UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 11, 2019
F.N.B. CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania | 001-31940 | 25-1255406 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
12 Federal Street, One North Shore Center Pittsburgh, Pennsylvania |
15212 | |
(Address of Principal Executive Offices) | (Zip Code) |
(800) 555-5455
(Registrants telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2 below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 |
Entry in Material Definitive Agreement |
On February 14, 2019, F.N.B. Corporation (the Corporation ) completed its offering of $120,000,000 aggregate principal amount of its 4.950% Fixed-to-Floating Rate Subordinated Notes due 2029 (the Notes ). The Notes will be treated as Tier 2 capital for regulatory capital purposes. The offering of the Notes was consummated pursuant to the terms of an underwriting agreement, dated as of February 11, 2019 (the Underwriting Agreement ) by and among the Corporation, as issuer, and Morgan Stanley & Co. LLC and Sandler ONeill & Partner, L.P., as representatives of the several underwriters named in Schedule I to the Underwriting Agreement. The Underwriting Agreement contains various representations, warranties and agreements by the Corporation, indemnification rights and obligations of the parties and termination provisions.
The Notes were sold to the public by the Underwriters at a price equal to 100% of the aggregate principal amount of the Notes. The net proceeds to the Corporation from the sale of the Notes, after the underwriting discount, but before estimated transaction expenses, were approximately $118.8 million. The Notes were offered pursuant to the prospectus supplement, dated February 11, 2019, to the base prospectus, dated May 16, 2018, forming a part of the Corporations registration statement on Form S-3 (File No. 333-224979) (the Registration Statement ).
The Notes will mature on February 14, 2029 (the Maturity Date ). From and including the date of original issuance to but excluding February 14, 2024, the Notes will bear interest at an initial rate of 4.950% per annum, payable semi-annually in arrears on August 14 and February 14 of each year, commencing on August 14, 2019. Unless redeemed, from and including February 14, 2024 to but excluding the Maturity Date, the interest rate will reset quarterly to an annual interest rate equal to the then-current three-month LIBOR rate plus 240 basis points, payable quarterly in arrears on February 14, May 14, August 14 and November 14 of each year, commencing on May 14, 2024. Notwithstanding the foregoing, in the event that three-month LIBOR is less than zero, three-month LIBOR will be deemed to be zero.
The Notes are redeemable in whole or in part beginning on February 14, 2024, and on any interest payment date thereafter, or in whole, but not in part, at any time if: (i) a change or prospective change in law occurs that could prevent us from deducting interest payable on the Notes for U.S. federal income tax purposes; (ii) an event occurs that precludes the Notes from being recognized as Tier 2 capital for regulatory capital purposes; or (iii) the Corporation becomes required to register as an investment company under the Investment Company Act of 1940, as amended, in each case at 100% of the principal amount of the Notes, plus accrued and unpaid interest thereon to but excluding the date of redemption.
Holders of the Notes may not accelerate the maturity of the Notes, except upon the Corporations or First National Bank of Pennsylvanias (our principal banking subsidiary) bankruptcy, insolvency, liquidation, receivership or similar event.
The Corporation intends to use the net proceeds from the sale of the Notes for general corporate purposes, which may include investments at the holding company level, providing capital to support the growth of First National Bank of Pennsylvania and our business, repurchases of our common shares, repayment of maturing obligations and refinancing of outstanding indebtedness (including the redemption of certain callable trust preferred securities issued by one or more of our trust affiliates) and the payment of the cash consideration components of future acquisitions.
The Notes were issued pursuant to an Indenture, dated as of October 2, 2015, (as supplemented and amended by a Second Supplemental Indenture dated as of August 30, 2016 (collectively, the Base Indenture ), and as further supplemented and amended by a Third Supplemental Indenture dated as of February 14, 2019 (the Supplemental Indenture ), by and between the Corporation and Wilmington Trust, National Association, as trustee (the Trustee ). The Base Indenture and the Supplemental Indenture are together referred to as the Indenture . The Notes are the Corporations subordinated unsecured obligations and are subordinated in right of payment to all existing and future Senior Indebtedness (as defined in the Indenture), including general creditors other than holders of our trade accounts payable incurred in the ordinary course, and effectively subordinated to all of our existing and future secured indebtedness. The Notes are not obligations of, and are not, and will not be, guaranteed by any of the Corporations subsidiaries.
The foregoing description of the Underwriting Agreement, the Notes and the Indenture is qualified in its entirety by reference to the full text of the Underwriting Agreement, the Base Indenture, the Supplemental Indenture and the Form of Note. The Base Indenture is set forth in Exhibits 4.7 and 4.9 to the Registration Statement, and the Underwriting Agreement, the Supplemental Indenture and the Form of Note are attached hereto as Exhibit 1.1, Exhibit 4.1 and Exhibit 4.2, respectively, and are incorporated herein by reference.
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of the Registrant |
The disclosure required by this item is included in Item 1.01 and is incorporated herein by reference.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
F.N.B. CORPORATION | ||
(Registrant) | ||
By: |
/s/ James G. Orie |
|
James G. Orie, | ||
Chief Legal Officer |
Date: February 14, 2019
Exhibit 1.1
EXECUTION COPY
$120,000,000
F.N.B. Corporation
4.950% Fixed-to-Floating Rate Subordinated Notes due 2029
Underwriting Agreement
February 11, 2019
Morgan Stanley & Co. LLC
Sandler ONeill & Partners, L.P.
As representatives of the several Underwriters
named in Schedule I hereto
c/o |
Morgan Stanley & Co. LLC |
1585 Broadway, 29th Floor
New York, New York 10020
Sandler ONeill & Partners, L.P.
1251 Avenue of the Americas, 6th Floor
New York, NY 10020
Ladies and Gentlemen:
F.N.B. Corporation, a Pennsylvania corporation (the Company), proposes to sell to the underwriters named in Schedule 1 hereto (the Underwriters), for whom you are acting as representatives (the Representatives), $120 million aggregate principal amount of its 4.950% Fixed-to-Floating Rate Subordinated Notes due 2029 (the Securities) to be issued under an indenture, dated as of October 2, 2015, as supplemented by a second supplemental indenture dated as of August 30, 2016 (as so supplemented, the Base Indenture), between the Company and Wilmington Trust, National Association, as trustee (the Trustee), as further supplemented by a third supplemental indenture, to be dated as of February 14, 2019 (the Supplemental Indenture), between the Company and the Trustee (the Base Indenture, as supplemented by the Supplemental Indenture, the Indenture).
The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement . The Company has prepared and filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Securities Act), an automatic shelf registration statement on Form S-3 (File No. 333-224979) including a prospectus, for the registration under the Securities Act of the Securities. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (Rule 430 Information), is referred to herein as the Registration Statement; and as used herein, the term Preliminary Prospectus means each prospectus included in such registration statement (and any amendments thereto) before it became effective, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term Prospectus means the prospectus in the form first used (or made available upon request of the Underwriters pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the Rule 462 Registration Statement), then any reference herein to the term Registration Statement shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to 6:48 P.M., New York City time, on February 11, 2019 (the Time of Sale), the Company had prepared the following information (collectively, the Time of Sale Information): the Preliminary Prospectus dated February 11, 2019, and each free-writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto as constituting part of the Time of Sale Information.
2. Purchase of the Securities by the Underwriters . (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, the aggregate principal amount of the Securities set forth opposite such Underwriters name in Schedule 1 hereto at a purchase price of 99.000% of the aggregate principal amount thereof, plus any accrued and unpaid interest thereon.
(b) The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Squire Patton Boggs (US) LLP at 10:00 A.M., New York City time, on February 14, 2019, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the Closing Date.
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(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery of the Securities in the form of one or more permanent global securities in definitive form deposited with or on behalf of the Trustee as custodian for The Depository Trust Company (DTC) for credit to the respective accounts of the Underwriters and registered in the name of Cede & Co., as nominee for DTC. Interests in the permanent global securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Prospectus.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arms length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriters are advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties . The Company represents and warrants to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Time of Sale Information, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any 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; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(b) Time of Sale Information . The Time of Sale Information as of the Time of Sale did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon
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and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter expressly for use in such Time of Sale Information, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clause (i) below) an Issuer Free Writing Prospectus) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, and (ii) the documents listed on Annex A hereto and any electronic road show or other written communications approved in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter expressly for use in any Issuer Free Writing Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Section 7(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Securities has been initiated or threatened by the Commission; as of the most recent effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the Trust Indenture Act), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the
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circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described in Section 7(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents are filed with the Commission will conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements; Non-GAAP Financial Measures. The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly the information shown thereby. To the extent applicable, all disclosures contained in the Registration Statement, the Time of Sale Information and the Prospectus regarding non-GAAP financial measures (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act, the rules and regulations thereunder and Item 10 of Regulation S-K under the Securities Act, as applicable. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto.
(g) No Material Adverse Change . Except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, since the date of the latest financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus, as amended and supplemented immediately prior to the Time of
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Sale, there has not been any material adverse change or any development involving a prospective material adverse change in the financial condition, results of operations, business or stockholders equity of the Company and its subsidiaries taken as a whole.
(h) Organization and Good Standing of the Company. The Company has been duly organized and is validly existing and presently subsisting under the laws of the Commonwealth of Pennsylvania, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the financial condition, business affairs or prospectus, or results of operations of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under the Securities or this Agreement (a Material Adverse Effect).
(i) Organization and Good Standing of Significant Subsidiaries. Each significant subsidiary (as defined in Regulation S-X promulgated by the Commission) of the Company (each a Significant Subsidiary) has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct its business in which it is engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a Material Adverse Effect; all of the issued and outstanding capital stock of each Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid and non-assessable (except as provided by 12 U.S.C. §55 or any comparable provision of applicable state law); and the capital stock of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects other than such liens, encumbrances and defects which would not, individually or in the aggregate, have a Material Adverse Effect. The Company does not have any subsidiary not listed on Exhibit 21 to the Companys Annual Report on Form 10-K for the year ended December 31, 2017 that was required to be so listed.
(j) Capitalization. The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus and all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are not subject to any pre-emptive or similar rights.
(k) Due Authorization . The Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
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(m) Indenture . The Base Indenture has been duly authorized, executed and delivered by the Company. The Supplemental Indenture has been duly authorized by the Company and, when duly executed and delivered by the Company in accordance with the terms of this Agreement, will be duly executed and delivered by the Company. Following such execution and delivery, the Indenture will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), will conform in all material respects to the description thereof contained in the Time of Sale Information and the Prospectus and will be in substantially the form filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement. The Indenture has been duly qualified under the Trust Indenture Act and complies in all material respects with the applicable requirements of the Trust Indenture Act.
(n) Securities . The Securities have been duly authorized and, when duly executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters on the Closing Date against payment therefor, will be validly issued and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights and to general equitable principles (regardless of whether considered in a proceeding in equity or at law); and the Securities, when issued and delivered, will conform in all material respects to the description thereof contained in the Time of Sale Information and the Prospectus.
(o) Accuracy of Statements . The statements set forth in the Time of Sale Information and the Prospectus under the captions Description of the Notes, Certain U.S. Federal Income Tax Considerations, Certain ERISA Considerations, insofar as they are descriptions of contracts, agreements or other legal documents or describe Federal statutes, rules and regulations, constitute an accurate summary of the matters set forth therein in all material respects.
(p) No Violation or Default. Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its charter or bylaws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, to have a Material Adverse Effect.
(q) No Conflicts. The execution, delivery and performance by the Company of this Agreement, the Indenture and the Securities (collectively, the Transaction Documents), the
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issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated hereby and thereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Significant Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, (ii) result in any violation of the provisions of the charter or bylaws or similar organizational documents of the Company or any of its Significant Subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect. As used herein, a Debt Repayment Triggering Event means any event or condition which gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holders behalf) issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its Significant Subsidiaries.
(r) No Consents Required . No consent, approval, authorization, order, license, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of each of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (FINRA) and under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(s) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries is or may be a party or to which any property of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, is reasonably likely to have a Material Adverse Effect; to the best of the Companys knowledge, no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending legal, governmental or regulatory actions, suits or proceedings that are required under the Securities Act to be described in the Registration Statement, the Time of Sale Information or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.
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(t) Independent Accountants. Ernst & Young LLP, the Companys independent registered public accounting firm, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(u) Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Time of Sale Information and the Prospectus, will not be required to register as an investment company or an entity controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the Investment Company Act).
(v) Licenses and Permits. The Company and its Significant Subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course (other than any such revocation or modification, or any such non-renewal, that would not, individually or in the aggregate, have a Material Adverse Effect).
(w) Disclosure Controls . The Company and its subsidiaries maintain an effective system of disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commissions rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Companys management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(x) Internal Controls . The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) designed by, or under the supervision of, the Companys principal executive officer and principal financial officer to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States (GAAP), including, but not limited to, internal
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accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus has been prepared in accordance with the Commissions rules and guidelines applicable thereto. The Companys internal control over financial reporting was effective as of December 31, 2018, and the Company was not aware of any material weaknesses in its internal control over financial reporting at such time.
(y) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken any bribe, rebate, payoff, influence payment, kickback or other unlawful payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(z) Compliance with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(aa) No Conflicts with Sanctions Laws. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of
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Foreign Assets Control of the U.S. Department of the Treasury, or the U.S. Department of State (including, without limitation, through the designation as a specially designated national or blocked person), the United Nations Security Council, the European Union, Her Majestys Treasury, or other relevant sanctions authority (collectively, Sanctions), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea and Syria (each, a Sanctioned Country); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding or facilitation, is the subject or target of Sanctions; (ii) to fund or facilitate any activities of or business in any Sanctioned Country; or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(bb) No Brokers Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a brokerage commission, finders fee or like payment in connection with the offering and sale of the Securities.
(cc) No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of any securities of the Company to facilitate the sale of the Securities.
(dd) Business with Cuba. The Company has complied with all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida, as amended) relating to doing business with the Government of Cuba or with any person or affiliate located in Cuba.
(ee) Margin Rules . The application of the proceeds received by the Company from the issuance, sale and delivery of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System (the Federal Reserve Board) or any other regulation of such Federal Reserve Board.
(ff) Sarbanes-Oxley Act . There is and has been no failure on the part of the Company or any of the Companys directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley Act), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(gg) Status under the Securities Act . At the time of filing of the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
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Securities Act) of the Securities and at the date hereof, the Company was not and is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act and, in each case, at the times specified in the Securities Act in connection with the offering of the Securities. As of the Closing Date, the Company will have paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein).
(hh) Bank Holding Company Act. The Company is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended (the BHC Act).
(ii) Deposit Insurance . The deposit accounts of each of the Companys bank subsidiaries are insured by the Federal Deposit Insurance Corporation (the FDIC) to the fullest extent permitted by law and the rules and regulations of the FDIC; such subsidiaries have paid all premiums and assessments required by the FDIC and the regulations thereunder; and no proceedings for the termination of such insurance are pending or, to the best of the Companys knowledge, threatened.
(jj) Bank Regulatory Authorities. Each of the Company and its subsidiaries are in compliance with all applicable laws administered by, and all rules and regulations of, the Board of Governors of the Federal Reserve Board, the FDIC, the Office of the Comptroller of the Currency, the Pennsylvania Department of Banking and Securities, and any other federal or state bank regulatory authorities with jurisdiction over the Company or its subsidiaries (collectively, the Bank Regulatory Authorities), except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus or where such noncompliance would not, individually or in the aggregate, have a Material Adverse Effect.
(kk) Absence of Consent Decrees . Neither the Company nor any of its subsidiaries is party to or otherwise the subject of any consent decree, memorandum of understanding, written commitment or other written supervisory agreement with the Bank Regulatory Authorities charged with the supervision or insurance of depository institutions or their holding companies.
(ll) Cybersecurity. (i)(x) Except as disclosed in the Registration Statement, the Time of Sale Information or the Prospectus, there has been no security breach or other compromise of or relating to any of the Companys or its subsidiaries information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, IT Systems and Data) and (y) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data resulting in a loss of Company or customer data; (ii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; and (iii) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
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(mm) Title to Real and Personal Property. The Company and its subsidiaries have good and marketable title in fee simple (in the case of real property) to, or have valid and marketable rights to lease or otherwise use, all items of real and personal property and assets that are material to the respective businesses of the Company and its Significant Subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its Significant Subsidiaries or (ii) would not, individually or in the aggregate, have a Material Adverse Effect.
(nn) Title to Intellectual Property. The Company and its Significant Subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as currently conducted, and the conduct of their respective businesses will not conflict in any material respect with any such rights of others. The Company and its Significant Subsidiaries have not received any written notice of any claim of infringement, misappropriation or conflict with any such rights of others in connection with its patents, patent rights, licenses, inventions, trademarks, service marks, trade names, copyrights and know-how, which would result in a Material Adverse Effect.
(oo) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be described in the Registration Statement and the Prospectus and that is not so described in such documents and in the Time of Sale Information.
(pp) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed through the date hereof except with respect to any taxes that are currently being contested in good faith or as would not have, individually or in the aggregate, a Material Adverse Effect; and except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, there is no tax deficiency that has been, or would reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets, except for tax deficiencies that would not, individually or in the aggregate, have a Material Adverse Effect.
(qq) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries principal suppliers, contractors or customers, in each case except as would not have a Material Adverse Effect.
(rr) Compliance with and Liability under Environmental Laws. (i) The Company and its subsidiaries (a) are, and at all prior times were, in compliance with any and all applicable
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federal, state, local and foreign laws, rules, regulations, requirements, decisions, judgments, decrees, orders and the common law relating to pollution or the protection of the environment, natural resources or human health or safety, including those relating to the generation, storage, treatment, use, handling, transportation, Release or threat of Release of Hazardous Materials (collectively, Environmental Laws), (b) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, (c) have not received notice of any actual or potential liability under or relating to, or actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any Release or threat of Release of Hazardous Materials, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, (d) are not conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any Environmental Law at any location, and (e) are not a party to any order, decree or agreement that imposes any obligation or liability under any Environmental Law, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such matter, as would not, individually or in the aggregate, have a Material Adverse Effect; and (iii) except as described in the Registration Statement, the Time of Sale Information and the Prospectus, (a) there are no proceedings that are pending, or that are known to be contemplated, against the Company or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (b) the Company and its subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws, including the Release or threat of Release of Hazardous Materials, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (c) none of the Company and its subsidiaries anticipates material capital expenditures relating to any Environmental Laws. Hazardous Materials means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any Environmental Law. Release means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the environment, or in, into from or through any building or structure.
(ss) Hazardous Materials. There has been no storage, generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused by the Company or any of its subsidiaries (or, to the knowledge of the Company and its subsidiaries, any other entity (including any predecessor) for whose acts or omissions the Company or any of its subsidiaries is or could reasonably be expected to be liable) at, on, under or from any property or facility now or previously owned, operated or leased by the Company or any of its subsidiaries, or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location that could reasonably be expected to result in any liability under any Environmental Law, except for any violation or liability which would not, individually or in the aggregate, have a Material Adverse Effect.
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(tt) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), for which the Company or any member of its Controlled Group (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the Code)) would have any liability (each, a Plan) has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, except for noncompliance that could not reasonably be expected to result in material liability to the Company or its subsidiaries; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption that could reasonably be expected to result in a material liability to the Company or its subsidiaries; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, the applicable minimum funding standard of Sections 412, 430 and 431 of the Code or Sections 302, 303 and 304 of ERISA, as applicable, has been satisfied (without taking into account any waiver thereof or extension of any amortization period) and is reasonably expected to be satisfied in the future (without taking into account any waiver thereof or extension of any amortization period), and no Plan is currently, and none is reasonably expected to be, in at risk status within the meaning of Section 303(i) of ERISA or Section 430(i) of the Code; (iv) the fair market value of the assets of each Plan subject to Section 401(a) of the Code exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (v) no reportable event (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that either has resulted, or could reasonably be expected to result, in material liability to the Company or its subsidiaries; (vi) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation, in the ordinary course and without default) in respect of a Plan (including a multiemployer plan, within the meaning of Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in material liability to the Company or its subsidiaries. None of the following events has occurred or is reasonably likely to occur: (x) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or its subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the Company and its subsidiaries most recently completed fiscal year; or (y) a material increase in the Company and its subsidiaries accumulated post-retirement benefit obligations (within the meaning of Statement of Financial Accounting Standards 106) compared to the amount of such obligations in the Company and its subsidiaries most recently completed fiscal year.
(uu) Insurance. The Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate, in the reasonable belief of the Company, to protect the Company and its subsidiaries and their respective businesses; neither the Company nor any of its subsidiaries has received written notice from any insurer or agent of such insurer that capital improvements or other
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material expenditures are required or necessary to be made in order to continue such insurance; and except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, the Company reasonably believes that it will be able to renew its existing insurance coverage as and when such coverage expires or obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(vv) No Restrictions on Subsidiaries. Except in each case as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiarys capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiarys properties or assets to the Company or any other subsidiary of the Company.
(ww) No Registration Rights. No person has the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(xx) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(yy) Statistical and Market Data. The statistical and market-related data included in the Registration Statement, the Time of Sale Information and the Prospectus are based on or derived from sources that the Company reasonably believes are reliable and accurate in all material respects.
(zz) Investor Presentation. The written and oral communications made by the Company in connection with its investor presentation of February 6, 2019 in connection with the offering of the Securities (the Investor Presentation) did not include any material non-public information, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and did not constitute an offering of the Securities.
4. Further Agreements of the Company . The Company covenants and agrees with each Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to
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10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, to each Underwriter (A) a conformed copy of the Registration Statement as originally filed (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term Prospectus Delivery Period means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus (other than as either of them may be deemed to be amended or supplemented due to the filing of any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, except for any Current Reports on Form 8-K or other filings under the Exchange Act relating specifically to the offering contemplated hereby), whether before or after the time that the Registration Statement becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Time of Sale Information or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by
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the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and, subject to the proviso at the end of Section 4(f) hereof, the Company will use its commercially reasonable efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Time of Sale Information or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance . (1) If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Time of Sale Information is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances existing when the Time of Sale Information is delivered to a purchaser, be misleading or so that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will cooperate with the Representatives and counsel for the Underwriters to qualify or register the Securities for offer and sale under (or obtain exemptions from the application of) the state securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and to continue such qualifications in effect so long as required for distribution of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to or take any action which would subject it to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
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(g) Earning Statement. The Company will make generally available to its security holders and the Representatives as soon as practicable an earning statement (which need not be audited) that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the effective date (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. During the period from the date hereof through and including the business day following the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any debt securities issued by the Company or guaranteed by the Company and having a tenor of more than one year.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the heading Use of proceeds.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(k) Reports. For a period of two years after the date hereof, the Company will furnish to the Representatives, as soon as they are available, copies of all reports or other communications (financial or other) furnished to all holders of the Securities, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided the Company will be deemed to have furnished such reports and financial statements to the Representatives to the extent they are filed on the Commissions Electronic Data Gathering, Analysis, and Retrieval system.
(l) Record Retention . The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(m) Clearance and Settlement. The Company will cooperate with the Representatives and use all commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC.
5. Certain Agreements of the Underwriters . Each Underwriter hereby represents and agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for use of, and will not use, authorize use of, refer to or participate in the planning for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that, solely as a result of use by such underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or
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prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter and approved by the Company in advance in writing.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering of the Securities (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters Obligations . The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, if there are any debt securities, including the Securities, or preferred stock of, or other securities guaranteed by, the Company or any of its subsidiaries that are rated by a nationally recognized statistical rating organization, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in the rating accorded any such debt securities or preferred stock and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the Closing Date on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
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(e) Officers Certificate. The Representatives shall have received on and as of the Closing Date a certificate of Chief Executive Officer or an Executive Vice President of the Company and the chief financial or chief accounting officer of the Company or such other officer(s) as are satisfactory to the Representatives (i) confirming that such officers have carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officers, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young, LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a cut-off date no more than three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Company.
(i) Reed Smith LLP, counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit A-1 hereto.
(ii) James G. Orie, Chief Legal Officer of the Company, shall have furnished to the Representatives his written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit A-2 hereto.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 Statement of Squire Patton Boggs (US) LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
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(j) Clearance, Settlement and Trading. On or prior to the Closing Date, the Securities shall be eligible for clearance, settlement and trading in book-entry form through the facilities of DTC.
(k) Good Standing . The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in the Commonwealth of Pennsylvania and its good standing as a foreign entity in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(l) Chief Financial Officers Certificate. The Company shall have furnished to the Underwriters, on the date of this Agreement and on the Closing Date, a certificate of the Company, signed by the Companys Chief Financial Officer, in each case in the form attached as Exhibit B hereto.
(m) Additional Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution .
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers, employees, partners, agents and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Investor Presentation, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by or on behalf of such Underwriter expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
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(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the third paragraph under the caption Underwriting and the information contained in the seventh and eighth paragraphs dealing with stabilizing transactions under the caption Underwriting.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the Indemnified Person) shall promptly notify the person against whom such indemnification may be sought (the Indemnifying Person) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided , further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceedings in any jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to one firm of local counsel in each applicable jurisdiction) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors, officers, employees, partners, agents and any control persons of such Underwriter shall be designated in writing by Morgan Stanley & Co. LLC and
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any such separate firm for the Company, its directors and its officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. To the extent the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
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contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness of Agreement . This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
9. Termination . This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange, Inc., the Nasdaq Stock Market LLC or the over-the-counter market, or minimum or maximum prices shall have been generally established on any of such stock exchanges or the over-the-counter market by the Commission or FINRA; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the Closing Date on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter . (a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that effects any such changes. As used in this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
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(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of Securities that remain unpurchased on the Closing Date does not exceed one-eleventh of the aggregate principal amount of Securities to be purchased hereunder, then the Company shall have the right to require each non-defaulting Underwriter to purchase the amount of Securities that such Underwriter agreed to purchase hereunder on such date plus such Underwriters pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of Securities that remain unpurchased on the Closing Date exceeds one-eleventh of the aggregate principal amount of Securities to be purchased hereunder, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses . (a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Companys counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification of the Securities under the state or foreign securities or blue sky laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any registrar or paying or authenticating agent for the Securities; (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA, if any; and (ix) all expenses incurred by the Company in connection with any road show presentation to potential investors. Upon consummation of the sale of the Securities, the Company shall reimburse the Underwriters for all out-of-pocket costs and expenses that shall have been reasonably incurred
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by the Underwriters in connection with the purchase and the offering and sale of the Securities, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges (together, the Fees and Expenses). If this Agreement is terminated by the Underwriters pursuant to Section 6 or 9, or if the sale to the Underwriters of the Securities on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all Fees and Expenses.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to reimburse the Underwriters (other than any defaulting Underwriter) for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby, but the Company shall then be under no further liability to the Underwriters except as provided in Sections 7 and 11 hereof.
12. Persons Entitled to Benefit of Agreement . This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, affiliates, employees, partners, agents and any controlling persons referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival . The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms . For purposes of this Agreement, (a) except where otherwise expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities Act; (b) the term business day means any day other than a day on which banks are permitted or required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in Rule 405 under the Securities Act.
15. Compliance with USA Patriot Act . In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
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16. Miscellaneous . (a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, New York 10020; Attention: Global Capital Markets Syndicate Desk, with a copy to the Legal and Compliance Department and J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: 212-270-1063; Attention: Investment Grade Syndicate Desk; and Sandler ONeill & Partners, L.P., 1251 Avenue of the Americas, 6th Floor, New York, New York 10020 (fax: (212) 466-7991; Attention: Robert A. Kleinert). Notices to the Company shall be given to it at One North Shore Center, 12 Federal Street, Pittsburgh, Pennsylvania 15212 (fax: (724) 983-3515); Attention: Vince Calabrese.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(g) Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
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(h) Certain Definitions.
(i) BHC Act Affiliate has the meaning assigned to the term affiliate in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
(ii) Covered Entity means any of the following:
(A) |
a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
(B) |
a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
(C) |
a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
(iii) Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv) U.S. Special Resolution Regime means each of (A) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (B) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[ Signature page follows ]
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If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours, | ||||
F.N.B. CORPORATION | ||||
By: |
/s/ Vincent J. Calabrese Jr. |
|||
Name: | Vincent J. Calabrese Jr. | |||
Title: | CFO |
Accepted: February 11, 2019
MORGAN STANLEY & CO. LLC | ||||
By: |
/s/ Ian Drewe |
|||
Name: | Ian Drewe | |||
Title: | Executive Director | |||
SANDLER ONEILL & PARTNERS, L.P. | ||||
BY: Sandler ONeill & Partners Corp., the sole general partner | ||||
By: |
/s/ Robert A. Kleinert |
|||
Name: | Robert A. Kleinert | |||
Title: | An Officer of the Corporation |
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
[Signature Page to Underwriting Agreement]
Annex A
Time of Sale Information
Final Term Sheet with respect to the Securities dated February 11, 2019, substantially in the form of Annex B of this Agreement.
Annex A-1
Annex B
PRICING TERM SHEET
Annex B-1
Exhibit A-1
Form of Opinion of Reed Smith LLP
(a) The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date of the Underwriting Agreement; each of the Preliminary Prospectus and the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act.
(b) The Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus included in the Time of Sale Information and the Prospectus (other than the financial statements and related notes thereto and the other financial, accounting and statistical information and data included or omitted therein or the documents incorporated by reference into the Registration Statement, the Time of Sale Information and the Prospectus and any amendment or supplement thereto, as to which such counsel need express no opinion) as of their respective effective or issue dates appeared on their face to be responsive as to form in material respects with the requirements of the Securities Act.
(c) The Company is duly organized and presently subsisting under the laws of the Commonwealth of Pennsylvania.
(d) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(e) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), and conforms in all material respects to the description thereof contained in the Time of Sale Information and the Prospectus. The Indenture has been duly qualified under the Trust Indenture Act.
(f) The Securities have been duly authorized for issuance under the Indenture and executed by the Company and, when duly authenticated by the Trustee in accordance with the Indenture and delivered to the Underwriters on the Closing Date against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights and to general equitable principles (regardless of whether considered in a proceeding in equity or at law); and the Securities, when issued and delivered, will conform in all material respects to the description thereof contained in the Time of Sale Information and the Prospectus.
Exhibit A-1-1
(g) The execution, delivery and performance by the Company of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated thereby will not (i) result in any violation of the provisions of the charter or bylaws of the Company or (ii) result in the violation of any U.S. federal law or State of New York law or any judgment, order or regulation of any court or arbitrator or governmental or regulatory authority thereunder that in each case we have, in the exercise of customary professional diligence, recognized as applicable to the Company and to transactions of the type contemplated by the Transaction Documents, except in the case of clause (ii) above, for any violations that would not, individually or in the aggregate, have a Material Adverse Effect.
(h) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority under any U.S. federal law or State of New York law that, in each case, we have, in the exercise of customary professional diligence, recognized as applicable to the Company and to transactions of the type contemplated by the Transaction Documents, is required for the execution, delivery and performance by the Company of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation by the Company of the transactions contemplated by the Transaction Documents, except for the registration of the Securities under the Securities Act, which has been made, and such consents, approvals, authorizations, orders and registrations or qualifications as may be required by FINRA or under applicable state securities laws as to which such counsel express no opinion, in connection with the purchase and distribution of the Securities by the Underwriters.
(i) The statements in the Preliminary Prospectus and Prospectus under the headings U.S. Federal Income Tax Considerations, Certain ERISA Considerations and Description of the Notes, to the extent that such statements purport to summarize the terms of legal documents specifically referred to therein, matters of law or legal conclusions, in each case subject to the qualifications, exceptions and limitations described therein, are accurate in all material respects.
(j) The Company is not and, after giving effect to the application of the proceeds received by the Company from the offering and sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus, will not be required to register as an investment company or an entity controlled by an investment company within the meaning of the Investment Company Act.
(k) No order suspending the effectiveness of the Registration Statement has been issued, no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or in connection with the offering is pending or, to the knowledge of such counsel, threatened by the Commission.
(l) The Company is duly registered as a bank holding company and qualified as a financial holding company under the BHC Act; and is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold
Exhibit A-1-2
its properties and to conduct the businesses as described in the Registration statement, the Time of Sale Information and the Prospectus, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a Material Adverse Effect.
(m) Each Significant Subsidiary (as such term is defined in Rule 1-02 of Regulation S-X under the Exchange Act) of the Company has been duly organized and is validly existing and in good standing under the laws of its jurisdictions of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct its business in which it is engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a Material Adverse Effect; all of the issued and outstanding capital stock of each Significant Subsidiary of the Company has been duly authorized and validly issued and is fully paid and non-assessable (except as provided by 12 U.S.C. §55 or any comparable provision of applicable state law); and the capital stock of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects other than such liens, encumbrances and defects which would not, individually or in the aggregate, have a Material Adverse Effect.
(n) The execution, delivery and performance by the Company of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated thereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or a Debt Repayment Triggering Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any Significant Subsidiary is a party or by which the Company or any Significant Subsidiary is bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, (ii) result in any violation of the provisions of the charter or bylaws of First National Bank of Pennsylvania or, to such counsels knowledge, similar organizational documents of any Significant Subsidiary (other than First National Bank of Pennsylvania) or (iii) result in the violation of any law or regulation applicable to the Company or any Significant Subsidiary or any judgment or order applicable to the Company or any Significant Subsidiary, of any court or arbitrator or governmental or regulatory authority except, in the case of clauses (i) and (iii) above, for such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect. Debt Repayment Triggering Event means any event or condition which gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holders behalf) issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any Significant Subsidiary.
(o) To the knowledge of such counsel, (A) there are no current or pending legal, governmental or regulatory actions, suits or proceedings to which the Company or any of its subsidiaries is a party or of which any of their property is the subject that are required under the Securities Act to be described in the Registration Statement or the Prospectus and that are not so
Exhibit A-1-3
described in the Registration Statement, the Time of Sale Information or the Prospectus and (B) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus and that have not been so filed as exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.
(p) The documents incorporated by reference into the Time of Sale Information and the Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date (other than the financial statements and related notes thereto and the other financial, accounting and statistical information and data included or omitted therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
The primary purpose of such counsels professional engagement was not to establish or confirm factual matters or financial or quantitative information. Therefore, such counsel are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in, or incorporated by reference in, the Registration Statement, the Time of Sale Information, the Prospectus and any amendment or supplement thereto (except as expressly provided in paragraph (i) above), and have not made an independent check or verification thereof. Based on such counsels participation, review and reliance as described above, without independent check and verification, such counsel advise you that no facts have come to such counsels attention that would lead us to believe that: (i) the Registration Statement, at the time of its effective date (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C to be part of the Registration Statement at the time of effectiveness), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Information as of the Time of Sale contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or any amendment or supplement thereto as of its date and the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that, in each case, such counsel express no belief, and make no statement, with respect to the financial statements and related notes thereto and the other financial, accounting and statistical information and data included or omitted therein or the documents incorporated by reference into the Registration Statement, the Time of Sale Information and the Prospectus and any amendment or supplement thereto.
In rendering such opinion, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials that are furnished to the Underwriters. Such opinion will be limited to the federal laws of the United States, the laws of the State of New York, the State of Delaware and the Commonwealth of Pennsylvania, and such counsel will express no opinion as to the effect on the matters covered by such opinion of the laws of any other jurisdiction.
Exhibit A-1-4
Exhibit A-2
Form of Opinion of Chief Legal Officer of the Company of the Company
(a) The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, in the column entitled Actual under the caption Capitalization (except for subsequent issuances, if any, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the Time of Sale Information and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the Time of Sale Information and the Prospectus) and conforms to the descriptions thereof set forth or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus.
(b) To the knowledge of such counsel, except as described in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is the subject, that individually or in the aggregate, would have a Material Adverse Effect; and to the knowledge of such counsel, no such investigations, actions, suits or proceedings are threatened by any governmental or regulatory authority or threatened by others.
(c) To the knowledge of such counsel, neither the Company nor any Significant Subsidiary is in violation of its charter, bylaws, or similar organizational documents and no default by the Company or any Significant Subsidiary exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement, the Time of Sale Information or the Prospectus or filed or incorporated by reference as an exhibit to the Registration Statement.
(d) The statements in the Companys Annual Report on Form 10-K under the heading Part 1 Item 1. Business Government Supervision and Regulation, to the extent that they constitute summaries of the terms of contracts, agreements or other legal documents, matters of law or regulation or legal conclusions, fairly summarize the matters described therein, as of the date thereof, in all material respects.
The primary purpose of such counsels professional responsibilities was not to establish or confirm factual matters or financial or quantitative information. Therefore, such counsel are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in, or incorporated by reference in, the Registration Statement, the Time of Sale Information, the Prospectus and any amendment or supplement thereto, and have not made an independent check or verification thereof. Based on such counsels participation, review and reliance as described above, without independent check and verification, such counsel advise you that no facts have come to such counsels attention that would lead me to believe that: (i) the Registration Statement, at the time of its effective date (including the information, if any, deemed
Exhibit A-2-1
pursuant to Rule 430A, 430B or 430C to be part of the Registration Statement at the time of effectiveness), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Information as of the Time of Sale contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Prospectus or any amendment or supplement thereto as of its date and the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that, in each case, such counsel express no belief, and make no statement, with respect to the financial statements and related notes thereto and the other financial, accounting and statistical information and data included or omitted therein or the documents incorporated by reference into the Registration Statement, the Time of Sale Information and the Prospectus and any amendment or supplement thereto.
Such counsel is licensed to practice law in the Commonwealth of Pennsylvania, and such opinion is limited to matters of Pennsylvania Law and the federal laws of the United States. To the extent that any other law applies, it is assumed that such law is identical to Pennsylvania Law in all substantive respects.
Exhibit A-2-2
Exhibit B
Form of Chief Financial Officers Certificate
F.N.B. CORPORATION
Chief Financial Officers Certificate
February [●], 2019
I, Vincent J. Calabrese, Jr., do hereby certify that I am the Chief Financial Officer of F.N.B. Corporation (the Company ) and, in my capacity as such and not in my individual capacity, and based upon an examination of the Companys financial records and schedules undertaken by myself or members of my staff who are responsible for the Companys financial and accounting matters, do hereby certify that:
I am providing this certificate in connection with the offering (the Offering) by the Company of an aggregate of $[●] principal amount of the Companys [●]% Fixed-to-Floating rate subordinated notes due 2029 (the Notes), pursuant to an underwriting agreement (the Underwriting Agreement), dated February [●], 2019, between the Company, on the one hand, and Morgan Stanley & Co. LLC and Sandler ONeill & Partners, L.P., as representatives of underwriters named therein (collectively, the Underwriters), on the other hand, as further described in the preliminary prospectus supplement, dated February [●], 2019 relating to the Notes (together with the accompanying base prospectus dated May 16, 2018, including information incorporated therein by reference, the Prospectus ).
1. |
I am familiar with the accounting, operations and records systems of the Company and its consolidated subsidiaries. I have (i) read the Prospectus and (ii) supervised the compilation of and reviewed the information set forth in the Companys periodic reports filed with the Securities and Exchange Commission (SEC), including the Companys Annual Report on Form 10-K for the year ended December 31, 2017 and the Companys Quarterly Reports on Form 10-Q for the periods ended March 31, 2018, June 30, 2018 and September 30, 2018 (collectively referred to herein as the 2018 Information ), as incorporated by reference into the Prospectus. |
2. |
Nothing has come to my attention that causes me to believe that the information contained in the Prospectus is not true, correct and accurate in all material respects as of the date hereof. |
4. |
For purposes of this certificate, I or members of my staff who are responsible for the Companys financial and accounting matters have performed the following procedures on the items included in the Companys 2018 Information attached as Annex A that are circled, which will apply as indicated with respect to the letters |
Exhibit B-1
referenced below, and, to my knowledge, such information was accurate in all material respects as of the date such information was filed with the Commission: |
(a) |
Compared the amount to, or computed the amount from, a schedule or report prepared by the Company from the Companys records and found it to be in agreement. |
(b) |
Proved the arithmetic accuracy (as adjusted for rounding, where applicable) based on data in the above-mentioned records and schedules. |
Amounts and percentages have been rounded or truncated where appropriate.
This certificate is being furnished to the Underwriters solely to assist them in conducting their investigation of the Company and its subsidiaries in connection with the Offering. This certificate may be used by the Underwriters (i) in any litigation or regulatory proceeding, whether instituted by or against the Underwriters or otherwise, or (ii) to defend themselves against any liability, or alleged liability, in each case, relating to, or arising out of the materials (or representations thereon) specifically covered by this certificate.
[Signature Page Follows]
Exhibit B-2
IN WITNESS WHEREOF, the undersigned has executed and delivered this chief financial officers certificate on behalf of the Company as of the date first written above.
By: |
|
|||
Name: | Vincent J. Calabrese, Jr. | |||
Title: | Chief Financial Officer |
Exhibit B-3
Exhibit 4.1
F.N.B. CORPORATION
as the Corporation
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of February 14, 2019
to
INDENTURE
Dated as of October 2, 2015
4.950% Fixed-to-Floating Rate Subordinated Notes due 2029
THIS THIRD SUPPLEMENTAL INDENTURE (this Third Supplemental Indenture ) is dated as of February 14, 2019, by and between F.N.B. Corporation, a Pennsylvania corporation (the Corporation ), and Wilmington Trust, National Association, as trustee (in such capacity, the Trustee ), under the Base Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Corporation and the Trustee have heretofore executed and delivered the Indenture, dated as of October 2, 2015 (as supplemented and amended by the Second Supplemental Indenture between the parties hereto dated as of August 30, 2016, the Base Indenture , and as further supplemented and amended by this Third Supplemental Indenture, the Indenture ), providing for the establishment from time to time of series of the Corporations unsecured subordinated debentures, notes or other evidences of indebtedness (hereinafter called the Securities ) and the issuance from time to time of Securities under the Indenture;
WHEREAS, Sections 9.1 of the Base Indenture provides that the Corporation and the Trustee may enter into an indenture supplemental to the Base Indenture (x) to establish the form or forms or terms of Securities of any series as permitted by Section 2.1 and 3.1 of the Base Indenture and to provide for the issuance thereof and (y) to change or eliminate any provisions of the Base Indenture;
WHEREAS, pursuant to a First Supplemental Indenture dated as of October 2, 2015, the Corporation issued $100,000,000 aggregate principal amount of 4.875% Subordinated Notes due 2025;
WHEREAS, pursuant to Section 2.1 and 3.1 of the Base Indenture, the Corporation desires to establish a new series of Securities under the Indenture to be known as its 4.950% Fixed-to-Floating Rate Subordinated Notes due 2029 (the 2029 Series ) and to establish and set the form and terms of the notes of the 2029 Series (the Notes ), as provided in this Third Supplemental Indenture, and to provide for the initial issuance of Notes of the 2029 Series in the aggregate principal amount of $120,000,000; and
WHEREAS, the Corporation has requested that the Trustee execute and deliver this Third Supplemental Indenture; all requirements necessary to make this Third Supplemental Indenture a valid, binding and enforceable agreement in accordance with its terms, and to make the Notes, when executed by the Corporation and authenticated and delivered by the Trustee, the valid, binding and enforceable obligations of the Corporation, have been satisfied; and the execution and delivery of this Third Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the covenants and agreements set forth in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
Section 1.01 Relation to Base Indenture . This Third Supplemental Indenture constitutes a supplement to the Base Indenture and an integral part of the Indenture and shall be read together with the Base Indenture as though all the provisions thereof are contained in one instrument. Except as expressly amended by the Third Supplemental Indenture, the terms and provisions of the Base Indenture shall remain in full force and effect. Notwithstanding the foregoing and any other provisions herein, this Third Supplemental Indenture shall only apply to the Notes.
Section 1.02 Definition of Terms . For all purposes of this Third Supplemental Indenture:
(a) capitalized terms used herein without definition shall have the meanings set forth in the Base Indenture, provided that if the definition of a capitalized term defined in this Third Supplemental Indenture conflicts with the definition of that capitalized term in the Base Indenture, the definition of that capitalized term in this Third Supplemental Indenture shall control for purposes of this Third Supplemental Indenture and the Notes;
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(b) a term defined anywhere in this Third Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect interpretation;
(e) unless otherwise specified or unless the context requires otherwise, (i) all references in this Third Supplemental Indenture to Sections refer to the corresponding Sections of this Third Supplemental Indenture and (ii) the terms herein, hereof, hereunder and any other word of similar import refer to this Third Supplemental Indenture; and
(f) for purposes of this Third Supplemental Indenture and the Notes, the following terms have the meanings given to them in this Section 1.02(f):
1940 Act Event means an event requiring the Corporation to register as an investment company pursuant to the Investment Company Act of 1940, as amended.
Applicable Procedures of a Depositary means, with respect to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
Appropriate Federal Banking Agency means the appropriate federal banking agency with respect to the Corporation as that term is defined in Section 3(q) of the Federal Deposit Insurance Act or any successor provision.
Business Day means, for interest payable on or before February 14, 2024 or for any repayment of principal on the Maturity Date or any earlier date of redemption, any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law, executive order or regulation to close in The City of New York or, if applicable, any other place of payment for the Notes, and, for interest payable after February 14, 2024 (other than on the Maturity Date or any earlier date of redemption), any such day that is also a London Banking Day.
Calculation Agent means Wilmington Trust, National Association, or any other successor appointed by the Corporation (including the Corporation or any of its Affiliates), acting as calculation agent, which appointment shall not require prior notice to or consent of the holders of the Notes.
Depositary has the meaning set forth in Section 2.03.
DTC shall have the meaning set forth in Section 2.03 hereof.
Federal Reserve means the Board of Governors of the Federal Reserve System or any successor regulatory authority with jurisdiction over bank or financial holding companies.
Fixed Rate Period shall have the meaning set forth in Section 2.05(a) hereof.
Floating Rate Period shall have the meaning set forth in Section 2.05(a) hereof.
Global Note shall be a global security representing Notes and have the meaning set forth in Section 2.04 hereof.
Independent Tax Counsel means a law firm, a member of a law firm or an independent practitioner that is experienced in matters of U.S. federal income taxation law, including the deductibility of interest payments made with respect to corporate debt instruments, and shall include any Person who, under the standards of professional conduct then prevailing and applicable to such counsel, would not have a conflict of interest in representing the Corporation or the Trustee in connection with providing the legal opinion contemplated by the definition of the term Tax Event.
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Interest Determination Date means, with respect to an Interest Period during the Floating Rate Period, the second London Banking Day prior to the beginning of such Interest Period.
Interest Payment Date means each date on which interest on the Notes is payable, in accordance with the provisions of Section 2.05 hereof.
Interest Period shall have the meaning set forth in Section 2.05(b) hereof.
London Banking Day means a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
Maturity means the date on which the principal or Maturity Consideration of such Security (or any installment of principal or Maturity Consideration) becomes due and payable or deliverable as therein or herein provided, whether at the Stated Maturity or acceleration (whether by declaration or otherwise), call for redemption or otherwise.
Maturity Consideration means securities, which may be issued by the Corporation or another Person, or a combination of cash, such securities and/or other property that may be delivered to Holders of Securities of any series to satisfy the Corporations obligations with regard to payment upon Maturity, or any redemption or required repurchase or in connection with any exchange provisions, or any interest payment.
Maturity Date means, with respect to the principal repayable on such date, the Stated Maturity Date or date of earlier redemption, if applicable.
Original Issue Discount Security means any Security which provides for an amount less than the principal amount thereof to be due and payable upon acceleration (whether by declaration or otherwise) of the Maturity thereof pursuant to Section 7.02.
Outstanding means, as of the date of determination, all Notes theretofore authenticated and delivered under the Indenture, except:
(i) such Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) such Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee for such series or any Paying Agent in trust for the Holders of such Notes, provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) such Notes which have been paid pursuant to Section 3.6 of the Base Indenture or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a protected purchaser (within the meaning of Article 8 of the Uniform Commercial Code) in whose hands such Notes are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite principal amount of such Notes Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the Notes owned by the Corporation or any other obligor upon the Notes or any Affiliate of the Corporation or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which are registered in the Security Register in the name of the Corporation, any obligor stated to be so obligated on such Notes or any Affiliate of the Corporation or such obligor which is listed as such on an Officers Certificate delivered to the Trustee shall be so disregarded. Notes so owned which have been pledged in good faith
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may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Notes and that the pledgee is not the Corporation or any other obligor upon the Notes or any Affiliate of the Corporation or of such other obligor. The Trustee shall be entitled to request and rely upon an Officers Certificate as conclusive evidence regarding the ownership or pledge of Notes by the Corporation or any other obligor upon the Notes or any Affiliate of the Corporation or of such other obligor.
Place of Payment shall mean an office or agency of the Corporation maintained for such purpose, which shall initially be the corporate trust office of the Trustee located at 1100 North Market Street, Wilmington, Delaware 19890, Attn: F.N.B. Corporation Administrator.
Principal Subsidiary Bank means each of (i) any bank subsidiary the consolidated assets of which constitute 40% or more of the Corporations consolidated assets and (ii) any other bank subsidiary designated as a principal subsidiary bank by the Corporations Board of Directors; provided that if the Federal Reserve notifies the Corporation that a bank subsidiary that is a principal subsidiary bank applying the tests in clause (i) or (ii) above does not qualify as a major subsidiary depository institution within the requirements of the Federal Reserves capital guidelines applicable to bank holding companies, such bank subsidiary will not be a principal subsidiary bank from and after the time that the Corporation receives from the Federal Reserve such a notice.
Redemption Date means the date fixed for redemption of the Notes by or pursuant to the Indenture.
Redemption Price means the price at which a Note is to be redeemed pursuant to the Indenture.
Record Date means the 15th calendar day preceding the related Interest Payment Date, whether or not a Business Day.
Regulatory Capital Treatment Event means the Corporations good faith determination, that as a result of:
(a) any amendment to, or change in, the laws, rules or regulations of the United States (including, for the avoidance of doubt, any agency or instrumentality of the United States, including the Federal Reserve and other federal bank regulatory agencies) or any political subdivision of or in the United States that is enacted or becomes effective after the initial issuance of the Notes;
(b) any proposed change in those laws, rules or regulations that is announced or becomes effective after the initial issuance of the Notes; or
(c) any official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws, rules or regulations or policies with respect thereto that is announced after the original issue date of the Notes,
there is more than an insubstantial risk that the Corporation will not be entitled to treat the Notes then Outstanding as Tier 2 Capital (or its equivalent) for purposes of the capital adequacy rules of the Federal Reserve (or, as and if applicable, the capital adequacy rules or regulations of any successor Appropriate Federal Banking Agency) as then in effect and applicable, for so long as any Notes are Outstanding.
Senior Indebtedness means the principal of (and premium, if any) and interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding), if any, on:
(i) |
all indebtedness, obligations and other liabilities (contingent or otherwise) of the Corporation for borrowed money (including obligations of the Corporation in respect of overdrafts and any loans or advances from banks, whether or not evidenced by notes or similar instruments); |
(ii) |
all obligations of the Corporation associated with derivative products such as foreign exchange contracts, currency exchange agreements, interest rate protection agreements, commodity contracts and similar arrangements; |
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(iii) |
all indebtedness, obligations and other liabilities (contingent or otherwise) of the Corporation evidenced by bonds, debentures, notes or other instruments for the payment of money; |
(iv) |
all indebtedness of the Corporation incurred in connection with the acquisition of any properties or assets (whether or not the recourse of the lender is to the whole of the Corporations assets or to only a portion thereof), other than any account payable or other accrued current liability or obligation to trade creditors incurred in the ordinary course of business; |
(v) |
all obligations and liabilities (contingent or otherwise) in respect of the Corporations leases required or permitted, in conformity with accounting principles generally accepted in the United States of America, to be accounted for as capitalized lease obligations on the Corporations balance sheet; |
(vi) |
all obligations of the Corporation arising from off-balance sheet guarantees and direct credit substitutes; |
(vii) |
all direct or indirect guaranties or similar agreements by the Corporation in respect of, and obligations or liabilities (contingent or otherwise) of the Corporation to purchase or otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or liabilities of another Person of the kind described above; and |
(viii) |
any and all amendments, renewals, extensions and refundings of any such indebtedness, obligations or liabilities, in each case, whether outstanding on the date that the Corporation enter into the Indenture or arising after that time. |
Senior Indebtedness shall not include:
(i) |
any indebtedness in which the instrument or instruments evidencing or securing any such indebtedness, or in any amendment, renewal, extension or refunding of such instrument or instruments, expressly provides that such indebtedness shall not be senior in right of payment to the Notes or expressly provides that such indebtedness is pari passu with or junior to the Notes; |
(ii) |
the Corporations junior subordinated notes and subordinated debt outstanding as of the date of this Third Supplemental Indenture; and |
(iii) |
trade accounts payable in the Corporations ordinary course of business. |
Stated Maturity Date shall have the meaning set forth in Section 2.02 hereof.
Tax Event means the receipt by the Corporation of an opinion of Independent Tax Counsel to the effect that, as a result of:
(a) an amendment to or change (including any announced prospective amendment or change) in any law or treaty, or any regulation thereunder, of the United States or any of its political subdivisions or taxing authorities;
(b) a judicial decision, administrative action, official administrative pronouncement, ruling, regulatory procedure, regulation, notice or announcement, including any notice or announcement of intent to adopt or promulgate any ruling, regulatory procedure or regulation (any of the foregoing, an administrative or judicial action); or
(c) an amendment to or change in any official position with respect to, or any interpretation of, an administrative or judicial action or a law or regulation of the United States that differs from the previously generally accepted position or interpretation;
in each case, occurring or becoming publicly known on or after the original issue date of the Notes, there is more than an insubstantial risk that interest payable by the Corporation on the Notes is not, or, within 90 days of the date of such opinion, will not be, deductible by the Corporation, in whole or in part, for United States federal income tax purposes; provided, however, that an interest disallowance or deferral pursuant to Section 163(j) of the Internal Revenue Code as in effect on the date of this Third Supplemental Indenture shall not be taken into account for purposes of this definition and thus shall not trigger a Tax Event.
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Three-Month LIBOR means, as determined by the Calculation Agent:
(i) The rate for deposits in U.S. dollars having an index maturity of three months as such rate is displayed on Bloomberg on page BBAM1 (or any other page as may replace such page on such service or any successor service for the purpose of displaying the London interbank rates of major banks for U.S. dollars) ( Bloomberg BBAM1 ) as of 11:00 a.m., London time, on such Interest Determination Date. In the event that three-month LIBOR is less than zero, three-month LIBOR shall be deemed to be zero. If no such rate so appears, three-month LIBOR on such Interest Determination Date will be determined in accordance with the provisions described in clause (ii) or (iii) below.
(ii) With respect to an Interest Determination Date on which no rate is displayed on Bloomberg BBAM1 as specified in clause (i) above, the Calculation Agent shall request the principal London offices of each of four major reference banks (which may include affiliates of the underwriters for any offering of the Notes) in the London interbank market, as selected by the Corporation, and whose name and contact information shall be provided by the Corporation in writing to the Calculation Agent, to provide the Calculation Agent with its offered quotation for deposits in U.S. dollars having an index maturity of three months, commencing on the first day of the related Interest Period, to prime banks in the London interbank market at approximately 11:00 a.m., London time, on such Interest Determination Date and in a principal amount that is representative for a single transaction in U.S. dollars in such market at such time. If at least two such quotations are so provided, then three-month LIBOR on such Interest Determination Date will be the arithmetic mean calculated by the Calculation Agent of such quotations. If fewer than two such quotations are so provided, then three-month LIBOR on such Interest Determination Date will be the arithmetic mean calculated by the Calculation Agent of the rates quoted at approximately 11:00 a.m., in New York City, on such Interest Determination Date by three major banks (which may include affiliates of the underwriters for any offering of the Notes) in New York City selected by the Corporation, and whose name and contact information shall be provided by the Corporation in writing to the Calculation Agent, for loans in U.S. dollars to leading European banks, having an index maturity of three months and in a principal amount that is representative for a single transaction in U.S. dollars in such market at such time; provided, however, that if the banks so selected by the Corporation are not quoting as mentioned in this sentence, but a LIBOR Event (as defined below) has not occurred, three-month LIBOR for the upcoming Interest Period to which the Interest Determination Date relates shall be Three-Month LIBOR as in effect in the current Interest Period or, in the case of the first Interest Period in the Floating Rate Period, the most recent Three-Month LIBOR that can be determined by reference to Bloomberg BBAM1.
(iii) Notwithstanding clauses (i) and (ii) above, if the Corporation, in its sole discretion, determines that three-month LIBOR has been permanently discontinued or is no longer viewed as an acceptable benchmark for securities like the Notes and the Corporation has notified the Calculation Agent in writing of such determination (a LIBOR Event ), the Calculation Agent will use, as directed by the Corporation in writing, as a substitute for three-month LIBOR (the Alternative Rate ) for each future Interest Determination Date, the alternative reference rate selected by the central bank, reserve bank, monetary authority or any similar institution (including any committee or working group thereof) that is consistent with market practice regarding a substitute for three-month LIBOR. As part of such substitution, the Calculation Agent will, as directed by the Corporation in writing, make such adjustments to the Alternative Rate or the spread thereon, as well as the business day convention, Interest Determination Dates and related provisions and definitions ( Adjustments ), in each case that are consistent with market practice for the use of such Alternative Rate. Notwithstanding the foregoing, if the Corporation determines in its sole discretion that there is no alternative reference rate selected by the central bank, reserve bank, monetary authority or any similar institution (including any committee or working group thereof) that is consistent with market practice regarding a substitute for three-month LIBOR, the Corporation may, in its sole discretion, appoint an independent financial advisor ( IFA ) to determine an appropriate Alternative Rate and any Adjustments, and the decision of the IFA will be binding on the Corporation, the Calculation Agent, the Trustee and the holders of Notes. If a LIBOR Event has occurred, but for any reason an Alternative Rate has not been determined or the Corporation determines, in its sole discretion, that there is no such market practice for the use of such Alternative Rate (and, in each case, an IFA has not determined an appropriate Alternative Rate and Adjustments or an IFA has not been appointed), Three-Month LIBOR for the upcoming Interest Period to which the determination date relates shall be Three-Month LIBOR as in effect for the current Interest Period; provided, however, that if this sentence is applicable with respect to the first Interest Determination Date related to the Floating Rate Period, the interest rate, business day convention and manner of calculating interest applicable during the Fixed Rate Period will remain in effect during the Floating Rate Period.
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The terms Corporation , Trustee , Indenture , Base Indenture , Notes , Securities , Third Supplemental Indenture and 2029 Series shall have the respective meanings set forth in the recitals to this Third Supplemental Indenture and the paragraph preceding such recitals.
The terms Adjustments , Alternative Rate , Bloomberg BBAM1 , IFA and LIBOR Event shall have the respective meanings set forth in the definition of Three-Month LIBOR.
Section 1.03 Acts of Holders of the Notes . Section 1.5 of the Base Indenture shall apply to the Notes; provided, that, solely with respect to the Notes:
(i) the following shall replace the first two sentences of the fifth paragraph thereof:
The Corporation may, but shall not be obligated to, set a record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall be the later of 10 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 7.1 of this Indenture prior to such solicitation. If a record date is fixed, those Persons who were Holders of Securities at such record date (or their duly designated proxies), and only those Persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such Persons continue to be Holders after such record date, provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. No such vote or consent shall be valid or effective for more than 120 days after such record date.
ARTICLE 2
ESTABLISHMENT OF THE 2029 SERIES
AND TERMS OF THE NOTES
Section 2.01 Establishment of the Series of the Notes and Designation . There is hereby authorized and established a series of Securities designated as the 4.950% Fixed-to-Floating Rate Subordinated Notes due 2029, initially offered in the aggregate principal amount of $120,000,000. The Notes that are a part of such series of Securities shall have the terms set forth in the Base Indenture and this Third Supplemental Indenture, and the Notes shall be in substantially the form attached hereto as Exhibit A as provided in Section 5.01 hereof.
Section 2.02 Maturity . The date upon which the principal amount of the Outstanding Notes shall become due and payable at final maturity, together with any accrued and unpaid interest then owing, is February 14, 2029 (the Stated Maturity Date ), unless such Notes shall have been redeemed in full prior to such date pursuant to Article 3 hereof. If the Maturity Date falls on any day that is not a Business Day, interest and principal on the Notes will be paid on the next succeeding Business Day (without adjustment in the amount of the interest paid). Interest payable on the Maturity Date will be payable to the Person to whom the principal of the Notes shall be payable.
Section 2.03 Form, Payment and Appointment .
(a) The Notes will be issued in permanent global only form and will be represented by one or more Global Notes (the Global Notes ) registered in the name of or held by The Depository Trust Company (and any successor thereto) ( DTC ) or its nominee. DTC and any successor depositary appointed in accordance with the provisions below, are referred to as the Depositary .
(b) Except as provided below, Notes represented by the Global Notes shall not be exchangeable for, and shall not otherwise be issuable as, Notes in certificated form. No Global Notes may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be registered, in the name of any Person other than DTC or a nominee thereof unless (A) DTC has notified the Corporation that it (i) is unwilling
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or unable to continue as Depositary for the Global Notes and the Corporation does not appoint a successor Depositary within 90 days after receiving such notice, (B) DTC ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended and the Corporation does not appoint a successor Depositary within 90 days after becoming aware that DTC has ceased to be registered as a clearing agency, (C) the Corporation notifies the Trustee in writing that it elects to cause the issuance of Notes in definitive form, or (D) any event will have happened and be continuing which, after notice or lapse of time, or both, would constitute an Event of Default with respect to the Notes. If the Corporation receives a notice or becomes aware of such occurrence of the kind specified in Clauses (A) or (B) above, it may, in its sole discretion, designate a successor Depositary for such Global Note within 90 days after receiving such notice or becoming aware of such occurrence. If the Corporation designates a successor Depositary as set forth above, such Global Note shall promptly be exchanged in whole for one or more other Global Notes registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor Global Note and the provisions of this section shall continue to apply thereto.
(c) In the circumstances described in Section 2.03(b) hereof, Notes in definitive form will be issued to each Person that the Depositary identifies as the beneficial owner of the related Notes. Upon issuance of such Notes in definitive form, the Trustee shall register such Notes in the name of, and cause the same to be delivered to, such Person (or nominee thereof). Such Notes shall be issued only in fully registered form, without coupons, in minimum denominations of $1,000 or any amount in excess thereof which is an integral multiple of $1,000 and subsequently may not be exchanged by a Holder of Notes in denominations of less than $1,000.
(d) Neither any members of, or participants in, a Depositary, nor any other Persons on whose behalf such members or participants may act, shall have any rights under this Indenture with respect to any Global Note registered in the name of a Depositary or any nominee thereof, and the applicable Depositary or such nominee, as the case may be, may be treated by the Corporation, the Trustee and any agent of the Corporation or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever. None of the Corporation, the Trustee, any Paying Agent, any Security Registrar, any Authenticating Agent or any other agent of the Corporation or any agent of the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in the form of a Global Note, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Corporation, the Trustee, any Paying Agent, any Security Registrar, any Authenticating Agent, and any other agent of the Corporation and any agent of the Trustee shall be entitled to deal with a Depositary, and any nominee thereof, that is the Holder of a Global Note for all purposes of this Indenture relating to such Global Note (including the payment of principal, premium, if any, and interest, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Note) as the sole Holder of such Global Note and shall have no obligations to the beneficial owners thereof. None of the Corporation, the Trustee, any Paying Agent, any Security Registrar or any other agent of the Corporation or any agent of the Trustee shall have any responsibility or liability for any acts or omissions of a Depositary with respect to a Global Note, for the records of any such Depositary, including records in respect of beneficial ownership interests in respect of any such Global Note, for any transactions between such Depositary and any members or participants in such Depositary or other participant in such Depositary or between or among any such Depositary, any such member or participant in such Depositary or other participant and/or any holder or owner of a beneficial interest in such Global Note or for any transfers of beneficial interests in any such Global Note.
(e) Principal and, in the case of redemption, interest, if any, due on the Stated Maturity Date or any earlier date of redemption of a Note shall be payable against presentation and surrender of such Notes at the Place of Payment. Interest payable on an Interest Payment Date will be made by wire transfer in immediately available funds or, at the option of the Corporation in the event that the Notes are not represented by one or more Global Notes, by check mailed to the Person entitled thereto at such address as shall appear in the Security Register.
The Notes shall have such other terms as are set forth in the form thereof attached hereto as Exhibit A .
The Security Registrar, Paying Agent, the Trustee and the Calculation Agent for the Notes shall initially be Wilmington Trust, National Association.
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The Notes will be issuable and may be transferred only in minimum denominations of $1,000 or any amount in excess thereof that is an integral multiple of $1,000. The amounts payable with respect to the Notes shall be payable in U.S. Dollars.
Notwithstanding any other provision of this Indenture, (i) all payments on Global Notes may be made pursuant to the Applicable Procedures and (ii) any notice required to be given to Holders under the Indenture shall be sufficiently given if given to the Depositary for a Global Note (or its designee), pursuant to its Applicable Procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
Section 2.04 Global Note . The Notes shall be issued initially in the form of one or more fully registered global notes (each such global note, a Global Note ) registered in the name of DTC or its nominee and deposited with DTC or its designated custodian or such other Depositary as any officer of the Corporation may from time to time designate. Unless and until a Global Note is exchanged for Notes in certificated form in accordance with Section 2.03 hereof, such Global Note may be transferred, in whole but not in part, and any payments on the Notes shall be made, only to DTC or a nominee of DTC, or to a successor Depositary selected or approved by the Corporation or to a nominee of such successor Depositary.
Section 2.05 Interest .
(a) From and including the date of original issuance of the Notes to, but excluding February 14, 2024 (such period, the Fixed Rate Period ), the Corporation will pay interest on the Notes at a fixed interest rate equal to 4.950% per annum, payable semi-annually in arrears, on February 14 and August 14 of each year, beginning on August 14, 2019 and ending on February 14, 2024. Unless redeemed, beginning with the Interest Payment Date on February 14, 2024, and on any Interest Payment Date thereafter to, but excluding the Maturity Date (the Floating Rate Period ), the interest rate will reset to an annual interest rate equal to Three-Month LIBOR plus a spread of 240 basis points per annum, payable quarterly in arrears on each February 14, May 14, August 14 and November 14 of each year, beginning on May 14, 2024, subject to potential adjustment as provided in the definition of three-month LIBOR. The determination of Three-Month LIBOR for each relevant Interest Period by the Calculation Agent will (in the absence of manifest error) be final and binding. The Calculation Agents calculation of the amount of any interest payable during the Floating Rate Period will be maintained on file at the Calculation Agents principal offices.
(b) Interest on the Notes will accrue beginning on and including an Interest Payment Date (except that the initial Interest Period shall commence on and include the date of original issuance of the Notes) and ending on but excluding the next Interest Payment Date (each such period, an Interest Period ).
(c) Interest on the Notes on any Interest Payment Date shall be payable to the Persons in whose names the relevant Notes are registered at the close of business on the Record Date for such Interest Payment Date. For the purpose of determining the Persons in whose names the relevant Notes are registered at the close of business on a Record Date that is not a Business Day, the close of business shall mean 5:00 p.m., New York City time, on the Record Date. Interest on the Notes payable on the Maturity Date or any Redemption Date shall be paid in accordance with Section 2.02 and Section 3.03, respectively.
(d) The amount of interest payable for any Interest Period during the Fixed Rate Period will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any Interest Period during the Floating Rate Period will be calculated based upon the actual number of days during the period divided by 360 days. Dollar amounts resulting from that calculation will be rounded to the nearest cent, with one-half cent being rounded upwards.
(e) If any Interest Payment Date on or before February 14, 2024 is not a Business Day, then such date will nevertheless be an Interest Payment Date but interest on the Notes will be paid on the next succeeding Business Day (without adjustment in the amount of the interest paid). If any such date after February 14, 2024 that would otherwise be an Interest Payment Date is not a Business Day, then the next succeeding Business Day will be the applicable Interest Payment Date and interest on the Notes will be paid on such next succeeding Business Day, unless such day falls in the next calendar month, in which case the Interest Payment Date will be brought forward to the immediately preceding day that is a Business Day. In addition, if the Maturity Date or the Redemption Date falls on any day that is not a Business Day interest and principal on the Notes will be paid on the next succeeding Business Day (without adjustment in the amount of the interest paid).
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(f) The establishment of Three-Month LIBOR for each Interest Period in the Floating Rate Period by the Calculation Agent (including, for the avoidance of doubt, at the Corporations direction in the case of clause (iii) of the definition of Three-Month LIBOR) or IFA, as applicable, shall (in the absence of manifest error) be final and binding. For the avoidance of doubt, any adjustments made pursuant to clause (iii) of the definition of Three-Month LIBOR shall not be subject to the vote or consent of the Holders of the Notes. Upon prior written request from any Holder of the Notes, the Calculation Agent will provide the interest rate in effect on the Notes for the current Interest Period and, if it has been determined, the interest rate to be in effect for the next Interest Period.
Section 2.06 Ranking . The Notes shall rank junior to and shall be subordinated to all Senior Indebtedness of the Corporation, whether existing as of the date of this Third Supplemental Indenture, or hereafter issued or incurred, including all indebtedness relating to money owed to general creditors other than holders of the Corporations trade accounts payable incurred in the ordinary course. The Notes shall rank equally among themselves and with all of the Corporations other subordinated unsecured indebtedness that, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, provides that such obligations are not superior in right of payment to the Notes or to other indebtedness that is pari passu with, or is not subordinate to, the Notes; provided that the Notes will rank senior to the Corporations obligations relating to any outstanding junior subordinated debt securities issued to the Corporations capital trust subsidiaries. It is intended that the Notes be and are Tier 2 capital or the equivalent, for all regulatory purposes.
Section 2.07 No Sinking Fund . The Notes are not entitled to the benefit of, or subject to, any sinking fund.
Section 2.08 No Conversion or Exchange Rights . The Notes are not convertible into, or exchangeable for, any equity securities, other securities or other assets of the Corporation or any of its Subsidiaries.
Section 2.09 Events of Default . 100% of the principal amount of the Notes shall be payable upon declaration of acceleration of the maturity thereof. The maturity of the Notes shall be subject to acceleration only upon occurrence of an Event of Default described in Section 5.1(5), or Section 5.1(6) of the Indenture, as amended hereby. The text of clauses (5) and (6) of Section 5.1 shall be substituted with the following:
(5) The entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Corporation or a Principal Subsidiary Bank in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Corporation, or any Principal Subsidiary Bank, bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Corporation or any Principal Subsidiary Bank under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Corporation or any Principal Subsidiary Bank or of any substantial part of their property, or ordering the winding up or liquidation of their affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of sixty (60) consecutive days; or
(6) The commencement by the Corporation or any Principal Subsidiary Bank of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Corporation or any Principal Subsidiary Bank in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it, of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
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or similar official of the Corporation or any Principal Subsidiary Bank, or of any substantial part of their property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay their debts generally as they become due, or the taking of corporate action by the Corporation or any Principal Subsidiary Bank in furtherance of any such action; or
Section 2.10 Waiver of Defaults. Section 5.13 of the Base Indenture shall apply to the Notes, except that such section shall be substituted with the following:
Section 5.13 Waiver of Past Defaults. Subject to Section 5.8 and Section 9.2, the Holders of not less than a majority in aggregate principal amount of the Notes may on behalf of the Holders of all Notes waive any past Default or Event of Default hereunder and its consequences, except a Default: (i) in the payment of the principal of or any premium or interest on, or any Additional Amounts with respect to, any Security as and when the same shall become due and payable by the terms thereof, otherwise than by acceleration (unless such Default has been cured as provided herein), or (ii) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of each of the Notes. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 2.11 Acceleration of Maturity, Rescission and Annulment . Section 5.2 of the Base Indenture shall apply to the Notes, except that the first paragraph thereof shall be substituted with the following:
If an Event of Default under Section 5.1(5) or Section 5.1(6) hereof with respect to Notes at the time Outstanding occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes may declare the principal of all the Notes, or such lesser amount as may be provided for in the Notes, to be due and payable immediately, by a notice in writing to the Corporation (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount shall become immediately due and payable. All Outstanding Notes will become due and payable immediately, only upon such declaration following an Event of Default specified in Section 5.1(5) or 5.1(6) hereunder.
Section 2.12 Amount Unlimited; Issuable in Series . Section 3.1 of the Base Indenture shall apply to the Notes; provided that solely with respect to the Notes:
(i) the following shall replace clause (16) thereof:
(16) If other than the principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable or deliverable upon acceleration (whether by declaration or otherwise) of the Maturity thereof pursuant to Section 5.2; and
(ii) (x) clause (31) thereof shall be amended to replace the . at the end of clause (31) with a ; and and (y) the following new clause (32) shall be added:
(32) The extent to which any of the Securities will be issuable in temporary or permanent global form, and in such case, the respective Depositaries for such Global Securities and the manner in which any interest payable or deliverable on a temporary or permanent Global Security shall be paid or delivered.
Section 2.13 Maintenance of Office or Agency . Section 10.2 of the Base Indenture shall apply to the Notes; provided the following paragraph shall be added to the end of Section 10.2 of the Base Indenture and shall apply solely with respect to the Notes.
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by Section 3.1, the Corporate Trust Office of the Trustee (or any successor office appointed pursuant to this Section 10.02) shall be the Place of Payment where such Global Security may be presented or surrendered for payment or conversion or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor, provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
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Section 2.14 No Additional Amounts . In the event that any payment on the Notes is subject to withholding of any U.S. federal income tax or other tax or assessment (as a result of a change in law or otherwise), the Corporation will not pay Additional Amounts with respect to such tax or assessment.
Section 2.15 No Collateral . The Notes shall not be entitled to the benefit of any security interest in, or collateralization by, any rights, property or interest of the Corporation.
ARTICLE 3
REDEMPTION OF THE NOTES
Section 3.01 Optional Redemption . The Corporation may, at its option, redeem the Notes before the Stated Maturity Date, in whole or in part, on any Interest Payment Date on or after February 14, 2024. Any such redemption shall be at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus unpaid interest, if any, accrued thereon to but excluding the Redemption Date fixed by the Corporation. Any early redemption of the Notes by the Corporation pursuant to this Section 3.01 will be subject to the receipt of the prior approval of the Federal Reserve, to the extent such approval is then required under capital adequacy rules of the Federal Reserve. Notice of Redemption shall be delivered in accordance with the provisions of Section 11.4 of the Base Indenture as modified by Section 3.06 of this Third Supplemental Indenture and shall include the information required thereby, provided, however, that if the Notes to be redeemed are in the form of Global Notes, the notice of redemption shall be given in accordance with the Applicable Procedures. Notes duly called for redemption will become due and payable on the Redemption Date and at the Redemption Price. Unless the Corporation defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portion thereof called for redemption. The Notes are not subject to repayment at the option of the Holders
Section 3.02 Redemption Upon Special Events . The Corporation may also, at its option, redeem the Notes before the Stated Maturity Date in whole, but not in part, at any time, upon the occurrence of a Tax Event, a Regulatory Capital Treatment Event, or a 1940 Act Event. Any such redemption will be at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus unpaid interest, if any, accrued thereon to but excluding the Redemption Date fixed by the Corporation; provided, however, that interest due on an Interest Payment Date falling prior to the scheduled Redemption Date will be payable to the Holders thereof as of the Record Date for such Interest Payment Date. Any early redemption of the Notes by the Corporation pursuant to this Section 3.02 will be subject to the receipt of the prior approval of the Federal Reserve, to the extent then required under capital adequacy rules of the Federal Reserve.
Section 3.03 Redemption Procedures; Redemption Payment . Notice of redemption (which notice may be conditional, in the Corporations discretion, on one or more conditions precedent, and the Redemption Date may be delayed until such time as any or all of such conditions have been satisfied or revoked by the Corporation if it determines that such conditions will not be satisfied) must be provided to the Holders of the Notes to be redeemed not less than 30 nor more than 60 days prior to the applicable Redemption Date. If any Redemption Date falls on any day that is not a Business Day, interest and principal on the Notes will be paid on the next succeeding Business Day (without adjustment in the amount of the interest paid). Interest payable on any Redemption Date will be payable to the Person to whom the principal of the Notes shall be payable.
Section 3.04 Effect of Redemption on Notes prior to Redemption Date . In the event of any redemption, neither the Corporation nor the Trustee will be required to (a) issue, register the transfer of, or exchange the Notes during a period beginning at the opening of business 15 days before the day of delivery of a notice of redemption of any such Notes selected for redemption and ending at the close of business on the day of delivery of notice of redemption, or (b) transfer or exchange any Notes so selected for redemption, except, in the case of any Notes being redeemed in part, any portion thereof not to be redeemed.
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Section 3.05 Selection by Trustee of Securities to be Redeemed . Section 11.3 of the Base Indenture shall apply to the Notes; provided, the first paragraph of Section 11.3 of the Base Indenture shall be replaced with the following paragraph, which shall apply solely with respect to the Notes:
If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal amount or issue price of Securities of such series or a denomination equal to or larger than the minimum authorized denomination for Securities of such series, provided, that to the extent the Securities of such series to be redeemed are in the form of a Global Security, the Securities of such series to be redeemed shall be selected in accordance with the Applicable Procedures, and provided further that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Security Registrar, or in accordance with the Applicable Procedures, as the case may be, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence. Unless otherwise provided by the terms of the Securities of any series the denominations of the Securities so selected for partial redemption shall be, in the case of Registered Securities, equal in value to $1,000 or an integral multiple of $1,000 in excess thereof, and the principal amount of any such Securities which remains outstanding shall not be less than the minimum authorized denomination for Securities of such series.
Section 3.06 Notice of Redemption . Section 11.4 of the Base Indenture shall apply to the Notes; provided, the first paragraph of Section 11.4 of the Base Indenture shall be replaced with the following paragraph, which shall apply solely with respect to the Notes:
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed at his address appearing in the Security Register or, if the Securities to be redeemed are in the form of Global Securities, in accordance with the Applicable Procedures.
Section 3.07 Applicability of Base Indenture . To the extent not inconsistent with this Article 3, the provisions of Article 11 of the Base Indenture shall apply to any redemption hereunder.
ARTICLE 4
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER OF ASSETS
Solely for purposes of the Notes, the text of Section 8.1 of the Base Indenture shall be replaced with the following text.
The Corporation shall not consolidate with, amalgamate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to another Person, or permit any Person to consolidate with or merge into the Corporation, unless:
(i) |
in case the Corporation shall consolidate with, amalgamate with, or merge into another Person, or convey, transfer or lease its properties and assets substantially as an entirety to another Person, (x) the Corporation is the surviving corporation or (y) the Person formed by such consolidation or amalgamation or into which the Corporation is merged, or to which the Corporation conveys or transfers the Corporations properties and assets, (1) is a corporation, organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and (2) expressly assumes, by a supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee, the due and punctual payment or delivery of the principal of and any premium and interest on the Notes issued under the Indenture, and the performance or observance of any other covenant of the Indenture on the part of us to be performed or observed; |
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(ii) |
immediately after giving effect to such transaction, no Default under the Indenture shall have occurred and be continuing; and |
(iii) |
the Corporation has delivered to the Trustee an Officers Certificate and an Opinion of Counsel regarding compliance with the Indenture and satisfaction of conditions precedent. |
For this purpose, corporation means a corporation, association, company or business trust.
ARTICLE 5
FORM OF NOTES
Section 5.01 Form of Notes . The Notes and the Trustees certificate of authentication thereon are to be substantially in the form attached as Exhibit A hereto, with such changes therein as the officers of the Corporation executing the Notes (by manual or facsimile signature) may approve in accordance with the terms hereof and of the Base Indenture, such approval to be conclusively evidenced by their execution thereof.
ARTICLE 6
ISSUE OF NOTES
Section 6.01 Original Issue of Notes . Notes having an aggregate principal amount of $120,000,000 may from time to time, upon execution of this Third Supplemental Indenture, be executed by the Corporation and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes in accordance with a written order of the Corporation pursuant to Section 3.03 of the Base Indenture without any further action by the Corporation (other than as required by the Base Indenture).
Section 6.02 Additional Issues of Notes . The Corporation may from time to time, without notice to or the consent of the Holders of the Notes, create and issue additional Securities, which Securities will rank pari passu with the Notes and be identical in all respects as the Notes except for their issuance date, the issue price and the first Interest Payment Date, provided that such additional Securities either shall be fungible with the Notes for federal income tax purposes or shall be issued under a separate CUSIP number. Such additional Securities will be consolidated and form a single series with the Notes under the Indenture.
ARTICLE 7
IMMUNITY OF SHAREHOLDERS, EMPLOYEES, AGENTS, OFFICERS AND
DIRECTORS
Section 7.01 Indenture and Notes Solely Corporate Obligations . No recourse for the payment of the principal of or interest on any Note, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer, director, employee or agent, as such, past, present or future, of the Corporation or of any successor Person to the Corporation, it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Third Supplemental Indenture and the issuance of the Notes.
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ARTICLE 8
TRUSTEE
Section 8.01 Notice of Defaults . Solely with respect to the Notes, Section 6.2 of the Base Indenture shall include that notice be provided to Holders of Securities that are Global Notes in accordance with the Applicable Procedures of the Depositary.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Securityholders . Section 9.1 of the Base Indenture shall apply to the Notes; provided, that the following paragraph shall be added to the end of Section 9.1 of the Base Indenture and shall only apply to the Notes:
Not in limitation of the foregoing, without notice to or the consent of any Holder of the Notes, the Corporation and the Trustee may amend or supplement the Indenture or the Notes to (x) implement the terms of clause (iii) in the definition of Three-Month LIBOR included in the Third Supplemental Indenture or (y) conform the text of the Indenture or the Notes to any provision of the Description of the Notes section contained in the Corporations prospectus supplement, dated February 14, 2019, relating to the offering of the Notes, to the extent that such provision in such Description of the Notes was intended to be a verbatim recitation of a provision of the Indenture or the Notes, which intent may be evidenced by an Officers Certificate to that effect.
ARTICLE 10
OTHER AMENDMENTS TO BASE INDENTURE
Section 10.01 Certain Rights of Trustee. Solely with respect to the Notes, Section 6.3 of the Base Indenture is hereby amended to (x) delete the and at the end of clause (7) thereof, (y) replace the . at the end of clause (8) thereof with a ; and (z) add the following clauses (9) through (10) to the end of Section 6.3.
(9) the Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture; and
(10) the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; and acts of civil or military authorities and governmental action.
ARTICLE 11
MISCELLANEOUS
Section 11.01 Ratification of Base Indenture . The Base Indenture, as supplemented by this Third Supplemental Indenture, is in all respects ratified and confirmed, and this Third Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The rights, privileges, immunities, benefits, protections and indemnities provided to the Trustee under the Base Indenture shall apply to any action or inaction of the Trustee (acting in any capacity hereunder) in connection herewith, including in connection with the execution and delivery of this Third Supplemental Indenture.
Section 11.02 Trustee Not Responsible for Recitals . The recitals contained herein and in the Notes, except the Trustees certificates of authentication, shall be taken as statements of the Corporation and not those of the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representations as to the validity or sufficiency of this Third Supplemental Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Corporation of the Notes or of the proceeds thereof.
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Section 11.03 New York Law To Govern . THIS THIRD SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.04 Separability . In case any provision in this Third Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired by such invalid, illegal or unenforceable provision.
Section 11.05 Counterparts . This Third Supplemental Indenture may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Third Supplemental Indenture and of signature pages by facsimile or electronic format (i.e., .pdf or .tif) transmission shall constitute effective execution and delivery of this Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original Third Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (i.e., .pdf or .tif) shall be deemed to be their original signatures for all purposes.
Section 11.06 Benefits of Third Supplemental Indenture . Nothing in this Third Supplemental Indenture or in the Notes, express or implied, shall give to any Person, other than the parties to this Third Supplemental Indenture and their successors under this Third Supplemental Indenture, the Persons in whose names the Notes are registered on the Security Register from time to time and, to the extent provided in Article Fourteen of the Base Indenture, the holders of Senior Indebtedness, any benefit or any legal or equitable right, remedy or claim under this Third Supplemental Indenture.
Section 11.07 Conflict with Base Indenture . If any provision of this Third Supplemental Indenture relating to the Notes is inconsistent with any provision of the Base Indenture, such provision of this Third Supplemental Indenture shall control.
Section 11.08 Provisions of Trust Indenture Act Controlling . This Third Supplemental Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of the Indenture and shall, to the extent applicable, be governed by such provisions. If any provision of this Third Supplemental Indenture limits, qualifies, or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern this Third Supplemental Indenture, the provision of the Trust Indenture Act shall control.
Section 11.09. U.S.A. Patriot Act . The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Third Supplemental Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the day and year first written above.
F.N.B. CORPORATION |
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By: |
/s/ Vincent J. Calabrese, Jr. |
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Name: | Vincent J. Calabrese, Jr. | |
Title: | Chief Financial Officer (Principal Financial Officer) |
[F.N.B. Corporation Signature Page to Third Supplemental Indenture]
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||
By: |
/s/ Michael H. Wass |
|
Name: | Michael H. Wass | |
Title: | Vice President |
[F.N.B. Corporation Signature Page to Third Supplemental Indenture]
EXHIBIT A
[NOTE: The following legend is to be placed at the beginning of any Global Note representing the Notes.]
GLOBAL NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO IN THIS SECURITY AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR ITS NOMINEE. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES OF THIS SERIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF SUCH A TRANSFEROR TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF SUCH A TRANSFEREE OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF SUCH A TRANSFEROR AND ANY PAYMENT IS MADE TO SUCH A TRANSFEREE, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, SUCH A TRANSFEROR, HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY (AS DEFINED HEREIN) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY AND THE OBLIGATIONS OF THE CORPORATION AS EVIDENCED HEREBY (1) ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR ANY OF THE CORPORATIONS SUBSIDIARIES AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY AND (2) ARE SUBORDINATE IN THE RIGHT OF PAYMENT TO THE SENIOR INDEBTEDNESS (AS DEFINED IN THE INDENTURE REFERRED TO IN THIS SECURITY).
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS THE SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
[Deemed ERISA Representation Legend]
ANY PURCHASER OR HOLDER OF THE NOTES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS ACQUISITION OF THE NOTES THAT IT EITHER (1) IS NOT A PENSION, PROFIT-SHARING OR OTHER EMPLOYEE BENEFIT PLAN (EACH, A PLAN) SUBJECT TO THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY PLANS INVESTMENT IN THE ENTITY (A PLAN ASSET ENTITY) OR AN EMPLOYEE BENEFIT PLAN THAT IS A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), A CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) OR A NON-U.S. PLAN (AS DESCRIBED IN SECTION 4(B)(4) OF ERISA) (NON-ERISA ARRANGEMENTS) AND IS NOT PURCHASING THE NOTES ON BEHALF OF OR WITH THE ASSETS OF ANY PLAN, PLAN ASSET ENTITY OR NON-ERISA ARRANGEMENT OR (2) THE ACQUISITION AND HOLDING OF THE NOTES WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY OTHER APPLICABLE FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS.
F.N.B. CORPORATION
% FIXED-TO-FLOATING RATE SUBORDINATED NOTES DUE 2029
No. R-1 | CUSIP: | |
$______________ | ISIN: |
F.N.B. Corporation, a Pennsylvania corporation (hereinafter called the Corporation , which term includes any permitted successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of Million Dollars ($ ) (or such other amount as set forth in the Schedule of Increases or Decreases in Global Note attached hereto) on February , 2029 (such date is hereinafter referred to as the Stated Maturity Date ), unless redeemed prior to such date as permitted below, and to pay interest on the Outstanding principal amount of this Note (i) from and including the date of issuance or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, to but excluding February , 2024 (the Fixed Rate Period ) at the rate of % per annum, payable semi-annually in arrears on February and August of each year (each, a Fixed Rate Interest Payment Date ), commencing on August , 2019 and ending on February , 2024, and (ii) from and after February , 2024, at a floating rate per annum equal to Three-Month LIBOR (as defined in the Third Supplemental Indenture hereinafter referred to) as determined for the applicable Interest Period (as defined in the Third Supplemental Indenture hereinafter referred to), plus a spread of basis points, payable quarterly in arrears on February , May , August and November of each year (each, a Floating Rate Interest Payment Date , and together with the Fixed Rate Interest Payment Dates, the Interest Payment Dates ), commencing on May , 2024, with such interest, in the case of any interest payable on this Note with respect to the Fixed Rate Period, calculated on the basis of a 360-day year consisting of twelve 30-day months, or, in the case of any interest payable on this Note after the Fixed Rate Period, calculated on the basis of the actual number of days in the Interest Period in respect of which interest is payable divided by 360, until the principal of the Notes has been paid in full or a sum sufficient to pay the principal of the Notes in full has been made available for payment .
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in, and subject to exceptions specified in, the Indenture, be paid to the Person in whose name this Note, or any predecessor Note, is registered at the close of business on the Record Date for such Interest Payment Date.
Principal and, in the case of redemption, interest, if any, due on the Stated Maturity Date or any earlier date of redemption of a Note shall be payable against presentation and surrender of this Note at the office or agency of the Corporation maintained for such purpose which shall initially be Wilmington Trust, National Association, as Trustee, located at 1100 North Market Street, Wilmington, Delaware 19890, Attn: F.N.B. Corporation Administrator. Interest payable on an Interest Payment Date will be made by wire transfer in immediately available funds or, at the option of the Corporation in the event that the Notes are not represented by one or more Global Notes, by check mailed to the Person entitled thereto at such address as shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Signature Page Follows]
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
Dated: February , 2019
WILMINGTON TRUST, NATIONAL ASSOCIATION , | ||
as Trustee | ||
By: |
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Authorized Signatory |
REVERSE OF NOTE
F.N.B.CORPORATION
% FIXED-TO-FLOATING RATE SUBORDINATED NOTES DUE 2029
This Note is one of a duly authorized issue of Securities of the Corporation of a series designated as the % Fixed-to-Floating Rate Subordinated Notes due 2029 (herein called the Notes ) initially issued in an aggregate principal amount of $ on February , 2019. Such series of Securities has been established pursuant to the Indenture, dated as of October 2, 2015 (as supplemented and amended by the Second Supplemental Indenture dated as of August 30, 2016, the Base Indenture ), between the Corporation and Wilmington Trust, National Association, as Trustee (herein called the Trustee , which term includes any successor trustee), as supplemented and amended by the Third Supplemental Indenture between the Corporation and the Trustee, dated as of February , 2019 (the Third Supplemental Indenture , and the Base Indenture as supplemented and amended by the Third Supplemental Indenture, the Indenture ), to which Indenture and any other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Corporation, the Trustee and the Persons in whose names Notes are registered on the Security Register from time to time and of the terms upon which the Notes are, and are to be, authenticated and delivered. The terms of the Notes are those stated in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended, and those set forth in this Note. To the extent that the terms of this Note modify, supplement or are inconsistent with those of the Indenture, then the terms of the Indenture shall govern.
All capitalized terms used in this Note and not defined herein that are defined in the Base Indenture or the Third Supplemental Indenture shall have the meanings assigned to them in the Base Indenture or the Third Supplemental Indenture. If any capitalized term used and defined in this Note is also defined in the Base Indenture or the Third Supplemental Indenture, in the event of any conflict in the meanings ascribed to such capitalized term, the definition of the capitalized term in this Note shall control.
The indebtedness of the Corporation evidenced by the Notes, including the principal thereof and interest thereon, is subordinated in right of payment to all existing and future obligations of the Corporation constituting Senior Indebtedness (as defined in the Third Supplemental Indenture), on the terms and subject to the terms and conditions as provided and set forth in the Third Supplemental Indenture and shall rank at least equally in right of payment with all future unsecured subordinated indebtedness of the Corporation that do not by its terms rank junior to the Notes. Each Holder of this Security, by the acceptance hereof, agrees to and shall be bound by such provisions of the Indenture and authorizes and directs the Trustee on his behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided.
If an Event of Default with respect to Notes shall occur and be continuing, the principal and interest owed on the Notes shall only become due and payable in accordance with the terms and conditions set forth in Section 2.09 of the Third Supplemental Indenture. Accordingly, the Holder of this Note has no right to accelerate the maturity of this Note in the event the Corporation fails to pay the principal of, or interest on, any of the Notes or fails to perform any other obligations under the Notes or in the Indenture that are applicable to the Notes.
The Corporation may, at its option, redeem the Notes: (a) in whole or in part on any Interest Payment Date on or after February , 2024 or (b) in whole, but not in part, at any time following the occurrence of a Tax Event, Regulatory Capital Treatment Event or 1940 Act Event. Any such redemption will be at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus unpaid interest, if any, accrued thereon to but excluding the Redemption Date fixed by the Corporation. Any early redemption of the Notes by the Corporation will be subject to the receipt of the prior approval of the Federal Reserve, to the extent then required under capital adequacy rules of the Federal Reserve.
The Notes of this series are not entitled to the benefit of, or subject to, any sinking fund.
In the event that any payment on the Notes is subject to withholding of any U.S. federal income tax or other tax or assessment (as a result of a change in law or otherwise), the Corporation will not pay additional amounts with respect to such tax or assessment.
The Notes shall not be entitled to the benefit of any security interest in, or collateralization by, any rights, property or interest of the Corporation.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders of the Securities at any time by the Corporation and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities of each series (each series voting as a class) affected thereby and at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of a series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive certain past Defaults and Event of Defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Corporation in any place where the principal of, and interest on, this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Corporation and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes of this series shall not be convertible into, or exchangeable for, any equity securities, other securities or other assets of the Corporation or any Subsidiary.
The Notes of this series are issuable only in fully registered form without interest coupons, in minimum denominations of $1,000 and any integral multiple of $1,000 in excess thereof.
The Corporation and the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Corporation, the Trustee nor any such agent shall be affected by notice to the contrary.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of and interest (if any) on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
Wilmington Trust, National Association will act as the Corporations principal Paying Agent with respect to the Notes through its offices presently located at 1100 North Market Street, Wilmington, Delaware 19890, Attn: F.N.B. Corporation Administrator. The Corporation may at any time rescind the designation of a Paying Agent, appoint a successor Paying Agent, or approve a change in the office through which any Paying Agent acts.
The Indenture contains provisions setting forth certain conditions to the institution of proceedings by the Holders of Notes with respect to the Indenture or for any remedy under the Indenture.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign the within Security, fill in the form below:
I or we assign and transfer the within Security to:
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(Insert assignees legal name) | ||
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(Insert assignees social security or tax I.D. no.) | ||
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(Print or type assignees name, address and zip code) |
and irrevocably appoint as agent to transfer this Security on the books of Independent Bank Group, Inc. The agent may substitute another to act for it.
Your Signature: |
(Sign exactly as your name appears on the other side of this Security) |
Your Name: |
Date: |
Signature Guarantee: * |
NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ( STAMP ) or such other signature guarantee program as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial Outstanding principal amount of this Global Note is $ . The following increases or decreases in the principal amount of this Global Note have been made:
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Exhibit 5.1
Reed Smith LLP
225 Fifth Avenue
Pittsburgh, Pennsylvania 15102
+1 412 288 3131
Fax +1 412 288 3063
reedsmith.com
February 14, 2019
F.N.B. Corporation
One North Shore Center
12 Federal Street
Pittsburgh, Pennsylvania
Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to F.N.B. Corporation, a Pennsylvania corporation (the Corporation ), in connection with the issuance by the Corporation of $120,000,000 aggregate principal amount of the Companys Fixed-to-Floating Rate Subordinated Notes due 2029 (the Notes ) pursuant to a Registration Statement (No. 333-224979) on Form S-3 (the Registration Statement ) filed with the Securities and Exchange Commission (the Commission ) pursuant to the Securities Act of 1933, as amended (the Securities Act ). The Corporation is filing the Underwriting Agreement and this opinion letter with the Commission on a Current Report on Form 8-K (the Current Report ).
The Notes will be issued under an Indenture, dated as of October 2, 2015, as supplemented and amended by a Second Supplemental Indenture dated as of August 30, 2016, and the Third Supplemental Indenture dated as of the date hereof (collectively, the Indenture ), in each case between the Corporation and Wilmington Trust, National Association, as trustee (the Trustee ). The sale of the Notes will be made pursuant to the terms of an Underwriting Agreement (the Underwriting Agreement ), dated February 14, 2019, by and among, on the one hand, the Corporation, as issuer, and Morgan Stanley & Co. LLC and Sandler ONeill & Partners, L.P., as representatives of the several underwriters named therein (the Underwriters ).
In rendering the opinions expressed below, we have reviewed originals or copies of the following documents: (i) the Registration Statement; (ii) the prospectus dated May 16, 2018 (the Prospectus ), forming a part of the Registration Statement, as supplemented by the definitive prospectus supplement dated February 11, 2019 (the Prospectus Supplement ) relating to the Notes; (iii) the Underwriting Agreement; (iv) the Indenture; (v) the form of the Notes; and (vi) such certificates, statements and results of inquiries of public officials and officers and representatives of the Corporation and originals or copies, certified or otherwise identified to our satisfaction, of such other documents, corporate records, certificates and instruments, in each case as we have deemed necessary or appropriate to enable us to render the opinion expressed
ABU DHABI ● ATHENS ● AUSTIN ● BEIJING ● CENTURY CITY ● CHICAGO ● DUBAI ● FRANKFURT ● HONG KONG ● HOUSTON ● KAZAKHSTAN ● LONDON ● LOS ANGELES ● MIAMI ● MUNICH ● NEW YORK ● PARIS ● PHILADELPHIA ● PITTSBURGH ● PRINCETON ● RICHMOND ● SAN FRANCISCO ● SHANGHAI ● SILICON VALLEY ● SINGAPORE ● TYSONS ● WASHINGTON, D.C. ● WILMINGTON
F.N.B. Corporation February 14, 2019 Page 2 |
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herein. In our review, we have assumed the genuineness of all signatures on all documents examined by us, the legal competence and capacity of natural persons, the authenticity of documents submitted to us as originals, and the conformity with authentic original documents of all documents submitted to us as copies. We have further assumed, as to matters of fact, the truthfulness of the representations made in certificates of public officials and of officers of the Corporation.
Subject to the foregoing and the other matters and assumptions set forth herein, we are of the opinion that, when the Indenture has been duly authorized, executed and delivered by the Trustee and the Corporation, and when the Notes have been duly executed by the Corporation and authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered to the Underwriters against payment therefor in accordance with the terms of the Underwriting Agreement, the Notes will constitute legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their terms.
The foregoing opinion is subject to the following exceptions, limitations and qualifications: (i) the effects of bankruptcy, insolvency, reorganization, fraudulent conveyance, receivership, moratorium and other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (ii) the effects of general principles of equity, whether applied by a court of law or equity; (iii) the enforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy; (iv) the application, if any, of laws concerning (a) state securities law matters, (b) tax or tax effects or (c) environmental matters; (v) implied covenants of good faith and fair dealing; and (vi) the enforceability of the waiver of rights or defenses contained in the Indenture or the Notes.
In rendering the foregoing opinion, we have assumed that: (i) the effectiveness of the Registration Statement has not been terminated or rescinded; and (ii) the Notes will be issued and sold in compliance with all applicable federal and state securities laws and in the manner contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement.
The opinion expressed herein is limited to the laws of the State of New York and we express no opinion with respect to the effect of the laws of any other jurisdiction.
F.N.B. Corporation February 14, 2019 Page 3 |
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We hereby consent to the filing of this opinion as an exhibit to the Corporations Current Report on Form 8-K to be filed with the Commission on the date hereof and to the incorporation by reference of this opinion in the Registration Statement and to the reference to our firm under the caption Certain Legal Matters in each of the Prospectus and the Prospectus Supplement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Reed Smith LLP