Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent: (a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received: (1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that: (i) The Company is duly registered as a bank holding company and has duly elected to be a financial holding company under the Bank Holding Company Act of 1956, as amended. (ii) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company. (iii) Each of the Indentures has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Trustee) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇. (iv) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus. (v) The statements in the General Disclosure Package and the Prospectus under the caption “Description of Notes,” insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair summaries of such provisions. (vi) The statements in the General Disclosure Package and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations or legal conclusions with respect thereto, are accurate, complete and fair summaries of the matters described therein. (vii) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct. (viii) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. (ix) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Prospectus, as amended or supplemented at the Closing Time or Settlement Date, as the case may be, as of its date or at the Closing Time or Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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. (x) No consent, approval, authorization, license or order of, or filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Indentures, or the consummation by the Company of the transactions herein or therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Act, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law. (xi) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇. (2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counsel, in a form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated. (ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect. (iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required. (iv) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (A) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected to result in a Material Adverse Effect, (B) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) result in any violation of the provisions of the Amended and Restated Articles of Incorporation or Bylaws of the Company. (3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package and the Prospectus. (b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating Officer, Chief Financial Officer, any Senior Executive Vice President, any Executive Vice President, or any Senior Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (v) that the Company, and, to the best of its knowledge, its officers and directors, are in com
Appears in 1 contract
Sources: Distribution Agreement (Bb&t Corp)
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is duly registered validly existing as a bank holding company and has duly elected to be a financial holding company corporation in good standing under the Bank Holding Company Act laws of 1956, as amendedthe State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iiiv) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, conservatorship, receivership moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ’ rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇).
(ivvi) The Securities have been duly and validly authorized by all necessary corporate action and, when executed executed, authenticated, issued and authenticated delivered as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefore in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ’ rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency); and the Securities will be substantially in a the form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(vvii) The statements in the General Disclosure Package (if applicable) and the Prospectus under the caption “Description of Notes,Debt Securities” and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair accurate summaries of such provisions.
(viviii) The statements in the General Disclosure Package (if applicable) and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as to the extent that they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations law or legal conclusions with respect theretoconclusions, have been reviewed by such counsel and are accurate, complete and fair summaries of the matters described thereincorrect.
(viiix) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viiix) The Indentures are qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ixxii) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of at the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature statistical data set forth or referred to in the Registration Statement therein or in any document incorporated therein by reference therein or omitted therefrom, or any exhibits thereto, including and the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibitexhibit thereto, as to which no opinion is need be rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature statistical data set forth or referred to in the Registration Statement therein or in any document incorporated therein by reference therein or omitted therefrom, or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is need be rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) misleading or that the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or date, at the Closing Time or and the Settlement Date, contained or contains an untrue statement of a material fact or omits 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; misleading or (C) that the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted omits 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.
(xxiii) No consent, approval, authorization, license or order of, or filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the IndenturesSenior Note Indenture or the Subordinated Note Indenture, or the consummation by the Company of the transactions herein or and therein contemplated, except such as may be required under the 1933 Act, Act or the 1933 Act Regulations or the 1939 ActRegulations, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xixiv) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇1940 Act.
(xv) The Company has all the necessary power and authority to execute, deliver and perform this Agreement, the Terms Agreement, the Securities, the Senior Note Indenture and the Subordinated Note Indenture and to consummate the transactions herein and therein contemplated.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(ivii) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (Aa) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected and that is material to result in the Company and its subsidiaries, taken as a Material Adverse Effectwhole, or (Bb) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) Company, nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation charter or Bylaws by-laws of the Company.
(iii) The Company is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, certificate and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission Commission.
(c) At Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with GAAP applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus.
(v) that They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company, and, to the best of its knowledge, its officers and directors, are in com’s most recent audited financial
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1i) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company is duly registered as a bank holding company and has duly elected to be a financial holding company under the Bank Holding Company Act of 1956, as amendedset forth in Exhibit C hereto.
(ii) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iii) Each of the Indentures has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Trustee) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(iv) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(v) The statements in the General Disclosure Package and the Prospectus under the caption “Description of Notes,” insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair summaries of such provisions.
(vi) The statements in the General Disclosure Package and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations or legal conclusions with respect thereto, are accurate, complete and fair summaries of the matters described therein.
(vii) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viii) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ix) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Prospectus, as amended or supplemented at the Closing Time or Settlement Date, as the case may be, as of its date or at the Closing Time or Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(x) No consent, approval, authorization, license or order of, or filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Indentures, or the consummation by the Company of the transactions herein or therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Act, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xi) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation set forth in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse EffectExhibit D hereto.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(iv) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (A) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected to result in a Material Adverse Effect, (B) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) result in any violation of the provisions of the Amended and Restated Articles of Incorporation or Bylaws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate, certificate and (iv) that that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection.
(d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, andas the case may be, shall not have been downgraded from that date to the best applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of its knowledgeany intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, its officers at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and directorsany agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, are if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in comthe case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company is duly registered as a bank holding company and has duly elected to be a financial holding company under the Bank Holding Company Act of 1956, as amended.
(ii) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iii) Each of the Indentures has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Trustee) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(iv) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(v) The statements in the General Disclosure Package and the Prospectus under the caption “Description of Notes,” insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair summaries of such provisions.
(vi) The statements in the General Disclosure Package and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations or legal conclusions with respect thereto, are accurate, complete and fair summaries of the matters described therein.
(vii) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viii) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ix) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Prospectus, as amended or supplemented at the Closing Time or Settlement Date, as the case may be, as of its date or at the Closing Time or Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(x) No consent, approval, authorization, license or order of, or filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Indentures, or the consummation by the Company of the transactions herein or therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Act, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xi) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counsel, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(iv) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (A) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected to result in a Material Adverse Effect, (B) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) result in any violation of the provisions of the Amended and Restated Articles of Incorporation or Bylaws of the Company.Exhibit C.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating Officer, Chief Financial Officer, any Senior Executive Vice President, any Executive Vice President, or any Senior Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (v) that the Company, and, to the best of its knowledge, its officers and directors, are in comcompliance with applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from PricewaterhouseCoopers LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or the date of such Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference into the General Disclosure Package and Prospectus, and confirming that they are independent accountants within the meaning of the 1933 Act and the 1934 Act and the respective applicable published rules and regulations of the SEC thereunder.
(d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be in a form and substance reasonably satisfactory to the Agents and their counsel; provided that if such actions are not reasonably satisfactory to the Agents or their counsel, the Company shall have a reasonable opportunity to cure such actions. Your obligation to solicit offers to purchase the Securities in your capacity as agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire Squire, S▇▇▇▇▇▇ & D▇▇▇▇▇ (US) LLP▇▇, L.L.P., counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is duly registered validly existing as a bank holding company and has duly elected to be a financial holding company corporation in good standing under the Bank Holding Company Act laws of 1956, as amendedthe State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iiiv) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, conservatorship, receivership moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ’ rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇).
(ivvi) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefore in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ’ rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus).
(vvii) The statements in the General Disclosure Package (if applicable) and the Prospectus under the caption “Description of Notes,Debt Securities” and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair accurate summaries of such provisions.
(viviii) The statements in the General Disclosure Package (if applicable) and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as to the extent that they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations law or legal conclusions with respect theretoconclusions, have been reviewed by such counsel and are accurate, complete and fair summaries of the matters described thereincorrect.
(viiix) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viiix) The Indentures are qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ixxii) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of at the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for other than the financial statements, including the notes schedules and schedules thereto other financial data included therein and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibitexhibit thereto, as to which no opinion is need be rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes schedules and schedules thereto and the audit reports thereon, or any other financial data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibitincluded therein, as to which no opinion is need be rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) misleading or that the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or date, at the Closing Time or and the Settlement Date, contained or contains an untrue statement of a material fact or omits 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; misleading or (C) that the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted omits 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.
(xxiii) No consent, approval, authorization, license or order of, or filing or registration with, of any court or governmental authority or agency is required in connection with the sale of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Indentures, or the consummation by the Company of the transactions herein or therein contemplated, except such as may be required under the 1933 Act, Act or the 1933 Act Regulations or the 1939 ActRegulations, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xixiv) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇1▇▇▇ ▇▇▇.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(ivii) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (Aa) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected and that is material to result in the Company and its subsidiaries, taken as a Material Adverse Effectwhole, or (Bb) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) Company, nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation charter or Bylaws by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, certificate and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission Commission.
(c) At Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the General Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the General Disclosure Package and the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the General Disclosure Package and the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations or that the unaudited financial statements included in the General Disclosure Package and the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the General Disclosure Package and the Prospectus.
(v) that They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, andinquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the best date of delivery of such letter, there was any change in certain balance sheet items including the capital stock of the Company and its knowledgeconsolidated subsidiaries, any increase in long-term debt of the Company and its officers consolidated subsidiaries or any decreases in consolidated common shareholders’ equity of the Company and directorsits consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the General Disclosure Package and the Prospectus, except in each case for changes, increases or decreases which the General Disclosure Package and the Prospectus discloses have occurred or may occur or which are described in comsuch letter; or
(B) for the period from the date of the latest income statement included in the General Disclosure Package and the Prospectus to the date not more than three business days prior to the delivery of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in certain income statement items including consolidated net income or consolidated net interest income, ex
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s 's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s 's obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s 's or any other purchaser’s 's obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter)opinions, dated as of such time, of Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) & Whitney LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is duly registered validly existing as a bank holding company and has duly elected to be a financial holding company corporation in good standing under the Bank Holding Company Act laws of 1956, as amendedthe State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iv) U.S. Bank National Association is duly qualified to transact business in each jurisdiction in which its ownership or lease of substantial properties or the conduct of the business requires such qualification and where the failure to so qualify would have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(v) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and any applicable Delayed Delivery Contract has been duly authorized, executed and delivered by the Company.
(iiivi) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), any applicable Delayed Delivery Contract, the Securities and the Indentures and the consummation of the transactions contemplated herein and therein will not (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company nor will such action result in any violation of the provisions of the charter or by-laws of the Company.
(vii) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject except as (Ai) to the effect of enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (ii) rights of acceleration and the rights or availability of equitable remedies of creditors, (B) to the effect may be limited by equitable principles of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇applicability.
(ivviii) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefor in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject except as (Ai) to the effect of enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (ii) rights of acceleration and the rights or availability of equitable remedies of creditors, (B) to the effect may be limited by equitable principles of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectusapplicability.
(vix) The statements in the General Disclosure Package and the Prospectus under the caption “captions "Description of Notes,” Debt Securities" and "Plan of Distribution" and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair accurate summaries of such provisions.
(vix) The statements in the General Disclosure Package and the Prospectus with respect to the Securities under the caption “Certain "United States Federal Income Tax ConsequencesTaxation - United States Holders" and "United States Taxation - Foreign Holders,” insofar as " to the extent that they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations law or legal conclusions with respect theretoconclusions, have been reviewed by such counsel and are accurate, complete and fair summaries of the matters described thereincorrect.
(viixi) To the best of such counsel’s 's knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viiixii) The Indentures are qualified under the 1939 Act.
(xiii) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); Act and, to the best of such counsel’s 's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no or proceedings for that purpose have been instituted or are pending therefor initiated or threatened by the Commission.
(ixxiv) At the time the Registration Statement, including without limitation the Rule 430B Information, Statement became effective or is deemed effective, and as of at the date hereof, the Registration Statement and the Prospectus, Prospectus and at the time they were filed, each document incorporated by reference therein (except for other than the financial statements, including the notes schedules and schedules thereto other financial and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated included therein by reference or any exhibits thereto, including and the Statements of Eligibility and Qualification of the Trustees Trustee on Form T-1 T-l filed as an exhibitexhibit thereto, as to which no opinion is need be rendered), ) complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes schedules and schedules thereto other financial and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibitincluded therein, as to which no opinion is need be rendered): (A) the Registration StatementStatement and the Prospectus, including without limitation at the Rule 430B Information, as of its effective date and each deemed effective datetime the Registration Statement became effective, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) misleading or that the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or at the Closing Time or Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(xxv) No consent, approval, authorization, license or order of, or filing or registration with, of any court or governmental authority or agency is required in connection with the sale of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Indentures, or the consummation by the Company of the transactions herein or therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Actrules and regulations thereunder, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery In rendering such opinion, such counsel may rely as to matters of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xi) The Company is not an “investment company” within law upon the meaning opinion of counsel to the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be Agents being delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇subparagraph (3).
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure so to so qualify would not have a Material Adverse Effectmaterial adverse effect on the Company and its subsidiaries, taken as a whole.]
(iiiii) There are no pending or, to the best of such counsel’s 's knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that which are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(iv) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (A) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected to result in a Material Adverse Effect, (B) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) result in any violation of the provisions of the Amended and Restated Articles of Incorporation or Bylaws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package Statement and the Prospectus. In rendering such opinion, such counsel may rely as to matters of Minnesota law upon the opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the General Counsel of the Company being delivered pursuant to subparagraphs (1) and (2) respectively.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s 's securities by any nationally recognized statistical rating organization since the date of such Terms Agreement (if such certificate is called for by such Terms Agreement)organization, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission Commission.
(c) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or such Settlement Date, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the Regulations.
(ii) In their opinion the consolidated financial statements and schedules audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the Prospectus in accordance with standards established by the American Institute of Certified Public Accountants.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations or that the unaudited financial statements included in the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the Prospectus.
(v) that They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, andinquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to the best date of delivery of such letter, there was any change in the capital stock of the Company and its knowledgeconsolidated subsidiaries, any increase in long-term debt of the Company and its officers consolidated subsidiaries or any decreases in consolidated common shareholders' equity of the Company and directorsits consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in comsuch letter; or
(B) for the period from the date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net income, except for decreases which the Prospectus discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other proce dures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(d) At Closing Time and at each Settlement Date with respect to any Terms Ag
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s 's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s 's obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s 's or any other purchaser’s 's obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter)opinions, dated as of such time, of Squire Squire, San▇▇▇▇ & Dem▇▇▇▇, ▇▇ ▇▇▇▇▇ (US) LLP.L.P., counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is duly registered validly existing as a bank holding company and has duly elected to be a financial holding company corporation in good standing under the Bank Holding Company Act laws of 1956, as amendedthe State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and any applicable Delayed Delivery Contract has been duly authorized, executed and delivered by the Company.
(iiiv) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ' rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇).
(ivvi) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefore in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ' rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus).
(vvii) The statements in the General Disclosure Package and the Prospectus under the caption “"Description of Notes,” Debt Securities" and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair accurate summaries of such provisions.
(viviii) The statements in the General Disclosure Package and the Prospectus with respect to the Securities under the caption “Certain "United States Federal Income Tax Consequences,” insofar as Taxation - United States Holders", "United States Taxation - Foreign Holders" and "Backup Withholding and Information Reporting" to the extent that they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations law or legal conclusions with respect theretoconclusions, have been reviewed by such counsel and are accurate, complete and fair summaries of the matters described thereincorrect.
(viiix) To the best of such counsel’s 's knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viiix) The Indentures are qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); Act and, to the best of such counsel’s 's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no or proceedings for that purpose have been instituted or are pending therefor initiated or threatened by the Commission.
(ixxii) At the time the Registration Statement, including without limitation the Rule 430B Information, Statement became effective or is deemed effective, and as of at the date hereof, the Registration Statement and the Prospectus, Prospectus and at the time they were filed, each document incorporated by reference therein (except for other than the financial statements, including the notes schedules and schedules thereto other financial and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated included therein by reference or any exhibits thereto, including and the Statements of Eligibility and Qualification of the Trustees Trustee on Form T-1 T-l filed as an exhibitexhibit thereto, as to which no opinion is need be rendered), ) complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes schedules and schedules thereto other financial and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibitincluded therein, as to which no opinion is need be rendered): (A) the Registration StatementStatement and the Prospectus, including without limitation at the Rule 430B Information, as of its effective date and each deemed effective datetime the Registration Statement became effective, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) misleading or that the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or at the Closing Time or Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(xxiii) No consent, approval, authorization, license or order of, or filing or registration with, of any court or governmental authority or agency is required in connection with the sale of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Indentures, or the consummation by the Company of the transactions herein or therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Actrules and regulations thereunder, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery In rendering such opinion, such counsel may rely as to matters of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xi) The Company is not an “investment company” within law upon the meaning opinion of counsel to the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be Agents being delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇subparagraph (3).
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s 's knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that which are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(ivii) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), any applicable Delayed Delivery Contract, the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not to the best of such counsel's knowledge and information, (Aa) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected and that is material to result in the Company and its subsidiaries, taken as a Material Adverse Effectwhole, or (Bb) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation charter or Bylaws by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package Statement and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s 's securities by any nationally recognized statistical rating organization since the date of such Terms Agreement (if such certificate is called for by such Terms Agreement)organization, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission Commission.
(c) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from PricewaterhouseCoopers LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or such Settlement Date, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the Regulations.
(ii) In their opinion the consolidated financial statements and schedules audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the Prospectus in accordance with standards established by the American Institute of Certified Public Accountants.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations or that the unaudited financial statements included in the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the Prospectus.
(v) that They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company's most recent audited financial statements, andinquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to the best date of delivery of such letter, there was any change in the capital stock of the Company and its knowledge, its officers and directors, are in comconsolidated
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company is duly registered as a bank holding company and has duly elected to be is qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended.
(ii) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iii) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of any applicable bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter affecting creditors’ rights generally from time to time in effect relating to or affecting the rights or remedies of creditorseffect, (B) to the effect of general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law, law and the discretion an implied covenant of the court before which any proceeding therefore may be broughtgood faith and fair dealing, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities Notes denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (ED) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(iv) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefore in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of any applicable bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium, or other similar laws now or hereafter affecting creditors’ rights generally from time to time in effect relating to or affecting the rights or remedies of creditorseffect, (B) to the effect of general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law, law and the discretion an implied covenant of the court before which any proceeding therefore may be broughtgood faith and fair dealing, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities Notes denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (ED) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a the form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(v) The statements in the General Disclosure Package (if applicable) and the Prospectus under the caption “Description of Notes,” ”, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair summaries of such provisionsthe matters referred to therein.
(vi) The statements in the General Disclosure Package (if applicable) and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations or legal conclusions with respect thereto, are accurate, complete and fair summaries of the matters described therein.
(vii) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viii) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ix) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for financial statements, including the notes and schedules thereto and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibit, as to which no opinion is need be rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibit, as to which no opinion is need be rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) that the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or date, at the Closing Time or and the Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) that the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(x) No consent, approval, authorization, license or order of, or filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the IndenturesSenior Note Indenture or the Subordinated Note Indenture, or the consummation by the Company of the transactions herein or and therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Act, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xi) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counsel, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement Package (if applicable) and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Senior Note Indenture and the Indentures Subordinated Note Indenture and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(iv) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (A) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected to result in a Material Adverse Effect, or (B) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) Effect, nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation charter or Bylaws by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating Officer, Chief Financial Officer, any Senior Executive Vice President, any Executive Vice President, or any Senior Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (v) that the Company, and, to the best of its knowledge, its officers and directors, are in comcompliance with applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(c) At Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if calle
Appears in 1 contract
Sources: Distribution Agreement (Bb&t Corp)
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire ▇O’Melveny & ▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company is duly registered as a bank holding company and has duly elected to be is qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended.
(ii) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iii) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of any applicable bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter affecting creditors’ rights generally from time to time in effect relating to or affecting the rights or remedies of creditorseffect, (B) to the effect of general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law, law and the discretion an implied covenant of the court before which any proceeding therefore may be broughtgood faith and fair dealing, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities Notes denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (ED) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(iv) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefore in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of any applicable bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium, or other similar laws now or hereafter affecting creditors’ rights generally from time to time in effect relating to or affecting the rights or remedies of creditorseffect, (B) to the effect of general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law, law and the discretion an implied covenant of the court before which any proceeding therefore may be broughtgood faith and fair dealing, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities Notes denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (ED) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a the form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(v) The statements in the General Disclosure Package (if applicable) and the Prospectus under the caption “Description of Notes,” insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair summaries of such provisionsthe matters referred to therein.
(vi) The statements in the General Disclosure Package (if applicable) and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations or legal conclusions with respect thereto, are accurate, complete and fair summaries of the matters described therein.
(vii) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viii) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ix) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for financial statements, including the notes and schedules thereto and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibit, as to which no opinion is need be rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibit, as to which no opinion is need be rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) that the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or date, at the Closing Time or and the Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) that the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(x) No consent, approval, authorization, license or order of, or filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the IndenturesSenior Note Indenture or the Subordinated Note Indenture, or the consummation by the Company of the transactions herein or and therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Act, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xi) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇1940 Act.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counsel, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement Package (if applicable) and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Senior Note Indenture and the Indentures Subordinated Note Indenture and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(iv) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (A) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected to result in a Material Adverse Effect, or (B) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) Effect, nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation charter or Bylaws by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating Officer, Chief Financial Officer, any Senior Executive Vice President, any Executive Vice President, or any Senior Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (v) that the Company, and, to the best of its knowledge, its officers and directors, are in comcompliance with applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(c) At Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such
Appears in 1 contract
Sources: Distribution Agreement (Bb&t Corp)
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter)opinions, dated as of such time, of Squire Squire, S▇▇▇▇▇▇ & D▇▇▇▇▇ (US) LLP▇▇, L.L.P., counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is duly registered validly existing as a bank holding company and has duly elected to be a financial holding company corporation in good standing under the Bank Holding Company Act laws of 1956, as amendedthe State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has and any applicable Delayed Delivery Contract have been duly authorized, executed and delivered by the Company.
(iiiv) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, conservatorship, receivership moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ’ rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇).
(ivvi) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefore in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies enforcement of creditors, ’ rights generally or by general equitable principles (B) to the effect regardless of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus).
(vvii) The statements in the General Disclosure Package and the Prospectus under the caption “Description of Notes,Debt Securities” and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair accurate summaries of such provisions.
(viviii) The statements in the General Disclosure Package and the Prospectus prospectus supplement with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as to the extent that they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations law or legal conclusions with respect theretoconclusions, have been reviewed by such counsel and are accurate, complete and fair summaries of the matters described thereincorrect.
(viiix) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viiix) The Indentures are qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no or proceedings for that purpose have been instituted or are pending therefor initiated or threatened by the Commission.
(ixxii) At the time the Registration Statement, including without limitation the Rule 430B Information, Statement became effective or is deemed effective, and as of at the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for other than the financial statements, including the notes schedules and schedules thereto other financial and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated included therein by reference or any exhibits thereto, including and the Statements of Eligibility of the Trustees Trustee on Form T-1 T-l filed as an exhibitexhibit thereto, as to which no opinion is need be rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes schedules and schedules thereto other financial and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibitincluded therein, as to which no opinion is need be rendered): (A) the Registration StatementStatement and the Prospectus, including without limitation at the Rule 430B Information, as of its effective date and each deemed effective datetime the Registration Statement became effective, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) misleading or that the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or at the Closing Time or Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(xxiii) No consent, approval, authorization, license or order of, or filing or registration with, of any court or governmental authority or agency is required in connection with the sale of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the Indentures, or the consummation by the Company of the transactions herein or therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 Actrules and regulations thereunder, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery In rendering such opinion, such counsel may rely as to matters of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xi) The Company is not an “investment company” within law upon the meaning opinion of counsel to the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be Agents being delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇subparagraph (3).
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(ivii) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), any applicable Delayed Delivery Contract, the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not will not, to the best of such counsel’s knowledge and will not information, (Aa) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected and that is material to result in the Company and its subsidiaries, taken as a Material Adverse Effectwhole, or (Bb) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) Company, nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation charter or Bylaws by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package Statement and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such Terms Agreement (if such certificate is called for by such Terms Agreement)organization, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, certificate and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission Commission.
(c) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or such Settlement Date, in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the Regulations.
(ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations.
(iii) They have made a review of any unaudited consolidated financial statements included in the Prospectus in accordance with standards established by the Public Company Accounting Oversight Board.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations or that the unaudited financial statements included in the Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the Prospectus.
(v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the balance sheet included in the Company’s most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of delivery of such letter, there was any change in the capital stock of the Company and its consolidated subsidiaries, any increase in long-term debt of the Company and its consolidated subsidiaries or any decreases in consolidated common shareholders’ equity of the Company and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; or
(B) for the period from the date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net income, except for decreases which the Prospectus discloses have occurred or may occur or which are described in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference in the Prospectus shall be deemed included in the Prospectus for purposes of this subsection.
(d) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, and, to the best of its knowledge, its officers and directors, are in comyou
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is duly registered validly existing as a bank holding company and has duly elected to be a financial holding company corporation in good standing under the Bank Holding Company Act laws of 1956, as amendedthe State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its material properties and conduct its business substantially as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association authorized to transact the business of banking under the laws of the United States, and has corporate power and authority to own, lease and operate its material properties and conduct its business substantially as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iiiv) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(ivvi) The Senior Notes and the Subordinated Notes have been duly established in conformity with Section 301 of the Senior Note Indenture and the Subordinated Note Indenture, respectively. The Securities have been duly and validly authorized by all necessary requisite corporate action and, when executed executed, authenticated and authenticated issued as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefor in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (E) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(vvii) The statements in the General Disclosure Package (if applicable) and the Prospectus under the caption “Description of Securities We May Offer—Senior Notes and Subordinated Notes,” and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair accurate summaries of such provisions.
(viviii) The statements in the General Disclosure Package (if applicable) and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 United States federal tax law and regulations or legal conclusions with respect thereto, are accurate, complete and fair constitute accurate summaries of the matters described thereintherein in all material respects.
(viiix) To the best of such counsel’s knowledge and informationknowledge, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viiix) The Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(xi) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ixxii) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibit, as to which no opinion is need be rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees on Form T-1 filed as an exhibit, as to which no opinion is need be rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or date, at the Closing Time or and the Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(xxiii) No consent, approval, authorization, license or order of, or qualification, filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the IndenturesSenior Note Indenture or the Subordinated Note Indenture, or the consummation by the Company of the transactions herein or and therein contemplated, except such as may be required under the 1933 Act, the 1933 Act Regulations or the 1939 1934 Act, all of which have been obtained, or such as may be required under state securities or blue sky laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, this Distribution Agreement and the Securities and the consummation of the transactions contemplated therein, did not herein and therein will not result in a violation of any federal or New York law.
(xixiv) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇1940 Act.
(xv) The Company has all the necessary power and authority to execute, deliver and perform this Agreement, the Terms Agreement, the Securities, the Senior Note Indenture and the Subordinated Note Indenture and to consummate the transactions herein and therein contemplated, and perform its obligations thereunder.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company its subsidiaries that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(ivii) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (A) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected and that is material to result in the Company and its subsidiaries, taken as a Material Adverse Effectwhole, or (B) result in a violation of any law or administrative regulation or administrative or court judicial decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) Company, nor will such action result in any violation of the provisions of the Amended and Restated Articles certificate of Incorporation incorporation or Bylaws by-laws of the Company.
(iii) The Company is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, certificate and (iv) that that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission Commission.
(c) At the Closing Time, at the date of any Terms Agreement and (v) that on the Companyapplicable Settlement Date with respect to any such Terms Agreement to which you are a party, and, to the best of its knowledge, its officers and directors, are in comif called for by such Terms Agr
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Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Squire ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (US) LLP, counsel to the Company (which, as appropriate, may rely upon the opinion or opinions of the Company’s General Counsel or Deputy General Counsel), in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is duly registered validly existing as a bank holding company and has duly elected to be a financial holding company corporation in good standing under the Bank Holding Company Act laws of 1956, as amendedthe State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its material properties and conduct its business substantially as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its material properties and conduct its business substantially as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) has been duly authorized, executed and delivered by the Company.
(iiiv) Each of the Indentures Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the applicable Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject (A) to the effect of any applicable bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter affecting creditors’ rights generally from time to time in effect relating to or affecting the rights or remedies of creditorseffect, (B) to the effect of general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law, law and the discretion an implied covenant of the court before which any proceeding therefore may be broughtgood faith and fair dealing, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (ED) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency, and the Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(ivvi) The Securities have been duly and validly authorized by all necessary corporate action and, when executed executed, authenticated, issued and authenticated delivered as specified in the applicable Indenture and delivered against payment of the consideration therefor, therefore in accordance with this Agreement and the applicable Terms Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject (A) to the effect of any applicable bankruptcy, insolvencyinsolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium, or other similar laws now or hereafter affecting creditors’ rights generally from time to time in effect relating to or affecting the rights or remedies of creditorseffect, (B) to the effect of general principles of equity, regardless of whether enforcement is considered in a proceeding in equity or at law, law and the discretion an implied covenant of the court before which any proceeding therefore may be broughtgood faith and fair dealing, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Securities Notes denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) would be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (ED) to governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Securities will be substantially in a the form contemplated by the Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will conform in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(vvii) The statements in the General Disclosure Package (if applicable) and the Prospectus under the caption “Description of Notes,Debt Securities” and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate, complete and fair accurate summaries of such provisions.
(viviii) The statements in the General Disclosure Package (if applicable) and the Prospectus with respect to the Securities under the caption “Certain United States Federal Income Tax Consequences,” insofar as to the extent that they purport to constitute summaries of matters of the U.S. Internal Revenue Code of 1986 and regulations law or legal conclusions with respect theretoconclusions, have been reviewed by such counsel and are accurate, complete and fair summaries of the matters described thereincorrect.
(viiix) To the best of such counsel’s knowledge and information, there are no contracts, indentures, mortgages, deeds of trust, loan agreements, notes, leases or other agreements or instruments required to be described or referred to in the General Disclosure Package, the Prospectus and the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(viiix) The Indentures are duly qualified under the ▇▇▇▇ ▇▇▇.
(xi) The Registration Statement is effective under the 1933 Act; any required filing of each prospectus relating to the offered Securities (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(ixxii) At the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date hereof, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (except for financial statements, including the notes and schedules thereto and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibit, as to which no opinion is need be rendered), complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other statistical data or information of a financial or accounting nature set forth or referred to in the Registration Statement or in any document incorporated therein by reference or any exhibits thereto, including the Statements of Eligibility of the Trustees Trustee on Form T-1 filed as an exhibit, as to which no opinion is need be rendered): (A) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Prospectus, as amended or supplemented at the Closing Time or the Settlement Date, as the case may be, as of its date or date, at the Closing Time or and the Settlement Date, contained or contains an untrue statement of a material fact or omits 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; or (C) the General Disclosure Package (if applicable) as of the Applicable Time, contained an untrue statement of a material fact or omitted 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.
(xxiii) No consent, approval, authorization, license or order of, or filing or registration with, any court or governmental authority or agency of the United States or the State of New York is required for the performance by the Company of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, the IndenturesSenior Note Indenture or the Subordinated Note Indenture, or the consummation by the Company of the transactions herein or and therein contemplated, except such as may be required under the 1933 Act, Act or the 1933 Act Regulations or the 1939 ActRegulations, all of which have been obtained, or such as may be required under state securities laws. The execution and delivery of this Agreement, the applicable Terms Agreement, the Securities, the Indentures, and the consummation of the transactions contemplated therein, did not and will not result in a violation of any federal or New York law.
(xixiv) The Company is not an “investment company” within the meaning of the 1940 Act, and in respect of each Settlement Date with respect to any applicable Terms Agreement which calls for an opinion to be delivered pursuant hereto, the Company, after giving effect to the application of proceeds from the offering of the Securities as contemplated in the General Disclosure Package and the Prospectus, will not be an “investment company” within the meaning of the ▇▇▇▇ ▇▇▇1940 Act.
(xv) The Company has all the necessary power and authority to execute, deliver and perform this Agreement, the Terms Agreement, the Securities, the Senior Note Indenture and the Subordinated Note Indenture and to consummate the transactions herein and therein contemplated.
(2) The opinion or opinions, dated as of such time, of the Company’s General Counsel or Deputy General Counselof the Company, in a form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of North Carolina with corporate power and authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package, the Registration Statement and the Prospectus and (B) execute, deliver and perform this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities, and the Indentures and to consummate any transactions herein and therein contemplated.
(ii) The Principal Banking Subsidiary is (A) validly existing as a state-chartered commercial bank in good standing under the laws of the State of North Carolina, (B) has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and (C) is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect.
(iii) There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company that are required to be disclosed in the documents incorporated by reference in the Registration Statement and the Prospectus that are not disclosed as required.
(ivii) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), the Securities and the Indentures and the consummation of the transactions contemplated herein and therein did not and will not (Aa) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument (or similar documents) known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject which may reasonably be expected and that is material to result in the Company and its subsidiaries, taken as a Material Adverse Effectwhole, or (Bb) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company which may reasonably be expected to result in a Material Adverse Effect or (C) Company, nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation charter or Bylaws by-laws of the Company.
(iii) The Company is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chief Operating OfficerChairman, Chief Financial OfficerVice Chairman, any Senior Executive Vice President, any Executive Vice President, President or any Senior a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of such the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, certificate and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission Commission.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (v) or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that the Company, and, they are independent public accountants with respect to the best Company and its subsidiaries within the meaning of its knowledge, its officers the 1933 Act and directors, are the 1933 Act Regulations. All financial statements and schedules included in commaterials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for
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