EXHIBIT 10.48.3
EXECUTION VERSION
PNC BANK, NATIONAL ASSOCIATION
US$40,000,000,000
Global Bank Note Program
for the Issue of Senior and Subordinated Bank Notes
with Maturities of more than nine months from Date of Issue
AMENDMENT NO. 2
TO THE DISTRIBUTION AGREEMENT
May 27, 2016
CITIGROUP GLOBAL MARKETS INC.
388 Greenwich Street
New York, NY 10013
AND EACH OF THE DEALERS LISTED
ON SCHEDULE I HERETO
WHEREAS, the parties hereto have previously entered into a Distribution Agreement, dated January 16, 2014 (as amended on May 22, 2015, the “Distribution Agreement”), with respect to the issue and sale by PNC Bank, National Association (the “Issuing Bank”) to Citigroup Global Markets Inc. and each of the other dealers listed on Schedule I hereto (each referred to as a “Dealer” and collectively referred to as the “Dealers”) of (i) senior unsecured debt obligations, with maturities of more than nine months, not insured by the Federal Deposit Insurance Corporation (the “Senior Notes”) and (ii) subordinated unsecured debt obligations, with maturities of five years or more from their date of issue, not insured by the Federal Deposit Insurance Corporation (the “Subordinated Notes” and, together with the Senior Notes, the “Bank Notes”).
WHEREAS, the parties hereto wish to amend the terms of the Distribution Agreement as set forth in this amendment (“Amendment No. 2”).
NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements contained herein, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to the Terms of the Distribution Agreement.
(a) Definitions. All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Distribution Agreement.
(b) Modifications to the Distribution Agreement.
| i. | The second sentence of Section 1(b) of the Distribution Agreement is replaced in its entirety with the following: |
“Bank Notes may be outstanding at any one time in an aggregate maximum principal amount equal to US$40,000,000,000, inclusive of any notes outstanding which have been issued prior to the date of this Offering Circular by the Bank or entities that have been acquired by the Bank.”
| ii. | The first sentence of Section 2(a)(i) of the Distribution Agreement is replaced in its entirety with the following: |
“The Issuing Bank has caused to be prepared an offering circular, dated May 27, 2016, to be used by the Dealers in connection with the Dealers’ solicitation of purchasers of or offering of the Bank Notes.”
| iii. | The first sentence of Section 2(a)(iii) of the Distribution Agreement is replaced in its entirety with the following: |
“The Issuing Bank has all corporate power and authority necessary to execute, deliver and perform, and it has duly authorized, executed and delivered, this Agreement, the Issuing and Paying Agency Agreement dated as of January 16, 2014 (as amended on May 22, 2015 and May 27, 2016 and from time to time thereafter, the “Agency Agreement”), between the Issuing Bank and PNC Bank, National Association, as issuing and paying agent, and the Interest Calculation Agreement dated as of January 16, 2014 (as amended on May 22, 2015 and May 27, 2016 and from time to time thereafter, the “Interest Calculation Agreement”), between the Issuing Bank and PNC Bank, National Association, as the interest calculation agent (in such capacity, the “Calculation Agent,” which term shall include any successor thereto).”
| iv. | The first sentence of Section 6(b) of the Distribution Agreement is replaced in its entirety with the following: |
“On the date hereof and, if required pursuant to Section 8(b) hereof, on each other applicable date, as the case may be, the Dealers shall have received a certificate of the President, an Executive Vice President, a Senior Vice President, a Vice President, an Assistant Vice President, or the equivalent thereof, of the Issuing Bank reasonably satisfactory to the Dealers, substantially in the form of Exhibit C hereto.”
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| v. | The first sentence of Section 6(c) of the Distribution Agreement is replaced in its entirety with the following: |
“On the date hereof and, if required pursuant to Section 8(b) hereof, on each other applicable date, as the case may be the Dealers shall have received a certificate of the President, an Executive Vice President, a Senior Vice President, a Vice President or an Assistant Vice President of the Parent, substantially in the form of Exhibit D hereto.”
(c) Interpretation. Upon the execution and delivery of this Amendment No. 2, the Distribution Agreement shall be modified and amended in accordance with this Amendment No. 2, and all the terms and conditions of both shall be read together as though they constitute one instrument, except that, in case of conflict, the provisions of this Amendment No. 2 will control. For the avoidance of doubt, references in the Distribution Agreement to this “Agreement” shall refer to the Distribution Agreement, as amended by this Amendment No. 2.
(d) Ratification. The Distribution Agreement, as modified and amended by this Amendment No. 2, is hereby ratified and confirmed in all respects and shall bind each party hereto.
SECTION 2. Representations and Warranties of the Issuing Bank.
| (a) | The Issuing Bank represents and warrants to each Dealer as of the date hereof, as follows: |
| i. | The Issuing Bank has all corporate power and authority necessary to execute, deliver and perform, and it has duly authorized, executed and delivered this Amendment No. 2; Amendment No. 2 to the Issuing and Paying Agency Agreement dated as of January 16, 2014, between the Issuing Bank and PNC Bank, National Association, as issuing and paying agent; and Amendment No. 2 to the Interest Calculation Agreement dated as of January 16, 2014, between the Issuing Bank and PNC Bank, National Association, as the interest calculation agent. This Amendment No. 2, the Distribution Agreement (as amended on the date hereof), the Agency Agreement (as amended on the date hereof) and the Interest Calculation Agreement (as amended on the date hereof) are valid and legally binding agreements of the Issuing Bank, enforceable against the Issuing Bank in accordance with their respective terms, subject to applicable bankruptcy, liquidation, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to, or affecting, the rights of creditors of national banking associations, including laws relating to conservatorship and receivership of insured depository institutions, and to general equity principles. |
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| ii. | Each of the representations and warranties in Section 2(a) of the Distribution Agreement are true and correct as of the date hereof. |
SECTION 3. Conditions of Dealers’ Obligations.
The continued obligations of the Dealers under the Distribution Agreement shall be subject to the receipt on the date hereof of the opinions and certificates described in Sections 6(a), 6(b), 6(c), 6(d), 6(e), 6(f) and 6(g) of the Distribution Agreement, provided however, that the disclosure statement described in Section 6(a)(i)(C) need not be provided.
SECTION 4. Notices.
Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any such notice shall be effective when received at the address specified below.
If to the Issuing Bank:
PNC Bank, National Association
The Tower at PNC Plaza
300 Fifth Avenue
6th Floor
Pittsburgh, PA 15222-2401
Attention: Lisa Kovac
Facsimile Number: (412) 762-1728
Telephone Number: (412) 762-8400
If to the Parent:
The PNC Financial Services Group, Inc.
The Tower at PNC Plaza
300 Fifth Avenue
6th Floor
Pittsburgh, PA 15222-2401
Attention: Lisa Kovac
Facsimile Number: (412) 762-1728
Telephone Number: (412) 762-8400
If to Citigroup Global Markets Inc.:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Attention: Transaction Execution Group
Facsimile Number: (646) 291-5209
Telephone Number: (212) 816-1135
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If to any other Dealer: at its notice address(es) specified on Schedule I hereto or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 4.
SECTION 5. Parties.
This Amendment No. 2 shall inure to the benefit of and be binding upon the Dealers and the Issuing Bank and their respective successors. Nothing expressed or mentioned in this Amendment No. 2 is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons, directors and affiliates referred to in Sections 9 and 10 of the Distribution Agreement and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Amendment No. 2 or any provision herein or therein contained.
This Amendment No. 2 and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto and their respective successors and said controlling persons, directors and affiliates and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Bank Notes shall be deemed to be a successor by reason merely of such purchase. Notwithstanding the foregoing, the purchasers referred to in Section 4(j) of the Distribution Agreement shall have the rights set forth therein.
SECTION 6. Waiver of Jury Trial.
The Issuing Bank and each of the Dealers hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Amendment No. 2 or the transactions contemplated hereby.
SECTION 7. Governing Law.
This Amendment No. 2 and all the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of New York, excluding any choice-of-law principles that would otherwise require the application of the law of any other jurisdiction.
SECTION 8. Counterparts.
This Amendment No. 2 may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuing Bank a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between the Issuing Bank and each of the Dealers in accordance with its terms.
| Very truly yours, | ||
| PNC BANK, NATIONAL ASSOCIATION | ||
| by |
/s/ Randall C. King | |
| Name: Randall C. King Title: Executive Vice President | ||
[Signature Page to Amendment No. 2 to the Distribution Agreement]
CONFIRMED AND ACCEPTED,
as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
| by |
/s/ Jack D. McSpadden, Jr. | |
| Name: Jack D. McSpadden, Jr. | ||
| Title: Managing Director |
BARCLAYS CAPITAL INC.
| by |
/s/ Paige Maire | |
| Name: Paige Maire | ||
| Title: Managing Director |
CREDIT SUISSE SECURITIES (USA) LLC
| by |
/s/ Sharon Harrison | |
| Name: Sharon Harrison | ||
| Title: Director |
DEUTSCHE BANK SECURITIES INC.
| by |
/s/ Tom Criqui | |
| Name: Tom Criqui | ||
| Title: Managing Director/Debt Syndicate | ||
| Deutsche Bank Securities Inc. |
| by |
/s/ Christopher J. Kulusic | |
| Name: Christopher J. Kulusic | ||
| Title: Director | ||
| Deutsche Bank Securities Inc. | ||
| Debt Syndicate |
GOLDMAN, SACHS & CO.
| by |
/s/ Adam Greene | |
| Name: Adam Greene | ||
| Title: Vice President |
[Signature Page to Amendment No. 2 to the Distribution Agreement]
JEFFERIES LLC
| by |
/s/ Matt Casey | |
| Name: Matt Casey | ||
| Title: Managing Director |
J.P. MORGAN SECURITIES LLC
| by |
/s/ Stephen L. Sheiner | |
| Name: Stephen L. Sheiner | ||
| Title: Executive Director |
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
| by |
/s/ Jacqueline Cleary | |
| Name: Jacqueline Cleary | ||
| Title: Managing Director |
MORGAN STANLEY & CO. LLC
| by |
/s/ Yurij Slyz | |
| Name: Yurij Slyz | ||
| Title: Executive Director |
PNC CAPITAL MARKETS LLC
| by |
/s/ Robert W. Thomas | |
| Name: Robert W. Thomas | ||
| Title: Managing Director |
SANDLER O’NEILL & PARTNERS, L.P.
By: Sandler O’Neill & Partners Corp.,
its general partner
| by |
/s/ Robert A. Kleinert | |
| Name: Robert A. Kleinert | ||
| Title: An Officer of the Corporation |
[Signature Page to Amendment No. 2 to the Distribution Agreement]
U.S. BANCORP INVESTMENTS, INC.
| by |
/s/ Kyle Stegemeyer | |
| Name: Kyle Stegemeyer | ||
| Title: Managing Director |
WELLS FARGO SECURITIES, LLC
| by |
/s/ Jeremy Schwartz | |
| Name: Jeremy Schwartz | ||
| Title: Managing Director |
[Signature Page to Amendment No. 2 to the Distribution Agreement]
SCHEDULE I
Contact Information for
Notices to Dealers
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: General Counsel
Phone: 212-816-1135
Fax: 646-291-1469
Barclays Capital Inc.
745 Seventh Avenue, 5th Floor
New York, New York 10019
Attention: Syndicate Registration
Phone: 888-603-5847
Fax: 636-284-0844
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Short and Medium Term Finance
Phone: 212-325-2501
Fax: 212-743-1953
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets Syndicate
Fax: 212-797-2202
with a copy to:
General Counsel
Fax: 212-797-4561
Goldman, Sachs & Co.
200 West Street
New York, New York 10282
Attention: Prospectus Department
Phone: 866-471-2526
Fax: 212-902-9316
E-mail: prospectus-ny@ny.email.gs.com
S-I-1
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attention: General Counsel
Phone: 212-284-8188
Fax: 646-785-5992
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Attention: Investment Grade Syndicate Desk
Phone: 212-834-4533
Fax: 212-834-6081
Merrill Lynch, Pierce, Fenner & Smith Incorporated
50 Rockefeller Plaza
NY1-050-12-02
New York, New York 10020
Facsimile: (646) 855-5958
Attention: High Grade Transaction Management/Legal
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Attention: Investment Banking Division
Phone: 212-761-6691
Fax: 212-507-8999
PNC Capital Markets LLC
340 Madison Ave
New York, NY 10173
Attention: Christopher Rekow
Phone: 212-210-9987
with a copy to:
Jon R. Mooney
The Tower at PNC Plaza
300 Fifth Avenue
19th Floor
Pittsburgh, PA 15222-2401
Phone: 412-645-5012
Fax: 412-762-9001
S-I-2
Sandler O’Neill & Partners, L.P.
1251 Avenue of the Americas, 6th Floor
New York, NY 10020
Attention: Syndicate
Phone: 212-466-7800
Fax: 212-466-7991
U.S. Bancorp Investments, Inc.
214 North Tryon Street, 26th Floor
Charlotte, North Carolina 28202
Attention: High Grade Syndicate
Phone: 877-558-2607
Fax: 877-774-3642
Wells Fargo Securities, LLC
550 S. Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Attention: Transaction Management
Phone: 704-410-4792
Fax: 704-410-0326
S-I-3