in the United States of principal,
premium or interest on Unregistered Securities or of interest on Coupon
Securities; or
(8) to provide for the issuance of uncertificated Securities of
one or more series in the place of certificated Securities.
The Trustee with respect to any series of Securities affected by such
supplemental indenture is hereby authorized to join with the Company and the
Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the
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Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. Supplemental Indentures with
Consent of Security Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series (voting as one
class) affected by such supplemental indenture or indentures, by Act of said
Holders delivered to the Company, the Guarantor and the Trustee, the Company
and the Guarantor, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Maturity of the principal of, or the Stated
Maturity of, or any installment of interest on, any Security, or reduce
the principal amount thereof (including in the case of an Original
Issue Discount Security the amount payable upon acceleration of the
Maturity thereof) or any premium thereon or the rate of interest
thereon, or change the method of computing the amount of principal
thereof on any date, or eliminate a Place of Payment where, or the coin
or currency in which, any Security or any premium thereon or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Maturity or the
Stated Maturity, as the case may be, thereof (or, in the case of
redemption or a repayment, on or after the Redemption Date or the
Repayment Date, as the case may be);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) modify any of the provisions of this Section, Section 5.09
or Section 7.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby; or
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(4) modify or affect in any manner adverse to the Holders of
the Securities the terms and conditions of the obligation of the
Guarantor in respect of the due and punctual payment of the principal
of or premium or interest on the Securities.
It shall not be necessary for any Act of Security Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution and
delivery of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be and be deemed to be
modified and amended in accordance therewith, but only with regard to the
Securities of each series affected by such supplemental indenture, and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee for the Securities of such series, the
Company, the Guarantor and the Holders of any Securities of such series or any
Coupons appertaining thereto affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes with regard to the Securities of such series
and Coupons, if any, appertaining thereto.
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SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series (including any Coupons appertaining thereto)
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Guarantor shall so determine, new
Securities of any series and any Coupons appertaining thereto so modified as to
conform, in the opinion of the Trustee or the Boards of Directors of the
Company and the Guarantor, to any such supplemental indenture may be prepared
and executed by the Company, with duly executed Guarantees endorsed thereon,
and authenticated and delivered by the Trustee in exchange for the Securities
of such series and any Coupons appertaining thereto then Outstanding.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc.,
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety, to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America or any State or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest on all the Securities of each series and
the Coupons, if any, appertaining thereto and the performance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
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(2) immediately after giving effect to such transaction, no
Event of Default or Default, and no event which, after notice or lapse
of time or both, would become an Event of Default or a Default, shall
have happened and be continuing;
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with; and
(4) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the Guarantees
remain in full force and effect.
SECTION 10.02. Successor Corporation Substituted for Company.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein.
In the event of any such conveyance or transfer, the Person named as
the "Company" in the first paragraph of this instrument or any successor which
shall theretofore have become such in the manner prescribed in this Article may
be dissolved, wound-up and liquidated at any time thereafter, and such Person
thereafter shall be released from its liabilities as obligor and maker of all
the securities and from its obligations under this Indenture.
SECTION 10.03. Guarantor May Consolidate, etc.,
Only on Certain Terms.
The Guarantor shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Guarantor is merged or the Person which acquires by conveyance or
transfer the properties and
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assets of the Guarantor substantially as an entirety shall be a
corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual performance of the obligations of the Guarantor and the
performance of every covenant of this Indenture on the part of the
Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or Default, and no event which, after notice or lapse
of time or both, would become an Event of Default or a Default, shall
have happened and be continuing; and
(3) the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 10.04. Successor Corporation Substituted for Guarantor.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Guarantor substantially as an entirety in
accordance with Section 10.03, the successor corporation formed by such
consolidation or into which the Guarantor is merged or to which such conveyance
or transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Guarantor under this Indenture with the same
effect as if such successor corporation had been named as the Guarantor herein.
In the event of any such conveyance or transfer, the Person named as
the Guarantor ion the first paragraph of this instrument or any successor which
shall theretofore have become such in the manner prescribed in this Article may
be dissolved, wound-up and liquidated at any time thereafter, and such Person
thereafter shall be released from its liabilities as Guarantor and from its
obligations under this Indenture.
SECTION 10.05. Company May Consolidate, etc. with
Guarantor, Only on Certain Terms.
The Company shall not consolidate with or merge into the Guarantor or
convey or transfer its properties and assets substantially as an entirety to
the Guarantor, unless:
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(1) the Guarantor shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual performance of the
obligations of the Company and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or Default, and no event which, after notice or lapse
of time or both, would become an Event of Default or a Default, shall
have happened and be continuing; and
(3) the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Satisfaction and Discharge of Securities of
Any Series.
Except as otherwise provided for the Securities of any series
established pursuant to Section 3.01(18), the Company and the Guarantor shall
be deemed to have satisfied and discharged the entire indebtedness on all the
Outstanding Securities of any particular series and the Coupons, if any,
appertaining thereto, and the Trustee, at the expense of the Company and the
Guarantor and upon Company Request, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(1) either
(A) all Outstanding Securities of such series theretofore
authenticated and delivered and the Coupons, if any, appertaining
thereto (other than (i) any Securities of such series or Coupons which
have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.06 and (ii) Outstanding Securities of
such series or Coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in
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Sections 5.03 and 11.04) have been delivered to the
Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
and the Coupons, if any, appertaining thereto, described in (A) above
not theretofore delivered to the Trustee for cancellation:
(i) the Company or the Guarantor has deposited or caused to
be deposited with the Trustee as trust funds in trust an amount
in the currency or currency unit in which the Securities of such
series are denominated (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except as
provided in Sections 3.11(b), 3.11(e) and 3.11(f) hereof)
sufficient to pay and discharge the entire indebtedness on all
such Outstanding Securities of such series for principal (and
premium, if any) and interest to the Stated Maturity or any
Redemption Date as contemplated by Section 11.03, as the case
may be; or
(ii) the Company or the Guarantor has deposited or caused to
be deposited with the Trustee as obligations in trust such
amount of Government Obligations as will, in a written opinion
of independent public accountants delivered to the Trustee,
together with the predetermined and certain income to accrue
thereon (without consideration of any reinvestment thereof), be
sufficient to pay and discharge when due the entire indebtedness
on all such Outstanding Securities of such series and the
Coupons, if any, appertaining thereto, for unpaid principal (and
premium, if any) and interest to the Stated Maturity or any
Redemption Date as contemplated by Section 11.03, as the case
may be;
(2) the Company or the Guarantor has paid or caused to be paid
all other sums payable with respect to the Outstanding Securities of
such series and the Coupons, if any, appertaining thereto;
(3) the Company or the Guarantor has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to due
satisfaction and discharge of the entire indebtedness on all
Outstanding Securities of any such series and the Coupons, if any,
appertaining thereto, have been complied with; and
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(4) if the Securities of such series and the Coupons, if any,
appertaining thereto, are not to become due and payable at their Stated
Maturity within one year of the date of such deposit or are not to be
called for redemption within one year of the date of such deposit under
arrangements satisfactory to the Trustee as of the date of such
deposit, then the Company and the Guarantor shall have given, not later
than the date of such deposit, notice of such deposit to the Holders of
the Securities of such series and the Coupons, if any, appertaining
thereto.
Upon the satisfaction of the conditions set forth in this Section 11.01
with respect to all the Outstanding Securities of any series and the Coupons,
if any, appertaining thereto, the terms and conditions of such series,
including the terms and conditions with respect thereto set forth in this
Indenture, shall no longer be binding upon, or applicable to, the Company or
the Guarantor, and the Holders of the Securities of such series shall look for
payment only to the funds or obligations deposited with the Trustee pursuant to
Section 11.01(1)(B); provided, however, that the Company and the Guarantor
shall not be discharged from (a) any payment obligations in respect of
Securities of such series which are deemed not to be Outstanding under clause
(c) of the definition thereof and the Coupons, if any, appertaining thereto, if
such obligations continue to be valid obligations of the Company and the
Guarantor under applicable law, (b) any obligations under Sections 8.07 and
8.10 and (c) any obligations under section 3.05 or 3.06 (except that Securities
of such series issued upon registration of transfer or exchange or Securities
or Coupons, if any, appertaining thereto issued in lieu of mutilated, lost,
destroyed or stolen Securities or Coupons shall not be obligations of the
Company or the Guarantor) and Section 6.01; and provided further that in the
event a petition for relief under the Bankruptcy Reform Act of 1978 or a
successor statute is filed with respect to the Company or the Guarantor within
91 days after the deposit, the entire indebtedness on all Securities of such
series and the Coupons, if any, appertaining thereto shall not be discharged,
and in such event the Trustee shall return such deposited funds or obligations
as it is then holding to the Company or the Guarantor upon Company Request or
Guarantor Request, as applicable; and provided further that if the Trustee or
Paying Agent is unable to apply any money in accordance with Section 11.03 by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations of the Company and the Guarantor under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 11.03, but if the
Company or the Guarantor makes any payment of interest on or principal of any
Security following the
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reinstatement of its obligations, the Company and the Guarantor shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent. Notwithstanding the
satisfaction of the conditions set forth in this Section 11.01 with respect to
all the Securities of any series not denominated in Dollars, upon the happening
of any event specified in Section 3.11(e) the Company and the Guarantor shall
be obligated to make the payments in Dollars required by Section 3.11(e) to the
extent that the Trustee is unable to convert any Foreign Currency or currency
unit in its possession pursuant to Section 11.01(1) (B) into the Dollar
Equivalent of the Foreign Currency or the Dollar Equivalent of the Currency
Unit, as the case may be. The Trustee shall return to the Company or the
Guarantor any non-converted funds or securities in its possession after such
payments have been made.
SECTION 11.02. Satisfaction and Discharge of Indenture.
Upon compliance by the Company and the Guarantor with the provisions of
Section 11.01 as to the satisfaction and discharge of each series of Securities
issued hereunder and the Coupons, if any, appertaining thereto, and if the
Company and the Guarantor have paid or caused to be paid all other sums payable
under this Indenture, this Indenture shall cease to be of any further effect
(except as otherwise provided herein). Upon Company Request and receipt of an
Opinion of Counsel, an Officers' Certificate and, if appropriate under the
circumstances, an opinion of independent public accountants (and at the expense
of the Company), the Trustee shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company or the Guarantor under Sections 3.05, 3.06, 6.01,
8.07 and 8.10, any obligations of the Company or the Guarantor under Section
3.11(d) to deliver an Exchange Rate Officer's Certificate and the obligations
of the Trustee under Section 11.03 shall survive.
SECTION 11.03. Application of Trust Money.
All money and obligations deposited with the Trustee pursuant to
Section 11.01 shall be held irrevocably in trust and shall be made under the
terms of an escrow trust agreement in form and substance satisfactory to the
Trustee. Such money and obligations shall be applied by the Trustee, in
accordance with the provisions of the Securities, this Indenture and such
escrow trust agreement, to the payment, either directly or through any Paying
Agent (including the Company or Guarantor acting as its own Paying Agent) as
the Trustee may determine, to the Persons
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entitled thereto, of the principal of (and premium, if any) and interest, if
any, on the Securities and the Coupons, if any, appertaining thereto for the
payment of which such money and obligations have been deposited with the
Trustee. If Securities of any series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provision or in
accordance with any mandatory sinking fund requirement, the Company or
Guarantor shall make such arrangements as are satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company or Guarantor.
SECTION 11.04. Repayment of Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series and the Coupons, if any, appertaining
thereto, all moneys with respect to such series then held by any Paying Agent
for such series under the provisions of this Indenture with respect to such
series of Securities shall, upon demand of the Company or Guarantor, be repaid
to it or paid to the Trustee and thereupon such Paying Agent shall be released
from all further liability with respect to such moneys.
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Subordinated Debt Securities Subordinated
to Senior Company Indebtedness.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Subordinated Debt Securities and Coupons, if any,
appertaining thereto by his acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and interest on each and all of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior Company
Indebtedness.
SECTION 12.02. Payments upon Dissolution of the Company.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities
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of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture or any supplemental indenture issued pursuant to Section 3.01
upon the Senior Company Indebtedness and the holders thereof with respect to
the Subordinated Debt Securities and Coupons, if any, appertaining thereto and
the Holders thereof by a lawful plan of reorganization under applicable
bankruptcy law),
(i) the holders of all Senior Company Indebtedness shall first
be entitled to receive payment in full in accordance with the terms of
such Senior Company Indebtedness of the principal thereof, premium, if
any, and the interest due thereon (including interest accruing
subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the
Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto are entitled to receive any payment upon the
principal of or premium, if any, or interest on indebtedness evidenced
by the Subordinated Debt Securities and Coupons, if any, appertaining
thereto;
(ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto would be entitled except for the provisions
of this Article Twelve, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of
the Subordinated Debt Securities and Coupons, if any, appertaining
thereto, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Company Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Company
Indebtedness may have been issued, in accordance with the priorities
then existing among holders of Senior Company Indebtedness for payment
of the aggregate amounts remaining unpaid on account of the principal,
premium, if any, and interest (including interest accruing subsequent
to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) on the Senior
Company Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior
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Company Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Company Indebtedness; it being understood that if the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto
shall fail to file a proper claim in the form required by any
proceeding referred to in this subparagraph (ii) prior to 30 days
before the expiration of the time to file such claim or claims, then
the holders of Senior Company Indebtedness are hereby authorized to
file an appropriate claim or claims for and on behalf of the Holders of
the Subordinated Debt Securities and Coupons, if any, appertaining
thereto, in the form required in any such proceeding; and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinate to the payment of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto shall be received by the Trustee
or Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto before all Senior Company Indebtedness is paid in
full, such payment or distribution shall be paid over to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment of assets of the Company for all Senior
Company Indebtedness remaining unpaid until all such Senior Company
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Company Indebtedness.
Subject to the payment in full of all Senior Company Indebtedness, the Holders
of the Subordinated Debt Securities and Coupons, if any, appertaining thereto
shall be subrogated to the rights of the holders of Senior Company Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Company Indebtedness until the principal of
and premium, if any, and interest on the Subordinated Debt Securities and
Coupons, if any, appertaining thereto shall be paid in full and no such
payments or distributions to holders of such Senior Company Indebtedness to
which the Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto would be entitled except for the provisions hereof of
cash, property or securities otherwise distributable to the Senior Company
Indebtedness shall, as between the Company, its creditors, other than the
holders of Senior Company Indebtedness, and the Holders of the Subordinated
Debt Securities and Coupons, if any, appertaining thereto, be deemed to be a
payment by the Company to
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or on account of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto. It is understood that the provisions of this Article
Twelve (other than Sections 12.04, 12.05 and 12.06) are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto, on the
one hand, and the holders of Senior Company Indebtedness, on the other hand.
Nothing contained in this Article Twelve or elsewhere in this Indenture, any
supplemental indenture issued pursuant to Section 3.01, or in the Subordinated
Debt Securities and Coupons, if any, appertaining thereto is intended to or
shall impair, as between the Company, its creditors, other than the holders of
Senior Company Indebtedness, and the Holders of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto the
principal of, premium, if any, and interest on the Subordinated Debt Securities
and Coupons, if any, appertaining thereto as and when the same shall become due
and payable in accordance with their terms or to affect the relative rights of
the Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto and creditors of the Company, other than the holders of
the Senior Company Indebtedness, nor shall anything herein or in the
Subordinated Debt Securities and Coupons, if any, appertaining thereto prevent
the Trustee or the Holder of any Subordinated Debt Securities and Coupons, if
any, appertaining thereto from exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture, subject to the rights, if
any, under this Article Twelve of the holders of Senior Company Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of assets of the
Company referred to in this Article Twelve, the Trustee and the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceeding
is pending or upon a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Company Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Twelve. In the absence of any such liquidating trustee, agent
or other person, the Trustee shall be entitled to rely upon a written notice by
a Person representing himself to be a holder of Senior Company Indebtedness (or
a trustee or representative on behalf of such holder) as evidence that such
Person is a holder of Senior Company
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Indebtedness (or is such a trustee or representative). In the event that the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person, as a holder of Senior Company Indebtedness,
to participate in any payment or distribution pursuant to this Article Twelve,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Company Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts pertinent
to the rights of such Person under this Article Twelve, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
The obligation of the Company in respect to the Subordinated Debt
Securities and Coupons, if any, appertaining thereto shall rank on a parity
with any other obligations of the Company ranking on a parity with the
Subordinated Debt Securities, including the Company's 9-7/8% Subordinated Notes
Due 2001.
With respect to the holders of Senior Company Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Company Indebtedness shall be
read into this Article 12 against the Trustee; provided that nothing contained
herein shall derogate from covenants or obligations contained in this
Indenture, or any supplemental indenture issued pursuant to Section 3.01, with
respect to Senior Company Indebtedness that is issued as a series of Securities
under this Indenture. The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Company Indebtedness by reason of the
execution of this Indenture, or any supplemental indenture issued pursuant to
Section 3.01, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to or on behalf of Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto or the
Company moneys or assets to which any holders of Senior Company Indebtedness
shall be entitled by virtue of this Article Twelve.
SECTION 12.03. No Payment When Senior Company
Indebtedness in Default.
In the event and during the continuation of any default in the payment
of principal of, or premium, if any, or interest on, any Senior Company
Indebtedness, beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Company Indebtedness shall have
occurred and be continuing, or would occur as a result of the payment referred
to
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hereinafter, permitting the holders of such Senior Company Indebtedness (or a
trustee on behalf of the holders thereof) to accelerate the maturity thereof,
then, unless and until such default or event of default shall have been cured
or waived or shall have ceased to exist, no payment or principal of or interest
on the Subordinated Debt Securities and Coupons, if any, appertaining thereto,
or in respect of any retirement, purchase or other acquisition of any of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto, shall
be made by the Company.
SECTION 12.04. Guarantees of Subordinated Debt Securities
Subordinated to Senior Guarantor Indebtedness.
The Guarantor, for itself, its successors and assigns, covenants and
agrees, and each Holder of Guarantees of Subordinated Debt Securities and
Coupons, if any, appertaining thereto by his acceptance thereof likewise
covenants and agrees, that the payment of the principal of and interest on each
and all of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto pursuant to the Guarantees thereof is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Guarantor Indebtedness.
SECTION 12.05. Payments upon Dissolution of the Guarantor.
Upon any distribution of assets of the Guarantor upon any dissolution,
winding up, liquidation or reorganization of the Guarantor, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Guarantor or otherwise (subject to the power of a court
of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture or any supplemental indenture issued
pursuant to Section 3.01 upon the Senior Guarantor Indebtedness and the holders
thereof with respect to the Guarantees of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto and the Holders thereof by a lawful plan
of reorganization under applicable bankruptcy law),
(i) the holders of all Senior Guarantor Indebtedness shall
first be entitled to receive payment in full in accordance with the
terms of such Senior Guarantor Indebtedness of the principal thereof,
premium, if any, and the interest due thereon (including interest
accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Guarantor under any applicable
bankruptcy, insolvency, or similar law now or
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hereafter in effect) before the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto
are entitled to receive any payment upon the principal of or premium,
if any, or interest on indebtedness evidenced by the Subordinated Debt
Securities and Coupons, if any, appertaining thereto pursuant to the
Guarantees thereof;
(ii) any payment or distribution of assets of the Guarantor of
any kind or character, whether in cash, property or securities, to
which the Holders of the Guarantees or the Subordinated Debt Securities
and Coupons, if any, appertaining thereto or the Trustee would be
entitled except for the provisions of this Article Twelve, including
any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Guarantor being
subordinated to the payment of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Guarantor Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Guarantor Indebtedness may have been
issued, in accordance with the priorities then existing among holders
of Senior Guarantor Indebtedness for payment of the aggregate amounts
remaining unpaid on account of the principal, premium, if any, and
interest (including interest accruing subsequent to the commencement of
any proceeding for the bankruptcy or reorganization of the Company
under any applicable bankruptcy, insolvency, or similar law now or
hereafter in effect) on the Senior Guarantor Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Guarantor Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Guarantor Indebtedness; it being understood that if the Holders of the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall fail to file a proper claim in the form
required by any proceeding referred to in this subparagraph (ii) prior
to 30 days before the expiration of the time to file such claim or
claims, then the holders of Senior Guarantor Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of
the Holders of the Guarantees of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto, in the form required in any such
proceeding; and
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(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Guarantor of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Guarantor being
subordinate to the payment of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto shall be received
by the Trustee or Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto before all Senior
Guarantor Indebtedness is paid in full, such payment or distribution
shall be paid over to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment of
assets of the Guarantor for all Senior Guarantor Indebtedness remaining
unpaid until all such Senior Guarantor Indebtedness shall have been
paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Guarantor Indebtedness.
Subject to the payment in full of all Senior Guarantor Indebtedness, the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto shall be subrogated to the rights of the holders of
Senior Guarantor Indebtedness to receive payments or distributions of cash,
property or securities of the Guarantor applicable to the Senior Guarantor
Indebtedness until the principal of and premium, if any, and interest on the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall be paid in full and no such payments or
distributions to holders of such Senior Guarantor Indebtedness to which the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto would be entitled except for the provisions hereof of
cash, property or securities otherwise distributable to the Senior Guarantor
Indebtedness shall, as between the Guarantor, its creditors, other than the
holders of Senior Guarantor Indebtedness, and the Holders of the Guarantees of
the Subordinated Debt Securities and Coupons, if-any, appertaining thereto, be
deemed to be a payment by the Guarantor to or on account of the Guarantees of
the Subordinated Debt Securities and Coupons, if any, appertaining thereto. It
is understood that the provisions or this Article Twelve (other than Sections
12.01, 12.02 and 12.03) are and are intended solely for the purpose of defining
the relative rights of the Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto, on the one hand, and the
holders of Senior Guarantor Indebtedness, on the other hand. Nothing contained
in this Article Twelve or elsewhere in this Indenture, any supplemental
indenture issued pursuant to Section 3.01, or in the Subordinated Debt
Securities and Coupons, if any, appertaining thereto or the
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Guarantees thereof is intended to or shall impair, as between the Guarantor,
its creditors, other than the holders of Senior Guarantor Indebtedness, and the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto the obligation of the Guarantor, which is
unconditional and absolute, to pay to the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto the
principal, premium, if any, and interest on the Subordinated Debt Securities
and Coupons, if any, appertaining thereto, pursuant to the Guarantees thereof,
as and when the same shall become due and payable in accordance with their
terms or to affect the relative rights of the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and
creditors of the Guarantor, other than the holders of the Senior Guarantor
Indebtedness, nor shall anything herein or in the Subordinated Debt Securities
and Coupons, if any, appertaining thereto or the Guarantees thereof prevent the
Trustee or the Holder of any Guarantee of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of Senior Guarantor
Indebtedness in respect of cash, property or securities of the Guarantor
received upon the exercise of any such remedy. Upon any payment or distribution
of assets of the Guarantor referred to in this Article Twelve, the Trustee and
the Holders of the Guarantees of the Subordinated Debt Securities and Coupons,
if any, appertaining thereto shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceeding is pending or upon a certificate of
the liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of the Guarantees of the Subordinated Debt Securities
and Coupons, if any, appertaining thereto for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders or the Senior
Guarantor Indebtedness and other indebtedness of the Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve. In the absence
of any such liquidating trustee, agent or other person, the Trustee shall be
entitled to rely upon a written notice by a Person representing himself to be a
holder of Senior Guarantor Indebtedness (or a trustee or representative on
behalf of such holder) as evidence that such Person is a holder of Senior
Guarantor Indebtedness (or is such a trustee or representative). In the event
that the Trustee determines, in good faith, that further evidence is required
with respect to the right of any Person, as a holder of Senior Guarantor
Indebtedness, to participate in any payment or distribution pursuant to this
Article Twelve, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Guarantor
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Indebtedness held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Article Twelve, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
The obligation of the Guarantor in respect to the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto shall
rank on a parity with the Guarantor's 8-1/4% Convertible Subordinated
Debentures Due 2008, the Guarantor's Floating Rate Subordinated Notes Due 1997,
the Citizens Fidelity Corporation Convertible Subordinated Debentures Due 2005,
and the Guarantor's Guarantee of the Company's 9-7/8% Subordinated Notes Due
2001 and any other obligations of the Guarantor ranking on a parity with the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto.
With respect to the holders of Senior Guarantor Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Guarantor
Indebtedness shall be read into this Article Twelve against the Trustee;
provided that nothing contained herein shall derogate from covenants or
obligations contained in this Indenture, or any supplemental indenture issued
pursuant to Section 3.01, with respect to Senior Guarantor Indebtedness that is
issued as a series of Securities under this Indenture. The Trustee, however,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Guarantor Indebtedness by reason of the execution of this Indenture, or any
supplemental indenture issued pursuant to Section 3.01, and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to or on
behalf of Holders of the Guarantees of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto or the Guarantor moneys or assets to
which any holders of Senior Guarantor Indebtedness shall be entitled by virtue
of this Article Twelve.
SECTION 12.06. No Payment When Senior Guarantor
Indebtedness in Default.
In the event and during the continuation of any default in the payment
of principal of, or premium, if any, or interest on, any Senior Guarantor
Indebtedness, beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Guarantor Indebtedness shall have
occurred and be continuing, or would occur as a result of the payment referred
to
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hereinafter, permitted the holders of such Senior Guarantor Indebtedness (or a
trustee on behalf of the holders thereof) to accelerate the maturity thereof,
then, unless and until such default or event of default shall have been cured
or waived or shall have ceased to exist, no payment or principal of or interest
on the Subordinated Debt Securities and Coupons, if any, appertaining thereto,
or in respect of any retirement, purchase or other acquisition of any of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto,
pursuant to the Guarantees thereof, shall be made by the Guarantor.
SECTION 12.07. No Impairment of Holders' Rights.
Nothing contained in this Indenture, any supplemental indenture issued
pursuant to Section 3.01, or in any of the Subordinated Debt Securities or
Coupons, if any, appertaining thereto or the Guarantees thereof shall (i)
impair, as between the Company and Holders of the Subordinated Debt Securities
and Coupons, if any, appertaining thereto, or as between the Guarantor and the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto, the obligations of the Company or Guarantor, as the
case may be, to make, or prevent the Company or Guarantor from making, at any
time except as provided in Sections 12.02, 12.03, 12.05 and 12.06, payments of
principal, premium, if any, or interest (including interest accruing subsequent
to the commencement of any proceeding for the bankruptcy or reorganization of
the Company or Guarantor under any applicable bankruptcy, insolvency, or
similar law now or hereafter in effect) on the Subordinated Debt Securities and
Coupons, if any, appertaining thereto, and the Guarantees thereof as and when
the same shall become due and payable in accordance with the terms of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and the
Guarantees thereof (ii) affect the relative rights of the Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and
creditors of the Company other than the holders of the Senior Company
Indebtedness or the relative rights of the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto and
creditors of the Guarantor other than the holders of Senior Guarantor
Indebtedness, (iii) prevent the Holder of any Subordinated Debt Securities and
Coupons, if any, appertaining thereto or Guarantee thereof or the Trustee from
exercising all remedies otherwise permitted by applicable law upon default
thereunder, subject to the rights, if any, under this Article Twelve of the
holders of Senior Company Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of such remedy and the
holders of Senior Guarantor Indebtedness in respect of cash, property or
securities of the Guarantor received upon the exercise of such remedy, or (iv)
prevent the application by the Trustee or any Paying Agent of
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any moneys deposited with it hereunder to the payment of or on account of the
principal of or premium, if any, or interest on the Subordinated Debt
Securities and Coupons, if any, appertaining thereto or prevent the receipt by
the Trustee or any Paying Agent of such moneys, if, prior to the third Business
Day prior to such deposit, the Trustee or such Paying Agent did not have
written notice of any event prohibiting the making of such deposit by the
Company or the Guarantor.
SECTION 12.08. Effectuation of Subordination by Trustee.
Each Holder of Subordinated Debt Securities and Coupons, if any,
appertaining thereto by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Twelve and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.09. Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other provisions
of this Indenture or any supplemental indenture issued pursuant to Section
3.01, neither the Trustee nor any Paying Agent shall be charged with knowledge
of the existence of any Senior Company Indebtedness or any Senior Guarantor
Indebtedness (other than Senior Company Indebtedness or Senior Guarantor
Indebtedness issued under this Indenture or any supplemental indenture issued
pursuant to Section 3.01) or of any event which would prohibit the making of
any payment or moneys to or by the Trustee or such Paying Agent, unless and
until a Responsible Officer of the Trustee or such Paying Agent shall have
received written notice thereof from the Company or from the holder of any
Senior Company Indebtedness or Senior Guarantor Indebtedness or from the
representative or any such holder.
SECTION 12.10. Trustee's Relation to Senior Company
Indebtedness or Senior Guarantor Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Company Indebtedness or Senior Guarantor
Indebtedness at any time held by it in its individual capacity to the same
extent as any other holder of such Senior Company Indebtedness or Senior
Guarantor Indebtedness, and nothing in this Indenture or any supplemental
indenture issued pursuant to Section 3.01 shall be construed to deprive the
Trustee of any of its rights as such holder.
<PAGE> 113
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SECTION 12.11. No Waiver of Default or Event of Default.
The failure to make a payment pursuant to the Subordinated Debt
Securities and Coupons, if any, appertaining thereto by reason of any provision
in this Article shall not be construed as preventing the occurrence of a
Default or any Event of Default.
SECTION 12.12. Claims of the Trustee.
Nothing contained in This Article Twelve shall subordinate to Senior
Company Indebtedness or Senior Guarantor Indebtedness the claims of, or
payments to, the Trustee under or pursuant to Section 8.07.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or Coupon, or for any claim based thereon
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company, the Guarantor or the Trustee or of any predecessor or successor
corporation, either directly or through the Company, the Guarantor or the
Trustee, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood and agreed that this Indenture and the obligations issued hereunder
are solely corporate obligations of the Company and the Guarantor and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers or directors, as such, of the
Company, the Guarantor or the Trustee or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or Guarantees or
implied therefrom, and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities, Coupons, or Guarantees
or implied therefrom, are hereby expressly waived and released as a
<PAGE> 114
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condition of, and as a consideration for, the execution and delivery of this
Indenture and the issue of such Securities.
ARTICLE FOURTEEN
HOLDERS' MEETINGS
SECTION 14.01. Purposes of Meetings.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to the provisions of this Article
Fourteen for any of the following purposes:
(1) to give any notice to the Company, the Guarantor, or the
Trustee for the Securities of such series, or to give any directions to
the Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of
Article Seven;
(2) to remove the Trustee for such series and nominate a
successor trustee pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be,
under any other provision of this Indenture or under applicable law.
SECTION 14.02. Call of Meetings by Trustee.
The Trustee for the Securities of any series may at any time call a
meeting of Holders of Securities of such series to take any action specified in
Section 14.01 to be held at such time and at such place in the Borough of
Manhattan, the City of New York, or such other Place of Payment, as the Trustee
for such series shall determine. Notice of every meeting of the Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given to Holders of Securities of such series in the manner and to the extent
provided in Section 1.06.
<PAGE> 115
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Such notice shall be given not less than 20 nor more than 90 days prior to the
date fixed for the meeting.
SECTION 14.03. Call of Meetings by Company, Guarantor or Holders.
In case at any time The Company or the Guarantor, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any or all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of
Securities of any or all series, as the case may be, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee for such series shall not have given the notice of such meeting
within 20 days after receipt of such request, then the Company, the Guarantor
or such Holders may determine the time and the place in the Borough of
Manhattan or other Place of Payment for such meeting and may call such meeting
to take any action authorized in Section 14.01 by giving notice thereof as
provided in Section 14.02.
SECTION 14.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a person shall be (a)
a Holder of one or more Securities with respect to which such meeting is being
held or (b) a person appointed by an instrument in writing as proxy by such
Holder. The only persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee for the Securities of the
series with respect to which such meeting is being held and its counsel and any
representatives of the Company, the Guarantor and their counsel; provided,
however, that representatives of the Trustee shall be entitled during a meeting
of Holders to meet with the Holders outside the presence of representatives of
the Company, the Guarantor and their counsel.
SECTION 14.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee for
the Securities of any series may make such reasonable regulations as it may
deem advisable for any meeting of Holders of the Securities of such series, in
regard to proof of the holding of Securities of such series and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, The submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
<PAGE> 116
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The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting unless the meeting shall have been called by the
Company, the Guarantor or by Holders of the Securities of such series as
provided in Section 14.03, in which case the Company, the Guarantor or the
Holders calling the meeting as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by majority vote of the meeting.
At any meeting each Holder of Securities with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
1,000 (in the currency or currency unit in which such Securities are
denominated) principal amount (in the case of Original Issue Discount
Securities, such principal amount to be determined as provided in the
definition of "Outstanding") of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any such Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities of such series
held by him or instruments in writing aforesaid duly designating him as the
person to vote on behalf of other Holders of such series. At any meeting of
Holders, the presence of persons holding or representing Securities with
respect to which such meeting is being held in an aggregate principal amount
sufficient to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a quorum is
present, the persons holding or representing a majority in aggregate principal
amount of such Securities represented at the meeting may adjourn such meeting
with the same effect, for all intents and purposes, as though a quorum had been
present. Any meeting of Holders of Securities with respect to which a meeting
was duly called pursuant to the provisions of Section 14.02 or Section 14.03
may be adjourned from time to time by a majority of such Holders present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 14.06. Voting.
The vote upon any resolution submitted to any meeting of Holders of
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Securities
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at
the meeting. A record
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in triplicate of the proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 14.02. The record shall show the serial numbers
of the Securities voting in favor of or against any resolution. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the triplicates shall be delivered to each
of the Company and the Guarantor and the other to the Trustee to be preserved
by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 14.07. No Delay of Rights by Meeting.
Nothing contained in this Article Fourteen shall be deemed or construed
to authorize or permit by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities of any series.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
PNC FUNDING CORP
by /s/ WILLIAM J. JOHNS
--------------------------
Authorized Officer
(CORPORATE SEAL)
Attest: /s/ WILLIAM F. STROME
-------------------------
(Asst.) Secretary
<PAGE> 118
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PNC FINANCIAL CORP
by /s/ R. HAUNSCHILD
------------------------
Authorized Officer
(CORPORATE SEAL)
Attest: /s/ WILLIAM F. STROME
------------------------
(Asst.) Secretary
MANUFACTURERS HANOVER TRUST
COMPANY
by /s/ W. B. DODGE
-------------------------
Vice President
(CORPORATE SEAL)
Attest: /s/ ANNE G. BRENNER
-------------------------
Assistant Vice President
<PAGE> 119
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COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ALLEGHENY )
On this 16th day of December, 1991, before me personally appeared
William J. Johns , to me known, who, being by me duly sworn, did depose and say
that he resides at 215 Orr Road, Pittsburgh, PA 15241 ; that he is Vice
President of PNC FUNDING CORP, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ MARIANNE S. DEAN
--------------------------
[Notary Public]
(NOTARIAL SEAL)
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ALLEGHENY )
On this 16th day of December, 1991, before me personally appeared
Robert L. Haunschild , to me known, who, being by me duly sworn, did depose and
say that he resides at 156 Valley Road, Wexford, PA 15090 ; that he is Sr. Vice
President of PNC FINANCIAL CORP, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ MARIANNE S. DEAN
--------------------------
[Notary Public]
(NOTARIAL SEAL)
<PAGE> 120
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 17th day of December, 1991, before me personally appeared W.B.
Dodge , to me known, who, being by me duly sworn, did depose and say that he
resides at 3582 Kenora Pl., Seaford, N.Y.,; that he is Vice President of
MANUFACTURERS HANOVER TRUST COMPANY, one of the corporations described in and
which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ ALICIA CASTELLE
----------------------------
[Notary Public]
(NOTARIAL SEAL)
<PAGE> 1
Exhibit 4.8
SUPPLEMENTAL INDENTURE ("Supplemental Indenture")
dated as of February 15, 1993
to
INDENTURE ("Indenture")
dated as of December 1, 1991
by and among
PNC FUNDING CORP ("Company")
PNC BANK CORP. (formerly known as
PNC Financial Corp) ("Guarantor")
and
CHEMICAL BANK (successor by merger to
Manufacturers Hanover Trust Company) ("Trustee")
WHEREAS, Section 9.01(4) of the Indenture provides that the Indenture
may be supplemented without consent of the Holders of any Securities to, among
other things, make any provisions with respect to matters arising under the
Indenture, provided such provisions shall not adversely affect the interests of
the Holders of Securities of any series then Outstanding and Coupons, if any,
appertaining thereto; and
WHEREAS, the Company and the Guarantor desire to amend certain terms
of the Indenture with respect to any series of Subordinated Debt Securities and
Coupons, if any, appertaining thereto that may be issued in The future; and
WHEREAS, the Company, the Guarantor and the Trustee mutually covenant
and represent that they are duly authorized to execute this Supplemental
Indenture.
<PAGE> 2
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NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE
WITNESSETH:
ARTICLE ONE
SECTION 1.01. Definitions.
Capitalized terms used herein and not otherwise defined herein are used
with the same meanings ascribed to such terms in the Indenture.
SECTION 1.02. Amendment to Section 1.01 of the
Indenture.
(a) Section 1.01 of the Indenture is hereby
amended by adding thereto the following new definitions
"Existing Company Subordinated Indebtedness" means the
Company's 9-7/8% Subordinated Notes Due 2001 and the CCNB Corporation
10.55% Equity Commitment Notes Due 1998 assumed by the Guarantor and
the Company.
"Existing Guarantor Subordinated Indebtedness" means the
Guarantor's 8-1/4% Convertible Subordinated Debentures Due 2008, the
Citizens Fidelity Corporation Convertible Subordinated Debentures Due
2005, the Guarantor's Guarantee of the Company's 9-7/8% Subordinated
notes Due 2001 and the CCNB Corporation 10.55% Equity Commitment Notes
Due 1998 assumed by the Guarantor and the Company.
"Other Company Obligations" means obligations of the Company
associated with derivative products such as interest rate and currency
exchange contracts, foreign exchange contracts, commodity contracts or
any similar arrangements, unless the instrument by which the Company
incurred, assumed or guaranteed the obligation expressly provides that
it is subordinate or junior in right of payment to any other
indebtedness or obligations of the Company.
"Other Guarantor Obligations" means obligations of the
Guarantor associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange
<PAGE> 3
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contracts, commodity contracts or any similar arrangements, unless the
instrument by which the Guarantor incurred, assumed or guaranteed the
obligation expressly provides that it is subordinate or junior in right
of payment to any other indebtedness or obligations of the Guarantor.
(b) Section 1.01 of the Indenture is hereby amended further by deleting
the definitions of "Senior Company Indebtedness" and "Senior Guarantor
Indebtedness" contained therein and replacing such definitions in their
entirety by the following:
"Senior Company Indebtedness" means the principal of and
premium, if any, and interest on (i) all indebtedness of the Company
for money borrowed, whether outstanding on the date of execution of
this Indenture or thereafter created, assumed or incurred, including
any series of Securities designated as Senior Debt Securities pursuant
to Section 3.01 hereof, and Coupons, if any, appertaining thereto
except (A) such indebtedness as is by its terms expressly stated not to
be superior in right of payment to any series of Securities designated
as Subordinated Debt Securities pursuant to Section 3.01 hereof or to
rank pari passu with any series of Securities designated as
Subordinated Debt Securities pursuant to Section 3.01 hereof, and (B)
any series of Securities designated as Subordinated Debt Securities
pursuant to Section 3.01 hereof, the Company's 9-7/8% Subordinated
Notes Due 2001, and the CCNB Corporation 10.55% Equity Commitment Notes
Due 1998 assumed by the Guarantor and the Company, and (ii) any
deferrals, renewals or extensions of any such Senior Company
Indebtedness. The term "indebtedness for money borrowed" means any
obligation of, or any obligation guaranteed by, the Company for the
repayment of money borrowed, whether or not evidenced by bonds,
debentures, notes or other written instruments, any capitalized lease
obligation and any deferred obligation for payment of the purchase
price of any property or assets.
<PAGE> 4
- 4 -
"Senior Guarantor Indebtedness" means the principal of and premium, if
any, and interest on (i) all indebtedness of the Guarantor for money
borrowed, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred, including the
Guarantees of any series of Securities designated as Senior Debt
Securities pursuant to Section 3.01 hereof, and Coupons, if any,
appertaining thereto except (A) such indebtedness as is by its terms
expressly stated not to be superior in right of payment to the
Guarantees of any series of Securities designated as Subordinated Debt
Securities pursuant to Section 3.01 hereof or to rank pari passu with
the Guarantees of any series of Securities designated as Subordinated
Debt Securities pursuant to Section 3.01 hereof, (B) the Guarantor's
8-1/4% Convertible Subordinated Debentures Due 2008, the Guarantor's
Floating Rate Subordinated Notes Due 1997 and the Citizens Fidelity
Corporation Convertible Subordinated Debentures Due 2005, and (C) the
Guarantees of any series of Securities designated as Subordinated Debt
Securities pursuant to Section 3.01 hereof, the Guarantees of the
Company's 9-7/8% Subordinated Notes Due 2001, and the CCNB Corporation
10.55% Equity Commitment Notes Due 1998 assumed by the Guarantor and
the Company, and (ii) any deferrals, renewals or extensions of any such
Senior Guarantor Indebtedness. The term "indebtedness for money
borrowed" means any obligation of, or any obligation guaranteed by the
Guarantor for the repayment of money borrowed, whether or not evidenced
by bonds, debentures, notes or other written instruments, any
capitalized lease obligation and any deferred obligation for payment of
the purchase price of any property or assets.
ARTICLE TWO
SECTION 2.01. Addition of Section 5.10 to the
Indenture .
Section 5.10 to be entitled "Limitation on the Covenant Concerning Sale
or Issuance of voting Shares of
<PAGE> 5
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Principal Subsidiary Bank" is hereby added to the Indenture reading in full as
follows:
"(a) Notwithstanding Section 5.06, the Guarantor shall be obligated to
comply with the covenant set forth in Section 5.06 of the Indenture, entitled
"Limitation on Sale or Issuance of Voting Shares of Principal Subsidiary
Banks," only for so long as there shall be issued and outstanding any Senior
Debt Securities and Coupons, if any, appertaining thereto, and no breach of
such covenant shall constitute a Default with respect to any series of
Subordinated Debt Securities pursuant to Section 7.01(c) of the Indenture.
(b) Notwithstanding Section 5.09, the Guarantor may omit in respect of
any series of Subordinated Debt Securities to comply with the covenant set
forth in Section 5.06 of the Indenture, entitled "Limitation on Sale or
Issuance of Voting Shares of Principal Subsidiary Banks" without obtaining a
waiver from any Holders of Subordinated Debt Securities."
ARTICLE THREE
SECTION 3.01. Replacement of Article Twelve,
Subordination.
Article Twelve of the Indenture shall be deleted in its entirety and
shall be replaced with the following:
<PAGE> 6
- 6 -
"ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Subordinated Debt Securities
Subordinated to Senior Company
Indebtedness.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Subordinated Debt Securities and Coupons, if any,
appertaining thereto by his acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and interest on each and all of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior Company
Indebtedness, subject to Section 12.13.
SECTION 12.02. Payments upon Dissolution of
the Company.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture or any supplemental indenture issued pursuant to
Section 3.01 upon the Senior Company Indebtedness and the holders thereof with
respect to the Subordinated Debt Securities and Coupons, if any, appertaining
thereto and the Holders thereof by a lawful plan of reorganization under
applicable bankruptcy law),
(i) the holders of all Senior Company Indebtedness shall first
be entitled to receive payment in full in accordance with the terms of
such Senior Company Indebtedness of the principal thereof, premium, if
any, and the interest due thereon (including interest accruing
subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the
Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto are
<PAGE> 7
- 7 -
entitled to receive any payment upon the principal of or premium, if
any, or interest on indebtedness evidenced by the Subordinated Debt
Securities and Coupons, if any, appertaining thereto;
(ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto would be entitled except for the provisions
of this Article Twelve, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of
the Subordinated Debt Securities and Coupons, if any, appertaining
thereto, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Company Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Company
Indebtedness may have been issued, in accordance with the priorities
then existing among holders of Senior Company Indebtedness for payment
of the aggregate amounts remaining unpaid on account of the principal,
premium, if any, and interest (including interest accruing subsequent
to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) on the Senior
Company Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Company Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Company Indebtedness; it
being understood that if the Holders of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto shall fail to file
a proper claim in the form required by any proceeding referred to in
this subparagraph (ii) prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of Senior Company
Indebtedness are hereby authorized to file an appropriate claim or
claims for and on behalf of the Holders of the Subordinated Debt
Securities
<PAGE> 8
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and Coupons, if any, appertaining thereto, in the form required in any
such proceeding; and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinate to the payment of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto shall be received by the Trustee
or Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto before all Senior Company Indebtedness is paid in
full, such payment or distribution shall be paid over to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment of assets of the Company for all senior
Company Indebtedness remaining unpaid until all such Senior Company
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Company Indebtedness.
Subject to the payment in full of all Senior Company Indebtedness, the Holders
of the Subordinated Debt Securities and Coupons, if any, appertaining thereto
shall be subrogated to the rights of the holders of Senior Company Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Company Indebtedness until the principal of
and premium, if any, and interest on the Subordinated Debt Securities and
Coupons, if any, appertaining thereto shall be paid in full and no such
payments or distributions to holders of such Senior Company Indebtedness to
which the Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto would be entitled except for the provisions hereof of
cash, property or securities otherwise distributable to the Senior Company
Indebtedness shall, as between the Company, its creditors, other than the
holders of Senior Company Indebtedness, and the Holders of the Subordinated
Debt Securities and Coupons, if any, appertaining thereto, be deemed to be a
payment by the Company to or on account of the Senior Company Indebtedness. It
is understood that the provisions of this Article Twelve (other than Sections
12.04, 12.05 and 12.06) are and are intended solely for the purpose of defining
the relative rights
<PAGE> 9
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of the Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto, on the one hand, and the holders of Senior Company
Indebtedness, and in the case of Section 12.13, the holders of Existing Company
Subordinated Indebtedness and creditors in respect of Other Company
Obligations, on the other hand. Nothing contained in this Article Twelve or
elsewhere in his Indenture, any supplemental indenture issued pursuant to
Section 3.01, or in the Subordinated Debt Securities and Coupons, if any,
appertaining thereto is intended to or shall impair, as between the Company,
its creditors, other than the holders of Senior Company Indebtedness or Other
Company Obligations, and the Holders of the Subordinated Debt Securities and
Coupons, if any, appertaining hereto the obligation of the Company, which is
unconditional and absolute, to pay to the Holders of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto the principal of, premium,
if any, and interest on the Subordinated Debt Securities and Coupons, if any,
appertaining thereto as and when the same shall become due and payable in
accordance with their terms or to affect he relative rights of the Holders of
the Subordinated Debt Securities and Coupons, if any, appertaining thereto and
creditors of the Company, other than the holders of the Senior Company
Indebtedness and of Existing Company Subordinated Indebtedness, nor shall
anything herein or in the Subordinated Debt Securities and Coupons, if any,
appertaining thereto prevent the Trustee or the Holder of any Subordinated Debt
Securities and Coupons, if any, appertaining thereto from exercising all
remedies otherwise permitted by applicable law upon Default under this
Indenture, subject to the rights, if any, under this Article Twelve of the
holders of Senior Company Indebtedness and of creditors in respect of Other
Company Obligations, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any payment or distribution
of assets of the Company referred to in this Article Twelve, the Trustee and
the Holders of the Subordinated Debt Securities and Coupons; if any,
appertaining hereto shall be entitled to rely upon any order or decree of a
court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceeding is pending or upon a certificate of
the liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Company
Indebtedness, Other Company Obligations, and other
<PAGE> 10
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indebtedness of the Company, the amount hereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Twelve. In the absence of any such liquidating trustee, agent
or other person, the Trustee shall be entitled to rely upon a written notice by
a Person representing himself to be a holder of Senior Company Indebtedness or
Other Company Obligations (or a trustee or representative on behalf of such
holder) as evidence that such Person is a holder of Senior Company Indebtedness
or Other Company Obligations (or is such a trustee or representative). In the
event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person, as a holder of Senior Company
Indebtedness or Other Company Obligations, to participate in any payment or
distribution pursuant to this Article Twelve, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Company Indebtedness or Other Company Obligations held by
such Person, as to the extent to which such Person is entitled to participation
in such payment or distribution, and as to other facts pertinent to the rights
of such Person under this Article Twelve, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
With respect to the holders of Senior Company Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Company Indebtedness shall be
read into this Article 12 against the Trustee; provided that nothing contained
herein shall derogate from covenants or obligations contained in this
Indenture, or any supplemental indenture issued pursuant to Section 3.01, with
respect to Senior Company Indebtedness that is issued as a series of Securities
under this Indenture. The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Company Indebtedness by reason of the
execution of this Indenture, or any supplemental indenture issued pursuant to
Section 3.01, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to or on behalf of Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto or the
Company moneys or assets to which any holders of Senior Company Indebtedness
shall be entitled by virtue of this Article Twelve.
<PAGE> 11
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SECTION 12.03. No Payment when Senior Company
Indebtedness in Default.
In the event and during the continuation of any default in the payment
of principal of, or premium, if any, or interest on, any Senior Company
Indebtedness, beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Company Indebtedness shall have
occurred and be continuing, or would occur as a result of the payment referred
to hereinafter, permitting the holders of such Senior Company Indebtedness (or
a trustee on behalf of the holders thereof) to accelerate the maturity thereof,
then, unless and until such default or event of default shall have been cured
or waived or shall have ceased to exist, no payment or principal of or interest
on the Subordinated Debt Securities and Coupons, if any, appertaining thereto,
or in respect of any retirement, purchase or other acquisition of any of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto, shall
be made by the Company.
SECTION 12.04. Guarantees of Subordinated Debt
Securities Subordinated to Senior
Guarantor Indebtedness.
The Guarantor, for itself, its successors and assigns, covenants and
agrees, and each Holder of Guarantees of Subordinated Debt Securities and
Coupons, if any, appertaining thereto by his acceptance thereof likewise
covenants and agrees, that the payment of the principal of and interest on each
and all of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto pursuant to the Guarantees thereof is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Guarantor Indebtedness, subject to Section
12.14.
SECTION 12.05. Payments upon Dissolution of the
Guarantor.
Upon any distribution of assets of the Guarantor upon any dissolution,
winding up, liquidation or reorganization of the Guarantor, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of
<PAGE> 12
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the Guarantor or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture or any supplemental indenture issued pursuant to Section 3.01
upon the Senior Guarantor Indebtedness and the holders thereof with respect to
the Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto and the Holders thereof by a lawful plan of reorganization
under applicable bankruptcy law),
(i) the holders of all Senior Guarantor Indebtedness shall
first be entitled to receive payment in full in accordance with the
terms of such Senior Guarantor Indebtedness of the principal thereof,
premium, if any, and the interest due thereon (including interest
accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Guarantor under any applicable
bankruptcy, insolvency, or similar law now or hereafter in effect)
before the Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto are entitled to
receive any payment upon the principal of or premium, if any, or
interest on indebtedness evidenced by the Subordinated Debt Securities
and Coupons, if any, appertaining thereto pursuant to the Guarantees
thereof;
(ii) any payment or distribution of assets of the Guarantor of
any kind or character, whether in cash, property or securities, to
which the Holders of the Guarantees of the Subordinated Debt Securities
and Coupons, if any, appertaining thereto or the Trustee would be
entitled except for the provisions of this Article Twelve, including
any such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Guarantor being
subordinated to the payment of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Guarantor Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Guarantor Indebtedness may have been
issued, in accordance
<PAGE> 13
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with the priorities then existing among holders of Senior Guarantor
Indebtedness for payment of the aggregate amounts remaining unpaid on
account of the principal, premium, if any, and interest (including
interest accruing subsequent to the commencement of any proceeding for
the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency, or similar law now or hereafter in effect) on
the Senior Guarantor Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Guarantor
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Guarantor
Indebtedness; it being understood that if the Holders of the Guarantees
of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto shall fail to file a proper claim in the form required by any
proceeding referred to in this subparagraph (ii) prior to 30 days
before the expiration of the time to file such claim or claims, then
the holders of Senior Guarantor Indebtedness are hereby authorized to
file an appropriate claim or claims for and on behalf of the Holders of
the Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto, in the form required in any such proceeding; and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Guarantor of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Guarantor being
subordinate to the payment of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto shall be received
by the Trustee or Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto before all Senior
Guarantor Indebtedness is paid in full, such payment or distribution
shall be paid over to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment of
assets of the Guarantor for all Senior Guarantor Indebtedness remaining
unpaid until all such Senior Guarantor Indebtedness shall have been
paid in full, after giving effect to any
<PAGE> 14
- 14 -
concurrent payment or distribution to the holders
of such senior Guarantor Indebtedness.
Subject to the payment in full of all Senior Guarantor Indebtedness, the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto shall be subrogated to the rights of the holders of
Senior Guarantor Indebtedness to receive payments or distributions of cash,
property or securities of the Guarantor applicable to the Senior Guarantor
Indebtedness until the principal of and premium, if any, and interest on the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall be paid in full and no such payments or
distributions to holders of such Senior Guarantor Indebtedness to which the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto would be entitled except for the provisions hereof of
cash, property or securities otherwise distributable to the Senior Guarantor
Indebtedness shall, as between the Guarantor, its creditors, other than the
holders of Senior Guarantor Indebtedness, and the Holders of the Guarantees of
the Subordinated Debt Securities and Coupons, if any, appertaining thereto, be
deemed to be a payment by the Guarantor to or on account of the Senior
Guarantor Indebtedness. It is understood that the provisions of this Article
Twelve (other than Sections 12.01, 12.02 and 12.03) are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto, on the one hand, and the holders of Senior Guarantor
Indebtedness, and in the case of Section 12.14, the holders of Existing
Guarantor Subordinated Indebtedness and creditors in respect of Other Guarantor
Obligations, on the other hand. Nothing contained in this Article Twelve or
elsewhere in this Indenture, any supplemental indenture issued pursuant to
Section 3.01, or in the Subordinated Debt Securities and Coupons, if any,
appertaining thereto or the Guarantees thereof is intended to or shall impair,
as between the Guarantor, its creditors, other than the holders of Senior
Guarantor Indebtedness or Other Guarantor Obligations, and the Holders of the
Guarantees of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto the obligation of the Guarantor, which is unconditional
and absolute, to pay to the Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto the principal, premium, if
any, and interest on the Subordinated Debt Securities and Coupons, if any,
<PAGE> 15
- 15 -
appertaining thereto, pursuant to the Guarantees thereof, as and when the same
shall become due and payable in accordance with their terms or to affect the
relative rights of the Holders of the Guarantees of the Subordinated Debt
Securities and Coupons, if any, appertaining thereto and creditors of the
Guarantor, other than the holders of the Senior Guarantor Indebtedness and of
Existing Guarantor Subordinated Indebtedness, nor shall anything herein or in
the Subordinated Debt Securities and Coupons, if any, appertaining thereto or
the Guarantees thereof prevent the Trustee or the Holder of any Guarantee of
the Subordinated Debt Securities and Coupons, if any, appertaining thereto from
exercising all remedies otherwise permitted by applicable law upon Default
under this Indenture, subject to the rights, if any, under this Article Twelve
of the holders of Senior Guarantor Indebtedness and of creditors in respect of
Other Guarantor Obligations in respect of cash, property or securities of the
Guarantor received upon the exercise or any such remedy. Upon any payment or
distribution of assets of the Guarantor referred to in this Article Twelve, the
Trustee and the Holders of the Guarantees of the Subordinated Debt Securities
and Coupons, if any, appertaining thereto shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceeding is pending or upon a
certificate of the liquidating trustee or agent or other Person making any
distribution to the Trustee or to the Holders of the Guarantees of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the senior Guarantor Indebtedness, or Other
Guarantor Obligations, and other indebtedness of the Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve. In the absence
of any such liquidating trustee, agent or other person, the Trustee shall be
entitled to rely upon a written notice by a Person representing himself to be a
holder of Senior Guarantor Indebtedness or Other Guarantor Obligations (or a
trustee or representative on behalf of such holder) as evidence that such
Person is a holder of Senior Guarantor Indebtedness or Other Guarantor
Obligations (or is such a trustee or representative). In the event that the
Trustee determines, in good faith, that further evidence is requited with
respect to the right of any Person, as a holder of Senior Guarantor
Indebtedness or Other Guarantor Obligations, to participate in any payment or
<PAGE> 16
- 16 -
distribution pursuant to this Article Twelve, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Guarantor Indebtedness or Other Guarantor Obligations-held
by such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts pertinent
to the rights of such Person under this Article Twelve, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
With respect to the holders of Senior Guarantor Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Guarantor
Indebtedness shall be read into this Article Twelve against the Trustee;
provided that nothing contained herein shall derogate from covenants or
obligations contained in this Indenture, or any supplemental indenture issued
pursuant to Section 3.01, with respect to Senior Guarantor Indebtedness that is
issued as a series of Securities under this Indenture. The Trustee, however,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Guarantor Indebtedness by reason of the execution of this Indenture, or any
supplemental indenture issued pursuant to Section 3.01, and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to or on
behalf of Holders of the Guarantees of the Subordinated Debt Securities and
Coupons, if any, appertaining thereto or the Guarantor moneys or assets to
which any holders of Senior Guarantor Indebtedness shall be entitled by virtue
of this Article Twelve.
SECTION 12.06. No Payment When Senior Guarantor
Indebtedness in Default.
In the event and during the continuation of any default in the payment
of principal of, or premium, if any, or interest on, any Senior Guarantor
Indebtedness, beyond any applicable period of grace, or in the event that any
event of default with respect to any Senior Guarantor Indebtedness shall have
occurred and be continuing, or would occur as a result of the payment referred
to hereinafter, permitted the holders of such Senior Guarantor Indebtedness (or
a trustee on behalf of the holders thereof) to accelerate the maturity thereof,
then, unless and until such default or event of default
<PAGE> 17
- 17 -
shall have been cured or waived or shall have ceased to exist, no payment or
principal of or interest on the Subordinated Debt Securities and Coupons, if
any, appertaining thereto, or in respect of any retirement, purchase or other
acquisition of any of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto, pursuant to the Guarantees thereof, shall be made by the
Guarantor.
SECTION 12.07. No Impairment of Holders' Rights.
Nothing contained in this Indenture, any supplemental indenture issued
pursuant to Section 3.01, or in any of the Subordinated Debt Securities or
Coupons, if any, appertaining thereto or the Guarantees thereof shall (i)
impair, as between the Company and Holders of the Subordinated Debt Securities
and Coupons, if any, appertaining thereto, or as between the Guarantor and the
Holders of the Guarantees of the Subordinated Debt Securities and Coupons, if
any, appertaining thereto, the obligations of the Company or Guarantor, as the
case may be, to make, or prevent the Company or Guarantor from making, at any
time except as provided in Sections 12.02, 12.03, 12.05, 12.06, 12.13 and
12.14, payments of principal, premium, if any, or interest (including interest
accruing subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company or Guarantor under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) on the Subordinated Debt
Securities and Coupons, if any, appertaining thereto, and the Guarantees
thereof as and when the same shall become due and payable in accordance with
the terms of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto and the Guarantees thereof (ii) affect the relative rights of the
Holders of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto and creditors of the Company other than the holders of the Senior
Company Indebtedness or of Other Company Obligations or the relative rights of
the Holders of the Guarantees of the Subordinated Debt Securities and Coupons,
if any, appertaining thereto and creditors of the Guarantor other than the
holders of Senior Guarantor Indebtedness or of Other Guarantor Obligations,
(iii) prevent the Holder of any Subordinated Debt Securities and Coupons, if
any, appertaining thereto or Guarantee thereof or the Trustee from exercising
all remedies otherwise permitted by applicable law upon default thereunder,
subject to the rights, if any, under this Article Twelve of the holders of
Senior Company Indebtedness or of Other Company
<PAGE> 18
- 18 -
Obligations in respect of cash, property or securities of the Company received
upon the exercise of such remedy and the holders of Senior Guarantor
Indebtedness or of Other Guarantor obligations in respect of cash, property or
securities of the Guarantor received upon the exercise of such remedy, or (iv)
prevent the application by the Trustee or any Paying Agent of any moneys
deposited with it hereunder to the payment of or on account of the principal of
or premium, if any, or interest on the Subordinated Debt Securities and
Coupons, if any, appertaining thereto or prevent the receipt by the Trustee or
any Paying Agent of such moneys, if, prior to the third Business Day prior to
such deposit, the Trustee or such Paying Agent did not have written notice of
any event prohibiting The making of such deposit by the Company or the
Guarantor.
SECTION 12.08. Effectuation of Subordination
by Trustee.
Each Holder of Subordinated Debt Securities and Coupons, if any,
appertaining thereto by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Twelve and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.09. Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other provisions
of this Indenture or any supplemental indenture issued pursuant to Section
3.01, neither the Trustee nor any Paying Agent shall be charged with knowledge
of the existence of any Senior Company Indebtedness or any Senior Guarantor
Indebtedness (other than Senior Company Indebtedness or Senior Guarantor
Indebtedness issued under this Indenture or any supplemental indenture issued
pursuant to Section 3.01) or any Other Company Obligations or any Other
Guarantor Obligations or of any event which would prohibit the making of any
payment or moneys to or by the Trustee or such Paying Agent, unless and until a
Responsible officer of the Trustee or such Paying Agent shall have received
written notice thereof from the Company or from the holder of any Senior
Company Indebtedness or Senior Guarantor Indebtedness or any Other Company
Obligations or any Other Guarantor Obligations or from the representative of
any such holder.
<PAGE> 19
- 19 -
SECTION 12.10. Trustee's Relation to Senior Company
Indebtedness, Senior Guarantor
Indebtedness, Other Company Obligations
or Other Guarantor Obligations.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Company Indebtedness or Senior Guarantor
Indebtedness or any Other Company Obligations or any Other Guarantor
Obligations at any time held by it in its individual capacity to the same
extent as any other holder of such Senior Company Indebtedness or Senior
Guarantor Indebtedness or any Other Company Obligations or any Other Guarantor
Obligations, and nothing in this Indenture or any supplemental indenture issued
pursuant to Section 3.01 shall be construed to deprive the Trustee of any of
its rights as such holder.
SECTION 12.11. No Waiver of Default or
Event of Default.
The failure to make a payment pursuant to the Subordinated Debt
Securities and Coupons, if any, appertaining thereto by reason of any provision
in this Article shall not be construed as preventing the occurrence of a
Default or any Event of Default.
SECTION 12.12. Claims of the Trustee.
Nothing contained in this Article Twelve shall apply to the claims of,
or payments to, the Trustee under or pursuant to Section 8.07.
SECTION 12.13. Subordinated Debt Securities to Rank
Pari Passu with Existing Company
Subordinated Indebtedness; Payment of
Proceeds in Certain Cases.
(a) Subject to the provisions of this Section and to any provisions
established or determined with respect to Securities of any series pursuant to
Section 3.01, the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall rank pari passu in right of payment with the
Existing Company Subordinated Indebtedness.
(b) Upon the occurrence of any of the events specified in Section
12.02, the provisions of that
<PAGE> 20
- 20 -
Section and the corresponding provisions of each indenture or other instrument
or document establishing or governing the terms of any Existing Company
Subordinated Indebtedness shall be given affect on a pro rata basis to
determine the amount of cash, property or securities which may be payable or
deliverable as between the holders of Senior Company Indebtedness, on the one
hand, and the Holders of Subordinated Debt Securities and Coupons, if any,
appertaining thereto and holders of Existing Company Subordinated Indebtedness,
on the other hand.
(c) If, after giving effect to the provisions of Section 12.02 and the
respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Company
Subordinated Indebtedness on such pro rata basis, any amount of cash property
or securities shall be available for payment or distribution in respect of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto ("Excess
Proceeds"), and any creditors in respect of Other Company Obligations shall not
have received payment in full of all amounts due or to become due on or in
respect of such Other Company Obligations (and provision shall not have been
made for such payment in money or money's worth), then such Excess Proceeds
shall first be applied (ratably with any amount of cash, property or securities
available for payment or distribution in respect of any other indebtedness of
the Company that by its express terms provides for the payment over of amounts
corresponding to Excess Proceeds to creditors in respect of Other Company
Obligations) to pay or provide for the payment of the Other Company Obligations
remaining unpaid, to the extent necessary to pay all Other Company Obligations
in full, after giving effect to any concurrent payment or distribution to or
for creditors in respect of Other Company Obligations. Any Excess Proceeds
remaining after the payment (or provision for payment) in full of all Other
Company Obligations shall be available for payment or distribution in respect
of the Subordinated Debt Securities and Coupons, if any, appertaining thereto.
(d) In the event that, notwithstanding the foregoing provisions of
subsection (c) of this Section, the Trustee or Holder of any Subordinated Debt
Securities or Coupons, if any, appertaining thereto shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all Other Company Obligations
are paid in full or payment thereof
<PAGE> 21
- 21 -
duly provided for, and if such fact shall, at or prior to the time of such
payment or distribution have been made known to the Trustee or, as the case may
be, such Holder, then and in such event, subject to any obligation that the
Trustee or such Holder may have pursuant to Section 12.02, such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of asset of the Company for payment in
accordance with subsection (c).
(e) Subject to the payment in full of all Other Company Obligations,
the Holders of the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall be subrogated (equally and ratably with the holders
of all indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to creditors in
respect of Other Company Obligations and is entitled to like rights of
subrogation) to the rights of the creditors in respect of Other Company
Obligations to receive payments and distributions of cash, property and
securities applicable to the Other Company Obligations until the principal of
and interest on the Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall be paid in full. For purposes of such subrogation,
no payments or distributions to creditors in respect of Other Company
Obligations of any cash, property or securities to which Holders of the
Subordinated Debt Securities and Coupons, if any, appertaining thereto or the
Trustee would be entitled except for the provisions of this Section, and no
payments over pursuant to the provisions of this Section to creditors in
respect of Other Company Obligations by Holders of Subordinated Debt Securities
and Coupons, if any, appertaining thereto or the Trustee, shall, as among the
Company, its creditors other than creditors in respect of Other Company
Obligations and the Holders of Subordinated Debt Securities and Coupons, if
any, appertaining thereto be deemed to be a payment or distribution by the
Company to or on account of the Other Company Obligations.
(f) The provisions of subsection (c), (d) and (e) of this Section are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto, on the one hand, and the creditors in respect of Other Company
Obligations, on the other hand, after giving effect to the rights of the
holders of Senior Company Indebtedness, as provided in this
<PAGE> 22
- 22 -
Article. Nothing contained in subsections (c), (d) and (e) of this Section is
intended to or shall affect the relative rights against the Company of the
Holders of the Subordinated Debt Securities and Coupons, if any, appertaining
thereto and (1) the holders of Senior Company Indebtedness, (2) the holders of
Existing Company Subordinated Indebtedness or (3) other creditors of the
Company other than creditors in respect of Other Company Obligations.
SECTION 12.14. Guarantees of Subordinated Debt
Securities to Rank Pari Passu with
Existing Guarantor Subordinated
Indebtedness; Payment of Proceeds in
Certain Cases.
(a) Subject to the provisions of this Section and to any
provisions established or determined with respect to Securities of any
series pursuant to Section 3.01,. the Guarantees of Subordinated Debt
Securities and Coupons, if any, appertaining thereto shall rank pari
passu in right of payment with the Existing Guarantor Subordinated
Indebtedness.
(b) Upon the occurrence of any of the events specified in
Section 12.05, the provisions of that Section and the corresponding
provisions of each indenture or other instrument or document
establishing or governing the terms of any Existing Guarantor
Subordinated Indebtedness shall be given affect on a pro rata basis to
determine the amount of cash, property or securities which may be
payable or deliverable as between the holders of Senior Guarantor
Indebtedness, on the one hand, and the Holders of Guarantees of
Subordinated Debt Securities and Coupons, if any, appertaining thereto
and holders of Existing Guarantor Subordinated Indebtedness, on the
other hand.
(c) If, after giving effect to the provisions of Section 12.05
and the respective corresponding provisions of each indenture or other
instrument or document establishing or governing the terms of any
Existing Guarantor Subordinated Indebtedness on such pro rata basis,
any amount of cash property or securities shall be available for
payment or distribution in respect of the Guarantees of Subordinated
Debt Securities and Coupons, if any, appertaining thereto ("Excess
Proceeds"), and any creditors in respect of Other Guarantor Obligations
shall not have received payment in full of all amounts due or to become
due on or in respect of such Other Guarantor Obligations (and provision
shall not have been made for such payment in
<PAGE> 23
- 23 -
money or money's worth), then such Excess Proceeds shall first be applied
(ratably with any amount of cash, property or securities available for payment
or distribution in respect of any other indebtedness of the Guarantor that by
its express terms provides for the payment over of amounts corresponding to
Excess Proceeds to creditors in respect of Other Guarantor Obligations) to pay
or provide for the payment of the Other Guarantor Obligations remaining unpaid,
to the extent necessary to pay all Other Guarantor Obligations in full, after
giving effect to any concurrent payment or distribution to or for creditors in
respect of Other Guarantor Obligations. Any Excess Proceeds remaining after the
payment (or provision for payment) in full of all Other Guarantor Obligations
Shall be available for payment or distribution in respect of the Guarantees of
Subordinated Debt Securities and Coupons, if any, appertaining thereto.
(d) In the event that, notwithstanding the foregoing provisions of
subsection (C) of this Section, the Trustee or Holder of any Guarantees of
Subordinated Debt Securities and Coupons, if any, appertaining thereto shall
have received any payment or distribution of assets of the Guarantor of any
kind or character, whether in cash, property or securities, before all Other
Guarantor Obligations are paid in full or payment thereof duly provided for,
and if such fact shall, at or prior to the time of such payment or distribution
have been made known to the Trustee or, as the case may be, such Holder, then
and in such event, subject to any obligation that the Trustee or such Holder
may have pursuant to Section 12.05, such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of asset of the Guarantor for payment in accordance with
subsection (c).
(e) Subject to the payment in full of all Other Guarantor Obligations,
the Holders of the Guarantees of Subordinated Debt Securities and Coupons, if
any, appertaining thereto shall be subrogated (equally and ratably with the
holders of all indebtedness of the Guarantor that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to creditors
in respect of Other Guarantor Obligations and is entitled to like rights of
subrogation) to the rights of the creditors in respect of Other Guarantor
Obligations to receive payments and distributions of cash, property and
securities applicable to the Other Guarantor Obligations until the principal of
and
<PAGE> 24
- 24 -
interest on the Guarantees of Subordinated Debt Securities and Coupons, if any,
appertaining thereto shall be paid in full. For purposes of such subrogation,
no payments or distributions to creditors in respect of Other Guarantor
Obligations of any cash, property or securities to which Holders of the
Guarantees of Subordinated Debt Securities and Coupons, if any, appertaining
thereto or the Trustee would be entitled except for the provisions of this
Section, and no payments over pursuant to the provisions of this Section to
creditors in respect of Other Guarantor Obligations by Holders of Guarantees of
Subordinated Debt Securities and Coupons, if any, appertaining thereto or the
Trustee, shall, as among the Guarantor, its creditors other than creditors in
respect of Other Guarantor Obligations and the Holders of Guarantees of
Subordinated Debt Securities and Coupons, if any, appertaining thereto be
deemed to be a payment or distribution by the Guarantor to or on account of the
Other Guarantor Obligations.
(f) The provisions of subsection (c), (d) and (e) of this Section are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Guarantees of Subordinated Debt Securities and Coupons, if any,
appertaining thereto, on the one hand, and the creditors in respect of Other
Guarantor Obligations, on the other hand, after giving effect to the rights of
the holders of Senior Guarantor Indebtedness, as provided in this Article.
Nothing contained in subsections (c), (d) and (e) of this Section is intended
to or shall affect the relative rights against the Guarantor of the Holders of
the Guarantees of Subordinated Debt Securities and Coupons, if any,
appertaining thereto and (1) the holders of Senior Guarantor Indebtedness, (2)
the holders of Existing Guarantor Subordinated Indebtedness or (3) other
creditors of the Guarantor other than creditors in respect of Other Guarantor
Obligations."
ARTICLE FOUR
SECTION 4.01. Amendment of Section 7.01.
(a) Sections 7.01(b) (1) and (2) of the Indenture are hereby deleted
and replaced in their entirety by the following:
<PAGE> 25
- 25 -
"(1) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Guarantor or any
Principal Subsidiary Bank under Title 11 of the United States Code, as now
constituted or as hereafter amended, or any other applicable Federal or State
bankruptcy law or other similar law, or appointing a receiver, trustee or other
similar official (except for the appointment of a conservator) of the Guarantor
or any Principal Subsidiary Bank or of substantially all of its property, or
ordering the winding-up or liquidation of its affairs under any such law and
the continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days;
(2) the filing by the Guarantor or any Principal Subsidiary
Bank of a petition or answer or consent seeking relief under Title 11 of the
United States Code, as now constituted or as hereinafter amended, or any other
applicable Federal or State bankruptcy law or other similar law, or the consent
by it to the institution of proceedings thereunder or to the filing of any such
petition or to the appointment or taking possession of a receiver, trustee,
custodian or other similar official (except for the appointment of a
conservator) of the Guarantor or any Principal Subsidiary Bank or of
substantially all of its property under any such law, or the Guarantor or any
Principal Subsidiary Bank shall take any corporate action in furtherance of any
such action; or
(b) Section 7.01(c) of the Indenture is hereby amended by deleting the
word "or" at the end of subsection (3) thereof, deleting the period at the end
of subsection (4) thereof and substituting a semicolon therefor, and adding
after subsection (4) the following additional subsections:
"(5) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company under
Title 11 of the United States Code, as now constituted or as hereafter
amended, or any other applicable
<PAGE> 26
- 26 -
Federal or State bankruptcy law or other similar law, or appointing a
receiver, trustee or other similar official of the Company or of any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(6) the filing by the Company of a petition or answer or
consent seeking relief under Title 11 of the United States Code, as now
constituted or as hereinafter amended, or any other applicable Federal
or State bankruptcy law or other similar law, or the consent by it to
the institution of proceedings thereunder or to the filing of any such
petition or to the appointment or taking possession of a receiver,
trustee, custodian or other similar official of the Company or of any
substantial part of its property, or the Company shall fail generally
to pay its debts as such debts become due or shall take any corporate
action in furtherance of any such action."
ARTICLE FIVE
SECTION 5.01. Other Terms of the Indenture.
Except as otherwise modified and amended by this Supplemental
Indenture, all other terms of the Indenture remain in full force and effect.
SECTION 5.02. Execution of Multiple Copies.
The parties to this Supplemental Indenture may sign any number
of copies of this Supplemental Indenture. One signed copy is enough to prove
this Supplemental Indenture.
SECTION 5.03. Governing Law.
This Supplemental Indenture shall be construed in accordance
with and governed by the laws of the
<PAGE> 27
- 27 -
jurisdiction which govern the Indenture and its construction.
SECTION 5.04. Recitals.
The recitals contained herein shall be taken as the statements of the
Company and the Guarantor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 5.05. Legends.
In accordance with section 9.06 of the Indenture, Subordinated Debt
Securities authenticated and delivered after the execution of this Supplemental
Indenture shall bear the following notation:
"As of February 15, 1993, the Indenture, dated as of December 1, 1991,
relating to this Security has been amended by a Supplemental Indenture."
<PAGE> 28
- 28 -
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first written above.
PNC FUNDING CORP
by /s/ R. HAUNSCHILD
-----------------------
Authorized Officer
(CORPORATE SEAL)
Attest:
/s/ WILLIAM F. STROME
- ------------------------
Secretary
PNC BANK CORP.
by /s/ R. HAUNSCHILD
-----------------------
Authorized Officer
(CORPORATE SEAL)
Attest:
/s/ WILLIAM F. STROME
- ------------------------
Secretary
<PAGE> 29
- 29 -
CHEMICAL BANK
by /s/ ANNE G. BRENNER
----------------------------
Assistant Vice President
(CORPORATE SEAL)
Attest:
/s/ G. JOHN KIRSCH
- -----------------------
Assistant Secretary
<PAGE> 1
Exhibit 4.10
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.
AS OF FEBRUARY 15, 1993, THE INDENTURE, DATED AS OF DECEMBER 1,
1991, RELATING TO THIS SECURITY HAS BEEN AMENDED BY A SUPPLEMENTAL
INDENTURE.
PNC FUNDING CORP
_____% SUBORDINATED NOTES DUE ____
REGISTERED CUSIP __________
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 _______ __, ____, and to pay
interest thereon from ____ __, ____, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, _____________ on
_______ __ and _____ __ in each year, commencing ________ __, ____, and at
maturity, at the rate of ____% per annum, until
<PAGE> 2
- 2 -
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 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 - _________ __ or _________ __ (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. 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 Securities of this
series 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 of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan in the City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that each installment of
interest on this Security may be paid by mailing checks for such interest
payable to or upon the written order of the Holders of this Security entitled
thereto as they shall appear on the registry books of the Company.
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.
This Security is one of a duly authorized issue of securities of the
Company (herein called the
<PAGE> 3
- 3 -
"Securities"), 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
(now known as PNC Bank Corp.) ("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, PNC Bank Corp.
(formerly known as PNC Financial Corp) ("Guarantor") and Chemical Bank
(successor by merger to Manufacturers Hanover Trust Company and now known as
The Chase Manhattan Bank) ("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 as provided in the
Indenture) in aggregate principal amount to $_________________.
The Securities of this series are not redeemable prior to their Stated
Maturity. The Notes of this series are not subject to any sinking fund.
If an Event of Default (as defined in the Indenture) with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.
The indebtedness of the Company evidenced by the Securities of this
series, including the principal thereof and interest thereon, is, to the extent
and in the manner set forth in the Indenture, subordinate and junior in right
of payment to its obligations to holders of Senior Company Indebtedness (as
defined in the Indenture) and shall rank pari passu in right of payment with
each other and with Existing Company Subordinated Indebtedness (as defined in
said Indenture), subject to the obligations of the holders of the Securities to
pay over any Excess Proceeds to creditors in respect of Other Company
Obligations, 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
<PAGE> 4
- 4 -
the Securities of this series, including the principal thereof and interest
thereon, also shall rank pari passu in right of payment with the Company's
________% Subordinated Notes Due _______, ______% Subordinated Notes Due
_______ and ____% Subordinated Notes Due ____, the holders of which are also
obligated to pay over any Excess Proceeds to creditors in respect of Other
Company Obligations, 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.
As provided in the Indenture and subject to certain limitations therein
set forth and to the limitations set forth in the legend on the first page of
this Security, the transfer of this Security is registrable in the Security
Register, upon due presentment of this Security for registration of transfer at
the office or agency of the Company in the Borough of Manhattan, The City of
New York, duly endorsed by, or accompanied by a written instrument of
<PAGE> 5
- 5 -
transfer in form satisfactory to the Company duly executed by, the registered
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
be overdue, and neither the Company, the Guarantor, the Trustee nor any such
agent shall be affected by notice to the contrary.
This Security is a global security. 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 Depository 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)).
The laws of some states require that certain purchasers of securities take
physical
<PAGE> 6
- 6 -
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.
Neither the Company, the Trustee, any Issuing and Paying Agent or any
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in this Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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, the Company will issue individual certificates
evidencing the Securities represented hereby in definitive form in exchange for
this Security. 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.
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.
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
<PAGE> 7
- 7 -
Secretary, or by facsimiles of any of their signatures, and its
corporate seal, or a facsimile thereof, to be hereto affixed.
Dated:
PNC FUNDING CORP
By ___________________________
Name:
Title:
Attest:
- --------------------------
Name:
Title:
[SEAL]
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
<PAGE> 8
GUARANTEE OF
PNC BANK CORP.
FOR VALUE RECEIVED, 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 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 are, to the
extent and in the manner set forth in said Indenture, subordinate and junior in
right of payment to the Guarantor's obligations to holders of Senior Guarantor
Indebtedness (as defined in said Indenture), and shall rank pari passu in right
of payment with each other and with Existing Guarantor Subordinated
Indebtedness (as defined in said Indenture), subject to the obligations of the
holders of the Guarantees to pay over any Excess Proceeds to
<PAGE> 9
- 2 -
creditors in respect of Other Guarantor Obligations, as provided in the
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 ____% Subordinated
Notes Due ____, ____% Subordinated Notes Due ____ and ____% Subordinated Notes
Due ____, the holders of which are also obligated to pay over any Excess
Proceeds to creditors in respect of Other Guarantor Obligations, as provided in
the Indenture.
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
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") shall have the meanings assigned to them in the Indenture.
<PAGE> 10
- 3 -
IN WITNESS WHEREOF, PNC BANK CORP. has caused this Guarantee to be duly
executed by manual or facsimile signature under its corporate seal or a
facsimile thereof.
Dated:
PNC BANK CORP.
By ___________________________
Name:
Title:
Attest:
- --------------------------
Name:
Corporate Secretary
[SEAL]
<PAGE> 1
EXHIBIT 5
PNC Bank Corp.
One PNC Plaza
21st Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
August 29, 1997
Board of Directors
PNC Bank Corp.
One PNC Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222-2707
Gentlemen:
This opinion is issued in connection with the Registration Statement on Form
S-3 (the "Registration Statement") of PNC Bank Corp. (the "Corporation") and
PNC Funding Corp ("PNC Funding") to be filed with the Securities and Exchange
Commission (the "Commission"), relating to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of unsecured debt
securities of PNC Funding ("Debt Securities"), guaranteed by the Corporation
(the "Guarantees"), shares of the Corporation's common stock, par value $5.00
per share ("Common Stock"), and shares of the Corporation's preferred stock,
par value $1.00 per share ("Preferred Stock"), with a proposed maximum offering
price for such Debt Securities, Common Stock and Preferred Stock of
$1,300,000,000, plus an undetermined number of shares of Common Stock issuable
upon conversion of the Preferred Stock to the extent any of such shares of
Preferred Stock are by their terms convertible into Common Stock, and an
undetermined number of shares of Preferred Stock in the form of shares
("Depositary Shares") to be evidenced by depositary receipts to be issued
pursuant to a Deposit Agreement (in the form filed as Exhibit 4.5 to the
Registration Statement, the "Deposit Agreement"). The Common Stock, the
Preferred Stock and the Depositary Shares are collectively referred to as the
"Registered Equity Securities". The Prospectus contained in the Registration
Statement is referred to as the "Basic Prospectus". The term "Total Prospectus"
refers to the Basic Prospectus and the applicable supplement to such Basic
Prospectus with respect to a particular offering of Debt Securities or
Registered Equity Securities.
As Senior Counsel to the Corporation, I have examined (1) the Articles of
Incorporation and Bylaws, each as amended to date, of the Corporation; (2) the
Articles of Incorporation and By-laws, each as amended to date, of PNC Funding;
(3) the Indenture dated as of December 1, 1991, as amended and supplemented by
the Supplemental Indenture dated as of February 15, 1993, filed as Exhibit 4.7
and Exhibit 4.8, respectively (as amended, the "Indenture"), pursuant to which
the Debt Securities and related Guarantees will be issued; (4) the Deposit
Agreement; (5) the Registration Statement, including the Basic Prospectus and
the Exhibits being filed with it and as of this date
<PAGE> 2
Board of Directors
PNC Bank Corp.
Page 2
incorporated therein by reference; (6) the resolutions adopted by the
Corporation's Board of Directors at a meeting held on August 21, 1997; and (7)
the Written Action of the Board of Directors of PNC Funding dated as of August
21, 1997. I have also examined such records, certificates and other documents
relating to the Corporation and PNC Funding that I have considered necessary or
appropriate for the purposes of this opinion.
In making such examination and rendering the opinions set forth below, I have
assumed: (i) the genuineness and authenticity of all signatures on original
documents; (ii) the authenticity of all documents submitted to me as originals;
and (iii) the conformity of originals of all documents submitted to me as
certified, telecopied, photostated or reproduced copies and the authenticity of
all originals of such documents.
I am admitted to practice law in the Commonwealth of Pennsylvania and do not
purport to be an expert on or to express any opinion on any laws other than the
laws of the Commonwealth of Pennsylvania and the federal securities laws of the
United States of America. This opinion speaks as of today's date and is limited
to present statutes, regulations and judicial interpretations. In rendering
this opinion, I assume no obligation to revise or supplement this opinion
should the present laws be changed by legislative or regulatory action,
judicial decision or otherwise or should the agreements or other documents (or
forms thereof) that I have examined in connection with this opinion hereafter
be changed.
With respect to any Common Stock held as treasury shares that may be sold, my
opinion is also subject to the condition that such shares had been validly
issued before they were reacquired by the Corporation and became treasury
shares. With respect to my opinion relating to Depositary Shares, I have
assumed that the Deposit Agreement has been duly authorized, executed and
delivered by the Corporation and the applicable depositary, and that the
depositary receipts have been duly countersigned by a registrar and the
applicable depositary in accordance with the Deposit Agreement. With respect to
each of the Common Stock and Preferred Stock, I have assumed that certificates
evidencing such Registered Equity Securities have been duly countersigned by
the applicable registrar and transfer agent.
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, I am of the opinion that:
(1) When the Registration Statement has become effective in accordance with
applicable law, appropriate corporate action is taken with respect to
Registered Equity Securities being issued and sold, and the Registered Equity
Securities have been issued and sold upon the terms and conditions set forth in
the Registration Statement and the Total Prospectus, with payment having
been made therefor, then such Registered Equity Securities will be validly
issued, fully paid and nonassessable. To the extent such Registered Equity
Securities are shares of Preferred Stock that are convertible into Common
Stock, when such shares are converted pursuant to and in accordance with
<PAGE> 3
Board of Directors
PNC Bank Corp.
Page 2
the terms of the Preferred Stock, the shares of Common Stock so converted will
be validly issued, fully paid and nonassessable.
(2) When the Registration Statement has become effective in accordance with
applicable law, appropriate corporate action is taken with respect to the Debt
Securities and related Guarantees being issued and sold, and the Debt
Securities and related Guarantees are authenticated and issued pursuant to and
in accordance with the terms and conditions set forth in the Indenture and
delivered and sold as set forth in the Registration Statement and the Total
Prospectus, with payment having been made therefor, then such Debt Securities
and Guarantees will constitute valid and legally binding obligations of PNC
Funding and the Corporation, respectively, except as enforceability is limited
by applicable bankruptcy, insolvency, receivership, readjustment of debt,
fraudulent conveyance, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally or general equitable principles, whether
considered in a proceeding in equity or at law.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Opinions" in the Prospectus included in Part I of the Registration Statement.
In giving such consent, I do not thereby admit that I come within the category
of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ MELANIE S. CIBIK
Melanie S. Cibik
Senior Counsel
<PAGE> 1
PNC Bank Corp. and Subsidiaries Exhibit 12.1
Computation of Ratio of Earnings
to Fixed Charges
<TABLE>
<CAPTION> Year ended December 31
Six months ended ----------------------------------------------------------------------
Dollars in thousands June 30, 1997 1996 1995 1994 1993 1992
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income before taxes and
cumulative effect of changes
in accounting principles $801,587 $1,527,551 $627,012 $1,209,916 $1,140,487 $787,994
Fixed charges excluding interest
on deposits 573,261 1,096,893 1,487,279 1,104,573 704,228 582,854
--------------------------------------------------------------------------------------
Subtotal 1,374,848 2,624,444 2,114,291 2,314,489 1,844,715 1,370,848
Interest on deposits 714,155 1,428,771 1,551,816 1,159,242 1,005,658 1,546,576
--------------------------------------------------------------------------------------
Total $2,089,003 $4,053,215 $3,666,107 $3,473,731 $2,850,373 $2,917,424
======================================================================================
FIXED CHARGES
Interest on borrowed funds $541,658 $1,064,847 $1,455,069 $1,070,565 $676,319 $555,610
Interest component of rentals 14,376 29,839 31,283 32,247 26,491 25,739
Amortization of borrowed funds 404 816 927 1,761 1,418 1,505
Distributions on capital securities 16,823 1,391
--------------------------------------------------------------------------------------
Subtotal 573,261 1,096,893 1,487,279 1,104,573 704,228 582,854
Interest on deposits 714,155 1,428,771 1,551,816 1,159,242 1,005,658 1,546,576
--------------------------------------------------------------------------------------
Total $1,287,416 $2,525,664 $3,039,095 $2,263,815 $1,709,886 $2,129,430
======================================================================================
RATIO OF EARNINGS TO FIXED CHARGES
Excluding interest on deposits 2.40x 2.39x 1.42x 2.10x 2.62x 2.35x
Including interest on deposits 1.62 1.60 1.21 1.53 1.67 1.37
=================================================================================================================================
</TABLE>
<PAGE> 1
PNC Bank Corp. and Subsidiaries Exhibit 12.2
Computation of Ratio of Earnings
to Combined Fixed Charges and
Preferred Stock Dividends
<TABLE>
<CAPTION> Year ended December 31
Six months ended ----------------------------------------------------------------------
Dollars in thousands June 30, 1997 1996 1995 1994 1993 1992
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income before taxes and
cumulative effect of changes
in accounting principles $801,587 $1,527,551 $627,012 $1,209,916 $1,140,487 $787,994
Fixed charges and preferred
stock dividends excluding
interest on deposits 588,252 1,105,324 1,492,391 1,112,564 712,339 592,902
--------------------------------------------------------------------------------------
Subtotal 1,389,839 2,632,875 2,119,403 2,322,480 1,852,826 1,380,896
Interest on deposits 714,155 1,428,771 1,551,816 1,159,242 1,005,658 1,546,576
--------------------------------------------------------------------------------------
Total $2,103,994 $4,061,646 $3,671,219 $3,481,722 $2,858,484 $2,927,472
======================================================================================
FIXED CHARGES
Interest on borrowed funds $541,658 $1,064,847 $1,455,069 $1,070,565 $676,319 $555,610
Interest component of rentals 14,376 29,839 31,283 32,247 26,491 25,739
Amortization of borrowed funds 404 816 927 1,761 1,418 1,505
Distributions on capital securities 16,823 1,391
Preferred stock dividends 14,991 8,431 5,112 7,991 8,111 10,048
--------------------------------------------------------------------------------------
Subtotal 588,252 1,105,324 1,492,391 1,112,564 712,339 592,902
Interest on deposits 714,155 1,428,771 1,551,816 1,159,242 1,005,658 1,546,576
--------------------------------------------------------------------------------------
Total $1,302,407 $2,534,095 $3,044,207 $2,271,806 $1,717,997 $2,139,478
======================================================================================
RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
Excluding interest on deposits 2.36x 2.38x 1.42x 2.09x 2.60x 2.33x
Including interest on deposits 1.62 1.60 1.21 1.53 1.66 1.37
===============================================================================================================================
</TABLE>
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement and related Prospectus of PNC Bank Corp. and PNC Funding
Corp and to the incorporation by reference therein of our report dated January
24, 1997, with respect to the consolidated financial statements of PNC Bank
Corp. and subsidiaries incorporated by reference in its Annual Report on Form
10-K for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
August 28, 1997
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
PNC BANK CORP.
SHELF REGISTRATION
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned Directors and/or
Officers of PNC Bank Corp. (the "Corporation"), a Pennsylvania corporation,
hereby names, constitutes and appoints Robert C. Barry, Jr., John F. Fulgoney
and Melanie S. Cibik, or any one of them, severally, with full power of
substitution, such person's true and lawful attorney-in-fact and agent to
execute in such person's name, place and stead, in any and all capacities, a
Registration Statement on Form S-3 (or other appropriate form) for the
registration under the Securities Act of 1933, as amended, of (i) guarantees by
the Corporation of PNC Funding Corp's unsecured debt securities ("Debt
Securities"), which Registration Statement shall also relate to such Debt
Securities, (ii) shares of the Corporation's common stock, par value $5 per
share ("Common Stock"), and (iii) shares of the Corporation's preferred stock,
par value $1 per share ("Preferred Stock"), with a proposed maximum aggregate
offering price for such Debt Securities, Common Stock and Preferred Stock of
$1,300,000,000, plus an undetermined number of shares of the Corporation's
Common Stock issuable upon conversion of shares of the Preferred Stock to the
extent any of such shares of Preferred Stock are by their terms convertible
into Common Stock, and an undetermined number of shares of Preferred Stock in
the form of depositary shares to be evidenced by depositary receipts to be
issued pursuant to a deposit agreement in the event the Corporation elects to
offer to the public fractional interests in shares of Preferred Stock, and to
execute in such person's name place and stead, in any and all capacities, any
and all amendments to said Registration Statement.
And such persons hereby ratify and confirm all that any said attorney-in-fact
or agent, or any substitute, shall lawfully do or cause to be done by virtue
hereof.
Witness the due execution hereof by the following persons in the capacities
indicated as of this August 21, 1997.
Name/Signature Capacity
- -------------- --------
/s/ Thomas H. O'Brien Chairman, Chief Executive Officer
- ------------------------------------ and Director
Thomas H. O'Brien
/s/ Paul W. Chellgren Director
- ------------------------------------
Paul W. Chellgren
Director
- ------------------------------------
Robert N. Clay
/s/ George A. Davidson, Jr. Director
- ------------------------------------
George A. Davidson, Jr.
/s/ David F. Girard-diCarlo Director
- ------------------------------------
David F. Girard-diCarlo
<PAGE> 2
/s/ C. G. Grefenstette Director
- ------------------------------------
C. G. Grefenstette
/s/ William R. Johnson Director
- ------------------------------------
William R. Johnson
/s/ Bruce Lindsay Director
- ------------------------------------
Bruce Lindsay
/s/ Thomas Marshall Director
- ------------------------------------
Thomas Marshall
/s/ W. Craig McClelland Director
- ------------------------------------
W. Craig McClelland
/s/ Jackson H. Randolph Director
- ------------------------------------
Jackson H. Randolph
/s/ James E. Rohr President and Director
- ------------------------------------
James E. Rohr
/s/ Roderic H. Ross Director
- ------------------------------------
Roderic H. Ross
/s/ Vincent A. Sarni Director
- ------------------------------------
Vincent A. Sarni
/s/ Garry J. Scheuring Director
- ------------------------------------
Garry J. Scheuring
/s/ Richard P. Simmons Director
- ------------------------------------
Richard P. Simmons
Power of Attorney - 2
<PAGE> 3
/s/ Thomas J. Usher Director
- ------------------------------------
Thomas J. Usher
/s/ Milton A. Washington Director
- ------------------------------------
Milton A. Washington
/s/ Helge H. Wehmeier Director
- ------------------------------------
Helge H. Wehmeier
Power of Attorney - 3
<PAGE> 1
Exhibit 24.2
POWER OF ATTORNEY
PNC FUNDING CORP
(Shelf Registration)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned Directors and/or
Officers of PNC Funding Corp (the "Corporation") hereby constitutes and
appoints Robert C. Barry, Jr., John F. Fulgoney and Melanie S. Cibik, or any
one of them, severally, with full power of substitution, such person's true and
lawful attorney-in-fact and agent to execute in such person's name, place and
stead, in any and all capacities, a Registration Statement on Form S-3 (or
other appropriate form) for the registration under the Securities Act of 1933,
as amended, of up to $1,300,000,000 principal amount of the Corporation's
unsecured debt securities (or if any such debt securities are issued at an
original issue discount, such greater amount as shall result in net proceeds of
up to $1,300,000,000 to the Corporation) and guarantees thereon of PNC Bank
Corp., and to execute in such person's name, place and stead, in any and all
capacities, any and all amendments to said Registration Statement.
And such persons hereby ratify and confirm all that any said attorney-in-fact
and agent, or any substitute, shall lawfully do or cause to be done by virtue
hereof.
Witness the due execution hereof by the following persons in the capacities
indicated as of this 21st day of August, 1997.
Name/Signature Capacity
- -------------- --------
/s/ PAUL L. AUDET Chairman
- ------------------------------------ and Director
Paul L. Audet
/s/ ROBERT L. HAUNSCHILD President and Director
- ------------------------------------
Robert L. Haunschild
/s/ RANDALL C. KING Senior Vice President
- ------------------------------------ and Director
Randall C. King
/s/ ROBERT C. BARRY, JR. Senior Vice President
- ------------------------------------ and Chief Financial Officer
Robert C. Barry, Jr.
/s/ TARA A. HUGHES Accounting Officer
- ------------------------------------ and Assistant Controller
Tara A. Hughes
<PAGE> 1
Exhibit 24.3
POWER OF ATTORNEY
PNC BANK CORP.
SHELF REGISTRATION
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director of PNC Bank Corp.
(the "Corporation"), a Pennsylvania corporation, hereby names, constitutes and
appoints Robert C. Barry, Jr., John F. Fulgoney and Melanie S. Cibik, or any
one of them, severally, with full power of substitution, such person's true and
lawful attorney-in-fact and agent to execute in such person's name, place and
stead, in any and all capacities, a Registration Statement on Form S-3 (or
other appropriate form) for the registration under the Securities Act of 1933,
as amended, of (i) guarantees by the Corporation of PNC Funding Corp's
unsecured debt securities ("Debt Securities"), which Registration Statement
shall also relate to such Debt Securities, (ii) shares of the Corporation's
common stock, par value $5 per share ("Common Stock"), and (iii) shares of the
Corporation's preferred stock, par value $1 per share ("Preferred Stock"), with
a proposed maximum aggregate offering price for such Debt Securities, Common
Stock and Preferred Stock of $1,300,000,000, plus an undetermined number of
shares of the Corporation's Common Stock issuable upon conversion of shares of
the Preferred Stock to the extent any of such shares of Preferred Stock are by
their terms convertible into Common Stock, and an undetermined number of shares
of Preferred Stock in the form of depositary shares to be evidenced by
depositary receipts to be issued pursuant to a deposit agreement in the event
the Corporation elects to offer to the public fractional interests in shares of
Preferred Stock, and to execute in such person's name place and stead, in any
and all capacities, any and all amendments to said Registration Statement.
And such person hereby ratifies and confirms all that any said attorney-in-fact
or agent, or any substitute, shall lawfully do or cause to be done by virtue
hereof.
Witness the due execution hereof by the following person in the capacity
indicated as of this August 27, 1997.
Name/Signature Capacity
- -------------- --------
/s/ Robert N. Clay Director
- ------------------------------------
Robert N. Clay
<PAGE> 1
Exhibit 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
PNC FUNDING CORP
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 25-1234372
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1600 MARKET STREET
PHILADELPHIA, PA 19101
(Address of principal executive offices) (Zip Code)
---------------------------------------------
PNC BANK CORP.
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 25-1435979
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE PNC PLAZA
249 FIFTH AVENUE
PENNSYLVANIA, PA 15222
(Address of principal executive offices) (Zip Code)
------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority. (On July 14, 1996, in connection with the merger of Chemical Bank
and The Chase Manhattan Bank (National Association), Chemical Bank, the
surviving corporation, was renamed The Chase Manhattan Bank).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 18TH day
of AUGUST, 1997.
THE CHASE MANHATTAN BANK
By /s/ Anne G. Brenner
--------------------
Anne G. Brenner
Vice President
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ....................... $ 13,892
Interest-bearing balances................ 4,282
Securities:..................................
Held to maturity securities..................... 2,857
Available for sale securities.................... 34,091
Federal Funds sold and securities purchased under
agreements to resell ................. 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income $124,827
Less: Allowance for loan and lease losses 2,753
Less: Allocated transfer risk reserve ...... 13
Loans and leases, net of unearned income, --------
allowance, and reserve ........... 122,061
Trading Assets .............................................. 56,042
Premises and fixed assets (including capitalized
leases)................................................. 2,904
Other real estate owned...................... 306
Investments in unconsolidated subsidiaries and
associated companies.......................... 232
Customers' liability to this bank on acceptances
outstanding ......................................... 2,092
Intangible assets ........................................ 1,532
Other assets ................................................ 10,448
---------
TOTAL ASSETS ................................................ $280,709
=========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C> <C>
Deposits
In domestic offices ............. $91,249
Noninterest-bearing............$38,157
Interest-bearing............... 53,092
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's........................................... 70,192
Noninterest-bearing............$ 3,712
Interest-bearing............... 66,480
Federal funds purchased and securities sold under
agreements to repurchase......................... 35,185
Demand notes issued to the U.S. Treasury........ 1,000
Trading liabilities.................................. 42,307
Other Borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less........... 4,593
With a remaining maturity of more than one year
through three years.................. 260
With a remaining maturity of more than three years..... 146
Bank's liability on acceptances executed and outstanding 2,092
Subordinated notes and debentures 5,715
Other liabilities......................................... 11,373
TOTAL LIABILITIES................................... 264,112
-------
EQUITY CAPITAL
Perpetual Preferred stock and related surplus 0
Common stock.............................................. 1,211
Surplus (exclude all surplus related to
preferred stock).......................................... 10,283
Undivided profits and capital reserves.................... 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities.......................... (193)
Cumulative foreign currency translation adjustments....... 16
TOTAL EQUITY CAPITAL...................................... 16,597
------
TOTAL LIABILITIES AND EQUITY CAPITAL...................... $280,709
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
