Credit Suisse AG 6-K, filed Feb 13, 2023
Credit Suisse AG (GLDI)
About this 6-K
Credit Suisse AG filed this 6-K on February 13, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of February, 2023
Commission File Number 001-33434
CREDIT SUISSE AG
(Translation of Registrant’s Name Into English)
Paradeplatz 8, CH-8001 Zurich, Switzerland
(Address of Principal Executive Offices)
| Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. |
Form 20-F ☒ Form 40-F ☐ |
| Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ____ |
| Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ____ |
Explanatory note
This report on Form 6-K contains the exhibits set forth below. This report on Form 6-K and such exhibits are hereby incorporated by reference into Registration Statement No. 333-238458-02 of Credit Suisse AG.
Exhibit 4.1: Form of Master Note relating to certain Notes to be issued from time to time by the Company under the Company’s Medium-Term Notes program;
Exhibit 5.1: Opinion of Davis Polk & Wardwell LLP, U.S. counsel to the Company, with respect to the validity of the Notes to be issued from time to time by the Company under the Company’s Medium-Term Notes program and with respect to the validity of the Warrants to be issued from time to time by the Company under the Company’s Warrants program, under New York law;
Exhibit 5.2: Opinion of Homburger AG, Swiss counsel to the Company, with respect to the Notes to be issued from time to time by the Company under the Company’s Medium-Term Notes program, as to certain matters under Swiss law; and
Exhibit 5.3: Opinion of Homburger AG, Swiss counsel to the Company, with respect to the Warrants to be issued from time to time by the Company under the Company’s Warrants program, as to certain matters under Swiss law.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| CREDIT SUISSE AG | ||||
| Date: February 13, 2023 | By: | /s/ Michael Heraty | ||
| Name: | Michael Heraty | |||
| Title: | Authorized Officer | |||
| By: | /s/ Ashley MacLean | |||
| Name: | Ashley MacLean | |||
| Title: | Authorized Officer | |||
Exhibit 4.1
MASTER NOTE
Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) (“DTC” or the “Depositary”) to the Company (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC and any payment is made to Cede & Co. or 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 since the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in definitive registered form, this Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
CREDIT SUISSE
AG |
This Note is a master note, which term means a Registered Global Security with the meaning specified in the Indenture (as defined on the reverse hereof) that provides for incorporation therein of the terms of one or more obligations of CREDIT SUISSE AG, a corporation established under the laws of, and duly licensed as a bank in, Switzerland (the “Company”) (each such obligation, a “Supplemental Obligation”) by reference to the Related Prospectuses (as defined below).
The terms of each Supplemental Obligation shall be reflected in this Note and in the applicable pricing supplement relating to such Supplemental Obligation (each a “Related Pricing Supplement”) and any product supplement(s), underlying supplement(s), prospectus supplement(s) and prospectus referred to therein (however titled) (together with the Related Pricing Supplement, the “Related Prospectus”). With respect to each Supplemental Obligation, the terms of the Supplemental Obligation contained in the Related Prospectus are hereby incorporated by reference in, and shall be deemed to be a part of, this Note for purposes of the applicable Supplemental Obligation only as of the original issue date specified in the relevant Related Pricing Supplement; provided, however, that for the avoidance of doubt, no hypothetical examples, risk factors, historical information or other information not considered to be terms of such Supplemental Obligation provided or incorporated by reference in the Related Prospectus shall be used to determine the terms of such Supplemental Obligation. Each Related Prospectus is on file with the Trustee referred to on the reverse hereof and is identified in the records of the Trustee.
With respect to each Supplemental Obligation evidenced by this Note, the Company, acting through the branch specified in the applicable Related Pricing Supplement (the “Branch”), for value received, hereby promises to pay and/or deliver to Cede & Co., or registered assigns,
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an amount of cash in the coin or currency of the United States and/or the number of securities or other property, as applicable, as specified in the applicable Related Prospectus.
All terms used in this Note that are or will be defined in the Indenture or Related Prospectus shall have the meanings assigned to them therein. In relation to a particular Supplemental Obligation, in the event of any inconsistency between the definitions in the Indenture and the definitions in the Related Prospectus, the definitions in the Related Prospectus shall govern.
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. With respect to each Supplemental Obligation, every term of this Note is subject to modification, amendment or elimination through the incorporation of the applicable Related Prospectus by reference, whether or not the phrase “unless otherwise provided in the Related Prospectus” or language of similar import precedes the term of this Note so modified, amended or eliminated. It is the intent of the parties hereto that, in the case of any conflict between the applicable Related Prospectus and the terms herein, the Related Prospectus shall control over the terms herein with respect to the relevant Supplemental Obligation. Without limiting the foregoing, in the case of each Supplemental Obligation, the holders of this Note are directed to the applicable Related Prospectus for a description of certain terms of such Supplemental Obligation, including the manner of determining the amounts due and/or property to be delivered, if any, as applicable, on such Supplemental Obligation and the date or dates, if any, on which amounts due and or securities or other property to be delivered, if any, on such Supplemental Obligation are to be paid or delivered, as applicable.
The principal amount of each Supplemental Obligation evidenced by this Note shall be as specified in the applicable Related Pricing Supplement.
Unless the certificate of authentication hereon has been signed by the Trustee or Authenticating Agent (which signature may be manual, facsimile or electronic (including, without limitation, DocuSign and AdobeSign and other similar applications)), this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. The Company and the Trustee hereby agree that authentication of this Note shall be deemed to be due authentication pursuant to Section 2.02 of the Indenture with respect to each Supplemental Obligation evidenced by this Note and the execution and delivery of a written order of the Company with respect to a Supplemental Obligation by any two Authorized Persons shall be deemed to be due execution pursuant to Section 2.02 with respect to such Supplemental Obligation.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Date: February 13, 2023
| CREDIT SUISSE AG | ||
| By: | ||
| Name: | ||
| Title: Authorized Signatory | ||
| By: | ||
| Name: | ||
| Title: Authorized Signatory | ||
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON, | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
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REVERSE OF NOTE
CREDIT SUISSE AG
SENIOR MEDIUM-TERM NOTE
This Note is one of a duly authorized issue of Senior Medium-Term Notes (the “Securities”) of the Company, acting through the applicable Branch. The Securities are issuable under a senior indenture, dated as of March 29, 2007, as supplemented by a second supplemental indenture, dated as of March 25, 2009 and a third supplemental indenture, dated as of September 9, 2020 (collectively, the “Indenture”), in each case between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee (the “Trustee”), to which indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities of the Company, the Trustee and the registered holder (the “Holder”) of the Securities and the terms upon which the Securities are to be authenticated and delivered. The Bank of New York Mellon (formerly known as The Bank of New York) at its corporate trust office in The City of New York has been appointed the Registrar and Paying Agent with respect to the Securities. The terms of individual Securities may vary with respect to interest rates, interest rate formulas, issue dates, maturity dates, or otherwise, all as provided in the Indenture. To the extent not inconsistent herewith, the terms of the Indenture are hereby incorporated by reference herein. The Securities will not be subject to any sinking fund and, unless otherwise provided in the Related Prospectus, the Securities will not be redeemable or subject to repayment at the option of the Holder prior to maturity.
This Note, and any Note or Notes issued upon transfer or exchange hereof, is issuable only in fully registered form without coupons, and each Supplemental Obligation is issued in the minimum denomination and any integral multiples thereof as specified in the Related Prospectus in the manner and subject to the limitations provided in the Indenture.
This Note is payable in the manner, with the effect and subject to the conditions provided in the Indenture.
Unless otherwise stated in the Related Prospectus, if a payment date is not a Business Day as defined in the Indenture at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. Following any postponement of any date, no interest payment will be adjusted and no other payment will be payable hereon because of such postponement.
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The Indenture contains provisions that provide that the Company and the Trustee may amend or supplement the Indenture or the Securities without notice to or the consent of any Holder in order to (i) cure any ambiguity, defect or inconsistency in the Indenture, provided that such amendments or supplements shall not materially and adversely affect the interests of the Holders; (ii) comply with the requirements of the Indenture if the Company consolidates with, merges with or into, or sells, conveys, transfers, leases or otherwise disposes of all or substantially all of its property and assets (as an entirety or substantially as an entirety in one transaction or a series of transactions), to any person; (iii) comply with any requirements of the Securities and Exchange Commission in connection with the qualification of the Indenture under the Trust Indenture Act; (iv) evidence and provide for the acceptance of appointment under the Indenture with respect to the Securities by a successor Trustee; (v) provide for uncertificated or unregistered Securities and to make all appropriate changes for such purpose; (vi) provide for a guarantee from a third party on outstanding Securities that are issued under the Indenture; (vii) provide for the substitution of one or more of the Company’s branches as obligor of the Securities or (viii) make any change that does not materially and adversely affect the rights of any Holder.
The Indenture contains provisions that provide that, without prior notice to any Holders, the Company and the Trustee may amend the Indenture and the Securities with the written consent of the Holders of a majority in principal amount of the outstanding Securities of all series affected by such amendment (all such series voting as one class), and the Holders of a majority in principal amount of the outstanding Securities of all series affected thereby (all such series voting as one class) by written notice to the Trustee may waive future compliance by the Company with any provision of the Indenture or the Securities; provided that, without the consent of each Holder of the Securities affected thereby, an amendment or waiver, including a waiver of past defaults, may not: (i) extend the stated maturity of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder’s Security, or reduce the Principal thereof or the rate of interest thereon (including any amount in respect of original issue discount), or adversely affect the rights of such Holder under any mandatory redemption or repurchase provision or any right of redemption or repurchase at the option of such Holder, or reduce the amount of the Principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof or the amount thereof provable in bankruptcy, insolvency or similar proceeding, or change any place of payment where, or the currency in which, the Principal or the interest thereon is payable, modify any right to convert or exchange such Holder’s Security for another security to the detriment of the Holder or impair the right to institute suit for the enforcement of any such payment on or after the due date therefor; (ii) reduce the percentage in Principal of outstanding Securities the consent of whose Holders is required for any such supplemental indenture, for any waiver of compliance with certain provisions of the Indenture or certain Defaults and their consequences provided for in the Indenture; (iii) waive a Default in the payment of Principal of or interest on any Security of such Holder; or (iv) modify any of the provisions of the Indenture governing amendments or waivers with the consent of Holders except to increase any such percentage or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the Holder of each outstanding Security affected thereby.
The Indenture contains provisions that provide that the Company may at any time designate another branch of the Company (the “Substitution Branch”) as substitute for the
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Branch through which it acts under a series of Securities with the same effect as if such Substitution Branch had been originally named as the Branch for all purposes under the Indenture in relation to such Securities.
In case an Event of Default with respect to a Supplemental Obligation shall have occurred and be continuing, the amount that may be declared due and payable will be determined as set forth in the Related Prospectus, and, upon such declaration, such amount shall become due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.
It is also provided in the Indenture that, subject to certain conditions, the Holders of at least a majority in principal amount of the outstanding Securities of all series affected (voting as a single class), by notice to the Trustee, may waive an existing Default or Event of Default with respect to the Securities of such series and its consequences, except a Default in the payment of Principal of or interest on any Security or in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Security affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default with respect to the Securities of such series arising therefrom shall be deemed to have been cured, for every purpose of the Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.
The calculation agent for a Supplemental Obligation (the “Calculation Agent”) is as specified in the Related Prospectus. The Calculation Agent makes all determinations with respect to such Supplemental Obligation. All determinations made by the Calculation Agent will be at the sole discretion of the Calculation Agent and will be conclusive for all purposes and binding upon all parties, including the Company and the beneficial owners of such Supplemental Obligation, absent manifest error. The Calculation Agent will have no responsibility for good faith errors or omissions in its calculations and determinations, whether caused by negligence or otherwise.
The Indenture provides that a series of Securities may include one or more tranches (each a “tranche”) of Securities, including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different terms, but all the Securities of each tranche within a series shall have identical terms, provided that Securities of each tranche within a series may have different authentication dates, public offering prices, initial interest accrual dates, and initial interest payment dates, if applicable. Notwithstanding any other provision of the Indenture, subject to certain exceptions, with respect to sections of the Indenture concerning the execution, authentication and terms of the Securities, redemption of the Securities, maintenance of an office or agency of the Company in The City of New York, Events of Default of the Securities, defeasance of the Securities and amendment of the Indenture, if any series of Securities includes more than one tranche, all provisions of such sections applicable to any series of Securities shall be deemed equally applicable to each tranche of any series of Securities in the same manner as though originally designated a series unless otherwise provided with respect to such series or tranche pursuant to a Board Resolution or a supplemental indenture establishing such series or the Authority establishing such tranche.
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Each Supplemental Obligation evidenced by this Note is unsecured and ranks pari passu with all other unsecured and unsubordinated indebtedness of the Company.
The interest rate, if any, coupon, if any, or redemption amount, as applicable, will in no event be higher than the maximum rate permitted by New York or other applicable state law, as such law may be modified by United States law of general application.
All determinations referred to above made by the Company or its agents shall be at its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on Holders of Securities. So long as this Note shall be outstanding, the Company will cause to be maintained an office or agency for the payment of amounts due or property to be delivered, if any, on this Note as herein provided in the Borough of Manhattan, The City of New York, and an office or agency in said Borough of Manhattan for the registration, transfer and exchange as aforesaid of the Notes. The Company may designate other agencies for the payment of such amounts or such property at such place or places (subject to applicable laws and regulations) as the Company may decide. So long as there shall be any such agency, the Company shall keep the Trustee advised of the names and locations of such agencies, if any are so designated.
No provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay or deliver the amounts or property due (whether at maturity or otherwise) on this Note at the time, place, and rate, and in the coin or currency and/or the number of securities or other property, as applicable, herein and in the Indenture prescribed unless otherwise agreed between the Company and the registered Holder of this Note.
Upon due presentment for registration of transfer of this Note, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company or any agent of the Company, the registrar of the Securities or the Trustee may treat the Holder in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Registrar, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of amounts due or property to be delivered, if any, with respect to each Supplemental Obligation evidenced by this Note, for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
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This Note and each Supplemental Obligation evidenced hereby shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York (without regard to conflicts of law principles thereof).
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
| [PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE] | |
| ______________________________________________________________________________ | |
| ______________________________________________________________________________ [PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE] | |
| ______________________________________________________________________________ the within Note and all rights thereunder, hereby irrevocably constituting and appointing | |
| _________________________________________________________________ Attorney to transfer such Note on the books of the Issuer, with full power of substitution in the premises. | |
Dated: |
Signature: ____________________________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
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Exhibit 5.1
 |
Davis Polk & Wardwell llp 450 Lexington Avenue davispolk.com |
| February 13, 2023 |
Credit Suisse AG
Paradeplatz 8
CH 8001 Zurich, Switzerland
Ladies and Gentlemen:
Credit Suisse AG, a corporation organized under the laws of Switzerland (the “Company”), has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form F-3 (File No. 333-238458-02) (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), among other securities, (i) the Company’s Medium-Term Notes (the “Notes”) to be issued from time to time pursuant to the Senior Indenture dated as of March 29, 2007 (as amended and supplemented from time to time and in effect as of the date hereof, the “Indenture”) between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee (the “Trustee”); and (ii) the Company’s Warrants (the “Warrants” and, together with the Notes, the “Securities”) to be issued from time to time pursuant to the Warrant Agreement dated as of June 18, 2009 (as amended and supplemented from time to time and in effect as of the date hereof, the “Warrant Agreement”) between the Company and The Bank of New York Mellon, as warrant agent (the “Warrant Agent”).
We, as your United States counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and all statements as to factual matters in certificates of officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the specific terms of a particular Security have been duly authorized and established in accordance with the Indenture or the Warrant Agreement, as applicable, and such Security has been duly authorized, executed, issued, delivered, and (A) in the case of the Notes represented by a master global note duly executed and authenticated in accordance with the Indenture, the Trustee has made, in accordance with
the instructions of the Company, the appropriate entries or notations in its records relating to the master global note that represents such Notes, and (B) in the case of the Warrants, the Warrant Agent has countersigned the Warrants, in each case in accordance with the Indenture or the Warrant Agreement, as applicable, and the applicable underwriting or other distribution agreement against payment therefor, such Security will constitute valid and binding obligations of the Company, enforceable in accordance with its terms, subject to (i) applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, (ii) concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith) and (iii) possible judicial or regulatory actions or application giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that we express no opinion as to the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
In connection with the opinion expressed above, we have assumed that, at or prior to the time of the delivery of any such Security, (i) the terms of such Security shall have been duly established under the Indenture or the Warrant Agreement, as applicable, and such Security, and the offer, sale and issuance of such Security shall have been duly authorized by the Company and such authorization shall not have been modified or rescinded; (ii) the Company is, and shall remain, validly existing as a corporation in good standing under the laws of Switzerland; (iii) the Trustee or the Warrant Agent, as applicable, is, and shall remain, validly existing and in good standing under the laws of the jurisdiction of its organization; (iv) the effectiveness of the Registration Statement under the Securities Act and, with respect to the Notes, the qualification of the Indenture under the Trust Indenture Act of 1939, as amended, shall not have been terminated or rescinded; (v) the Indenture or the Warrant Agreement, as applicable, has been duly authorized, executed and delivered by, and is a valid, binding and enforceable agreement of, the Company and the Trustee or the Warrant Agent, as applicable; (vi) the execution and delivery of the Indenture or the Warrant Agreement, as applicable, and such Security by each party thereto, and the performance by each such party of its obligations thereunder, are within its corporate powers, do not and will not contravene, or constitute a default under, its articles of association, articles of incorporation, bylaws or any other constitutive documents and require no action by or in respect of, or filing with, any governmental body, agency or official; (vii) the terms of such Security shall not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party; and (viii) there shall not have occurred any change in law affecting the validity or enforceability of the Indenture or the Warrant Agreement, as applicable, or the Security. We have also assumed that none of the terms of any Security to be established subsequent to the date hereof, nor the issuance and delivery of such Security, nor the compliance by the Company with the terms of such Security, will violate any applicable law, public policy or regulation or will result in a violation of any provision of any instrument or agreement then binding upon the Company or of any restriction imposed by any court or other governmental body, agency or official having jurisdiction over the Company.
| February 13, 2023 | 2 |
We express no opinion as to (x) provisions in the Indenture that purport to waive objections to venue, claims that a particular jurisdiction is an inconvenient forum or the like, (y) whether a United States federal court would have subject-matter or personal jurisdiction over a controversy arising under the Securities or (z) the effectiveness of any service of process made other than in accordance with applicable law. In addition, we note that, with respect to the Notes, the enforceability in the United States of Section 10.08(c) of the Indenture is subject to the limitations set forth in the United States Foreign Sovereign Immunities Act of 1976.
We express no opinion as to (i) whether a New York State or United States federal court would render or enforce a judgment in a currency other than U.S. Dollars or (ii) the exchange rate that such a court would use in rendering a judgment in U.S. Dollars in respect of an obligation in any other currency.
We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York, except that we express no opinion as to the application of state securities or Blue Sky laws to the Securities. Insofar as the foregoing opinion involves matters governed by Swiss law, we have relied, without independent inquiry or investigation, on the opinions of Homburger AG, Swiss legal counsel for the Company, dated February 13, 2023, to be filed by the Company with the Commission as exhibits to a Current Report on Form 6-K concurrently with this opinion, and our opinion is subject to the same assumptions, qualifications, and limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 6-K to be filed by the Company with the Commission on the date hereof and its incorporation by reference into the Registration Statement. In addition, if a pricing supplement relating to the offer and sale of any particular Security or Securities is prepared and filed by the Company with the Commission on this date or a future date and the pricing supplement contains a reference to us and our opinion substantially in the form set forth below, this consent shall apply to the reference to us and our opinion in substantially such form:
“In the opinion of Davis Polk & Wardwell LLP, as United States counsel to the Company, when the securities offered by this pricing supplement have been executed and issued by the Company and [authenticated by the trustee and the trustee has made, in accordance with instructions from the Company, the appropriate entries or notations in its records relating to the master global note that represents the securities] [countersigned by the warrant agent] pursuant to the [indenture] [warrant agreement], and delivered against payment therefor, such securities will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to (i) applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, (ii) concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith) and (iii) possible judicial or regulatory actions or application giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that such counsel expresses no opinion as to the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above [or the validity, legally binding effect
| February 13, 2023 | 3 |
or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the securities to the extent determined to constitute unearned interest]. This opinion is given as of the date of this pricing supplement and is limited to the laws of the State of New York, except that such counsel expresses no opinion as to the application of state securities or Blue Sky laws to the securities. Insofar as this opinion involves matters governed by Swiss law, Davis Polk & Wardwell LLP has relied, without independent inquiry or investigation, on the opinion of Homburger AG, dated February 13, 2023 and filed by the Company as an exhibit to a Current Report on Form 6-K on February 13, 2023. The opinion of Davis Polk & Wardwell LLP is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in the opinion of Homburger AG. In addition, the opinion of Davis Polk & Wardwell LLP is subject to customary assumptions about the establishment of the terms of the securities, the [trustee’s] [warrant agent’s] authorization, execution and delivery of the [indenture] [warrant agreement] and its [authentication of the master global note representing the securities] [countersigning of the securities], and the validity, binding nature and enforceability of the [indenture] [warrant agreement] with respect to the [trustee] [warrant agent], all as stated in the opinion of Davis Polk & Wardwell LLP dated February 13, 2023, which was filed by the Company as an exhibit to a Current Report on Form 6-K on February 13, 2023. [This opinion is also subject to the discussion, as stated in such opinion, of the enforcement of securities denominated in a foreign currency.] [Davis Polk & Wardwell LLP expresses no opinion as to waivers of objections to venue, the subject matter or personal jurisdiction of a United States federal court or the effectiveness of service of process other than in accordance with applicable law. In addition, such counsel notes that the enforceability in the United States of Section 10.08(c) of the indenture is subject to the limitations set forth in the United States Foreign Sovereign Immunities Act of 1976.]”
In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
|
Very truly yours, |
| /s/ Davis Polk & Wardwell LLP |
| February 13, 2023 | 4 |
Exhibit 5.2
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To: Credit Suisse AG Paradeplatz 8 P.O. Box 8070 Zurich Switzerland |
Homburger AG Prime Tower Hardstrasse 201 CH–8005 Zurich
T +41 43 222 10 00 F +41 43 222 15 00 lawyers@homburger.ch |
| Zurich, February 13, 2023 |
| Credit Suisse AG, acting through its Nassau and London Branches |
| U.S. Medium-Term Note Program under the Credit Suisse Group AG and Credit Suisse AG U.S. Shelf |
Ladies and Gentlemen
We, Homburger AG, have acted as special Swiss counsel to Credit Suisse AG (Credit Suisse), a Swiss bank, in connection with senior medium-term notes (the Notes) to be issued from time to time on or after the date hereof by Credit Suisse, acting through either its Nassau Branch or its London Branch (each, an Issuing Branch), under the Senior Indenture dated as of March 29, 2007 (the Base Indenture), between Credit Suisse and The Bank of New York Mellon, as trustee (in such capacity, the Trustee), as supplemented by the Second Supplemental Indenture dated as of March 25, 2009 (the Second Supplemental Indenture), and the Third Supplemental Indenture dated as of September 9, 2020 (the Third Supplemental Indenture and, together with the Base Indenture and the Second Supplemental Indenture, the Indenture), between Credit Suisse and the Trustee. As such counsel, we have been requested to give our opinion as to certain matters of Swiss law relating to the Notes.
| I. | Basis of Opinion |
This opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof. Such laws and the interpretation thereof are subject to change. In the absence of explicit statutory law, we base our opinion solely on our independent professional judgment. This opinion is also confined to the matters stated herein and the Documents (as defined below), and is not to be read as extending, by implication or otherwise, to any agreement or other document referred to
in any of the Documents (including, in the case of the Prospectus (as defined below), any document incorporated by reference therein or exhibited thereto) or any other matter.
For purposes of this opinion, we have not conducted any due diligence or similar investigation as to factual circumstances that are or may be referred to in the Documents, and we express no opinion as to the accuracy of representations and warranties of facts set out in the Documents or the factual background assumed therein.
For purposes of this opinion, we have only reviewed the following documents (collectively, the Documents):
| (i) | an electronic copy of the executed Distribution Agreement dated May 7, 2007, between Credit Suisse Securities (USA) LLC, as distributor, and Credit Suisse (as amended by Amendment No. 1 dated January 11, 2008, the Distribution Agreement), as supplemented by (A) the Distributor Accession Letter and Confirmation dated June 18, 2008, pursuant to which JPMorgan Chase Bank, National Association and JPMorgan Securities LLC (formerly JPMorgan Securities, Inc.), each acting through JPMorgan Private Bank and JPMorgan Private Client Services, are appointed distributors, (B) the Distributor Accession Letters and Confirmations dated March 23, 2012, pursuant to which Barclays Capital Inc., Citigroup Global Markets Inc. and Incapital LLC are appointed distributors, (C) the Distributor Accession Letter and Confirmation dated May 8, 2012, pursuant to which BofA Securities, Inc. (formerly known as BofAML Securities, Inc.) is appointed distributor, (D) the Distributor Accession Letter and Confirmation dated May 18, 2012, pursuant to which Morgan Stanley & Co. LLC is appointed distributor, (E) the Distributor Accession Letter and Confirmation dated March 12, 2014, pursuant to which UBS Financial Services Inc. is appointed distributor, and (F) the Distributor Accession Letter and Confirmation dated August 1, 2016, pursuant to which Wells Fargo Securities LLC is appointed distributor (collectively, the Accession Agreements); |
| (ii) | an electronic copy of the executed Base Indenture; |
| (iii) | an electronic copy of the executed Second Supplemental Indenture; |
| (iv) | an electronic copy of the executed Third Supplemental Indenture; |
| (v) | an electronic copy of the executed master note dated February 13, 2023 (the Master Note and, together with the Distribution Agreement, the Accession Agreements, the Base Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, the Transaction Agreements); |
| (vi) | an electronic copy of the prospectus dated June 18, 2020 (the Base Prospectus); |
| (vii) | an electronic copy of the prospectus supplement to the Base Prospectus dated June 18, 2020 (the Prospectus Supplement and, together with the Base Prospectus, the Prospectus); |
| (viii) | electronic copies of the pricing supplements (including any underlying supplement and product supplement incorporated therein by reference) (the Existing Representative |
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Pricing Supplements) filed by Credit Suisse with the U.S. Securities and Exchange Commission (the SEC) and listed on Annex A of the Agreement Regarding Exhibit 5 Opinions for Registered Medium-Term Notes and Warrants of Credit Suisse AG entered into as of May 4, 2015, by and among Credit Suisse, Davis Polk & Wardwell LLP (Davis Polk) and Homburger AG (as amended from time to time, the Agreement About Opinions);
| (ix) | electronic copies of the underlying supplements filed by Credit Suisse with the SEC and listed on Annex C of the Agreement About Opinions (the Existing Representative Underlying Supplements); |
| (x) | an electronic copy of the executed Officer's Certificate dated February 13, 2023, issued by Credit Suisse pursuant to Sections 2.01, 2.02, 10.03 and 10.04 of the Indenture; |
| (xi) | a certified excerpt from the Commercial Register of the Canton of Zurich (the Commercial Register) for Credit Suisse, dated February 8, 2023 (the Excerpt); |
| (xii) | a copy of the articles of association (Statuten) of Credit Suisse in their version as of (A) April 19, 2006 (the 2006 Articles), (B) August 26, 2008 (the 2008 Articles), and (C) September 4, 2014 (the 2014 Articles); |
| (xiii) | an electronic copy of (A) the Organizational Guidelines and Regulations of Credit Suisse, valid as of January 1, 2006 (the 2006 Regulations), and (B) the Organizational Guidelines and Regulations of Credit Suisse Group AG and Credit Suisse, valid as of (t) March 24, 2009 (the 2009 Regulations), (u) April 25, 2019 (the April 2019 Regulations), (v) December 5, 2019 (the December 2019 Regulations), (w) August 20, 2020 (the 2020 Regulations), (x) April 1, 2021 (the 2021 Regulations), (y) March 8, 2022 (the 2022 Regulations), and (z) January 27, 2023 (the 2023 Regulations); |
| (xiv) | an electronic copy of (A) the GP-00200 Global Policy Funding Authority within Credit Suisse Group and Credit Suisse effective as of (x) January 1, 2007 (the 2007 Funding Authority), and (y) December 17, 2008 (the 2008 Funding Authority), and (B) the Global Policy (GP-00200) Funding Authority for Third Party transactions effective as of (x) June 4, 2019 (the 2019 Funding Authority), and (y) June 4, 2021 (the 2021 Funding Authority); |
| (xv) | an electronic copy of (A) the memorandum of the Chief Financial Officer of Credit Suisse and Credit Suisse Group AG to the members of the Board of Directors of Credit Suisse and Credit Suisse Group AG, dated February 14, 2007 (the February 2007 CFO Approval), (B) the certificate of R. Fassbind, as Chief Financial Officer of Credit Suisse (CFO), dated May 2, 2007 (the May 2007 CFO Approval), (C) the certificate of R. Fassbind, as CFO, dated March 12, 2009 (the 2009 CFO Approval), and (D) the certificate of D. Mathers, as CFO, dated May 12, 2020 (the 2020 CFO Approval and, together with the February 2007 CFO Approval, the May 2007 CFO Approval, and the 2009 CFO Approval, the CFO Approvals); |
| (xvi) | an electronic copy of (A) the power of attorney dated March 26, 2007, issued by R. Fassbind, as CFO, and R. Enderli, as Treasurer of Credit Suisse (Treasurer) (the March 2007 Power of Attorney), (B) the power of attorney dated May 2, 2007, issued by R. Fassbind, as CFO, and R. Enderli, as Treasurer (the May 2007 Power of Attorney), (C) the |
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power of attorney dated March 20, 2008, issued by R. Fassbind, as CFO, and R. Enderli, as Treasurer (the 2008 Power of Attorney), (D) the power of attorney dated July 19, 2019, issued by D. Mathers, as CFO, and D. Wong, as Treasurer (the 2019 Power of Attorney), and (E) the power of attorney dated July 22, 2022, issued by D. Mathers, as CFO, and G.M. Martino, as Treasurer (the 2022 Power of Attorney);
| (xvii) | an electronic copy of the Structured Notes and Warrants – Business Division Authorizations (Version 22.0), finalized February 12, 2023, which is the list of Senior SN Business Personnel referred to in the 2021 Funding Authority (the Business Authorizations List); and |
| (xviii) | an electronic copy of the Secretary's Certificate dated February 13, 2023 (including the exhibits thereto, the Secretary's Certificate), executed by two Corporate Secretaries of Credit Suisse. |
No documents have been reviewed by us in connection with this opinion other than the Documents. Accordingly, we shall limit our opinion to the Documents and their legal implications under the laws of Switzerland.
In this opinion, Swiss legal concepts are expressed in English terms and not in their original language. These concepts may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. With respect to Documents governed by laws other than the laws of Switzerland, for purposes of this opinion, we have relied on the plain meaning of the words and expressions contained therein without regard to any import they may have under the relevant governing law.
| II. | Assumptions |
In rendering the opinion below, we have assumed the following:
| (a) | all documents produced to us as originals are authentic and complete, and all documents produced to us as copies (including, without limitation, fax and electronic copies) conform to the original; |
| (b) | all documents produced to us as originals and the originals of all documents produced to us as copies were duly executed and certified, as applicable, by the individuals purported to have executed or certified, as the case may be, such documents, and any electronic signatures of Credit Suisse (whether or not acting through an Issuing Branch) on any such document have been affixed thereto by the individual to whom such electronic signature belongs and such individual has saved and submitted such document as so electronically signed in such a manner so as to prevent removal or other alteration of such signature; |
| (c) | except as expressly opined upon herein, all information contained in the Documents is, and all material statements made to us in connection with the Documents are, true and accurate as of the date hereof and as of the issue date for each tranche of Notes as if given or made on such issue date, including, without limitation, the statements set forth in the Secretary's Certificate, including as to the following facts: |
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| (i) | the 2014 Articles continue in full force and effect and have not been amended; |
| (ii) | the 2008 Articles were in full force and effect and had not been amended as of the date of the Second Supplemental Indenture; |
| (iii) | the 2006 Articles were in full force and effect and had not been amended as of the dates of the Base Indenture and the Distribution Agreement; |
| (iv) | the 2023 Regulations continue in full force and effect and have not been amended; |
| (v) | the 2022 Regulations were in full force and effect and had not been amended as of the date of the 2022 Power of Attorney; |
| (vi) | the 2021 Regulations were in full force and effect and had not been amended as of the date of the 2021 Funding Authority; |
| (vii) | the 2020 Regulations were in full force and effect and had not been amended as of the date of the Third Supplemental Indenture; |
| (viii) | the December 2019 Regulations were in full force and effect and had not been amended as of the date of the 2020 CFO Approval; |
| (ix) | the April 2019 Regulations were in full force and effect and had not been amended as of the dates of the 2019 Funding Authority and the 2019 Power of Attorney; |
| (x) | the 2009 Regulations were in full force and effect and had not been amended as of the date of the Second Supplemental Indenture; |
| (xi) | the 2006 Regulations were in full force and effect and had not been amended as of the dates of the Base Indenture, the Distribution Agreement, the 2007 Funding Authority, the 2008 Funding Authority, the February 2007 CFO Approval, the March 2007 Power of Attorney, the May 2007 Power of Attorney, the May 2007 CFO Approval, the 2008 Power of Attorney, and the 2009 CFO Approval; |
| (xii) | the 2021 Funding Authority, the CFO Approvals, the 2022 Power of Attorney and the Business Authorizations List continue in full force and effect and have not been amended; |
| (xiii) | the 2019 Funding Authority was in full force and effect and had not been amended as of the dates of the Third Supplemental Indenture, the 2020 CFO Approval and the 2019 Power of Attorney; |
| (xiv) | the 2008 Funding Authority was in full force and effect and had not been amended as of the dates of the Second Supplemental Indenture and the 2009 CFO Approval; |
| (xv) | the 2007 Funding Authority was in full force and effect and had not been amended as of the dates of the Base Indenture, the Distribution Agreement, the February 2007 |
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CFO Approval, the March 2007 Power of Attorney, the May 2007 Power of Attorney, the May 2007 CFO Approval and the 2008 Power of Attorney;
| (xvi) | the 2019 Power of Attorney was in full force and effect and had not been amended as of the date of the Third Supplemental Indenture; |
| (xvii) | the 2008 Power of Attorney was in full force and effect and had not been amended as of the date of the Second Supplemental Indenture; |
| (xviii) | the May 2007 Power of Attorney was in full force and effect and had not been amended as of the date of the Distribution Agreement; |
| (xix) | the March 2007 Power of Attorney was in full force and effect and had not been amended as of the date of the Base Indenture; |
| (xx) | the Distribution Agreement has not been amended (other than by the Accession Agreements) and continues in full force and effect; |
| (xxi) | the Excerpt is correct and complete other than with respect to any changes to the signatories registered with the Commercial Register (including, without limitation, the addition or removal of any such signatory) that have occurred since the date of the Excerpt; |
| (xxii) | the Base Indenture has not been amended (other than by the Second Supplemental Indenture, the Third Supplemental Indenture, the first supplemental indenture dated as of May 6, 2008, and any other supplements thereto relating to note issuances thereunder that do not constitute Notes) and the Indenture continues in full force and effect; |
| (xxiii) | immediately after giving effect to the issuance of Notes, the aggregate issuance amount, as measured by the aggregate offering price, of (x) medium-term notes (including such Notes) issued pursuant to the Prospectus Supplement, including any supplement thereto, will not exceed USD 80 billion and (y) securities (including such Notes) issued pursuant to the U.S. registration statement on Form F-3 of which the Base Prospectus forms a part, will not exceed USD 80 billion, in each case in accordance with the 2020 CFO Approval; and |
| (xxiv) | the persons whose signatures appear on the Master Note on behalf of Credit Suisse were employees of Credit Suisse or one of its affiliates at the time of execution of the Master Note; |
| (d) | all Notes constitute business-driven structured debt securities within the meaning of the 2021 Funding Authority; |
| (e) | the Notes will have terms substantially similar to those described in one or more of (x) the Existing Representative Pricing Supplements or (y) any pricing supplement (including the Base Prospectus, the Prospectus Supplement and any underlying supplement and product supplement incorporated therein by reference) that may be listed on Annex A to the |
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Agreement About Opinions from time to time pursuant to an amendment thereof executed by the parties thereto on or before the issue date of the relevant Notes (together with the Existing Representative Pricing Supplements, the Representative Pricing Supplements), except that any or all of the following terms may vary from Note to Note:
| (i) | amounts payable on the Note, including the formula for determining such amounts; |
| (ii) | provisions relating to optional and automatic early redemption of the Note; |
| (iii) | the pricing date and any measurement, redemption or maturity date of the Note; |
| (iv) | subject to clause (f) below, any security, rate, index and other market measure referenced by the Note; and |
| (v) | the principal amount and issue price of, and any commissions or fees on, the Note; and |
| (f) | the Notes will not reference any security, rate, index or other market measure unless it is: |
| (i) | described in one of (x) the Existing Representative Underlying Supplements or (y) to the extent such supplement is applicable to Notes, any underlying supplement that may be listed on Annex C to the Agreement About Opinions from time to time pursuant to an amendment thereof executed by the parties thereto on or before the issue date of the relevant Notes; or |
| (ii) | described in one of the Representative Pricing Supplements; or |
| (iii) | a security issued by an issuer that has a class of equity securities registered under the U.S. Securities Exchange Act of 1934, as amended, so long as such issuer or such issuer's jurisdiction of incorporation does not appear on any of the United Nations Security Committee's targeted sanction lists or any sanction list issued by the Swiss or U.S. government (collectively, the Sanction Lists); or |
| (iv) | a security issued by an "Investment Company" registered under the Investment Company Act of 1940, as amended (as such term is defined therein), so long as such Investment Company or such Investment Company's jurisdiction of organization does not appear on any Sanction List; or |
| (v) | an index tracking securities traded on established securities markets of any jurisdiction that does not appear on any Sanction List; or |
| (vi) | a commodity or index of commodities included in the universe of eligible components included in the Bloomberg Commodity Index and the S&P GSCI Commodity Indices; or |
| (vii) | a currency exchange rate or index of currency exchange rates; or |
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| (viii) | a measure, such as an inflation measure, published by the government of a jurisdiction that does not appear on any Sanction List or an agency of any such government; or |
| (ix) | an interest or swap rate; or |
| (x) | futures or forwards contracts traded on any established futures exchange or over-the-counter market, other than the futures exchanges or over-the-counter markets of any jurisdiction that appears on any Sanction List; or |
| (xi) | any "critical benchmark" or "significant benchmark" as such terms are defined in Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016; or |
| (xii) | an index composed of one or more of the items listed in clauses (i) through (xi) above. |
| III. | Opinion |
Based on the foregoing and subject to the qualifications set out below, we are of the opinion that:
| 1. | Credit Suisse is a corporation (Aktiengesellschaft) duly incorporated and validly existing under the laws of Switzerland. |
| 2. | Credit Suisse has the necessary corporate power and authority to, acting through the relevant Issuing Branch, issue the Notes. |
| 3. | With respect to any tranche of Notes to be issued by Credit Suisse, acting through the relevant Issuing Branch, when the terms, issuance and sale of such Notes have been approved by (a) any two persons listed in the 2022 Power of Attorney in the required combination and (b) one of the persons listed in the Business Authorizations List having the authority to authorize such Notes on behalf of such Issuing Branch for retail or institutional issuances, as applicable, such Notes will have been duly authorized by all necessary corporate action by Credit Suisse, provided that at the time of such approval (i) such persons are employees of Credit Suisse or one of its affiliates and (ii) the 2022 Power of Attorney and the Business Authorizations List are in full force and effect. |
| IV. | Qualifications |
The above opinions are subject to the following qualifications:
| (a) | The lawyers of our firm are members of the Zurich bar and do not hold themselves out to be experts in any laws other than the laws of Switzerland. Accordingly, we are opining herein as to Swiss law only and we express no opinion with respect to the applicability or the effect of the laws of any other jurisdiction to or on the matters covered herein. |
| (b) | We express no opinion on the legality, validity or enforceability of any of the provisions of any Transaction Agreement or the Notes or the performance of the obligations assumed by Credit Suisse thereunder. |
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| (c) | Further, we express no opinion as to tax matters, regulatory matters or as to any commercial, accounting, calculating, auditing or other non-legal matter. |
* * *
We have issued this opinion as of the date hereof and we assume no obligation to advise you of any changes in fact or in law that are made or brought to our attention after the date hereof. This opinion is addressed to you for your benefit, and is not to be relied upon by any other person without our express consent, except that it may be relied upon by initial purchasers of Notes issued during the four month-period commencing on the date of this opinion (such period, the Relevant Period), and by Davis Polk for purposes of issuing its opinions to you during the Relevant Period with respect to certain matters of the laws of the State of New York and U.S. federal law pertaining to the Notes.
We hereby consent to the filing of this opinion with the SEC as an exhibit to a report on Form 6-K to be filed by Credit Suisse on the date hereof, and further consent to the reference of our name in (i) any pricing supplement relating to Notes or (ii) an opinion of Davis Polk relating to Notes exhibited to a report on Form 6-K, in each case, to be filed by Credit Suisse with the SEC, provided that (a) the terms of the relevant Notes meet the requirements described in clauses (e) and (f) of Section II, (b) the relevant Notes are issued within the Relevant Period, (c) in the case of a pricing supplement, such pricing supplement has been reviewed by Davis Polk as U.S. counsel to Credit Suisse, (d) Davis Polk has given its consent to be named in such pricing supplement or Form 6-K to which its opinion will be exhibited, as applicable, and (e) such reference is substantially in the form set out in the opinion of Davis Polk to Credit Suisse dated February 13, 2023. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended. Save as aforementioned, this opinion may not be transmitted by you to any other person, quoted or referred to in any public document or filed with anyone, in each case, without our express consent.
This opinion is governed by and shall be construed in accordance with the laws of Switzerland. We confirm our understanding that all disputes arising out of or in connection with this opinion shall be subject to the exclusive jurisdiction of the courts of the Canton of Zurich, Switzerland, venue being the City of Zurich.
Sincerely yours,
/s/ HOMBURGER AG
HOMBURGER AG
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Exhibit 5.3
|
To: Credit Suisse AG Paradeplatz 8 P.O. Box 8070 Zurich Switzerland |
Homburger AG Prime Tower Hardstrasse 201 CH–8005 Zurich
T +41 43 222 10 00 F +41 43 222 15 00 lawyers@homburger.ch |
| Zurich, February 13, 2023 |
| Credit Suisse AG, acting through its Nassau and London Branches |
| U.S. Warrant Program under the Credit Suisse Group AG and Credit Suisse AG U.S. Shelf |
Ladies and Gentlemen
We, Homburger AG, have acted as special Swiss counsel to Credit Suisse AG (Credit Suisse), a Swiss bank, in connection with warrants (the Warrants) to be issued from time to time on or after the date hereof by Credit Suisse, acting through either its Nassau Branch or its London Branch (each, an Issuing Branch), under the Warrant Agreement dated as of June 18, 2009 (the Warrant Agreement), between Credit Suisse and The Bank of New York Mellon, as warrant agent (in such capacity, the Warrant Agent). As such counsel, we have been requested to give our opinion as to certain matters of Swiss law relating to the Warrants.
| I. | Basis of Opinion |
This opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof. Such laws and the interpretation thereof are subject to change. In the absence of explicit statutory law, we base our opinion solely on our independent professional judgment. This opinion is also confined to the matters stated herein and the Documents (as defined below), and is not to be read as extending, by implication or otherwise, to any agreement or other document referred to in any of the Documents (including, in the case of the Prospectus (as defined below), any document incorporated by reference therein or exhibited thereto) or any other matter.
For purposes of this opinion, we have not conducted any due diligence or similar investigation as to factual circumstances that are or may be referred to in the Documents, and we express no opinion as to the accuracy of representations and warranties of facts set out in the Documents or the factual background assumed therein.
For purposes of this opinion, we have only reviewed the following documents (collectively, the Documents):
| (i) | an electronic copy of the executed Distribution Agreement dated May 26, 2009, between Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as distributors, and Credit Suisse (the Distribution Agreement); |
| (ii) | electronic copies of (A) the executed Distributor Accession Letter dated November 17, 2009, from J.P. Morgan Securities Inc., acting through JPMorgan Private Bank and JPMorgan Private Wealth Management, to Credit Suisse, and the related Distributor Accession Confirmation dated November 17, 2009, from Credit Suisse to (and agreed to and accepted by) J.P. Morgan Securities Inc., acting through JPMorgan Private Bank and JPMorgan Private Wealth Management, (B) the executed Distributor Accession Letter dated November 17, 2009, from JPMorgan Chase Bank, N.A., acting through JPMorgan Private Bank and JPMorgan Private Wealth Management, to Credit Suisse, and the related Distributor Accession Confirmation dated November 17, 2009, from Credit Suisse to (and agreed to and accepted by) JPMorgan Chase Bank, N.A., acting through JPMorgan Private Bank and JPMorgan Private Wealth Management, and (C) the executed Distributor Accession Letter dated August 10, 2012, from Barclays Capital Inc. to Credit Suisse, and the related Distributor Accession Confirmation dated August 10, 2012, from Credit Suisse to (and agreed to and accepted by) Barclays Capital Inc. (collectively, the Accession Agreements); |
| (iii) | an electronic copy of the executed Warrant Agreement (together with the Distribution Agreement and the Accession Agreements, the Transaction Agreements); |
| (iv) | an electronic copy of the prospectus dated June 18, 2020 (the Base Prospectus); |
| (v) | an electronic copy of the prospectus supplement to the Base Prospectus dated June 18, 2020 (the Prospectus Supplement and, together with the Base Prospectus, the Prospectus); |
| (vi) | electronic copies of the pricing supplements (including any underlying supplement and product supplement incorporated therein by reference) (the Existing Representative Pricing Supplements) filed by Credit Suisse with the U.S. Securities and Exchange Commission (the SEC) and listed on Annex B of the Agreement Regarding Exhibit 5 Opinions for Registered Medium-Term Notes and Warrants of Credit Suisse AG entered into as of May 4, 2015, by and among Credit Suisse, Davis Polk & Wardwell LLP (Davis Polk) and Homburger AG (as amended from time to time, the Agreement About Opinions); |
| (vii) | electronic copies of the underlying supplements filed by Credit Suisse with the SEC and listed on Annex C of the Agreement About Opinions to the extent such supplements are applicable to Warrants (the Existing Representative Underlying Supplements); |
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| (viii) | electronic copies of the executed Officer's Certificate and Certificate of Authorized Persons, in each case, dated December 19, 2014, and issued pursuant to Sections 1.02, 1.03(b), 1.05(a)(iii) and 6.08 of the Warrant Agreement; |
| (ix) | a certified excerpt from the Commercial Register of the Canton of Zurich (the Commercial Register) for Credit Suisse, dated February 8, 2023 (the Excerpt); |
| (x) | a copy of the articles of association (Statuten) of Credit Suisse in their version as of (A) August 26, 2008 (the 2008 Articles), and (B) September 4, 2014 (the 2014 Articles); |
| (xi) | an electronic copy of (A) the Organizational Guidelines and Regulations of Credit Suisse, valid as of January 1, 2006 (the 2006 Regulations), and (B) the Organizational Guidelines and Regulations of Credit Suisse Group AG and Credit Suisse, valid as of (u) March 24, 2009 (the 2009 Regulations), (v) April 25, 2019 (the April 2019 Regulations), (w) December 5, 2019 (the December 2019 Regulations), (x) April 1, 2021 (the 2021 Regulations), (y) March 8, 2022 (the 2022 Regulations), and (z) January 27, 2023 (the 2023 Regulations); |
| (xii) | an electronic copy of (A) the GP-00200 Global Policy Funding Authority within Credit Suisse Group and Credit Suisse effective as of December 17, 2008 (the 2008 Funding Authority), and (B) the Global Policy (GP-00200) Funding Authority for Third Party transactions effective as of (x) June 4, 2019 (the 2019 Funding Authority), and (y) June 4, 2021 (the 2021 Funding Authority); |
| (xiii) | an electronic copy of (A) the memorandum to R. Fassbind, as Chief Financial Officer of Credit Suisse (CFO), dated April 3, 2009, and executed by R. Fassbind, as CFO, and R. Enderli, as Treasurer of Credit Suisse (Treasurer), on April 8, 2009 (the Warrant Program Approval), (B) the memorandum to D. Wong, as Treasurer, dated June 9, 2020, and executed by D. Wong, as Treasurer, on June 10, 2020 (the Warrant Program Update Approval), and (C) the certificate of D. Mathers, as CFO, dated May 12, 2020 (the Registration Statement Approval and, together with the Warrant Program Approval and the Warrant Program Update Approval, the Approvals); |
| (xiv) | an electronic copy of (A) the power of attorney dated April 8, 2009, issued by R. Fassbind, as CFO, and R. Enderli, as Treasurer (the 2009 Power of Attorney), and (B) the power of attorney dated July 22, 2022, issued by D. Mathers, as CFO, and G.M. Martino, as Treasurer (the 2022 Power of Attorney); |
| (xv) | an electronic copy of the Structured Notes and Warrants – Business Division Authorizations (Version 22.0), finalized February 12, 2023, which is the list of Senior SN Business Personnel referred to in the 2021 Funding Authority (the Business Authorizations List); and |
| (xvi) | an electronic copy of the Secretary's Certificate dated February 13, 2023 (including the exhibits thereto, the Secretary's Certificate), executed by two Corporate Secretaries of Credit Suisse. |
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No documents have been reviewed by us in connection with this opinion other than the Documents. Accordingly, we shall limit our opinion to the Documents and their legal implications under the laws of Switzerland.
In this opinion, Swiss legal concepts are expressed in English terms and not in their original language. These concepts may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. With respect to Documents governed by laws other than the laws of Switzerland, for purposes of this opinion, we have relied on the plain meaning of the words and expressions contained therein without regard to any import they may have under the relevant governing law.
| II. | Assumptions |
In rendering the opinion below, we have assumed the following:
| (a) | all documents produced to us as originals are authentic and complete, and all documents produced to us as copies (including, without limitation, fax and electronic copies) conform to the original; |
| (b) | all documents produced to us as originals and the originals of all documents produced to us as copies were duly executed and certified, as applicable, by the individuals purported to have executed or certified, as the case may be, such documents, and any electronic signatures of Credit Suisse (whether or not acting through an Issuing Branch) on any such document have been affixed thereto by the individual to whom such electronic signature belongs and such individual has saved and submitted such document as so electronically signed in such a manner so as to prevent removal or other alteration of such signature; |
| (c) | except as expressly opined upon herein, all information contained in the Documents is, and all material statements made to us in connection with the Documents are, true and accurate as of the date hereof and as of the issue date for each tranche of Warrants as if given or made on such issue date, including, without limitation, the statements set forth in the Secretary's Certificate, including as to the following facts: |
| (i) | the 2014 Articles continue in full force and effect and have not been amended; |
| (ii) | the 2008 Articles were in full force and effect and had not been amended as of the dates of the Warrant Agreement and the Distribution Agreement; |
| (iii) | the 2023 Regulations continue in full force and effect and have not been amended; |
| (iv) | the 2022 Regulations were in full force and effect and had not been amended as of the date of the 2022 Power of Attorney; |
| (v) | the 2021 Regulations were in full force and effect and had not been amended as of the date of the 2021 Funding Authority; |
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| (vi) | the December 2019 Regulations were in full force and effect and had not been amended as of the dates of the Warrant Program Update Approval and the Registration Statement Approval; |
| (vii) | the April 2019 Regulations were in full force and effect and had not been amended as of the date of the 2019 Funding Authority; |
| (viii) | the 2009 Regulations were in full force and effect and had not been amended as of the dates of the Warrant Agreement, the Distribution Agreement and the Warrant Program Approval; |
| (ix) | the 2006 Regulations were in full force and effect and had not been amended as of the date of the 2008 Funding Authority; |
| (x) | the 2021 Funding Authority, the Approvals, the 2022 Power of Attorney and the Business Authorizations List continue in full force and effect and have not been amended; |
| (xi) | the 2019 Funding Authority was in full force and effect and had not been amended as of the dates of the Warrant Program Update Approval and the Registration Statement Approval; |
| (xii) | the 2008 Funding Authority was in full force and effect and had not been amended as of the date of the Warrant Program Approval; |
| (xiii) | the 2009 Power of Attorney was in full force and effect and had not been amended as of the dates of the Warrant Agreement and the Distribution Agreement; |
| (xiv) | the Distribution Agreement continues in full force and effect and has not been amended, other than by the Accession Agreements; |
| (xv) | the Warrant Agreement continues in full force and effect and has not been amended; |
| (xvi) | the Excerpt is correct and complete other than with respect to any changes to the signatories registered with the Commercial Register (including, without limitation, the addition or removal of any such signatory) that have occurred since the date of the Excerpt; and |
| (xvii) | immediately after giving effect to the issuance of Warrants, (x) the aggregate notional amount of warrants (including such Warrants) issued under the Warrant Agreement on or after June 28, 2010 will not exceed USD 2 billion, in accordance with the Warrant Program Update Approval, and (y) the aggregate issuance amount, as measured by the aggregate offering price, of securities (including such Warrants) issued pursuant to the U.S. registration statement on Form F-3 of which the Base Prospectus forms a part, will not exceed USD 80 billion, in accordance with the Registration Statement Approval; |
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| (d) | all Warrants constitute business-driven warrants within the meaning of the 2021 Funding Authority; |
| (e) | the Warrants will have terms substantially similar to those described in one or more of (x) the Existing Representative Pricing Supplements or (y) any pricing supplement (including the Base Prospectus, the Prospectus Supplement and any underlying supplement and product supplement incorporated therein by reference) that may be listed on Annex B to the Agreement About Opinions from time to time pursuant to an amendment thereof executed by the parties thereto on or before the issue date of the relevant Warrants (together with the Existing Representative Pricing Supplements, the Representative Pricing Supplements), except that any or all of the following terms may vary from Warrant to Warrant: |
| (i) | amounts payable on the Warrant, including the formula for determining such amounts; |
| (ii) | provisions relating to optional and automatic early exercise of the Warrant; |
| (iii) | the trade date, the pricing date, the expiration date and any exercise date, redemption date or valuation (or other measurement) date of the Warrant; |
| (iv) | subject to clause (f) below, any security, rate, index and other market measure referenced by the Warrant; and |
| (v) | the notional amount and issue price of, and any commissions or fees on, the Warrant; and |
| (f) | the Warrants will not reference any security, rate, index or other market measure unless it is: |
| (i) | described in one of (x) the Existing Representative Underlying Supplements or (y) to the extent such supplement is applicable to Warrants, any underlying supplement that may be listed on Annex C to the Agreement About Opinions from time to time pursuant to an amendment thereof executed by the parties thereto on or before the issue date of the relevant Warrants; or |
| (ii) | described in one of the Representative Pricing Supplements; or |
| (iii) | a security issued by an issuer that has a class of equity securities registered under the U.S. Securities Exchange Act of 1934, as amended, so long as such issuer or such issuer's jurisdiction of incorporation does not appear on any of the United Nations Security Committee's targeted sanction lists or any sanction list issued by the Swiss or U.S. government (collectively, the Sanction Lists); or |
| (iv) | a security issued by an "Investment Company" registered under the Investment Company Act of 1940, as amended (as such term is defined therein), so long as such Investment Company or such Investment Company's jurisdiction of organization does not appear on any Sanction List; or |
| (v) | an index tracking securities traded on established securities markets of any jurisdiction that does not appear on any Sanction List; or |
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| (vi) | a commodity or index of commodities included in the universe of eligible components included in the Bloomberg Commodity Index and the S&P GSCI Commodity Indices; or |
| (vii) | a currency exchange rate or index of currency exchange rates; or |
| (viii) | a measure, such as an inflation measure, published by the government of a jurisdiction that does not appear on any Sanction List or an agency of any such government; or |
| (ix) | an interest or swap rate; or |
| (x) | futures or forwards contracts traded on any established futures exchange or over-the-counter market, other than the futures exchanges or over-the-counter markets of any jurisdiction that appears on any Sanction List; or |
| (xi) | any "critical benchmark" or "significant benchmark" as such terms are defined in Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016; or |
| (xii) | an index composed of one or more of the items listed in clauses (i) through (xi) above. |
| III. | Opinion |
Based on the foregoing and subject to the qualifications set out below, we are of the opinion that:
| 1. | Credit Suisse is a corporation (Aktiengesellschaft) duly incorporated and validly existing under the laws of Switzerland. |
| 2. | Credit Suisse has the necessary corporate power and authority to, acting through the relevant Issuing Branch, issue the Warrants. |
| 3. | With respect to any tranche of Warrants to be issued by Credit Suisse, acting through the relevant Issuing Branch, when the terms, issuance and sale of such Warrants have been approved by (a) any two persons listed in the 2022 Power of Attorney in the required combination and (b) one of the persons listed in the Business Authorizations List having the authority to authorize such Warrants on behalf of such Issuing Branch for retail or institutional issuances, as applicable, such Warrants will have been duly authorized by all necessary corporate action by Credit Suisse, provided that at the time of such approval (i) such persons are employees of Credit Suisse or one of its affiliates and (ii) the 2022 Power of Attorney and the Business Authorizations List are in full force and effect. |
| IV. | Qualifications |
The above opinions are subject to the following qualifications:
| (a) | The lawyers of our firm are members of the Zurich bar and do not hold themselves out to be experts in any laws other than the laws of Switzerland. Accordingly, we are opining herein as |
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to Swiss law only and we express no opinion with respect to the applicability or the effect of the laws of any other jurisdiction to or on the matters covered herein.
| (b) | We express no opinion on the legality, validity or enforceability of any of the provisions of any Transaction Agreement or the Warrants or the performance of the obligations assumed by Credit Suisse thereunder. |
| (c) | Further, we express no opinion as to tax matters, regulatory matters or as to any commercial, accounting, calculating, auditing or other non-legal matter. |
* * *
We have issued this opinion as of the date hereof and we assume no obligation to advise you of any changes in fact or in law that are made or brought to our attention after the date hereof. This opinion is addressed to you for your benefit, and is not to be relied upon by any other person without our express consent, except that it may be relied upon by initial purchasers of Warrants issued during the four month-period commencing on the date of this opinion (such period, the Relevant Period), and by Davis Polk for purposes of issuing its opinions to you during the Relevant Period with respect to certain matters of the laws of the State of New York and U.S. federal law pertaining to the Warrants.
We hereby consent to the filing of this opinion with the SEC as an exhibit to a report on Form 6-K to be filed by Credit Suisse on the date hereof, and further consent to the reference of our name in (i) any pricing supplement relating to Warrants or (ii) an opinion of Davis Polk relating to Warrants exhibited to a report on Form 6-K, in each case, to be filed by Credit Suisse with the SEC, provided that (a) the terms of the relevant Warrants meet the requirements described in clauses (e) and (f) of Section II, (b) the relevant Warrants are issued within the Relevant Period, (c) in the case of a pricing supplement, such pricing supplement has been reviewed by Davis Polk as U.S. counsel to Credit Suisse, (d) Davis Polk has given its consent to be named in such pricing supplement or Form 6-K to which its opinion will be exhibited, as applicable, and (e) such reference is substantially in the form set out in the opinion of Davis Polk to Credit Suisse dated February 13, 2023. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended. Save as aforementioned, this opinion may not be transmitted by you to any other person, quoted or referred to in any public document or filed with anyone, in each case, without our express consent.
This opinion is governed by and shall be construed in accordance with the laws of Switzerland. We confirm our understanding that all disputes arising out of or in connection with this opinion shall be subject to the exclusive jurisdiction of the courts of the Canton of Zurich, Switzerland, venue being the City of Zurich.
Sincerely yours,
/s/ HOMBURGER AG
HOMBURGER AG
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