Assumptions. The opinion set out in this letter are based upon the following assumptions: 3.1 The genuineness of all signatures, stamps and seals, the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documents; 3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid); 3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date; 3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect; 3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects; 3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor; 3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007; 3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor; 3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture; 3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and 3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective terms.
Appears in 1 contract
Samples: Senior Exchange Notes Agreement (Elan Holdings, Inc.)
Assumptions. The opinion set out in In giving this letter are based upon the following assumptionslegal opinion, we have assumed with your consent, and we have not verified independently:
3.1 The (a) the genuineness of all signatures, stamps and seals, the conformity to the originals of all the documents supplied submitted to us as emailed, certified, photostatic photostatic, faxed or faxed e-mailed copies or specimens and the authenticity of the originals of such documents;
3.2 That (b) the Indenture was duly authorised due and valid authorization, execution and delivery of the Opinion Documents by and duly executed and delivered by or on behalf of each of all the parties thereto (except other than the English Subsidiary Guarantors) and that entering into Company), as well as the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the power, authority, capacity and powers legal right of each of them all the parties thereto (except as aforesaid);
3.3 That other than the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred Company) to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantorenter into, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenturetheir respective obligations thereunder, acted bona fide and in the interests of that English Subsidiary Guarantorcompliance with all applicable laws and regulations, other than Luxembourg law;
3.9 The absence (c) that all authorizations, approvals and consents of any country other arrangements between any of the parties to the Indenture than Luxembourg which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things may be required to be fulfilled, performed or effected in connection with the Indenture under execution, delivery and performance of the laws of Opinion Documents (and any jurisdiction other documents in connection therewith) have been or will be obtained and that all internal corporate or other authorization procedures by each party (other than England the Company) for the execution by it of the Opinion Documents (or any document in connection therewith) to which it is expressed to be a party, have been duly fulfilled;
(d) that the Opinion Documents (and any document in connection therewith) have been signed on behalf of the Company by Xx Xxxx Xxxxxxxxxxx duly appointed by the General Partner as per the minutes mentioned in paragraph I (d);
(e) that the Opinion Documents are legal, performed valid, binding and effected; and
3.11 That enforceable under New York law, that the choice of New York law is valid (as a matter of New York law) as the choice of proper law (being and that the obligations assumed by all the parties thereunder constitute legal, valid, binding and enforceable obligations under New York law by which each of them is the Opinion Documents are expressed to be governed;
(f) that the Indenture constitutes Opinion Documents constitute the legal, valid and binding obligations of each of the parties thereto enforceable (other than the Company) under the laws of the jurisdiction of their incorporation or of their principal office or of their principal place of establishment;
(g) that the Opinion Documents are in the proper legal form to be admissible in evidence and enforced in the courts, and in accordance with the laws, of the State of New York by which they are expressed to be governed;
(h) that, in so far as any obligation under, or action to be taken under, the Opinion Documents is required to be performed or taken in any jurisdiction outside Luxembourg, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;
(i) that there are no provisions of the laws of any jurisdiction outside Luxembourg which would adversely affect, or otherwise have any negative impact on, the opinions expressed in this legal opinion;
(j) that all the parties to the Opinion Documents (other than the Company) are companies duly organized, incorporated and validly existing in accordance with the laws of the jurisdictions of their respective termsincorporation and/or their place of effective management, having a corporate existence, that in respect of all the parties to the Opinion Documents, no steps have been taken pursuant to any insolvency proceedings to appoint an administrator, receiver or liquidator over the respective parties or their assets and that no voluntary winding-up of such parties has been recorded at the date hereof;
(k) that all conditions precedent to the effectiveness of each of the Opinion Documents, other than the delivery of this legal opinion, have been satisfied and that each of the Opinion Documents is in full force and effect as against the parties thereto;
(l) that all payments and transfers made by, on behalf of, in favour of, or for the account of, the Company are made on arm’s length terms and are in accordance with market practice;
(m) that any representation, warranty or statement of fact or law, other than as to the laws of Luxembourg, made in the Opinion Documents (and any document in connection therewith) and relied upon or assumed in this legal opinion is true, accurate and complete in all respects material to this opinion; and
(n) that the Articles have not been amended since the date referred to in paragraphs I. (c); and
(o) that the meeting of the General Partner of the Company mentioned in paragraph I. (d) above was duly convened, and duly held. We express no, nor do we imply any, opinion as to any laws other than the laws of Luxembourg.
Appears in 1 contract
Assumptions. The opinion set out in In giving this letter are based upon the following assumptionslegal opinion, we have assumed with your consent, and we have not verified independently:
3.1 The the genuineness of all signatures, stamps and seals, the completeness and conformity to the originals of all the documents supplied submitted to us as emailed, certified, photostatic photostatic, faxed, scanned or faxed e-mailed copies or specimens and the authenticity of the originals of such documents and that the individuals purported to have signed, have in fact signed (and had the general legal capacity to sign) these documents;
3.2 That the Indenture was duly authorised due authorisation, execution and delivery of the Agreement by and duly executed and delivered by or on behalf of each of all the parties thereto (except other than the English Subsidiary GuarantorsCompany) as well as the capacity, power, authority and that entering into legal right of all the Indenture parties thereto (other than the Company) to enter into, execute, deliver and perform their respective obligations thereunder, and the performance thereof was at compliance with all internal authorisation procedures by each party (other than the time Company) for the execution by it of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid)Agreement;
3.3 That that all factual matters and statements relied upon or assumed herein were, are and will be (as the copies case may be) true, complete and accurate on the date of execution of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-dateAgreement;
3.4 That that all authorisations, approvals and consents under any applicable law (other than Luxembourg law to the resolutions set out extent opined upon herein) which may be required in connection with the Board Resolutions of each execution, delivery and performance of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, Agreement have not been revoked or suspended and are in full force and effectwill be obtained;
3.5 That that the matters set out Agreement has in the Companies House Certificate of each fact been signed on behalf of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respectsCompany by Xxxx X. Xxxxxxxx;
3.6 That each director of each that the place of the English Subsidiary Guarantors had central administration (siège de l'administration centrale), the principal place of business (principal établissement) and the centre of main interests (within the meaning given to such term in Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast), as amended (the European Insolvency Regulation)) of the Company are located at the time place of entry into its registered office (siège statutaire) in Luxembourg and that the Indenture and Company has since then disclosed any interest which he may have no establishment (as such term is defined in the transactions contemplated by European Insolvency Regulation) outside Luxembourg;
3.7 that the Indenture in accordance Company complies with the provisions of the Companies Act 1985 and Luxembourg act dated 31 May 1999 concerning the articles domiciliation of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except companies, as amended (to the extent permitted it is applicable to the Company);
3.8 that the Agreement is legally valid, binding and enforceable under its governing law (other than Luxembourg law to the extent opined upon herein), that the choices of such governing law and of the jurisdiction clause are valid (as a matter of such governing law and all other applicable laws (other than Luxembourg law to the extent opined upon herein)) as the choice of the governing law and the submission to the jurisdiction of the chosen courts for the Agreement;
3.9 that the Agreement is entered into and performed by the articles parties thereto in good faith and without any intention of association fraud or intention to deprive of that English Subsidiary Guarantorany legal benefit any persons (including for the avoidance of doubt third parties) or to circumvent any applicable mandatory laws or regulations of any jurisdiction (including without limitation any tax laws);
3.7 That upon entry into the transactions contemplated by the Indenture 3.10 that there had been and that since then there has been are no alteration in the status or condition of each provisions of the English Subsidiary Guarantors as revealed by a search carried out against each laws of any jurisdiction outside Luxembourg which would adversely affect, or otherwise have any negative impact on, the opinions expressed in this legal opinion;
3.11 that all the parties to the Agreement (other than the Company) are companies duly organised, incorporated and existing in accordance with the laws of the English Subsidiary Guarantors at jurisdiction of their respective incorporation and/or their registered office and/or the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone place of effective management; that in respect of each all the parties to the Agreement, no steps have been taken pursuant to any insolvency, bankruptcy, liquidation or equivalent or analogous proceedings to appoint an administrator, bankruptcy receiver, insolvency officer or liquidator over the respective parties or their assets and that no voluntary or judicial winding-up or liquidation of such parties has been resolved or become effective at the date hereof. In respect of the English Subsidiary Guarantors at Company, we refer to the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007Certificate;
3.8 That 3.12 that the directors of each entry into and performance of the English Subsidiary GuarantorsAgreement are for the corporate benefit (intérêt social) of the Company;
3.13 that the Resolutions have not been amended, rescinded, revoked or declared void and that the meeting of the board of managers of the Company (as referred to in resolving paragraph 2.3) has been duly convened and validly held and included a proper discussion and deliberation in respect of all the items of the agenda of the meeting;
3.14 that the Articles have not been modified since the date referred to give in paragraph 2.1 above;
3.15 that the guarantees Company does not carry out an activity in the financial sector on a professional basis (as referred to in the Luxembourg act dated 5 April 1993 relating to the financial sector, as amended (the Banking Act 1993)). This assumption does not specifically affect the entry into and the performance by the Company of the Agreement;
3.16 that the Company does not carry out an activity requiring the granting of a business licence under the Indenture Luxembourg act dated 2 September 2011 relating to the establishment of certain businesses and to executebusiness licences, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantoras amended;
3.9 The 3.17 the absence of any other arrangements arrangement by or between any of the parties to the Indenture Agreement or between the parties to the Agreement and any third parties which modify modifies or supersede supersedes any of the terms of the IndentureAgreement or otherwise affects the opinions expressed herein;
3.10 That 3.18 there is neither a vitiated consent (vice de consentement) by reason of mistake (erreur), fraud (dol), duress (violence) or inadequacy (lésion), nor an illicit cause (cause illicite) in relation to the Agreement;
3.19 that all acts, agreed conditions or things required to be fulfilled, performed or effected in connection with the Indenture under effectiveness of the laws of any jurisdiction other than England Agreement have been duly fulfilled, performed and effectedor will be satisfied; and
3.11 That as 3.20 that the Company does not or will not process personal data in relation to which it has not made a matter of New York law (being notification to, or obtained an authorisation from, the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsrelevant Luxembourg authorities under applicable data protection laws.
Appears in 1 contract
Assumptions. The opinion set out in In giving this letter are based upon the following assumptionslegal opinion, we have assumed with your consent, and we have not verified independently:
3.1 The the genuineness of all signatures, stamps and seals, the completeness and conformity to the originals of all the documents supplied submitted to us as emailed, certified, photostatic photostatic, faxed, scanned or faxed e-mailed copies or specimens and the authenticity of the originals of such documents and that the individuals purported to have signed, have in fact signed (and had the general legal capacity to sign) these documents;
3.2 That the Indenture was duly authorised due authorisation, execution and delivery of the Agreements by and duly executed and delivered by or on behalf of each of all the parties thereto (except other than the English Subsidiary GuarantorsCompany) as well as the capacity, power, authority and legal right of all the parties thereto (other than the Company) to enter into, execute, deliver and perform their respective obligations thereunder, and the compliance with all applicable laws and regulations (other than Luxembourg law) and the compliance with all internal authorisation procedures by each party (other than the Company) for the execution by it of the Agreements to which it is expressed to be a party;
3.3 that entering into all authorisations, approvals and consents of any country (other than Luxembourg) which may be required in connection with the Indenture execution, delivery and performance of the Agreements have been or will be obtained;
3.4 the due compliance with all matters (including without limitation, the obtaining of necessary consents and approvals and the performance thereof was at making of necessary filings and registrations) required in connection with the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of Agreements to render them enforceable in all relevant jurisdictions (except as aforesaidother than Luxembourg);
3.3 That 3.5 that all conditions precedent to the copies effectiveness of the Constitutive Documents of each of Agreements have been satisfied and that therefore the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and Agreements are in full force and effect;
3.5 That effect as against the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respectsparties thereto;
3.6 That each director of each that the place of the English Subsidiary Guarantors had central administration (siège de l’administration centrale), the principal place of business (principal établissement) and the centre of main interests (as defined in Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, as amended (the EU Insolvency Regulation)) of the Company are located at the time place of entry into its registered office (siège statutaire) in Luxembourg and that the Indenture and Company has since then disclosed any interest which he may have no establishment (as such term is defined in the transactions contemplated by EU Insolvency Regulation) outside Luxembourg;
3.7 that the Indenture in accordance Company complies with the provisions of the Companies Act 1985 Luxembourg act dated 31 May 1999 concerning the domiciliation of companies, as amended;
3.8 that the Agreements are governed by New York law and that the Agreements are legally valid, binding and enforceable under laws of New York;
3.9 that the choice of such governing law and of the jurisdiction clause are valid as the choice of the governing law and the articles submission to the jurisdiction of association the chosen courts for the Agreements (under such governing law);
3.10 that the obligations assumed by all the parties under the Agreements constitute legally valid, binding and enforceable obligations in accordance with their terms under New York law being the governing law of such relevant English Subsidiary Guarantor obligations;
3.11 that the Agreements are entered into and performed by the parties thereto in good faith and without any intention of fraud or intention to wrongfully deprive of any legal benefit any persons (including for the avoidance of doubt third parties) or intention to circumvent any applicable mandatory laws or regulations of any jurisdiction (including without limitation any tax laws);
3.12 that none all the parties to the Agreements (other than the Company) are companies duly organised, incorporated and existing in accordance with the laws of the directors jurisdiction of their respective incorporation and/or their registered office and/or the place of effective management, having a corporate existence; that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each all the parties to the Agreements (other than the Company), no steps have been taken pursuant to any insolvency, bankruptcy, liquidation or equivalent or analogous proceedings to appoint an administrator, bankruptcy receiver, insolvency officer or liquidator over the respective parties or their assets and that no voluntary or judicial winding-up or liquidation of such parties has been resolved or become effective at the date hereof. In respect of the English Subsidiary Guarantors at Company, we refer to the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007Certificate;
3.8 That 3.13 that the directors of each entry into and performance of the English Subsidiary GuarantorsAgreements are for the corporate benefit (intérêt social) of the Company;
3.14 that all payments and transfers made by, on behalf of, in resolving to give favour of, or for the guarantees account of, the Company under the Indenture Agreements are made on an arm’s length basis and to execute, deliver and perform the obligation under the Indenture, acted bona fide and are in the interests of that English Subsidiary Guarantoraccordance with market practice;
3.9 The absence 3.15 that the Company is not, is not deemed to be, and, as a result of any other arrangements between any entering into the Agreements, will not be, over-indebted in light of the current practice of the Luxembourg tax administration;
3.16 that none of the parties to the Indenture which modify Agreements will have any relation with the Company other than that of an independent third party acting in the normal course of its business and/or will maintain any particular economic relation with the Company, other than that contemplated by the Agreements.
3.17 that the Resolutions have not been amended, rescinded, revoked or supersede any declared void and that the meeting of the terms board of directors of the IndentureCompany (as referred to in paragraph 2.5 above) was duly convened and validly held;
3.10 That all acts, conditions 3.18 that the Articles have not been amended by any deeds or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction documents other than England have been duly fulfilled, performed and effectedthe Shareholder’s Resolutions; and
3.11 That as a matter of 3.19 that, under New York law (being the governing law by which each of them is expressed to be governed) the Indenture constitutes legalobligations under the Agreements, valid and binding the obligations of each the Company under the Agreements will rank pari passu with all other unsecured and unsubordinated obligations of the parties thereto enforceable in accordance with their respective termsCompany.
Appears in 1 contract
Assumptions. The opinion set out in this letter are based upon the following assumptionsWe have assumed:
3.1 The genuineness (a) the authenticity of all signatures, seals, duty stamps and seals, the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documentsmarkings;
3.2 That (b) that:
(i) the Indenture was duly authorised by Power of Attorney and duly executed all authorisations specified above remain in full force and delivered by or on behalf of each of effect; and
(ii) all authorisations required for any party (other than the parties thereto (except the English Subsidiary GuarantorsCompany) and that entering to enter into the Indenture Documents have been obtained and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are remain in full force and effect;
3.5 That (c) the matters completeness, and conformity to originals, of all documents submitted to us;
(d) that the Documents have been or will be duly authorised and executed by the parties to them (other than the Company) and constitute valid, binding and enforceable obligations of all the parties to them under all relevant laws (including the laws of the Relevant Jurisdiction);
(e) that each of the assumptions set out in the Companies House Certificate of each section 129 of the English Subsidiary Guarantors were at Corporations Xxx 0000 of Australia (“Corporations Act”) is correct in relation to the time Documents, the Power of entry into Attorney and the Indenture and are now true and accurate in all respectsCompany;
3.6 That each director of each (f) that where a Document is executed outside Australia the formalities for execution required by the law of the English Subsidiary Guarantors had at place of execution have been or will be complied with;
(g) that any person purporting to sign a Document as an attorney of the time Company was a person appointed under the Power of entry Attorney;
(h) that the obligations assumed by the Company under the Documents are in its best interests and for the purposes of its business;
(i) immediately following execution of the Documents the Company was solvent;
(j) that, if an obligation is to be performed in a jurisdiction outside Australia, its performance will not be contrary to an official directive, impossible or illegal under the law of that jurisdiction;
(k) that the Company does not enter into the Indenture and has since then disclosed any interest which he may have Document in the transactions contemplated by the Indenture in accordance with the provisions capacity of the Companies Act 1985 and the articles a trustee of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantortrust;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and (l) that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected transaction in connection with the Indenture under Documents constitutes an insolvent transaction or an unfair loan within the laws meaning of sections 588FC or 588FD respectively of the Corporations Act;
(m) that no party has contravened or will contravene the prohibitions on related party transactions in sections 208 or 209 of the Corporations Act by entering into any jurisdiction other than England have been duly fulfilledDocument or a transaction in connection with any Document;
(n) that the Code of Banking Practice does not apply to the Documents;
(o) that no person has been, performed or will be, engaged in conduct that is unconscionable, dishonest, illegal, misleading or deceptive or likely to mislead or deceive;
(p) that there are no facts not evident from the face of the documents listed in paragraph 1 which might make any part of this opinion incorrect;
(q) that all factual matters stated in the documents described in paragraph 1 are true, correct and effectedaccurate at all relevant times; and
3.11 That (r) all information provided to us for the purpose of conducting searches and making registrations is correct and complete as a matter at the date of New York law (being those searches and registrations and as at the law by date of this opinion. We have not taken any steps to verify the assumptions stated above and assume, with respect to each addressee of this opinion, that that addressee does not know or suspect that any of those assumptions is incorrect. However, without making specific enquiries beyond the steps which each of them is expressed to be governed) the Indenture constitutes legalare stated in this opinion, valid and binding obligations of each none of the parties thereto enforceable in accordance with their respective termsActing Persons has actual knowledge as at the date of this opinion that any of those assumptions is incorrect.
Appears in 1 contract
Assumptions. The opinion In rendering the opinions set out forth in this letter are based upon Section C below, we have assumed with your consent and without investigation: the following assumptions:
3.1 The genuineness of all signatures; the legal capacity of all Silver Point Finance, stamps and sealsLLC, as Administrative Agent SPCP Group, LLC, as Lender 20__ Page3 individuals who have executed any of the Documents reviewed by us; the authenticity of all Documents submitted to us as originals, the conformity to the originals of all documents supplied Documents submitted to us as emailed, certified, photostatic photostatic, facsimile, reproduced or faxed copies and conformed copies, the authenticity of the originals latter documents and that the statements regarding matters of such documents;
3.2 That fact in the Indenture was duly authorised by certificates, records, agreements, instruments and duly executed documents that we have examined are accurate and delivered by or on behalf complete; the truthfulness of each statement as to all factual matters otherwise not known to us to be untruthful contained in any Document encompassed within the due diligence review undertaken by us; the payment of all required documentary stamps, taxes and fees imposed upon the execution, filing or recording of documents; there have been no undisclosed oral or written modifications of any provision of any Document reviewed by us in connection with the rendering of the parties thereto (except the English Subsidiary Guarantors) opinions, all terms and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-conditions of, or relating to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture Transaction Documents are correctly and completely embodied in accordance the Transaction Documents; that all parties have complied with any requirement of good faith, fair dealing and conscionability; that each Subsidiary is solvent; that each Subsidiary has received adequate consideration for entering into the provisions Transaction Documents; that (i) the Articles of the Companies Act 1985 and the articles Incorporation or Bylaws of association of such relevant English each Subsidiary Guarantor has not been amended and that none of the directors of that English Subsidiary Guarantor had no such amendment is pending or has any interest in such transactions except to the extent permitted by the articles of association of that English been proposed, (ii) each Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture is organized solely under the laws of any jurisdiction other than England have been duly fulfilledthe State of Colorado, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governediii) there are no proceedings pending or contemplated for (A) the Indenture constitutes legalmerger, valid consolidation, conversion, dissolution, liquidation or termination of any Subsidiary, or (B) any Subsidiary's transfer to or domestication in any other jurisdiction and binding obligations (iv) each Subsidiary has not changed its name whether by amendment of each its Articles of Incorporation, by reorganization or otherwise, within the last four (4) months. Since we have not represented any of the parties thereto enforceable in accordance Subsidiaries with regard to their respective termscorporate formalities, for purposes of the opinions rendered below, we rely on the presumption of regularity and continuity (a) for all stock issuances, and cancellations thereof where applicable, and (b) with the exception of the written consent referenced under Section A.S. and the Certificate referenced under Section A.7. above, for all of the minutes of the meetings and written consents of the Subsidiaries' Board of Directors and shareholders, and as to any such meetings or consents, that they were properly noticed or notice was properly waived.
Appears in 1 contract
Assumptions. The opinion 3.1 For the purposes of giving this opinion, we have with your permission assumed (and relied upon these assumptions):
3.1.1 that all parties (other than the Guernsey Entities) have the capacity, power and authority to enter into the Documents to which they are a party and that such parties have duly authorised, executed and delivered those documents and that those documents have been dated;
3.1.2 the genuineness and authenticity of all signatures and seals on all documents, the authenticity of all original documents and the completeness and conformity to original documents of all documents produced to us as copies;
3.1.3 the continuing accuracy and completeness of the Director’s Certificate, and that the Director’s Resolutions were duly adopted, have not been revoked or varied and remain in full force and effect as confirmed by the Director’s Certificate, and the continuing accuracy and completeness of all statements as to matters of fact contained in the Documents and the ancillary documents, as at the date hereof;
3.1.4 that where we have examined drafts, the Documents as executed do not differ in any material respect from the drafts which we have examined and that the Documents to which the Limited Partnership is a party are executed in the manner prescribed by the relevant resolution of the directors of the Company set out in this letter are based upon the following assumptions:Director’s Resolutions;
3.1 The genuineness of all signatures, stamps and seals, the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity 3.1.5 that each of the originals of such documents;
3.2 That Documents to which the Indenture was duly authorised by and duly Limited Partnership is a party when executed and delivered by or on behalf of each Company as general partner of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That General Partner in accordance with the resolutions set out in the Board Director’s Resolutions and by the other parties thereto will constitute the legal, valid and binding obligation of the Limited Partnership and the other parties thereto, enforceable in accordance with its terms under the laws of the State of New York by which law the said Documents are expressed to be governed;
3.1.6 that there is no provision of the law or regulation of any jurisdiction other than Guernsey which would have any adverse implication in relation to the opinions expressed hereunder;
3.1.7 that the choice of the laws of the State of New York to govern each of the English Subsidiary Guarantors were duly adopted by Documents is bona fide (for example not made with any intention of avoiding provisions of the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That law with which the matters set out in the Companies House Certificate of transaction under each of the English Subsidiary Guarantors were said Documents has the closest and most real connection) and legal and there is no reason for avoiding that choice of law on grounds of public policy;
3.1.8 that the information and documents disclosed by our searches of the Public Records, the Royal Court records and the Register in Guernsey referred to in paragraphs 2.1, 2.4 and 2.8 above are accurate as at the time date hereof and there is no information or document which had been delivered for registration, or which is required by the laws of entry into Guernsey to be delivered for registration, which was not included in the Indenture and are now true and accurate Public Records, the Royal Court records or the Register;
3.1.9 that where incomplete documents or signature pages only have been supplied to us for the purposes of issuing this opinion, the original corresponds in all respectsmaterial respects with the last draft of the complete document supplied to us;
3.6 That each director 3.1.10 that in respect of the transaction contemplated by, referred to in, provided for or effected by, the Documents each of the English Subsidiary Guarantors had at the time of entry parties thereto entered into the Indenture and has since then disclosed any interest which he may have same in good faith for the transactions contemplated by the Indenture in accordance with the provisions purpose of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantorcarrying on its business on arm’s length commercial terms;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and 3.1.11 that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture Documents (other than the Guernsey Entities) is duly incorporated and organised, validly existing and in good standing under the laws of its jurisdiction of incorporation and of the jurisdiction of its principal place of business;
3.1.12 the due compliance with all matters (including, without limitation, the obtaining of all necessary consents, licences, approvals and filings) under any law other than that of Guernsey;
3.1.13 that in resolving that the Limited Partnership enter into the Documents to which modify or supersede it is a party and the transactions documented thereby, the directors of the Company were acting with a view to the best interests of and for the purposes of the General Partner and the Limited Partnership;
3.1.14 that the copies of the Certificates of Registration of the Limited Partnership and the General Partner, the LPAs, and the Certificate of Registration and Memorandum and Articles of Association of the Company provided to us are true and complete as of the date of this letter, as confirmed by the Directors’ Certificate;
3.1.15 that the corporate (if any) directors, secretary and members of the Company are duly incorporated and organised, validly existing and in good standing under the law of their place of incorporation, that they have capacity, power and authority to act in the manner contemplated and that the authorised signatories of such corporate directors, secretary and members have been validly appointed;
3.1.16 that any of notice(s) required to be given pursuant to the terms of the IndentureDocuments are given to the addressee(s) as set out therein in the form required;
3.10 That all acts3.1.17 that the LPAs remain in full force and effect and have not been rescinded, conditions revoked or things required to be fulfilled, performed or effected amended in connection with the Indenture under the laws any way including by way of addition of any jurisdiction additional limited partners thereto;
3.1.18 that the Consents remain in full force and effect and have not been rescinded, revoked or amended in any way;
3.1.19 that there has been no change to the constitution of the Guernsey Entities or any other than England have been duly fulfilledmatter which would require either notification to H.M. Greffier, performed the Guernsey Financial Services Commission or an amendment to the Register;
3.1.20 that the declarations filed with H.M. Greffier pursuant to section 8(2) of the Limited Partnerships (Guernsey) Law, 1995 (as amended) in relation to the Limited Partnership and effectedthe General Partner represent a true and correct disclosure as at the date hereof of relevant matters required thereunder;
3.1.21 that the General Partner acts solely as general partner of the Limited Partnership and is not carrying on, nor holding itself out as carrying on, any other business or activity including any controlled investment business (as that term is defined in the Protection of Investors (Bailiwick of Guernsey) Law, 1987) or any regulated activities (as that term is defined in the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc (Bailiwick of Guernsey) Law, 2000) in or from within the Bailiwick of Guernsey;
3.1.22 that the Company acts solely as general partner of the General Partner and is not carrying on, nor holding itself out as carrying on, any other business or activity including any controlled investment business (as that term is defined in the Protection of Investors (Bailiwick of Guernsey) Law, 1987) or any regulated activities (as that term is defined in the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc (Bailiwick of Guernsey) Law, 2000) in or from within the Bailiwick of Guernsey; and
3.11 That as a matter 3.1.23 that any assets secured under the Documents are situated and remain outside the Island of New York law (being Guernsey.
3.2 We have not independently verified the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsabove assumptions.
Appears in 1 contract
Assumptions. The In rendering this opinion set out in this letter are based upon we have assumed, without having made any independent investigation of the following assumptions:
3.1 The facts, except with respect to matters of State and federal law on which we have opined below, the following: the genuineness of all signatures, stamps the authenticity of all documents submitted to us as originals and seals, the conformity to the with originals of all documents supplied submitted to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except copies; to the extent permitted by that the articles obligations of association of Mortgagor may be dependent upon such matters, other than with respect to Mortgagor, that English Subsidiary Guarantor;
3.7 That upon entry into each party to the transactions contemplated by the Indenture there had been agreements and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantorscontracts referred to herein is duly formed, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide validly existing and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture good standing under the laws of any its jurisdiction of formation; that each such other than England party has the requisite corporate or other organizational power and authority to perform its obligations under such agreements and contracts, as applicable; and that such agreements and contracts have been duly fulfilledauthorized, performed executed and effected; and
3.11 That as a matter of New York law (being the law by which delivered by, and each of them is expressed to be governed) constitutes the Indenture constitutes legal, legally valid and binding obligations of each of the of, such other parties, as applicable, enforceable against such other parties thereto enforceable in accordance with their respective terms.; that, (a) if Mortgagor is a corporation, Mortgagor is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, and (b) if Mortgagor is a limited liability company, Mortgagor is duly formed, validly existing and in good standing under the laws pertaining to limited liability companies in the jurisdiction where Mortgagor was formed; that Mortgagor has the requisite organizational or corporate power, as applicable, and authority to enter into and perform its obligations under the Subject Documents to which it is a party; the due authorization, execution and delivery by Mortgagor of the Subject Documents to which Mortgagor is a party; that a part or all of the loan proceeds to be advanced pursuant to the Credit Agreement will have been advanced on or before the date hereof; that all material factual matters, including without limitation, representations and warranties, contained in the Subject Documents, are true and correct as set forth therein; Alliance Resource Fourth Amended and Restated Credit Agreement (41)
Appears in 1 contract
Samples: Credit Agreement
Assumptions. The opinion set out in this letter are based upon In giving our opinion, we have assumed the following assumptionsfollowing:
3.1 The genuineness of B.1 All signatures on the documents submitted to us (and on any and all signatures, stamps agreements and seals, documents referred to therein) or on the conformity originals thereof are genuine.
B.2 Copies submitted to us are true and complete and conform to the originals thereof.
B.3 None of all the documents supplied submitted to us as emailed, certified, photostatic or faxed copies (and the authenticity none of the originals of such documents;agreements and documents referred to therein) has been amended, rescinded or revoked.
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each B.4 Each of the parties thereto (except other than the English Subsidiary GuarantorsSwiss Companies) to the Agreements (and that entering into to any and all agreements and documents referred to therein) is a company, other legal entity, partnership or other organization duly organized, validly existing and in good standing (where such concept is legally relevant) under the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies laws of the Constitutive Documents jurisdiction of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture its incorporation and/or establishment and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 requisite capacity, power and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except authority to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry enter into the transactions contemplated by any Agreement (and to any and all agreements and documents referred to therein) and to perform its respective rights and obligations thereunder.
B.5 The execution, delivery and performance of the Indenture there had Agreements (and of any and all agreements and documents referred to therein) by all parties thereto (other than the Swiss Companies) have been or, where appropriate, will be duly authorized by all action necessary under applicable law, the articles of incorporation (if applicable) and that since then there has been no alteration in the status or condition internal regulations (if applicable) of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 such party.
B.6 The Agreements (and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving any and all agreements and documents referred to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England therein) have been or, where appropriate, will be duly fulfilledsigned, performed executed and effected; and
3.11 That as a matter delivered by representatives of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of all the parties thereto (other than the Swiss Companies) with the requisite signing authority conferred on them in accordance with applicable law, the articles of incorporation (if applicable) and the internal regulations (if applicable) of each such party.
B.7 The Agreements (and any and all agreements and documents referred to therein), upon signature and execution, will be legal, valid, binding and enforceable in accordance with their terms under the laws of the State of New York, by which they are expressed to be governed, and the choice of such laws was freely made by the parties thereto and for bona fide purposes. The Agreements have been, or will be, entered into, and the execution and completion thereof (and of any and all agreements and documents referred to therein) have been, or will be, carried out for bona fide commercial reasons by each of the parties thereto. The Agreements have been entered into at arm’s length terms and none of the directors or officers of the respective termsparty has or had a conflict of interest with such party in respect of any Agreement (and any and all agreements and documents referred to therein) that would preclude him from validly representing (or granting a power of attorney in respect of the documents for) the respective party. The submission to the jurisdiction of the supreme court of the State of New York and the courts of the United States of America for the Southern District of New York and appellate courts from any thereof provided for in the Agreements is valid and binding under the laws of the State of New York.
B.8 All conditions and prerequisites provided for in each Agreement (and in any and all agreements and documents referred to therein) have been met or waived.
B.9 All representations and warranties made by any one of the parties in any Agreement (and in any and all agreements and documents referred to therein) are, when made or repeated or deemed to be made or repeated, true and accurate.
Appears in 1 contract
Samples: Credit Agreement (Bruker Corp)
Assumptions. The For the purpose of this opinion set out in this letter are based upon the following assumptions:letter, we have assumed (without making any investigation thereof):
3.1 The the genuineness of all signatures, stamps signatures on the documents and seals, instruments examined by us;
3.2 the completeness and conformity to the originals of all documents supplied purporting to us as emailed, certified, photostatic or faxed be copies of originals and the authenticity of all documents submitted to us as originals (more in particular, we have assumed that no pages in the originals shareholders register, copies of such documents;
3.2 That which have been handed over to us, have been filled out other than the Indenture was duly authorised by and duly executed and delivered by or on behalf pages of each of the parties thereto (except the English Subsidiary Guarantors) which we have received copies and that entering into all shares issued by the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaidCompany concerned have been registered in its share register);
3.3 That that there have been no amendments to the copies By-laws of the Constitutive Documents of each of Company in the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-dateform examined by us;
3.4 That that the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors shareholders' meeting and the board of directors of the Company as examined by us were duly adopted by the passed at a properly convened and quorate meeting of genuine shareholders, respectively duly appointed directors of such English Subsidiary Guarantor, the Company and have not been revoked amended or suspended rescinded and are in full force and effecteffect and that no director of the Company might have a personal interest in the transactions to which the decisions rendered relate other than as stated therein, if any;
3.5 That the matters set out in the Companies House Certificate of each that there are no provisions of the English Subsidiary Guarantors were at laws of any jurisdiction outside Belgium which would have any implication on the time of entry into the Indenture and are now true and accurate in all respectsopinions hereinafter expressed;
3.6 That each director of each that we are authorized to assume that the Company has not passed a voluntary dissolution resolution, that no petition has been presented or order made by a court for the bankruptcy, winding-up, dissolution, "concordatjudiciaire" or "sursis de paiement" of the English Subsidiary Guarantors had at Company and that no trustee, liquidator or similar officer has been appointed in relation to the time of entry into the Indenture and has since then disclosed Company or any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had respective assets or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantorrevenues;
3.7 That upon entry into that with respect to title to registered shares, we are authorized to rely on copies of the transactions contemplated by appropriate recording in the Indenture shareholders' register of the Company concerned and to assume (i) that there had been are no agreements or arrangements and that since then there has have not been no alteration any actions or other matters which may cancel, amend, replace, supersede or otherwise affect the information contained in such shareholders' register, and (ii) that the status or condition of each persons signing on behalf of the English Subsidiary Guarantors as revealed by a search carried out against each shareholders were duly authorized to sign on behalf of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007such shareholders;
3.8 That that there are no agreements or arrangements and that there have not been any actions or other matters which cancel, amend, replace, supersede or otherwise affect the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and information contained in the interests of that English Subsidiary Guarantordocuments reviewed by us;
3.9 The absence of any other arrangements between any that none of the parties to the Indenture documents that we have reviewed, have been seeking to achieve any purpose not apparent from the documents reviewed by us which modify might render these documents illegal or supersede void, and that there is no provision in any of the terms of the Indentureother document which will affect any statement made therein;
3.10 That all actsthat the Agreement submitted in final draft form to us, conditions was executed in the form submitted to us and that there have been no amendments or things required changes to the Agreement;
3.11 the legal capacity of the individuals signing such documents; and
3.12 the genuineness of the statement referred to under 2.9. We have made such examination of the laws of Belgium as currently applied by Belgian courts as in our judgment is necessary for the purpose of this opinion. We do not, however, purport to be fulfilled, performed or effected in connection with the Indenture under qualified to pass upon and express no opinion herein as to the laws of any jurisdiction other than England have been duly fulfilled, performed those of Belgium. There is no intention on our part to amend or update this opinion in the event of any changes after the date thereof in any Belgian laws or regulations or case law relevant to this opinion. This opinion is governed by and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to shall be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable construed in accordance with their respective termsBelgian law as in effect on the date at which it is given, and any matter relating to it shall be subject to the exclusive jurisdiction of the Belgian courts.
Appears in 1 contract
Assumptions. The In stating our opinion set out in this letter are based upon the following assumptionswe have assumed:
3.1 The 1.1 the authenticity, accuracy and completeness of all Documents and other documentation examined by us submitted to us as originals and the conformity to authentic original documents of all Documents and other such documentation submitted to us as certified, conformed, notarised, faxed or photostatic copies;
1.2 that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;
1.3 the genuineness of all signatures, stamps and seals, signatures on the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documentsDocuments;
3.2 That 1.4 the Indenture was duly authorised by authority, capacity and duly executed and delivered by or on behalf power of each of the parties thereto persons signing the Documents (except other than the English Subsidiary Guarantors) and that entering into Company in respect of the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and Subject Agreements to which it is currently within the capacity and powers of each of them (except as aforesaida party);
3.3 That the copies 1.5 that any representation, warranty or statement of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantorfact or law, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except other than as to the extent permitted by the articles laws of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration Bermuda, made in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the IndentureDocuments is true, accurate and complete;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with 1.6 that the Indenture under Subject Agreements constitute the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto thereto, other than the Company, under the laws of its jurisdiction of incorporation or its jurisdiction of formation;
1.7 that the Subject Agreements have been validly authorised, executed and delivered by each of the parties thereto, other than the Company, and the performance thereof is within the capacity and powers of each such party thereto, and that each such party to which the Company purportedly delivered the Subject Agreements has actually received and accepted delivery of such Subject Agreements;
1.8 that the Subject Agreements will effect, and will constitute legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with their respective terms, under the laws of the State of New York by which they are expressed to be governed;
1.9 that the Subject Agreements are in the proper legal form to be admissible in evidence and enforced in the federal courts of the United States in the city and county of New York, Borough of Manhattan and the New York State courts in the city and county of New York, Borough of Manhattan (hereinafter referred to as the New York Courts) and in accordance with the laws of the State of New York;
1.10 that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Subject Agreements or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Subject Agreements is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;
1.11 that none of the parties to the Subject Agreements maintains a place of business (as defined in section 4(6) of the Investment Business Act 2003), in Bermuda;
1.12 that the records which were the subject of the Company Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date and time of the Company Search been materially altered;
1.13 that the records which were the subject of the Litigation Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date and time of the Litigation Search been materially altered;
1.14 that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and, in respect of the 2012 Resolutions, they accurately record the resolutions adopted by the Board of Directors of the Company as unanimous written resolutions of the Board of Directors of the Company and, in respect of the 2013 Resolutions, they accurately record the resolutions passed by the Board of Directors of the Company in a meeting which was duly convened and at which a duly constituted quorum was present and voting throughout, and that there is no matter affecting the authority of the Directors to effect entry by the Company into the Subject Agreements, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein;
1.15 that the Underwriters have no express or constructive knowledge of any circumstance whereby any Director of the Company, when the Board of Directors of the Company adopted and passed the Resolutions, failed to discharge his fiduciary duty owed to the Company and to act honestly and in good faith with a view to the best interests of the Company;
1.16 that the Company has entered into its obligations under the Subject Agreements in good faith for the purpose of carrying on its business and that, at the time it did so, there were reasonable grounds for believing that the transactions contemplated by the Subject Agreements to which it is a party would benefit the Company;
1.17 that each transaction to be entered into pursuant to the Subject Agreements is entered into in good faith and for full value and will not have the effect of preferring one creditor over another; and
1.18 that there are no matters of fact or law (other than matters of Bermuda law) affecting the enforceability of the Subject Agreements that have arisen since the execution of the Subject Agreements which would affect the opinions expressed herein.
Appears in 1 contract
Samples: Purchase Agreement (Invesco Ltd.)
Assumptions. The opinion set out in For the purpose of giving this letter are based upon Opinion we assume the following assumptionsfollowing, without any responsibility on our part if any assumption proves to have been untrue as we have not verified independently any assumption:
3.1 The truth, completeness, accuracy and authenticity of all copy letters, resolutions, certificates, permissions, minutes, authorisations and all other documents of any kind submitted to us as originals or copies of originals, and (in the case of copies) conformity to the originals of copy documents, the genuineness of all signatures, stamps and seals, seals thereon that any signatures are the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity signatures of the originals of such documents;persons who they purport to be and that each original was executed in the manner appearing on the copy.
3.2 That the Indenture was duly authorised by Transaction Document has been executed in a form and duly executed and delivered by or on behalf of each of content having no material difference to the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);final draft provided to us.
3.3 That the copies produced to us of minutes of meetings and/or of resolutions correctly record the Constitutive Documents of each of proceedings at such meetings and/or the English Subsidiary Guarantors subject matter which they purport to record and that any meetings referred to above in such copies were duly convened, duly quorate and held and all formalities were duly observed, that those present at any such meetings were entitled to attend and vote at the time of entry into meeting and acted bona fide throughout, that no further resolutions have been passed or corporate or other action taken which would or might alter the Indenture effectiveness thereof and are now true and up-to-date;
3.4 That the that such resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked amended or suspended rescinded and are in full force and effect;.
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 3.4 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and Company has since then disclosed any interest which he may have in the transactions contemplated by the Indenture Transaction in accordance with the provisions of the Companies Act 1985 and the articles Constitution of association of such relevant English Subsidiary Guarantor the Company and that none of the directors of that English Subsidiary Guarantor had or the Company has any interest in such transactions the Transaction except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each Constitution of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;Company.
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 3.5 The absence of any other arrangements between any fraud, coercion, duress or undue influence and lack of bad faith on the part of the parties to the Indenture Transaction Document and their respective officers, employees, agents and (with the exception of Xxxxxx Xxx) advisers.
3.6 That, based only on the searches referred to in paragraph 1.8(e), no person who has been appointed or acts in any way, whether directly or indirectly, as a director or secretary of, or who has been concerned in or taken part in the promotion of, the Company has:
(a) been the subject of any declaration, order or deemed order for disqualification or restriction under the Companies Act (including Part 14, Chapters 3 and 4 thereof) or any analogous legislation; or
(b) received any notice under the Companies Act (including Part 14, Chapter 5 thereof) or any analogous legislation regarding a disqualification or restriction undertaking.
3.7 The accuracy and completeness of the information disclosed in the Searches and that such information is accurate as of the date of this Opinion and has not since the time of such search been altered. In this connection, it should be noted that:
(a) the matters disclosed in the Searches may not present a complete summary of the actual position on the matters we have caused searches to be conducted for;
(b) the position reflected by the Searches may not be fully up-to-date; and
(c) searches at the CRO do not necessarily reveal whether or not a prior charge has been created or a resolution has been passed or a petition presented or any other action taken for the winding-up of, or the appointment of a receiver or an examiner to, the Company or its assets.
3.8 The truth, completeness and accuracy of all representations and statements as to factual matters contained in the Corporate Certificate (as defined in Schedule 1 hereto) at the time they were made and at all times thereafter.
3.9 That the Transaction Document has been entered into for bona fide commercial purposes, on arm’s length terms and for the benefit of each party thereto and are in those parties’ respective commercial interests and for their respective corporate benefit.
3.10 That the Transaction Document is the only document relating to the subject matter of the Transaction (for the purposes of the Opinion) and that there are no agreements or arrangements of any sort in existence between the parties to the Transaction Document and/or any other party which modify in any way amend or supersede any of vary or are inconsistent with the terms of the IndentureTransaction Document or in any way bear upon or are inconsistent with the opinions stated herein.
3.11 That:
(a) no party to the Transaction Document is a “consumer” for the purposes of Irish law or a “personal consumer” for the purposes of the Central Bank of Ireland’s Consumer Protection Code 2012;
3.10 (b) the parties to the Transaction Document (other than the Company to the extent opined on herein) are duly incorporated and validly in existence and they and their respective signatories have the appropriate capacity, power and authority to execute the Transaction Document, to exercise and perform their respective rights and obligations thereunder and to render those Transaction Document and all obligations thereunder legal, valid, binding and enforceable on them; and
(c) each party to the Transaction Document (other than the Company to the extent opined on herein) has taken all necessary corporate action and other steps to execute, deliver, exercise and perform the Transaction Document and the rights and obligations set out therein.
3.12 That all actsthe execution, conditions or things required to be fulfilled, performed or effected in connection with delivery and performance of the Indenture under Transaction Document:
(a) does not and will not contravene the laws of any jurisdiction other than England have been duly fulfilledoutside Ireland;
(b) does not and will not result in any breach of any agreement, performed and effectedinstrument or obligation to which the Company is a party; and
3.11 (c) is not and will not be illegal or unenforceable by virtue of the laws of any jurisdiction outside Ireland.
3.13 That the Company was not mistaken in entering into the Transaction Document as a matter of New York law (being to any material relevant fact.
3.14 That the law by which each of them is expressed to be governed) the Indenture Transaction Document constitutes legal, valid and binding obligations of each of the parties thereto thereto, enforceable in accordance with their respective termsterms under the laws of any relevant jurisdiction other than Ireland insofar as opined on herein.
3.15 That:
(a) the Company was not unable to pay its debts within the meaning of Sections 509(3) and 570 of the Companies Act or any analogous provision under any applicable laws immediately after the execution and delivery of the Transaction Document;
(b) the Company will not, as a consequence of doing any act or thing which any Transaction Document contemplates, permits or requires the relevant party to do, be unable to pay its debts within the meaning of such Sections or any analogous provisions under any applicable laws;
(c) no liquidator, receiver or examiner or other similar or analogous officer has been appointed in relation to the Company or any of its assets or undertaking; and
(d) no petition for the making of a winding-up order or the appointment of an examiner or any similar officer or any analogous procedure has been presented in relation to the Company.
Appears in 1 contract
Assumptions. The opinion set out in this letter are based upon We have relied, without investigation, on the following assumptions:
3.1 The genuineness B-1 Original documents reviewed by us are authentic, copies of all signatures, stamps and seals, the conformity original documents reviewed by us conform to the originals of and all signatures on executed documents supplied are genuine.
B-2 All individuals have sufficient legal capacity to us as emailed, certified, photostatic or faxed copies perform their functions with respect to the Transaction Documents and the authenticity of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions transaction contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 Transaction Documents.
B-3 The Transaction Documents and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted other documents reviewed by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, us are valid and binding obligations of each of party thereto, other than the parties thereto Company, enforceable against it in accordance with their respective terms, and each such party (other than the Company) has complied with all legal requirements pertaining to its status relevant to its right to enforce the Transaction Documents against the Company.
B-4 With respect to the opinion expressed in C-12 below:
(a) Disclosure in the Registration Statement and the Prospectus regarding the business activities in which the Company is engaged is accurate, and the Company will not, as a result of the Offering, discontinue its current business activities;
(b) To the extent that the Company uses any net proceeds of the Offering to fund acquisitions, such acquisitions are complementary to the Company’s current business activities and are accomplished so as to avoid being characterized as “investment securities” under the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(c) The Company’s public representations of its primary business have been and will continue to be consistent with the disclosures set forth in the Registration Statement and the Prospectus; and
(d) The activities of the Company’s officers and directors will continue to be directed principally toward, and the amount of expenses that the Company incurs for investment advisory and management activities, investment research and selection and supervisory and custodial fees will remain insignificant as compared to the Company’s expenses devoted to, the Company’s primary business as identified in the Registration Statement and the Prospectus. Whenever a statement herein is qualified by the phrase “to our knowledge,” or by any other phrase of similar import, or where it is noted that nothing has been brought to our attention, it means that the opinion or confirmation stated is based solely upon the conscious awareness of such information by (a) the attorney who signs this opinion letter on behalf of Xxxxxxx Coie LLP, (b) any attorney at Xxxxxxx Coie LLP who has been actively involved in negotiating or preparing the Transaction Documents or preparing this opinion letter, and (c) solely as to information relevant to a particular opinion issue or confirmation regarding a particular factual matter (e.g., pending or threatened legal proceedings), any attorney at Xxxxxxx Coie LLP who is primarily responsible for providing the response concerning that particular opinion issue or confirmation. We have not undertaken, nor were we obligated or expected to undertake, an independent investigation to determine the accuracy of the facts or other information as to which our knowledge is sought, and any limited inquiry undertaken by us during the preparation of this opinion letter should not be regarded as such an investigation. No inference as to our knowledge of any matters bearing on the accuracy of any such statement should be drawn from the fact of our representation of the Company.
Appears in 1 contract
Assumptions. The opinion set out in For the purpose of this letter are based upon opinion, we have made the following assumptions:
3.1 The genuineness 2.1 All documents reviewed by us as originals are complete and authentic and the signatures thereon are the genuine signatures of all signaturesthe persons purporting to have signed the same, stamps and seals, the conformity to the originals of all documents supplied to reviewed by us as emailedfax, certified, photostatic photo- or faxed copies electronic copy of originals are in conformity with the executed originals thereof and such originals are complete and authentic and the authenticity of signatures thereon genuine. All documents reviewed by us as drafts which will be executed on or about the originals of date hereof will be executed in conformity with such documents;drafts.
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each 2.2 Each of the parties thereto to the Credit Agreement, the Deed and the Confirmation Agreement (except both as defined below), other than the English Subsidiary GuarantorsDutch Borrower, has been duly incorporated and is validly existing under the laws of its jurisdiction.
2.3 At the moment of execution of the deed of pledge on shares in the capital of the Dutch Borrower (the “Deed”) by all persons named as a signatory therein, including without limitation by any signatory for acknowledgement of notification, (i) the Pledgor as defined therein was the owner (‘eigenaar’) or proprietor (‘rechthebbende’), as the case may be, and had full power to dispose (‘beschikkingsbevoegd’) of the Present Shares and other existing Collateral as defined therein, and (ii) such Present Shares and other existing Collateral were not encumbered by any limited rights (‘beperkte rechten’), attachments (‘beslagen’) or other similar encumbrances.
2.4 The Pledgor as defined in the Deed shall be the owner (‘eigenaar’) or proprietor (‘rechthebbende’), as the case may be of any shares in the capital of the Dutch Borrower to be issued in the future (and of any rights pertaining to such future shares) and shall have full power to dispose of (‘beschikkingsbevoegd’) and shall be validly obligated to pledge such future shares and rights. We have further assumed that entering into the Indenture Pledgor shall at such time not have been declared bankrupt (‘faillissement’), granted a (preliminary) suspension of payments (‘(voorlopige) surséance van betaling’) or otherwise be limited in its right to dispose of its assets, and that such future shares and rights shall not be encumbered by any limited rights (‘beperkte rechten’), attachments (‘beslagen’) or other similar encumbrances.
2.5 To the performance thereof was at extent rights governed by Netherlands Law are part of the time of entry into Collateral in which a security right is purported to be created pursuant to the transactions contemplated therein and is currently Deed, such rights are assignable (‘voor overdracht vatbaar’) within the capacity and powers meaning of each of them (except as aforesaid);
3.3 That the copies Article 3:228 of the Constitutive Documents of each Netherlands Civil Code (“NCC”).
2.6 The Parallel Debt as defined in article 2 of the English Subsidiary Guarantors referred to above were at Deed is sufficiently identifiable (‘voldoende bepaalbaar’) within the time meaning of entry into the Indenture and are now true and up-to-date;Article 3:231(2) NCC.
3.4 That the resolutions set out 2.7 The information in the Board Shareholders Register is true, complete and correct in all respects.
2.8 The Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended are and are remain in full force and effect;.
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 2.9 The Credit Agreement and the articles confirmation agreement among Materion Advanced Materials Technologies and Services Inc. as Pledgor, the Administrative Agent as Pledgee and the Dutch Borrower as the Company dated as of association 13 July 2011 (the “Confirmation Agreement”, the Credit Agreement and the Confirmation Agreement herinafter collectively the “Agreements”) are within the power of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilledauthorised by and signed on behalf of all parties thereto other than the Dutch Borrower.
2.10 The Deed is within the power of and has been duly authorised by and signed on behalf of all parties thereto other than the Dutch Borrower.
2.11 The Agreements constitute under any applicable law other than Netherlands Law, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the all parties thereto thereto, enforceable in accordance with their its respective terms.
2.12 The choice of law clause contained in the Credit Agreement constitutes under any applicable law, other than Netherlands Law, a legal, valid and binding choice of law for the laws of the State of New York.
2.13 The Deed of Incorporation constitutes a valid notarial deed. There are no defects in the incorporation (not appearing on the face of the Deed of Incorporation) on the basis of which a court might dissolve the Dutch Borrower.
Appears in 1 contract
Samples: Credit Agreement (MATERION Corp)
Assumptions. The opinion set out in this letter are based upon the following assumptions:
3.1 The genuineness of all signatures, stamps and seals, the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf We have examined a copy of each of (i) the parties thereto Transfer and Servicing Agreement; (except ii) the English Subsidiary GuarantorsTrust Agreement dated as of December __, 1997 (the "Trust Agreement"), among the Bank, as depositor, the Eligible Lender Trustee, and Delaware Trust Capital Management Inc., as Delaware trustee; (iii) and that entering into the Indenture dated as of December __, 1997, (the "Indenture"), between the Trust and Bankers Trust Company, a New York banking corporation as indenture trustee (the "Indenture Trustee"); (iv) the First Terms Supplement to the Indenture dated as of December __, 1997 (the "Terms Supplement"), between the Trust and the performance thereof was at Indenture Trustee; (v) the time Administration Agreement dated as of entry into December __, 1997 (the transactions contemplated therein "Administration Agreement, among the Trust, the Bank and is currently within the capacity Indenture Trustee; and powers (vi) the Underwriting Agreement dated as of each of them December __, 1997 (except the "Underwriting Agreement"), among the Transferor, the Trust and Smith Barney Inc., as aforesaid);
3.3 That the copies representative of the Constitutive Documents of several Underwriters nxxxx xxxxxxx (each of an "Underwriter") (hereinafter the English Subsidiary Guarantors referred to above were at Transfer and Servicing Agreement, the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary GuarantorTrust Agreement, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide the Terms Supplement, the Administration Agreement and the Underwriting Agreement may sometimes be referred to collectively as the "Basic Documents"). In addition, we have reviewed the Articles of Incorporation and the By-laws of the Bank, each as amended to date (the "Articles" and the "By-laws", respectively), and the resolutions of the [Executive Committee] of the Board of Directors of the Bank adopted on December __, 1997. We have also reviewed the Registration Statement on Form S-3, as amended (No. 333-35825) (the "Registration Statement"), which was declared effective by the Securities and Exchange Commission (the "SEC") on December __, 1997 (the "Effective Date"), and the definitive Prospectus dated December __, 1997, arising from said Registration Statement (the "Prospectus"). In rendering the opinion herein, we have relied upon and incorporate by reference herein the assumptions and opinions of our letter opinion regarding, inter alia, whether the Bank would be construed to have granted to the Trust a valid security interest in the interests Specified Assets under Article 9 of the New York Uniform Commercial Code in the event that English Subsidiary Guarantor;
3.9 The absence the transfer of the Specified Assets by the Bank to the Trust is found not be to a "true sale" or "absolute conveyance" for purposes of a receivership or conservatorship of the Bank under Section 11(c) of the FDIA (the "Lien Opinion"). As to factual matters, we have reviewed and relied, without any independent investigation, confirmation or inquiry whatsoever, upon the representations, warranties, certifications and covenants contained in the Officer's Certificate executed by the Bank annexed hereto as Exhibit A (the "Bank Certificate") and the Officer's Certificate executed by the Eligible Lender Trustee annexed hereto as Exhibit B (the "Trustee Certificate"; together with the Bank Certificate, the "Certificates"). We further have assumed, again with your permission and without any independent investigation, confirmation or inquiry whatsoever, that such representations, warranties and certifications are true, accurate and not materially misleading as of the date hereof and such covenants will be kept, observed and otherwise fully performed until all amounts due on the Notes and the Certificates are indefeasibly paid in full. We have no actual knowledge of any other arrangements between facts indicating that any of the parties to the Indenture which modify such assumptions are false or supersede any of the terms of the Indenture;
3.10 That all acts, conditions materially misleading or things required to that our reliance thereon would be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsunreasonable.
Appears in 1 contract
Assumptions. The In examining and in describing the documents listed above and in the Annex, and in giving this opinion set out in this letter are based upon we have, with your permission, assumed: POWER, CAPACITY AND AUTHORITY; INCORPORATION, EXISTENCE AND STANDING; COMPLIANCE
(i) the following assumptions:
3.1 The genuineness power, capacity (corporate and other) and authority of all signatures, stamps parties (other than the Companies) to enter into the Indenture and sealsto perform their respective obligations thereunder, the conformity to the originals legal capacity (handelingsbekwaamheid) of all individuals who have signed or will sign documents supplied to us as emailed, certified, photostatic or faxed copies on which we have expressed reliance (including those individuals acting on the Companies behalf and the authenticity of the originals of such documents;
3.2 That that the Indenture was is or will be (where appropriate) duly authorised by and duly authorised, executed and delivered by or all parties thereto (other than the Companies) and create valid and legally binding obligations for all such parties as a matter of applicable law (if other than Netherlands law on which we opine);
(ii) that each party to any document (other than the Companies) is duly incorporated and organised, validly existing and in good standing (where such concept is legally relevant) under the laws of its jurisdiction of incorporation and of the jurisdiction of its principal place of business; DOCUMENTS, ATTORNEYS
(iii) the genuineness of all signatures (including that of Ms. Helen Golding on behalf of each the Companies on the Indenture) ox xxx xxxxxxxxx xr on the originals thereof, the authenticity and completeness of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture all documents submitted to us as originals and the performance thereof was at conformity of conformed, (photo)copy, e-mail, faxed or specimen documents to the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid)originals thereof;
3.3 That (iv) the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any one or more of the parties to the Indenture and/or other persons which modify or supersede any of the terms of any of the Indenture;; CORPORATE DOCUMENTS
3.10 That (v) that all actsmatters confirmed and certified in the Corporate Documents are true and accurate; MISCELLANEOUS
(vi) that the Notes, conditions or things required to the Exchange Notes and any other securities will only be fulfilledissued by the Issuer, performed or effected and will be issued, offered and sold in connection the form set out in, on the terms and in accordance with the provisions of the Indenture under and that any Notes, Exchange Notes or securities will be executed, authenticated and issued in the laws of any jurisdiction other than England have been duly fulfilled, performed and effectedform scheduled to the Indenture (if applicable); and
3.11 That as a matter of New York (vii) that any applicable law (being the law by other than those of The Netherlands on which each of them is expressed to be governedwe opine) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termswould not affect or qualify our opinion as set out below.
Appears in 1 contract
Samples: Guarantee Agreement (Burns Philp Netherlands European Holdings Bv)
Assumptions. The opinion set out in this letter are based upon In giving our opinion, we have assumed the following assumptionsfollowing:
3.1 The genuineness of B.1 All signatures on the documents submitted to us (and on any and all signatures, stamps agreements and seals, documents referred to therein) or on the conformity originals thereof are genuine.
B.2 Copies submitted to us are true and complete and conform to the originals thereof.
B.3 None of all the documents supplied submitted to us as emailed, certified, photostatic or faxed copies (and the authenticity none of the originals of such documents;agreements and documents referred to therein) has been amended, rescinded or revoked.
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each B.4 Each of the parties thereto (except other than the English Subsidiary GuarantorsSwiss Borrowers) to the Agreements (and that entering into to any and all agreements and documents referred to therein) is a company, other legal entity, partnership or other organization duly organized, validly existing and in good standing (where such concept is legally relevant) under the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies laws of the Constitutive Documents jurisdiction of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture its incorporation and/or establishment and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 requisite capacity, power and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except authority to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry enter into the transactions contemplated by any Agreement (and to any and all agreements and documents referred to therein) and to perform its respective rights and obligations thereunder.
B.5 The execution, delivery and performance of the Indenture there had Agreements (and of any and all agreements and documents referred to therein) by all parties thereto (other than the Swiss Borrowers) have been or, where appropriate, will be duly authorized by all action necessary under applicable law, the articles of incorporation (if applicable) and that since then there has been no alteration in the status or condition internal regulations (if applicable) of each such party.
B.6 The Agreements (and any and all agreements and documents referred to therein) have been or, where appropriate, will be duly signed, executed and delivered by representatives of all the English Subsidiary Guarantors as revealed by a search carried out against each parties thereto (other than the Swiss Borrowers) with the requisite signing authority conferred on them in accordance with applicable law, the articles of incorporation (if applicable) and the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect internal regulations (if applicable) of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;such party.
3.8 That the directors of each of the English Subsidiary GuarantorsB.7 The Agreements (and any and all agreements and documents referred to therein), upon signature and execution, will be legal, valid, binding and enforceable in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the accordance with its terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter the State of New York law (being the law York, by which each of them is they are expressed to be governed, and the choice of such laws was freely made by the parties thereto and for bona fide purposes. The Agreements have been, or will be, entered into, and the execution and completion thereof (and of any and all agreements and documents referred to therein) the Indenture constitutes legalhave been, valid and binding obligations of or will be, carried out for bona fide commercial reasons by each of the parties thereto enforceable thereto. None of the directors or officers of the respective party has or had a conflict of interest with such party in accordance with their respect of any Agreement (and any and all agreements and documents referred to therein) that would preclude him from validly representing (or granting a power of attorney in respect of the documents for) the respective termsparty.
B.8 All conditions and prerequisites provided for in each Agreement (and in any and all agreements and documents referred to therein) have been met or waived.
B.9 All representations and warranties made by any one of the parties in any Agreement (and in any and all agreements and documents referred to therein) are, when made or repeated or deemed to be made or repeated, true and accurate.
Appears in 1 contract
Samples: Credit Agreement (Bruker Corp)
Assumptions. The opinion set out in For the purposes of this letter are based upon the following assumptionsopinion, we have, with your permission, assumed:
3.1 The a) that the Transaction Documents and the transactions contemplated thereby have been duly authorised and executed by or on behalf of, and is valid and binding on, and enforceable against, each of the parties thereto (other than the Company) and that the performance thereof is within the capacity and powers of each of them (other than the Company);
b) that all parties to the Transaction Documents (other than the Company) have been duly incorporated and are validly existing under the laws of their relevant jurisdictions;
c) the genuineness of all signatures, stamps and seals, the conformity to the originals of all documents supplied to us as emailedcopies (including conformed copies), certifiedand that all documents submitted to us are true, photostatic authentic and complete; that where a document has been examined by us in draft form, it will be or faxed copies has been executed in the form of that draft, and where a number of drafts of a document have been examined by us, all changes to them have been marked or otherwise drawn to our attention;
d) the authenticity accuracy and completeness of all factual representations made in the Transaction Documents and other documents reviewed by us and of any other information set out in public registers or that has otherwise been supplied or disclosed to us (and we have therefore not made any independent investigation thereof);
e) that all documents, authorisations, powers and authorities produced to us remain in full force and effect and have not been amended or affected by any subsequent action not disclosed to us;
f) that all agreements or documents which are governed by the laws of any jurisdiction other than the Kingdom of Sweden are under such laws (including the public policy of such jurisdictions) legal, valid, binding and enforceable according to the terms and conditions of the originals relevant agreements or documents and that there is no provision of such documentsthe law of any jurisdiction, other than the Kingdom of Sweden, which would have any implication in relation to the opinions expressed below;
3.2 That g) that all necessary consents, authorisations and approvals whatsoever and howsoever described required in any relevant jurisdiction (other than the Indenture was duly authorised Kingdom of Sweden) for the due execution and performance of the Transaction Documents by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantors) have been, or will be, obtained; and that entering into all necessary notices, filings, registrations and recordings required in any applicable jurisdiction (other than the Indenture Kingdom of Sweden) in respect of the Transaction Documents have been, or will be, given or effected in accordance with the laws and the performance thereof was at the time regulations of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid)every such jurisdiction;
3.3 That the copies h) that there has been no mutual or relevant unilateral mistake of fact and that there exists no fraud or duress;
i) that any meetings of the Constitutive Documents Board of each Directors of the English Subsidiary Guarantors referred to above were Company have been duly convened and conducted with a proper quorum, and that any resolutions passed at the time any such meeting has in fact been passed by a sufficient majority of entry into the Indenture a sufficient quorum and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of no such English Subsidiary Guarantor, decisions have not been revoked or suspended varied and are instead remain in full force and effect;
3.5 That j) that the representations and answers to all enquiries as to factual matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture directors, officers and are now true and accurate in all respects;
3.6 That each director of each agents of the English Subsidiary Guarantors had at the time Company and of entry into the Indenture public officials have been accurate and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and complete, and
k) that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone Note will be issued in respect of each of which the English Subsidiary Guarantors at interest or redemption amount will be wholly or partly dependent upon (i) dividends paid by the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving Company to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify its shareholder or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governedii) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsCompany’s profit.
Appears in 1 contract
Samples: Agency Agreement (Swedish Export Credit Corp /Swed/)
Assumptions. The For the purpose of this opinion set out in this letter are based upon the following assumptionswe have assumed (without making any investigation) that:
3.1 The genuineness 4.1 all documents submitted to us as originals are authentic and complete;
4.2 all documents submitted to us in electronic form or as photocopies or facsimile transmitted copies or other copies of all signatures, stamps and seals, the conformity originals conform to the originals of and all such originals are authentic and complete;
4.3 all signatures and seals on any documents supplied submitted to us as emailed, certified, photostatic are genuine;
4.4 there have been no amendments to the memorandum of association or faxed copies and the authenticity articles of association of any English Obligor in the form examined by us (other than by virtue of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto shareholder resolutions referred to in paragraphs 3.5(m), (except the English Subsidiary Guarantorsn) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaido) above);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That 4.5 the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such each English Subsidiary Guarantor, Obligor referred to in paragraph 3.4 above were duly passed at a properly convened board meeting of duly appointed directors of the relevant English Obligor at which a quorum was present throughout and have not been revoked amended or suspended rescinded and are in full force and effecteffect and no director of any English Obligor acted in breach of his fiduciary duty in voting on the resolutions;
3.5 That the matters set out in the Companies House Certificate of 4.6 each director of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and Obligors has since then disclosed any interest which he or she may have in the transactions contemplated by the Indenture Documents in accordance with the provisions of the Companies Act 1985 Xxx 0000 (the “Act”) and the articles of association of such the relevant English Subsidiary Guarantor Obligor and that none of the directors of that the English Subsidiary Guarantor had or Obligors has any interest in such transactions except to the extent permitted by the articles of association of the relevant English Obligor;
4.7 each Document executed by an English Obligor has been executed by the persons authorised to execute the same by the resolutions of the board of directors of the relevant English Obligor referred to in paragraph 3.4 above and each Document executed by an English Obligor has been duly delivered by or on behalf of that English Subsidiary GuarantorObligor;
4.8 the resolutions of the shareholders of each English Obligor referred to in paragraph 3.5 above were duly executed by all of the shareholders of the relevant English Obligor, and in each case have not been amended or rescinded and are in full force and effect;
4.9 the Documents entered into by each English Obligor were entered into in good faith and for the purpose of carrying on the business of the relevant English Obligor and at the time that the Documents were entered into:
(a) there were reasonable grounds for believing that the transactions to which the Documents relate would benefit each English Obligor and the execution and delivery by each English Obligor of the Documents to which it is a party, and the exercise of its rights and performance of its obligations thereunder, would materially benefit the relevant English Obligor; and
(b) each English Obligor is fully solvent (meaning that it is able to pay its debts as they fall due and the value of its assets is greater than the amount of its liabilities (taking into account its contingent and prospective liabilities)) and will not cease to be fully solvent as a result of entering into or performing its obligations under the Documents to which it is party;
4.10 save where any such event has been disclosed by the searches referred to in paragraphs 3.6 and 3.7 That upon entry above, no English Obligor has passed a voluntary winding-up resolution, no petition has been presented or order made by a court for the winding-up or dissolution of any English Obligor, no application has been presented or order made by a court for the administration of any English Obligor, no documents have been filed with any court for the appointment of an administrator in respect of any English Obligor nor has any notice of intention to appoint an administrator been given in respect of any English Obligor and no receiver, trustee, administrator, administrative receiver or similar officer has been appointed in relation to any English Obligor or any of its assets or revenues and the information disclosed in the company searches and other searches referred to in this opinion was correct and complete and remains correct and complete as at the date of this opinion (none of the foregoing was revealed by the searches referred to in paragraphs 3.6 and 3.7, although please note the limitations regarding these searches set out in paragraph 6.1);
4.11 all parties (other than the English Obligors) had the capacity, power and authority to enter into the transactions contemplated Documents to which they are expressed to be a party, each Document was duly authorised, executed and delivered by such parties and the Indenture there had been obligations of all parties to the Documents under any applicable law other than English law and that since then of all parties to the Documents (other than the English Obligors) under English law are valid, legally binding and enforceable;
4.12 without limiting paragraph 4.11 above, each Foreign Law Document creates valid, legally binding and enforceable obligations under the laws of the State of New York by which it is expressed to be governed and creates a valid and duly perfected security interest under such laws which has a substantially similar effect as a charge would have under English law and which subsists for the benefit of the Lenders;
4.13 there has been no alteration event or procedure described in the status paragraph 4.10 above, or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone analogous event or procedure, in respect of each the Borrower or any other party to the Documents which is not an English company;
4.14 the choice of:
(a) English law to govern the English Law Documents; and
(b) the laws of the English Subsidiary Guarantors at State of New York to govern the Central Index Foreign Law Documents, was freely made in good faith by the parties thereto and there is no reason for avoiding such choice on the grounds of Winding Up Petitions at 10.36 a.m. on 4 April 2007public policy;
3.8 That the directors of each 4.15 none of the English Subsidiary Guarantors, in resolving parties is or will be seeking to give achieve any purpose not apparent from the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between Documents which might render any of the parties to Documents illegal or void;
4.16 the Indenture which modify Facility will not be used for the purpose of financing or supersede any refinancing an acquisition of shares in contravention of section 151 of the terms Act;
4.17 there is nothing in any document referred to in the Credit Agreement (other than the Documents themselves or any other document referred to in paragraph 3 above) which would have any implications for the opinions we express; and
4.18 there are no provisions of the Indenture;
3.10 That all actslaws of any jurisdiction outside England which would have any implication for the opinions we express and, conditions insofar as the laws of any jurisdiction outside England may be relevant, such laws have been or things required will be complied with. We have made such examination of the laws of England as currently applied by English courts as in our judgment is necessary for the purpose of this opinion. We do not purport to be fulfilledqualified to express an opinion, performed or effected in connection with the Indenture under and we do not express any opinion, as to the laws of any jurisdiction other than England have been duly fulfilled, performed England. We do not express any opinion on European Community law as it affects any jurisdiction other than England. The opinions given herein are strictly limited to the matters stated in paragraph 5 below and effected; and
3.11 That as a matter of New York law (being the law do not extend to any other matters. This opinion is governed by which each of them is expressed to and shall be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable construed in accordance with their respective termsEnglish law.
Appears in 1 contract
Assumptions. The opinion set out in For the purposes of this letter are based upon the following assumptionsOpinion, we have assumed:
3.1 The (i) the genuineness of all signatures, stamps the completeness and seals, the conformity to the originals of all documents supplied submitted to us as emailed, certified, photostatic copies or faxed copies extracts and the authenticity of the originals of such documents;
3.2 That (ii) that, other than in respect of Finnvera, the Indenture was Second Finnvera Guarantee has been duly authorised by and by, duly executed and delivered by, and constitute legal, valid, binding and enforceable obligations of all of the parties thereto;
(iii) that the Facility Agreement has been duly authorised, executed and delivered by or on behalf of each the parties thereto and constitutes legal, valid, binding and enforceable obligations of the parties thereto under the laws of England by which it is stated to be governed;
(except iv) that the English Subsidiary GuarantorsAssignment Agreement has been duly authorised, executed and delivered by the parties thereto;
(v) that the terms of the Facility Agreement and the Construction Contract meet the provisions of the OECD Arrangement on Officially Supported Export Credits, approved by the participants of such OECD Arrangement within the Organisation for Economic Co-Operation and Development (OECD), as published by the OECD from time to time;
(vi) that the terms of the Facility Agreement and other Loan Documents do not contravene or conflict with any provision of the Second Finnvera Guarantee and all provisions required to be complied with by the Second Finnvera Guarantee have been duly complied with in the Facility Agreement and other Loan Documents; and
(vii) that the Guarantee Holder duly performs and complies with all of its obligations towards Finnvera under the Second Finnvera Guarantee and that entering into the Indenture and the performance thereof was information given at the any time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked Guarantee Holder or suspended and are other parties to the Facility Agreement to Finnvera in full force and effect;
3.5 That connection with the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now Second Finnvera Guarantee is true and accurate in all respects;
3.6 That each director material respects and not misleading and does not omit any material facts so that full details of each all facts and circumstances which are or might be material in relation to the issue by Finnvera of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England Second Finnvera Guarantee have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed disclosed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsFinnvera.
Appears in 1 contract
Assumptions. The In stating our opinion set out in this letter are based upon the following assumptionswe have assumed:
3.1 The 1.1 the authenticity, accuracy and completeness of all Documents and other documentation examined by us submitted to us as originals and the conformity to authentic original documents of all Documents and other such documentation submitted to us as certified, conformed, notarised, faxed or photostatic copies;
1.2 that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;
1.3 the genuineness of all signatures, stamps and seals, signatures on the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documentsDocuments;
3.2 That 1.4 the Indenture was duly authorised by authority, capacity and duly executed and delivered by or on behalf power of each of the parties thereto persons signing the Documents (except other than the English Subsidiary Guarantors) and that entering into Company in respect of the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaidSubject Agreements);
3.3 That the copies 1.5 that any representation, warranty or statement of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantorfact or law, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except other than as to the extent permitted by the articles laws of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration Bermuda, made in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the IndentureDocuments is true, accurate and complete;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with 1.6 that the Indenture under Subject Agreements constitute the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto thereto, other than the Company, under the laws of its jurisdiction of incorporation or its jurisdiction of formation;
1.7 that the Subject Agreements have been validly authorised, executed and delivered by each of the parties thereto, other than the Company, and the performance thereof is within the capacity and powers of each such party thereto, and that each such party to which the Company purportedly delivered the Subject Agreements has actually received and accepted delivery of such Subject Agreements;
1.8 that the Subject Agreements will effect, and will constitute legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with their respective terms., under the laws of the State of New York by which they are expressed to be governed;
1.9 that the Subject Agreements are in the proper legal form to be admissible in evidence and enforced in the courts of the State of New York sitting in New York County and the United States District Court of the Southern District of New York (New York Courts) and in accordance with the laws of the State of New York;
1.10 that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Subject Agreements or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Subject Agreements is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;
1.11 that none of the parties to the Subject Agreements maintains a place of business (as defined in section 4(6) of the Investment Business Act 2003), in Bermuda;
1.12 that the records which were the subject of the Company Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date and time of the Company Search been materially altered;
Appears in 1 contract
Samples: Credit Agreement (Invesco Ltd.)
Assumptions. The opinion set out in For the purposes of this letter are based upon letter, we have assumed:-
(a) that the following assumptions:
3.1 The genuineness of all signaturesDocuments have each been duly authorised, stamps and seals, the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantorssave as specifically mentioned herein) and that entering each such party has obtained any necessary consent or authorisation or is otherwise qualified or empowered to enter into and perform its obligations under the Indenture Documents to which it is a party and that no provision of law of or relating to the performance thereof was at jurisdiction of the time incorporation of entry into any of the transactions contemplated therein other parties (other than the laws of Hong Kong) or any other law will affect the validity and enforceability of the Documents against any of the parties thereto;
(b) that the Documents to which each is currently within a party constitute legal, valid and binding obligations of the capacity and powers Subsidiaries under all applicable laws (other than the laws of each of them (except as aforesaidHong Kong);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and (c) that there are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the no provisions of the Companies Act 1985 and the articles laws of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except jurisdiction, other than Hong Kong as they apply to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been Subsidiaries and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of which we are opining in this letter, which would have any implications on the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007opinions we express;
3.8 That (d) the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other or collateral arrangements between any of the parties to the Indenture Documents which modify or supersede any of the terms of the IndentureDocuments;
3.10 That (e) that each of the Subsidiaries’ Resolutions provided to us for inspection are respectively a faithful record of resolutions either duly passed by the Board of Directors in writing or at a meeting duly convened and held, or by telephonic conference, of the Board of Directors of each Subsidiary and have not been amended or rescinded and are in full force and effect;
(f) that each of the POAs has been duly issued by the relevant Subsidiary and has not been amended or rescinded and is in full force and effect;
(g) the genuineness of all actssignatures and seals on all documents or on the originals thereof;
(h) the completeness and conformity to original documents of all copies submitted to us and that no alteration has been made to the Subsidiaries from the copies thereof provided to us for inspection;
(i) the accuracy of translation of any document submitted to us for inspection in English translated from the foreign language of the original;
(j) that the information disclosed by our searches at the Hong Kong Companies Registry against the Subsidiaries has not since the date of our searches been materially altered and that such searches did not fail to disclose any material information which had been delivered for filing or registration but was not disclosed, conditions or things required or, as the case may be, did not appear on the public files at the time of our searches;
(k) that insofar as any obligation under the Documents falls to be fulfilledperformed in any jurisdiction outside Hong Kong, performed its performance will not be illegal or effected in connection with the Indenture under ineffective by virtue of the laws of that jurisdiction;
(l) that each of the Subsidiaries was fully solvent immediately after entry into the Documents to which it is respectively a party and that the obligations assumed by each of the Subsidiaries under the Documents to which it is respectively a party were in its best interests and that the directors of each Subsidiary honestly and reasonably considered them to be in the best interests of each Subsidiary respectively;
(m) none of the Lenders, the Administrative Agent and the Collateral Agent nor any jurisdiction of their respective officers or employees has notice of (i) any matter which would adversely affect the validity of any of the Subsidiaries’ Resolutions or (ii) any other than England matter which would affect the bona fides of the execution and delivery by each Subsidiary of the Documents to which each is respectively a party;
(n) there are no grounds to believe that the opinion of the directors of each Subsidiary as to the commercial benefit to that Subsidiary to be derived from each Subsidiary entering into the Documents to which each is respectively a party and guaranteeing and/or securing the Borrower’s obligations under the Agreement reflected in the Subsidiaries’ Resolutions was not an opinion honestly and reasonably held by those directors;
(o) the Borrower has not established a place of business in Hong Kong;
(p) that the Lenders, the Administrative Agent and the Collateral Agent have complied with all laws and regulations relating to their businesses which are relevant to the Documents;
(q) the accuracy of all representations and statements as to factual matters contained in the Documents and the Subsidiaries’ Resolutions;
(r) that the information disclosed by the Vessel Searches has not, since the date hereof, been duly fulfilled, performed altered or added to and effectedthat the Vessel Searches disclosed all information which had been delivered for filing and registration; and
3.11 That as a matter (s) that the written notices of New York law (being assignments contained in the law by which each of them is expressed to Documents have been, or will be governed) served on the Indenture constitutes legalrelevant addressees, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsthe provisions of the Documents.
Appears in 1 contract
Assumptions. The In conducting the searches and investigations and examining the records, certificates and other documents referred to in the preceding paragraphs and in giving the opinion set out in this letter are based upon the following assumptionshereinafter expressed, we have assumed:
3.1 The (a) the genuineness of all signatures, stamps signatures and seals, the authenticity and completeness of all documents submitted to us as originals and of the signatures on them and the conformity to the originals authentic original documents of all documents supplied submitted to us as emailedtrue, certified, conformed, photostatic or faxed telecopied copies and the authenticity of the originals of such documentsdocuments and the signatures on them;
3.2 That (b) the Indenture was duly authorised identity and legal capacity of all individuals acting or purporting to act as public officials;
(c) the accuracy and completeness of all information provided to us by offices of public record including the accuracy and duly executed and delivered by or on behalf of each currency of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture and the performance thereof was indices in filing systems maintained at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except public offices where we have conducted searches or made enquiries or caused such searches or enquiries to be conducted or made as aforesaid)set forth herein;
3.3 That (d) the copies accuracy and completeness of all statements of fact contained in and all representations and warranties contained in the Constitutive Documents Documents;
(e) all facts set forth in the certificates supplied by the respective officers of each of NX, without limitation, in the English Subsidiary Guarantors officers certificates referred to above were at the time of entry into the Indenture and below, are now complete, true and up-to-dateaccurate;
3.4 That (f) to the resolutions set out extent that any certificate or other document relied upon by us for the purposes of this opinion has been dated prior to the date of this opinion, that the information contained in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantorsaid certificate or other document continues to be valid, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now complete, true and accurate in all respectsas of the date of this opinion letter;
3.6 That each director of each (g) the accuracy and completeness of the English Subsidiary Guarantors had at minute books and other corporate records of NX and of any other records, certificates or documents examined by us, as well as the time accuracy and correctness of entry into the Indenture and has since then disclosed all facts set forth or reflected therein; and
(h) that there have been no changes to any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had facts, information or has any interest circumstances in such transactions except regard to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone those matters in respect of each which we express opinion herein since the date of the English Subsidiary Guarantors at Documents and the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That other documents described above; We have not undertaken any independent investigation to verify the directors of each correctness of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsforegoing assumptions.
Appears in 1 contract
Samples: Indenture (QualTek Wireline LLC)
Assumptions. The opinion set out in this letter are based upon In considering the following assumptionsdocuments referred to above we have assumed:
3.1 The 4.1 the genuineness of all signatures, stamps signatures and seals, seals on the New York Law Documents and that any signature or execution pages on which any such signatures and/or seals appear physically formed part of complete and final versions of those documents at the time of signing and/or sealing;
4.2 the accuracy and completeness of all facts stated in any such documents and of all representations and warranties given by or in respect of any party to the New York Law Documents (except insofar as they relate to matters of law on which we expressly opine in this opinion letter);
4.3 the authenticity and completeness of all documents submitted to us as originals and the conformity to the originals original documents of all documents supplied submitted to us in electronic form or as emailed, certified, photostatic photocopies or faxed facsimile transmitted copies or other copies of originals and the authenticity and completeness of the originals of from which such documentscopies were taken;
3.2 That 4.4 that Delphi Automotive LLP was carrying on business in accordance with the Indenture Partnership Agreement on the date of execution of the Supplemental Indenture;
4.5 the lack of bad faith and the absence of fraud, coercion, duress or under influence on the part of any party to the New York Law Documents and/or its directors, employees, agents and advisers;
4.6 that the parties to the Partnership Agreement had the capacity and power to enter into the Partnership Agreement, that the Partnership Agreement was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto to it in the form examined by us (except and we have relied upon the English Subsidiary Guarantorscertified copy of the Partnership Agreement referred to in Paragraph 3.2.1 above) and that entering into the Indenture Partnership Agreement creates legal, valid, binding and enforceable obligations under the performance thereof was at laws of Delaware by which it is expressed to be governed;
4.7 that the time certificates of entry into the transactions contemplated therein and is currently within the capacity and powers Secretary of each English Guarantor referred to in Paragraphs 3.2 and 3.3 above are correct in all respects and do not fail to disclose any matters which had they been disclosed would be material in connection with the giving of them (except as aforesaid)the opinions contained in this opinion letter, and there have been no changes to the matters referred to in that certificate;
3.3 That 4.8 that the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the written resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors members of such English Subsidiary GuarantorDelphi Automotive LLP, have not been revoked or suspended and are referred to in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors Paragraph 3.2.3 above were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture duly passed in accordance with the notice, quorum, voting and other similar terms of the Partnership Agreement and that any provisions contained in any relevant law or regulation relating to the declaration of members’ interests were duly observed in relation to the resolutions referred to above and that no member of Delphi Automotive LLP acted in breach of his duty in voting on any of the resolutions or members consents;
4.9 that the written resolutions adopted by Delphi Holdfi UK Limited’s Board of Directors, referred to in Paragraph 3.3.3 above were duly passed in accordance with the notice, quorum, voting and other similar requirements of the Companies Act 1985 Xxx 0000 and the articles Constitutional Documents;
4.10 that the Supplemental Indenture has, in fact, been delivered by or on behalf of association of such relevant each English Subsidiary Guarantor and no New York Law Document is subject to any escrow or similar arrangement;
4.11 that in entering into the Supplemental Indenture, each English Guarantor did so in good faith and for the purpose of carrying on their businesses and at the time that the Supplemental Indenture was entered into there were reasonable grounds for the members of each English Guarantor to believe that the transactions to which the Supplemental Indenture relates, and the execution and delivery by each English Guarantor of the Supplemental Indenture and the exercise of its rights and the performance of its obligations thereunder, would materially benefit each English Guarantor and be likely to promote its success for the benefit of its members as a whole;
4.12 that at the time the Supplemental Indenture was executed, neither English Guarantor had passed a voluntary winding-up resolution, that no petition had been presented to or order made by a court for the winding up or dissolution of either English Guarantor, that no application had been made to a court, and no order had been made by the court, for an administration order in respect of either English Guarantor, that no appointment of an administrator and no notice of an intention to appoint an administrator had been made out of court or been given or filed with the court in respect of either English Guarantor and that no receiver, trustee, administrator, provisional liquidator, administrative receiver or similar officer had been appointed in relation to either English Guarantor or any of its assets or revenues;
4.13 that the information disclosed in the Searches was correct and complete and remains correct and complete as at the date of this opinion letter. It should be noted, however, that the Searches may not reveal whether any of the matters referred to in paragraph 4.12 above have occurred;
4.14 that none of the directors of that English Subsidiary Guarantor had parties is or has will be seeking to achieve any interest in such transactions except to purpose not apparent from the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between New York Law Documents which might render any of the parties to the Indenture which modify New York Law Documents illegal, void or supersede any of the terms of the Indentureunenforceable;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under 4.15 that there are no provisions of the laws of any country or jurisdiction outside England which would have any implications for the opinions we express. Our opinion is confined to, and given on the basis of, English law as applied by the English courts at the date of this opinion letter and we have made no investigation of the laws of any country or jurisdiction other than England (and, in particular, we have not made any investigation of the laws of New York) and we do not express or imply any opinion thereon. Furthermore we do not express any opinion on European Union law as it affects any jurisdiction other than England (and, for this purpose, we have assumed that all statutory instruments and/or regulations made in England in purported implementation of any directive have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable made in accordance with their respective termsthat directive and are valid in all respects under English law). The opinions given in this opinion letter are strictly limited to the matters stated in Paragraph 5 below and do not extend to and are not to be read as extending by implication to any other matters in connection with the New York Law Documents. We express no opinion as to matters of fact. This opinion letter and all non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law as at the date of this opinion letter.
Appears in 1 contract
Assumptions. The opinion set out For purposes of this opinion, we have assumed (i) the due authorization, execution and delivery by all parties thereto of the documents listed above examined by us; (ii) that all such parties have the legal power to act in this letter the capacities in which they are based upon the following assumptions:
3.1 The genuineness of all signatures, stamps and seals, to act under such documents; (iii) the conformity to the originals original documents of all any documents supplied submitted to us as emailedcertified or photostatic copies, certified, photostatic or faxed copies and the authenticity of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture documents and the performance thereof was at genuineness of all signatures on the time of entry into documents; (iv) that each such document is the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations obligation of all parties thereto, enforceable against each of the parties thereto enforceable such party in accordance with their respective its terms.; (v) that the Contribution Agreement creates a valid sale, contribution or security interest in favor of the Company in the Receivables and Proceeds; and (vi) that each Triangle Receivables Funding LLC The Chase Manhattan Bank Park Avenue Receivables Corporation Sheffield Receivables Corporation ______________, 2000 such party has performed and will perform its obligations thereunder. With respect to the assumptions in clause (iv) and (v) of this paragraph as they relate to the Contributor and the Contribution Agreement, we understand that you are relying on the separate opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx, New York, of even date herewith addressed to you. In expressing the opinions set forth herein we have relied, without independent investigation, upon a UCC Search Report for the Contributor obtained from the Secretary of State of California dated as of , 2000 showing filings through , 2000 (the “UCC Search Date[s]”) with respect to financing statements and related filings and certain notices of federal tax liens, California state tax liens and judgment liens with respect to the Contributor on file with the office of the California Secretary of State, (the “UCC Search Reports”). With respect to the opinions contained herein, we have assumed the following, without independent investigation or verification:
(A) based upon the certificates of certain of the officers of the Contributor, that the principal place of business and chief executive office for the Contributor is located at , and that substantially all offices, books, records, equipment and tangible personal property of the Contributor are located in the State of California;
(B) based upon the certificates of certain of the officers of the Contributor, that the Contributor has not changed its name, whether by amendment of its Certificate of Formation, by reorganization or otherwise, within the four months next preceding the date any of the Receivables were transferred to the Contributor;
(C) based upon the certificates of certain of the officers of the Contributor, that the Contributor has not changed its principal place of business or its chief executive office within the last four months;
(D) based upon the certificates of certain of the officers of the Contributor and the representations and warranties of the Contributor set forth in the Contribution Agreement, that the Contributor will be the legal and beneficial owners of all right, title and interest in and to those Receivables transferred by the Contributor to the Company immediately prior to the transfer of such Receivables, free and clear of all liens (other than certain liens permitted by the Contribution Agreement), and that, after giving effect to such transfer, no liens or claims against the Receivables (other than the claim of the Triangle Receivables Funding LLC The Chase Manhattan Bank Park Avenue Receivables Corporation Sheffield Receivables Corporation ______________, 2000 Company or other claims or interests contemplated under the Contribution Agreement) will exist;
(E) that at the time of filing of the Financing Statements, and at the time that any Receivables are transferred to the Company, the Company had no notice or knowledge of any adverse claims, rights, liens, defenses or interests affecting the Receivables other than as contemplated by the Contribution Agreement;
(F) that the UCC Search Report is accurate and complete and, based upon the certificates of certain of the officers of the Contributor, that no financing statements or related filings or notices of federal or state tax liens or notices of judgment liens, or other filings or notices evidencing claims, liens, encumbrances or interests with respect to the Receivables have been made or filed with respect to the Contributor between the UCC Search Date[s] and the date hereof or, if such filings or notices have been made or filed, such notices or filings do not relate to the Receivables or have been effectively terminated and released;
(G) that the Receivables arise out of the sale of goods or rendering of services by an Originator that any writing or writings constituting or evidencing the Receivables do not, and, at all times relevant to the opinions rendered herein, will not: (i) consist of an unconditional promise or order to pay a fixed amount of money which is payable to bearer or order; (ii) contemplate the transfer thereof in the ordinary course of business by delivery with any necessary endorsement or assignment; or (iii) evidence a security interest in or lease of specific goods, and that during the term of the U.S. RPA, the legal nature of the Proceeds will not change from “instruments” or “accounts” or “general intangibles” or “instruments” or “chattel paper” or “money” as defined in the Code;
Appears in 1 contract
Assumptions. The 92155415 In stating our opinion set out in this letter are based upon the following assumptionswe have assumed:
3.1 The 1.1 the authenticity, accuracy and completeness of all Documents and other documentation examined by us submitted to us as originals and the conformity to authentic original documents of all Documents and other such documentation submitted to us as certified, conformed, notarised, faxed or photostatic copies;
1.2 that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;
1.3 the genuineness of all signatures, stamps and seals, signatures on the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documentsDocuments;
3.2 That 1.4 the Indenture was duly authorised by authority, capacity and duly executed and delivered by or on behalf power of each of the parties thereto persons signing the Documents (except other than the English Subsidiary Guarantors) and that entering into Company in respect of the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaidSubject Agreements);
3.3 That the copies 1.5 that any representation, warranty or statement of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantorfact or law, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except other than as to the extent permitted by the articles laws of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration Bermuda, made in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the IndentureDocuments is true, accurate and complete;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with 1.6 that the Indenture under Subject Agreements constitute the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto thereto, other than the Company, under the laws of its jurisdiction of incorporation or its jurisdiction of formation;
1.7 that the Subject Agreements have been validly authorised, executed and delivered by each of the parties thereto, other than the Company, and the performance thereof is within the capacity and powers of each such party thereto, and that each such party to which the Company purportedly delivered the Subject Agreements has actually received and accepted delivery of such Subject Agreements;
1.8 that the Subject Agreements will effect, and will constitute legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with their respective terms, under the laws of the State of New York by which they are expressed to be governed;
1.9 that the Subject Agreements are in the proper legal form to be admissible in evidence and enforced in the courts of the State of New York sitting in New York County and the United States District Court of the Southern District of New York (New York Courts) and in accordance with the laws of the State of New York;
1.10 that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Subject Agreements or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Subject Agreements is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction; \9089893.2
1.11 that none of the parties to the Subject Agreements maintains a place of business (as defined in section 4(6) of the Investment Business Act 2003), in Bermuda;
1.12 that the records which were the subject of the Company Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date and time of the Company Search been materially altered;
1.13 that the records which were the subject of the Litigation Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date and time of the Litigation Search been materially altered;
1.14 that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions passed by the Board of Directors of the Company (Board) in a meeting which was duly convened and at which a duly constituted quorum was present and voting throughout or adopted by the ad hoc committee of the Board as unanimous written resolutions of the ad hoc committee, as the case may be, and that there is no matter affecting the authority of the Directors of the Company to effect entry by the Company into the Subject Agreements, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein;
1.15 that the Administrative Agent and the Lenders from time to time party to the Fourth Amended and Restated Credit Agreement have no express or constructive knowledge of any circumstance whereby any Director of the Company, when the Board or the ad hoc committee, as the case may be, passed the Resolutions, failed to discharge his fiduciary duty owed to the Company and to act honestly and in good faith with a view to the best interests of the Company;
1.16 that the Company has entered into its obligations under the Subject Agreements in good faith for the purpose of carrying on its business and that, at the time it did so, there were reasonable grounds for believing that the transactions contemplated by the Subject Agreements would benefit the Company; and
1.17 that each transaction to be entered into pursuant to the Subject Agreements is entered into in good faith and for full value and will not have the effect of preferring one creditor over another.
Appears in 1 contract
Samples: Credit Agreement (Invesco Ltd.)
Assumptions. The opinion set out For purposes of this opinion, we have assumed (i) the due authorization, execution and delivery by all parties thereto of the documents listed above and examined by us; (ii) that all such parties have the legal power to act in this letter the capacities in which they are based upon the following assumptions:
3.1 The genuineness of all signatures, stamps and seals, to act under such documents; (iii) the conformity to the originals original documents of all any documents supplied submitted to us as emailedcertified or photostatic copies, certified, photostatic or faxed copies and the authenticity of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture documents and the performance thereof was at genuineness of all signatures on the time of entry into documents; (iv) that each such document is the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations obligation of all parties thereto, enforceable against each of the parties thereto enforceable such party in accordance with their respective its terms.; (v) that the Loan Agreement creates a valid sale or security interest in favor of the Lenders in the Receivables and Proceeds; (vi) that each such party has performed and will perform its obligations thereunder; and (vii) that the Receivables constitute “accounts” as described in Section 9106 of the Code. With respect to the assumptions in clause (iv) and (v) of this paragraph as they relate to the Borrower and the Loan Agreement, we understand that you are relying on the separate opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx, New York, of even date herewith addressed to you. The Chase Manhattan Bank Park Avenue Receivables Corporation Sheffield Receivables Corporation , 2000 In expressing the opinions set forth herein we have relied, without independent investigation, upon a UCC Search Report for the Borrower obtained from the Secretary of State of California dated as of , 2000 showing filings through , 2000 (the “UCC Search Date[s]”) with respect to financing statements and related filings and certain notices of federal tax liens, California state tax liens and judgment liens with respect to the Borrower on file with the office of the California Secretary of State, (the “UCC Search Reports”). With respect to the opinions contained herein, we have assumed the following, without independent investigation or verification:
(A) based upon the certificates of certain of the officers of the Borrower, that the principal place of business and chief executive office for the Borrower is located at _____________________, and that substantially all offices, books, records, equipment and tangible personal property of the Borrower is located in the State of California;
(B) based upon the certificates of certain of the officers of the Borrower, that the Borrower has not changed its name, whether by amendment of its Certificate of Formation, as applicable, by reorganization or otherwise, within the four months next preceding the date any of the Receivables came into existence;
(C) based upon the certificates of certain of the officers of the Borrower, that the Borrower has not changed its principal place of business or its chief executive office within the last four months;
(D) based upon the certificates of certain of the officers of the Borrower and the representations and warranties of the Borrower set forth in the Loan Agreement, that the Borrower will be the legal and beneficial owner of all right, title and interest in and to the Receivables immediately prior to granting the Lenders a security interest in such Receivables, free and clear of all liens (other than certain liens permitted by the Loan Agreement), and that, after giving effect to such grant, no liens or claims against the Receivables (other than the claims of the Lenders or other claims or interests contemplated under the Loan Agreement) will exist;
(E) that at the time of filing of the Financing Statements, and at the time that Borrower grants a security interest in any Receivables to the Lenders, the Lenders had no notice or knowledge of any adverse claims, rights, liens, defenses or interests affecting the Receivables other than as contemplated by the Loan Agreement;
(F) that the UCC Search Report is accurate and complete and, based upon the certificates of certain of the officers of the Borrower, that no financing statements or The Chase Manhattan Bank Park Avenue Receivables Corporation Sheffield Receivables Corporation , 2000 related filings or notices of federal or state tax liens or notices of judgment liens, or other filings or notices evidencing claims, liens, encumbrances or interests with respect to the Receivables have been made or filed with respect to the Borrower between the UCC Search Date[s] and the date hereof or, if such filings or notices have been made or filed, such notices or filings do not relate to the Receivables or have been effectively terminated and released;
(G) that the legal nature of the Proceeds will not change from “instruments” or “accounts” or “general intangibles” or “instruments” or “chattel paper” or “money” as defined in the Code;
Appears in 1 contract
Assumptions. The opinion set out in this letter are based upon A. Based on the following assumptions:
3.1 The genuineness of all signaturesOfficer’s Certificate attached hereto as Annex 1, stamps and sealswe have assumed, the conformity with your permission, as to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documents;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each Credit Party (i) each of the parties thereto Loan and Security Agreements listed on Schedule III hereto (except collectively referred to herein as the English Subsidiary Guarantors“Loan Agreements” and individually as a “Loan Agreement”) is identical in form and that entering into substance to the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them Comprehensive Dialysis Care Loan Agreement, (except as aforesaid);
3.3 That the copies of the Constitutive Documents of ii) each of the English Subsidiary Guarantors Term Notes listed on Schedule IV hereto (collectively referred to above were at herein as the time of entry into “Term Notes” and individually as a “Term Note”) is identical in form and substance to the Indenture Comprehensive Dialysis Care Term Note, and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of (iii) each of the English Subsidiary Guarantors were Revolving Notes listed on Schedule V hereto (collectively referred to herein as the “Revolving Notes” and individually as a “Revolving Note”) is identical in form and substance to the Comprehensive Dialysis Revolving Note. The Loan Agreements, the Term Notes and the Revolving Notes are herein collectively called the “Subject Documents”.
B. We have assumed, with your permission, that:
(1) each party to the Subject Documents is duly adopted by organized, validly existing and in good standing under the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each laws of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate jurisdiction in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture which it was incorporated or organized, and has since then disclosed any interest which he may and will have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 full power, authority and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and legal right to execute, deliver and perform the obligation its respective obligations under the Indenture, acted bona fide and in the interests of that English Subsidiary GuarantorSubject Documents;
3.9 The absence of any other arrangements between any (2) each of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have Subject Documents has been duly fulfilledauthorized, performed executed and effected; and
3.11 That as a matter of New York law (being delivered by the law by which each of them is expressed to be governed) parties thereto, and constitutes the Indenture constitutes legal, valid and binding obligations obligation of each of party thereto (other than the Credit Parties as to which we express our opinion in paragraph 1 below), enforceable against such parties thereto enforceable (other than the Credit Parties as to which we express our opinion in paragraph 1 below) in accordance with their respective its terms;
(3) the execution, delivery and performance by each Credit Party of any of its obligations under the Subject Documents to which it is a party does not and will not conflict with, contravene, violate or constitute a default under (i) any rule, law or regulation to which such Credit Party is subject (ii) any contract, agreement or undertaking to which any Credit Party is a party or its property is subject or (iii) any judicial or administrative order or decree of any governmental authority;
(4) no authorization, consent or other approval of, notice to or filing with any court, governmental authority or regulatory body is required to authorize or is required in connection with the execution, delivery or performance by any Credit Party of any Subject Document to which it is a party or the transactions contemplated thereby;
C. We have assumed with your permission (i) as to each Credit Party, the name, address, jurisdiction of organization, organizational ID, pertaining to it, is as set forth in Schedule 1 to the Officer’s Certificate, and (ii) the name of the Lender is American Renal Associates LLC.
D. We have assumed with your permission that (i) value has been given pursuant to Section 9-203 of the applicable UCC, and (ii) each Credit Party has rights in the Collateral or the power to transfer rights in the Collateral to the Lender.
E. We have assumed with your permission that the description of the Collateral in the Loan Agreements, to the extent that such description entails all-inclusive or general language rather than specifically identifying language to describe the personal property to be covered thereby, is sufficient to enable its identification.
F. We have assumed with your permission that (i) each Credit Party is a “registered organization” (as defined in UCC Section 9-102(70), and (ii) none of the Credit Parties is a transmitting utility (as defined in UCC Section 9-102(80)), a trust or trustee, or a decedent’s estate.
Appears in 1 contract
Samples: First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Assumptions. The opinion set out in For the purposes of this letter are based upon the following assumptionsopinion, we have, with your permission, assumed:
3.1 The a) that the Transaction Documents and the transactions contemplated thereby have been duly authorised and executed by or on behalf of, and is valid and binding on, and enforceable against, each of the parties thereto (other than the Company) and that the performance thereof is within the capacity and powers of each of them (other than the Company);
b) that all parties to the Transaction Documents (other than the Company) have been duly incorporated and are validly existing under the laws of their relevant jurisdictions;
c) the genuineness of all signatures, stamps and seals, the conformity to the originals of all documents supplied to us as emailedcopies (including conformed copies), certifiedand that all documents submitted to us are true, photostatic authentic and complete; that where a document has been examined by us in draft form, it will be or faxed copies has been executed in the form of that draft, and where a number of drafts of a document have been examined by us, all changes to them have been marked or otherwise drawn to our attention;
d) the authenticity accuracy and completeness of all factual representations made in the Transaction Documents and other documents reviewed by us and of any other information set out in public registers or that has otherwise been supplied or disclosed to us (and we have therefore not made any independent investigation thereof);
e) that all documents, authorisations, powers and authorities produced to us remain in full force and effect and have not been amended or affected by any subsequent action not disclosed to us;
f) that all agreements or documents which are governed by the laws of any jurisdiction other than the Kingdom of Sweden (or, in respect of documents or obligations governed in part by laws other than those of the originals Kingdom of Sweden and in part by the laws of the Kingdom of Sweden, such as the Indenture, the portions thereof that are governed by laws other than those of the Kingdom of Sweden) are under such laws (including the public policy of such documentsjurisdictions) legal, valid, binding and enforceable according to the terms and conditions of the relevant agreements or documents and that there is no provision of the law of any jurisdiction, other than the Kingdom of Sweden, which would have any implication in relation to the opinions expressed below;
3.2 That g) that all necessary consents, authorisations and approvals whatsoever and howsoever described required in any relevant jurisdiction (other than the Indenture was duly authorised Kingdom of Sweden) for the due execution and performance of the Transaction Documents by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantors) have been, or will be, obtained; and that entering into all necessary notices, filings, registrations and recordings required in any applicable jurisdiction (other than the Indenture Kingdom of Sweden) in respect of the Transaction Documents have been, or will be, given or effected in accordance with the laws and the performance thereof was at the time regulations of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid)every such jurisdiction;
3.3 That the copies h) that there has been no mutual or relevant unilateral mistake of fact and that there exists no fraud or duress;
i) that any meetings of the Constitutive Documents Board of each Directors of the English Subsidiary Guarantors referred to above were Company have been duly convened and conducted with a proper quorum, and that any resolutions passed at the time any such meeting has in fact been passed by a sufficient majority of entry into the Indenture a sufficient quorum and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of no such English Subsidiary Guarantor, decisions have not been revoked or suspended varied and are instead remain in full force and effect;
3.5 That j) that the representations and answers to all enquiries as to factual matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture directors, officers and are now true and accurate in all respects;
3.6 That each director of each agents of the English Subsidiary Guarantors had at the time Company and of entry into the Indenture public officials have been accurate and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and complete, and
k) that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone Note will be issued in respect of each of which the English Subsidiary Guarantors at interest or redemption amount will be wholly or partly dependent upon (i) dividends paid by the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving Company to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify its shareholder or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governedii) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsCompany’s profit.
Appears in 1 contract
Samples: Agency Agreement (Swedish Export Credit Corp /Swed/)
Assumptions. The opinion set out in In giving this letter are based upon the following assumptionslegal opinion, we have assumed with your consent, and we have not verified independently:
3.1 The the genuineness of all signatures, stamps and seals, the completeness and conformity to the originals of all the documents supplied submitted to us as emailed, certified, photostatic photostatic, faxed, scanned or faxed e-mailed copies or specimens and the authenticity of the originals of such documents and that the individuals purported to have signed, have in fact signed (and had the general legal capacity to sign) these documents;
3.2 That the Indenture was duly authorised due authorisation, execution and delivery of the Agreement by and duly executed and delivered by or on behalf of each of all the parties thereto (except other than the English Subsidiary GuarantorsCompany) as well as the capacity, power, authority and that entering into legal right of all the Indenture parties thereto (other than the Company) to enter into, execute, deliver and perform their respective obligations thereunder, and the performance thereof was at compliance with all internal authorisation procedures by each party (other than the time Company) for the execution by it of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid)Agreement;
3.3 That that all factual matters and statements relied upon or assumed herein were, are and will be (as the copies case may be) true, complete and accurate on the date of execution of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-dateAgreement;
3.4 That that all authorisations, approvals and consents under any applicable law (other than Luxembourg law to the resolutions set out extent opined upon herein) which may be required in connection with the Board Resolutions of each execution, delivery and performance of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, Agreement have not been revoked or suspended and are in full force and effectwill be obtained;
3.5 That that the matters set out Agreement has in the Companies House Certificate of each fact been signed on behalf of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respectsCompany by Xxxxxxxx X. Xxxxx;
3.6 That each director of each that the place of the English Subsidiary Guarantors had central administration (siège de l'administration centrale), the principal place of business (principal établissement) and the centre of main interests (within the meaning given to such term in Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast), as amended (the European Insolvency Regulation)) of the Company are located at the time place of entry into its registered office (siège statutaire) in Luxembourg and that the Indenture and Company has since then disclosed any interest which he may have no establishment (as such term is defined in the transactions contemplated by European Insolvency Regulation) outside Luxembourg;
3.7 that the Indenture in accordance Company complies with the provisions of the Companies Act 1985 and Luxembourg act dated 31 May 1999 concerning the articles domiciliation of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except companies, as amended (to the extent permitted it is applicable to the Company);
3.8 that the Agreement is legally valid, binding and enforceable under its governing law (other than Luxembourg law to the extent opined upon herein), that the choices of such governing law and of the jurisdiction clause are valid (as a matter of such governing law and all other applicable laws (other than Luxembourg law to the extent opined upon herein)) as the choice of the governing law and the submission to the jurisdiction of the chosen courts for the Agreement;
3.9 that the Agreement is entered into and performed by the articles parties thereto in good faith and without any intention of association fraud or intention to deprive of that English Subsidiary Guarantorany legal benefit any persons (including for the avoidance of doubt third parties) or to circumvent any applicable mandatory laws or regulations of any jurisdiction (including without limitation any tax laws);
3.7 That upon entry into the transactions contemplated by the Indenture 3.10 that there had been and that since then there has been are no alteration in the status or condition of each provisions of the English Subsidiary Guarantors as revealed by a search carried out against each laws of any jurisdiction outside Luxembourg which would adversely affect, or otherwise have any negative impact on, the opinions expressed in this legal opinion;
3.11 that all the parties to the Agreement (other than the Company) are companies duly organised, incorporated and existing in accordance with the laws of the English Subsidiary Guarantors at jurisdiction of their respective incorporation and/or their registered office and/or the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone place of effective management; that in respect of each all the parties to the Agreement, no steps have been taken pursuant to any insolvency, bankruptcy, liquidation or equivalent or analogous proceedings to appoint an administrator, bankruptcy receiver, insolvency officer or liquidator over the respective parties or their assets and that no voluntary or judicial winding-up or liquidation of such parties has been resolved or become effective at the date hereof. In respect of the English Subsidiary Guarantors at Company, we refer to the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007Certificate;
3.8 That 3.12 that the directors of each entry into and performance of the English Subsidiary GuarantorsAgreement are for the corporate benefit (intérêt social) of the Company;
3.13 that the Resolutions have not been amended, rescinded, revoked or declared void and that the meeting of the board of managers of the Company (as referred to in resolving paragraph 2.3) has been duly convened and validly held and included a proper discussion and deliberation in respect of all the items of the agenda of the meeting;
3.14 that the Articles have not been modified since the date referred to give in paragraph 2.1 above;
3.15 that the guarantees Company does not carry out an activity in the financial sector on a professional basis (as referred to in the Luxembourg act dated 5 April 1993 relating to the financial sector, as amended (the Banking Act 1993)). This assumption does not specifically affect the entry into and the performance by the Company of the Agreement;
3.16 that the Company does not carry out an activity requiring the granting of a business licence under the Indenture Luxembourg act dated 2 September 2011 relating to the establishment of certain businesses and to executebusiness licences, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantoras amended;
3.9 The 3.17 the absence of any other arrangements arrangement by or between any of the parties to the Indenture Agreement or between the parties to the Agreement and any third parties which modify modifies or supersede supersedes any of the terms of the IndentureAgreement or otherwise affects the opinions expressed herein;
3.10 That 3.18 there is neither a vitiated consent (vice de consentement) by reason of mistake (erreur), fraud (dol), duress (violence) or inadequacy (lésion), nor an illicit cause (cause illicite) in relation to the Agreement;
3.19 that all acts, agreed conditions or things required to be fulfilled, performed or effected in connection with the Indenture under effectiveness of the laws of any jurisdiction other than England Agreement have been duly fulfilled, performed and effectedor will be satisfied; and
3.11 That as 3.20 that the Company does not or will not process personal data in relation to which it has not made a matter of New York law (being notification to, or obtained an authorisation from, the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsrelevant Luxembourg authorities under applicable data protection laws.
Appears in 1 contract
Samples: Credit Agreement (PENTAIR PLC)
Assumptions. The For the purposes of giving this opinion set out in this letter are based upon the following assumptionswe have assumed:
3.1 The 2.1 the genuineness of all signatures, stamps signatures and seals, ;
2.2 the authenticity and completeness of all documents submitted to us as originals;
2.3 the completeness and conformity to the originals of all documents supplied to us as emailed, certified, conformed or photostatic copies or faxed copies received by us by facsimile or pdf transmission and the authenticity of the originals of such documents;
3.2 That 2.4 that, where incomplete documents have been submitted to us or signature pages only have been supplied to us for the Indenture was duly authorised by and duly executed and purposes of issuing this Opinion, the original of any such document corresponds in all respects with the last draft of the complete document submitted to us;
2.5 that the Agreements have been delivered by or on behalf of each of the parties thereto (except and are not subject to any escrow arrangements and the English Subsidiary Guarantors) terms thereof will be observed and performed by the parties thereto;
2.6 that the copy of the constitutional documents of each Irish Obligor produced to us is correct and up to date and that entering into the Indenture business carried out by the Parent is within the principal objects clause of its constitutional document;
2.7 that the parties to the Agreements other than the Irish Obligors are not incorporated in Ireland, that the parties are not “consumers” for the purposes of Irish law or the Irish Consumer Protection Code and that the performance thereof was at Agreements and all deeds, instruments, assignments, agreements and other documents in relation to the time of entry into matters contemplated by the transactions contemplated therein and is currently Agreements and/or this opinion (“Ancillary Documents”) are:
2.7.1 within the capacity and powers of, have been validly authorised, executed and delivered by and are valid, legal, binding and enforceable obligations of each the parties thereto; and
2.7.2 are not subject to avoidance by any person, under all applicable laws and in all applicable jurisdictions other than (in the case of them (except as aforesaid)the Irish Obligors) the laws of Ireland and the jurisdiction of Ireland;
3.3 That the copies 2.8 all relevant authorisations, approvals, consents and licences required in any jurisdiction and all formalities and requirements of the Constitutive Documents laws of each any relevant jurisdiction and of any regulatory authority therein applicable to the execution, performance, delivery, enforceability and admissibility in evidence of the English Subsidiary Guarantors referred to above were at Agreements (i) have been made, done or obtained, as the time of entry into the Indenture case may be (other than in Ireland) and are now true (ii) have been and up-to-date;
3.4 That the resolutions set out will be duly complied with (and in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and case (where applicable) (a) they are in full force and effecteffect and (b) were made, done, obtained or complied with within any applicable time period);
3.5 That the matters set out in the Companies House Certificate of 2.9 that each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest Agreement which he may have in the transactions contemplated is governed by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter the State of New York is in the proper form under such law (being the law by which and that each of them is expressed to be governed) the Indenture Agreement, constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with its respective terms under the laws of the State of New York;
2.10 that the choice of the law of the State of New York governing law of the Agreements was freely made by the parties thereto for bona fide reasons and not to evade the requirement of the law of any other jurisdiction;
2.11 that, upon the opening of any insolvency proceedings pursuant to Council Regulation (EC) No. 1346/2000 (the “EU Insolvency Regulation”), each Irish Obligor will have its “centre of main interests” (as that term is used in Article 3(1) of the EU Insolvency Regulation) in Ireland being the jurisdiction in which such Irish Obligor has its registered office and will not have an “establishment” (being any place of operations where a company carried out a non-transitory economic activity with human means and goods) as defined in Article 2(h) of the EU Insolvency Regulation) outside Ireland. In this regard we refer you to our qualification at paragraph 4.28;
2.12 that insofar as the Agreements or any of the Ancillary Documents fall to be performed in any jurisdiction other than Ireland its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction;
2.13 that the written resolution referred to at paragraph 1.1.3 was duly executed by all the directors of the Company and that the resolutions referred to therein were duly adopted, have not been amended or rescinded and are and will remain in full force and effect;
2.14 that the Irish Obligors, the other Guarantors and the Borrower together comprise a “group” for the purposes of Section 243 of the Companies Xxx 0000 and that any person that subsequently becomes a Borrower or a Guarantor under the Agreements will also be a member of such group;
2.15 the information disclosed by the Searches was accurate as of the date the Searches were made and has not been altered and that the Searches did not fail to disclose any information which had been delivered for registration but did not appear from the information available at the time they were made or which ought to have been delivered for registration at that time but had not been so delivered and that no additional matters would have been disclosed by searches being carried out since that time;
2.16 that each Irish Obligor will derive a commercial benefit from entering into the Agreements to which it is a party and that the Agreements to which it is a party have been entered into, and each of the transactions referred to herein and therein is and will be carried out by each of the parties thereto in good faith, for the purpose of carrying on their respective businesses, for the benefit of each of them respectively and on arms’ length commercial terms;
2.17 the absence of fraud and the presence of good faith on the part of all parties to the Agreements and their respective officers, employees, agents and advisers;
2.18 that (a) each Irish Obligor was fully solvent at the time of and immediately after the execution and delivery of the Agreements to which it is a party; (b) each Irish Obligor would not as a consequence of doing any act or thing which the Agreements to which it is a party contemplates, permits or requires such Irish Obligor to do, be insolvent; (c) no resolution or petition for the appointment of a liquidator or examiner has been passed or presented in relation to any Irish Obligor; and (d) no receiver has been appointed in relation to any of the assets or undertaking of any Irish Obligor;
2.19 the truth of all representations and information given to us in reply to any queries we have made which we have considered necessary for the purpose of giving this opinion;
2.20 that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Agreements or in any way bear upon or are inconsistent with the contents of this opinion;
2.21 that the representations and warranties by all parties (including the Irish Obligors) to the Agreements contained therein are at all times true and correct in all respects (excluding the representations and warranties as to matters of Irish law on which we have specifically and expressly given our opinion);
2.22 that the Guaranty Agreement is not a contract of insurance under the laws of the State of New York;
2.23 that payments made by any Guarantor to any Lender pursuant to the Guaranty Agreement, which are not capital in nature, would form part of such Lender’s ordinary business revenues from which such Lender would deduct its revenue expenses to arrive at its profits (if any);
2.24 the Agent is a resident of a country with which Ireland has a tax treaty and does not carry on a business in Ireland through a permanent establishment with which the Agreements are effectively connected and the Agent fulfils any conditions of the tax treaty which must be fulfilled for residents of that country to benefit from the article in that treaty dealing with business profits and any amounts paid to the Agent pursuant to the Agreements would be treated as part of its business profits; and
2.25 that neither Irish Obligor has by virtue of the Agreements to which it is a party given financial assistance (whether directly or indirectly) for the purpose of an acquisition (whether by way of subscription, purchase, exchange or otherwise) made or to be made of shares in itself or any company which is its holding company (if any).
Appears in 1 contract
Assumptions. The opinion set out in this letter are based upon B2-3 We have assumed, without investigation, the following assumptions:
3.1 The genuineness of all signatures, stamps and sealsthe legal capacity of all natural persons, the authenticity of all items submitted to us as originals, the conformity to the originals of all documents supplied items submitted to us as emailed, certified, certified or photostatic or faxed copies and the authenticity of the originals of such latter documents;
3.2 That . We have assumed, without investigation, that each party to the Indenture was Documents (1) has the power and capacity to enter into and perform all of its obligations under the Documents, (2) has duly authorised by authorized all requisite action with respect to the Documents and (3) has duly executed the Documents. We have also assumed, without investigation, that the Documents are legal, valid and delivered by or binding on behalf of each of the all parties thereto in all respects, that all parties to the Documents have complied with all applicable laws (except other than those which are the English Subsidiary Guarantorssubject of this opinion) and that entering into the Indenture issuance and sale of the Series C Bonds is exempt from the registration requirements under the Securities Act of 1933, as amended, and the performance thereof was at qualification provisions of the time Trust Indenture Act of entry into 1939, as amended. We have also assumed that all representations and warranties (other than representations concerning the legal conclusions which are the subject matter of this opinion) contained in the Documents are true and correct in all respects. We have assumed that the Documents are substantially in the form approved in the Resolutions of the Board of Directors of the Company in all material respects. We have assumed that the Documents are adequate to accomplish the transactions contemplated therein thereby and is currently within the capacity and powers we have made no independent investigation of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out forth in the Companies House Certificate Documents. We have assumed that the Purchaser has purchased the Series C Bonds in good faith for its own account, that all payments of each principal and interest due under the Series C Bonds will be received by Purchaser for its own account, and that there is no present agreement, express or implied, or plan on the part of the English Subsidiary Guarantors were at Purchaser to sell participations in the time of entry into Series C Bonds or to sell, assign, distribute or otherwise transfer the Indenture and are now true and accurate in all respects;
3.6 That each director of each Series C Bonds or any interest therein to any other person or entity, other than under circumstances qualifying for an exemption from the registration requirements of the English Subsidiary Guarantors had at the time Securities Act of entry into the Indenture and has since then disclosed any interest which he may 1933, as amended. We have in further assumed that the transactions contemplated by the Indenture in accordance Third Supplement Documents comply with all applicable usury laws. B2-4 To the provisions extent that the obligations of the Companies Act 1985 Company and rights of the Purchaser may be dependent upon such matters, we have assumed for purposes of our opinion that the Company, the Trustee and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary GuarantorsPurchaser are duly organized, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide validly existing and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture good standing under the laws of any jurisdiction other than England have their respective jurisdictions; that the Company's, the Trustee's and the Purchaser's respective charter powers and bylaws are adequate to permit the bond transaction with the Company; that the bond transaction has been duly fulfilled, performed authorized pursuant thereto; and effected; and
3.11 That as a matter of New York law (being that the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each purchase of the parties thereto enforceable in accordance with their respective termsSeries C Bonds does not violate the laws of the State of the principal place of business of the Company or the Purchaser.
Appears in 1 contract
Assumptions. The opinion In rendering the opinions set out forth in this letter are based upon Section C below, we have assumed with your consent and without investigation: the following assumptions:
3.1 The genuineness of all signatures, stamps and seals; the legal capacity of all individuals who have executed any of the Documents reviewed by us; the authenticity of all Documents submitted to us as originals, the conformity to the originals of all documents supplied Documents submitted to us as emailed, certified, photostatic photostatic, facsimile, reproduced or faxed copies and conformed copies, the authenticity of the originals latter documents and that the statements regarding matters of such documents;
3.2 That fact in the Indenture was duly authorised by certificates, records, agreements, instruments and duly executed documents that we have examined are accurate and delivered by or on behalf complete; the truthfulness of each statement as to all factual matters otherwise not known to us to be untruthful contained in any Document encompassed within the due diligence review undertaken by us; the payment of all required documentary stamps, taxes and fees imposed upon the execution, filing or recording of documents; there have been no undisclosed oral or written modifications of any provision of any Document reviewed by us in connection with the rendering of the parties thereto (except the English Subsidiary Guarantors) opinions, all terms and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-conditions of, or relating to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture Transaction Documents are correctly and completely embodied in accordance the Transaction Documents; that all parties have complied with any requirement of good faith, fair dealing and conscionability; that each Subsidiary is solvent; that each Subsidiary has received adequate consideration for entering into the provisions Transaction Documents; that (i) the Articles of the Companies Act 1985 and the articles Incorporation or Bylaws of association of such relevant English each Subsidiary Guarantor has not been amended and that none of the directors of that English Subsidiary Guarantor had no such amendment is pending or has any interest in such transactions except to the extent permitted by the articles of association of that English been proposed, (ii) each Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture is organized solely under the laws of any jurisdiction other than England have been duly fulfilledthe State of Colorado, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governediii) there are no proceedings pending or contemplated for (A) the Indenture constitutes legalmerger, valid consolidation, conversion, dissolution, liquidation or termination of any Subsidiary, or (B) any Subsidiary’s transfer to or domestication in any other jurisdiction and binding obligations (iv) each Subsidiary has not changed its name whether by amendment of each its Articles of Incorporation, by reorganization or otherwise, within the last four (4) months. Since we have not represented any of the parties thereto enforceable in accordance Subsidiaries with regard to their respective termscorporate formalities, for purposes of the opinions rendered below, we rely on the presumption of regularity and continuity (a) for all stock issuances, and cancellations thereof where applicable, and (b) with the exception of the written consent referenced under Section A.6. and the Certificate reference under Section A.8. above, for all of the minutes of the meetings and written consents of the Subsidiaries’ Board of Directors and shareholders, and as to any such meetings or consents, that they were properly noticed or notice was properly waived.
Appears in 1 contract
Assumptions. The opinion set out in this letter are based upon the following assumptionsWith your consent, we have assumed and we have not verified independently:
3.1 The 2.1 the genuineness of all signatures, stamps and seals, the conformity to the originals of all the documents supplied submitted to us as emailed, certified, photostatic photostatic, faxed or faxed e-mailed copies or specimens and the authenticity of the originals of such documents;
3.2 That 2.2 that any copies we have examined are complete and accurate copies of the Indenture was duly authorised originals;
2.3 that the Opinion Documents have been executed by such persons as specified in the Resolutions;
2.4 the due and duly executed valid authorization, execution and delivered delivery of the Opinion Documents by or on behalf of each of all the parties thereto (except other than the English Subsidiary Guarantors) and that entering into Company), as well as the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the power, authority, capacity and powers legal right of each of them all the parties thereto (except as aforesaid);
3.3 That other than the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred Company) to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantorenter into, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenturetheir respective obligations thereunder, acted bona fide and in the interests of that English Subsidiary Guarantorcompliance with all applicable laws and regulations, other than Luxembourg law;
3.9 The absence 2.5 that the Opinion Documents (and any document in connection therewith) have been signed on behalf of the Company by any of Xxxxx Xxxxxxx X'Xxxxx-Xxxxx, Xxxxxxx Lambinet, or Xxxxxxxxxxxx Xxxxxxx;
2.6 that all authorizations, approvals and consents of any country other arrangements between any of the parties to the Indenture than Luxembourg which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things may be required to be fulfilled, performed or effected in connection with the Indenture under execution, delivery and performance of the laws of Opinion Documents (and any jurisdiction other documents in connection therewith) have been or will be obtained and that all internal corporate or other authorization procedures by each party (other than England the Company) for the execution by it of the Opinion Documents (or any document in connection therewith) to which it is expressed to be a party, have been duly fulfilled;
2.7 that the Opinion Documents are legal, performed valid, binding and effected; and
3.11 That enforceable under New York law, that the choice of New York law is valid (as a matter of New York law) as the choice of proper law (being and that the obligations assumed by all the parties thereunder constitute legal, valid, binding and enforceable obligations under New York law by which each of them is the Opinion Documents are expressed to be governed) ;
2.8 that the Indenture constitutes Opinion Documents constitute the legal, valid and binding obligations of each of the parties thereto enforceable (other than the Company) under the laws of the jurisdiction of its incorporation or of its principal office or of its principal place of establishment;
2.9 that the Opinion Documents are in the proper legal form to be admissible in evidence and enforced in the courts, and in accordance with the laws, of the State of New York by which they are expressed to be governed;
2.10 that, in so far as any obligation under, or action to be taken under, the Opinion Documents is required to be performed or taken in any jurisdiction outside Luxembourg, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;
2.11 that there are no provisions of the laws of any jurisdiction outside Luxembourg which would adversely affect, or otherwise have any negative impact on, the opinions expressed in this legal opinion;
2.12 that all the parties to the Opinion Documents (other than the Company) are companies duly organized, incorporated and validly existing in accordance with the laws of the jurisdictions of their respective terms.incorporation and/or their place of effective management, having a corporate existence, that in respect of all the parties to the Opinion Documents, no steps have been taken pursuant to any insolvency proceedings to appoint an administrator, receiver or liquidator over the respective parties or their assets and that no voluntary winding-up of such parties has been recorded at the date hereof;
2.13 that all conditions precedent to the effectiveness of each of the Opinion Documents have been satisfied and that each of the Opinion Documents is in full force and effect as against the parties thereto;
2.14 that any representation, warranty or statement of fact or law, other than as to the laws of Luxembourg, made in the Opinion Documents is true, accurate and complete in all respects material to this opinion; and
2.15 that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions passed by the board of directors of the Company and that the Resolutions have been taken in the best interests and for the benefit of the Company. Subject to the assumptions made above and the qualifications set out below and to any matters not disclosed to us, we are of the opinion that under the laws of Luxembourg in effect, and as published, construed and applied by the Luxembourg courts, on the date hereof:
Appears in 1 contract
Assumptions. The In stating our opinion set out in this letter are based upon the following assumptionswe have assumed:
3.1 The 1.1 the authenticity, accuracy and completeness of all Documents and other documentation examined by us submitted to us as originals and the conformity to authentic original documents of all Documents and other such documentation submitted to us as certified, conformed, notarised, faxed or photostatic copies;
1.2 that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;
1.3 the genuineness of all signatures, stamps and seals, signatures on the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documentsDocuments;
3.2 That 1.4 the Indenture was duly authorised by authority, capacity and duly executed and delivered by or on behalf power of each of the parties thereto persons signing the Documents (except other than the English Subsidiary Guarantors) and that entering into Company in respect of the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaidSubject Agreements);
3.3 That the copies 1.5 that any representation, warranty or statement of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantorfact or law, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except other than as to the extent permitted by the articles laws of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration Bermuda, made in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the IndentureDocuments is true, accurate and complete;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with 1.6 that the Indenture under Subject Agreements constitute the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto thereto, other than the Company, under the laws of its jurisdiction of incorporation or its jurisdiction of formation;
1.7 that the Subject Agreements have been validly authorised, executed and delivered by each of the parties thereto, other than the Company, and the performance thereof is within the capacity and powers of each such party thereto, and that each such party to which the Company purportedly delivered the Subject Agreements has actually received and accepted delivery of such Subject Agreements;
1.8 that the Subject Agreements will effect, and will constitute legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with their respective terms, under the laws of the State of New York by which they are expressed to be governed;
1.9 that the Subject Agreements are in the proper legal form to be admissible in evidence and enforced in the courts of the State of New York sitting in New York County and the United States District Court of the Southern District of New York (New York Courts) and in accordance with the laws of the State of New York;
1.10 that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Subject Agreements or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Subject Agreements is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;
1.11 that none of the parties to the Subject Agreements maintains a place of business (as defined in section 4(6) of the Investment Business Act 2003), in Bermuda;
1.12 that the records which were the subject of the Company Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date and time of the Company Search been materially altered;
1.13 that the records which were the subject of the Litigation Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date and time of the Litigation Search been materially altered;
1.14 that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions passed by the Board of Directors of the Company (Board) in a meeting which was duly convened and at which a duly constituted quorum was present and voting throughout and that there is no matter affecting the authority of the Directors of the Company to effect entry by the Company into the Subject Agreements, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein;
1.15 that the Administrative Agent and the Lenders from time to time party to the Third Amended and Restated Credit Agreement have no express or constructive knowledge of any circumstance whereby any Director of the Company, when the Board passed the Resolutions, failed to discharge his fiduciary duty owed to the Company and to act honestly and in good faith with a view to the best interests of the Company;
1.16 that the Company has entered into its obligations under the Subject Agreements in good faith for the purpose of carrying on its business and that, at the time it did so, there were reasonable grounds for believing that the transactions contemplated by the Subject Agreements would benefit the Company; and
1.17 that each transaction to be entered into pursuant to the Subject Agreements is entered into in good faith and for full value and will not have the effect of preferring one creditor over another.
Appears in 1 contract
Samples: Credit Agreement (Invesco Ltd.)
Assumptions. The opinion set out in For the purpose of giving this letter are based upon Opinion we assume the following assumptionsfollowing, without any responsibility on our part if any assumption proves to have been untrue as we have not verified independently any assumption:
3.1 The truth, completeness, accuracy and authenticity of all copy letters, resolutions, certificates, permissions, minutes, authorisations and all other documents of any kind submitted to us as originals or copies of originals, and (in the case of copies) conformity to the originals of copy documents, the genuineness of all signatures, stamps and seals, seals thereon that any signatures are the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity signatures of the originals of such documents;persons who they purport to be and that each original was executed in the manner appearing on the copy.
3.2 That the Indenture was duly authorised by Transaction Document has been executed in a form and duly executed and delivered by or on behalf of each of content having no material difference to the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);final draft provided to us.
3.3 That the copies produced to us of minutes of meetings and/or of resolutions correctly record the Constitutive Documents of each of proceedings at such meetings and/or the English Subsidiary Guarantors subject matter which they purport to record and that any meetings referred to above in such copies were duly convened, duly quorate and held and all formalities were duly observed, that those present at any such meetings were entitled to attend and vote at the time of entry into meeting and acted bona fide throughout, that no further resolutions have been passed or corporate or other action taken which would or might alter the Indenture effectiveness thereof and are now true and up-to-date;
3.4 That the that such resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked amended or suspended rescinded and are in full force and effect;.
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 3.4 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and Company has since then disclosed any interest which he may have in the transactions contemplated by the Indenture Transaction in accordance with the provisions of the Companies Act 1985 and the articles Constitution of association of such relevant English Subsidiary Guarantor the Company and that none of the directors of that English Subsidiary Guarantor had or the Company has any interest in such transactions the Transaction except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each Constitution of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;Company.
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 3.5 The absence of any other arrangements between any fraud, coercion, duress or undue influence and lack of bad faith on the part of the parties to the Indenture Transaction Document and their respective officers, employees, agents and (with the exception of Xxxxxx Xxx) advisers.
3.6 That, based only on the searches referred to in paragraph 1.8(e), no person who has been appointed or acts in any way, whether directly or indirectly, as a director or secretary of, or who has been concerned in or taken part in the promotion of, the Company has:
(a) been the subject of any declaration, order or deemed order for disqualification or restriction under the Companies Act (including Part 14, Chapters 3 and 4 thereof) or any analogous legislation; or
(b) received any notice under the Companies Act (including Part 14, Chapter 5 thereof) or any analogous legislation regarding a disqualification or restriction undertaking.
3.7 The accuracy and completeness of the information disclosed in the Searches and that such information is accurate as of the date of this Opinion and has not since the time of such search been altered. In this connection, it should be noted that:
(a) the matters disclosed in the Searches may not present a complete summary of the actual position on the matters we have caused searches to be conducted for;
(b) the position reflected by the Searches may not be fully up-to-date; and
(c) searches at the CRO do not necessarily reveal whether or not a prior charge has been created or a resolution has been passed or a petition presented or any other action taken for the winding-up of, or the appointment of a receiver or an examiner to, the Company or its assets.
3.8 The truth, completeness and accuracy of all representations and statements as to factual matters contained in the Corporate Certificate (as defined in Schedule 1 hereto) at the time they were made and at all times thereafter.
3.9 That the Transaction Document has been entered into for bona fide commercial purposes, on arm’s length terms and for the benefit of each party thereto and are in those parties’ respective commercial interests and for their respective corporate benefit.
3.10 That the Transaction Document is the only document relating to the subject matter of the Transaction (for the purposes of the Opinion) and that there are no agreements or arrangements of any sort in existence between the parties to the Transaction Document and/or any other party which modify in any way amend or supersede any of vary or are inconsistent with the terms of the Indenture;
3.10 That all acts, conditions Transaction Document or things required to be fulfilled, performed in any way bear upon or effected in connection are inconsistent with the Indenture under the laws of any jurisdiction other than England have been duly fulfilled, performed and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termsopinions stated herein.
Appears in 1 contract
Samples: Credit Agreement (PENTAIR PLC)
Assumptions. The opinion set out in this letter are based upon the following assumptionsWe have assumed:
3.1 The genuineness (a) the authenticity of all signatures, seals, duty stamps and sealsmarkings;
(b) the completeness, the and conformity to the originals and final drafts, of all non original or incomplete documents supplied submitted to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documentsus;
3.2 That the Indenture was duly authorised by and duly executed and delivered by or on behalf of each of the parties thereto (except the English Subsidiary Guarantorsc) and that entering into the Indenture and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are all authorisations specified below remain in full force and effect;
3.5 That (d) that the matters set out Documents have in fact been executed by an attorney under the Companies House Certificate relevant Power of each Attorney, or, as applicable, by a duly authorised officer of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respectsa Relevant Party;
3.6 That each director of each of (e) that the English Subsidiary Guarantors had at the time of entry into the Indenture Documents have been duly executed and has since then disclosed any interest which he may have in the transactions contemplated authorised by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected in connection with the Indenture under the laws of any jurisdiction them (other than England have been duly fulfilled, performed each Relevant Party) and effected; and
3.11 That as a matter of New York law (being the law by which each of them is expressed to be governed) the Indenture constitutes legal, constitute valid and binding obligations of all the parties to them (other than each Relevant Party) under all relevant laws (including the laws of the parties thereto enforceable Relevant jurisdictions);
(f) that each Power of Attorney has been duly executed by each Relevant Party in accordance with their respective termsits constitution; However we note that each Power of Attorney has been executed on behalf of each Relevant Party by persons who appear to be (based on our searches referred to in paragraph 3 below) a director and/or secretary of the Relevant Party and there is nothing in the search referred to in paragraph 3 below that would lead us to believe otherwise. In any event, we note that you may rely on the assumptions specified in section 129 of the Corporations Law unless at the time the Powers of Attorney were entered into you knew or suspected that those assumptions were incorrect);
(g) that the contents of the Certificate are true and correct;
(h) that where, by the terms of the master trust deed for the Programme ("MASTER TRUST DEED"), the Global Master Security Trust Deed or any other Document, a direction, certification, confirmation or RECOMMENDATION ("DIRECTION") MUST be given by the Trust Manager or any other person to a Relevant Party before it enters into or assumes obligations under a Document, that Direction has in fact been given;
(i) that no transaction in connection with the Documents constitutes an insolvent transaction or an unfair loan within the meaning of section 588FC or 588FD respectively of the Corporations Law;
(j) that all the provisions contained in the Documents have been and will be strictly complied with; and
(k) that no party has contravened or will contravene chapter 2E of the Corporations Law by entering into any Document or a transaction in connection with any Document. We have not taken any steps to verify these assumptions. However Xxxx Xxxxxxx and Xxxxx Xxxxxxxx, who have had carriage of this matter for Xxxxx Xxxxx York, are not actually aware of anything which causes any of the assumptions to be incorrect.
Appears in 1 contract
Assumptions. The opinion set out in this letter are based upon the following assumptionsWe have assumed:
3.1 The genuineness (a) the authenticity of all signatures, seals, duty stamps and seals, the conformity to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documentsmarkings;
3.2 That (b) that:
(i) the Indenture was duly authorised by Power of Attorney and duly executed all authorisations specified above remain in full force and delivered by or on behalf of each of effect; and
(ii) all authorisations required for any party (other than the parties thereto (except the English Subsidiary GuarantorsCompany) and that entering to enter into the Indenture Documents have been obtained and the performance thereof was at the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid);
3.3 That the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are remain in full force and effect;
3.5 That (c) the matters completeness, and conformity to originals, of all documents submitted to us;
(d) that the Documents have been or will be duly authorised and executed by the parties to them (other than the Company) and constitute valid, binding and enforceable obligations of all the parties to them under all relevant laws (including the laws of the Relevant Jurisdiction);
(e) that each of the assumptions set out in the Companies House Certificate of each section 129 of the English Subsidiary Guarantors were at Corporations Xxx 0000 of Australia (“Corporations Act”) is correct in relation to the time Documents, the Power of entry into Attorney and the Indenture and are now true and accurate in all respectsCompany;
3.6 That each director of each (f) that where a Document is executed outside Australia the formalities for execution required by the law of the English Subsidiary Guarantors had at place of execution have been or will be complied with;
(g) that any person purporting to sign a Document as an attorney of the time Company was a person appointed under the Power of entry Attorney;
(h) that the obligations assumed by the Company under the Documents are in its best interests and for the purposes of its business;
(i) immediately following execution of the Documents the Company was solvent;
(j) that, if an obligation is to be performed in a jurisdiction outside Australia, its performance will not be contrary to an official directive, impossible or illegal under the law of that jurisdiction;
(k) that the Company does not enter into the Indenture and has since then disclosed any interest which he may have Document in the transactions contemplated by the Indenture in accordance with the provisions capacity of the Companies Act 1985 and the articles a trustee of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantortrust;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and (l) that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any of the parties to the Indenture which modify or supersede any of the terms of the Indenture;
3.10 That all acts, conditions or things required to be fulfilled, performed or effected transaction in connection with the Indenture under Documents constitutes an insolvent transaction or an unfair loan within the laws meaning of sections 588FC or 588FD respectively of the Corporations Act;
(m) that no party has contravened or will contravene the prohibitions on related party transactions in sections 208 or 209 of the Corporations Act by entering into any jurisdiction other than England have been duly fulfilledDocument or a transaction in connection with any Document;
(n) that the Code of Banking Practice does not apply to the Documents;
(o) that no person has been, performed or will be, engaged in conduct that is unconscionable, dishonest, illegal, misleading or deceptive or likely to mislead or deceive;
(p) that there are no facts not evident from the face of the documents listed in paragraph 1 which might make any part of this opinion incorrect;
(q) that all factual matters stated in the documents described in paragraph 1(f) are true, correct and effectedaccurate at all relevant times; and
3.11 That (r) all information provided to us for the purpose of conducting searches and making registrations is correct and complete as a matter at the date of New York law (being those searches and registrations and as at the law by date of this opinion. We have not taken any steps to verify the assumptions stated above and assume, with respect to each addressee of this opinion, that that addressee does not know or suspect that any of those assumptions is incorrect. However, without making specific enquiries beyond the steps which each of them is expressed to be governed) the Indenture constitutes legalare stated in this opinion, valid and binding obligations of each none of the parties thereto enforceable in accordance with their respective termsActing Persons has actual knowledge as at the date of this opinion that any of those assumptions is incorrect.
Appears in 1 contract
Assumptions. The In examining and in describing the documents listed above and in the Annex, and in giving this opinion set out in this letter are based upon we have, with your permission, assumed: POWER, CAPACITY AND AUTHORITY; INCORPORATION, EXISTENCE AND STANDING; COMPLIANCE
(i) the following assumptions:
3.1 The genuineness power, capacity (corporate and other) and authority of all signatures, stamps and seals, parties (other than the conformity Companies) to the originals of all documents supplied to us as emailed, certified, photostatic or faxed copies and the authenticity of the originals of such documents;
3.2 That enter into the Indenture was and to perform their respective obligations thereunder and that the Indenture is or will be (where appropriate) duly authorised by and duly authorised, executed and delivered by or all parties thereto (other than the Companies) and create valid and legally binding obligations for all such parties as a matter of applicable law (if other than Netherlands law on which we opine);
(ii) that each party to any document (other than the Companies) is duly incorporated and organised, validly existing and in good standing (where such concept is legally relevant) under the laws of its jurisdiction of incorporation and of the jurisdiction of its principal place of business; DOCUMENTS, ATTORNEYS
(iii) the genuineness of all signatures (including that of Ms. Golding on behalf of each the Companies on the Indenture) on axx xxxxxxxxs or on the originals thereof, the authenticity and completeness of the parties thereto (except the English Subsidiary Guarantors) and that entering into the Indenture all documents submitted to us as originals and the performance thereof was at conformity of conformed, (photo)copy, e-mail, faxed or specimen documents to the time of entry into the transactions contemplated therein and is currently within the capacity and powers of each of them (except as aforesaid)originals thereof;
3.3 That (iv) the copies of the Constitutive Documents of each of the English Subsidiary Guarantors referred to above were at the time of entry into the Indenture and are now true and up-to-date;
3.4 That the resolutions set out in the Board Resolutions of each of the English Subsidiary Guarantors were duly adopted by the directors of such English Subsidiary Guarantor, have not been revoked or suspended and are in full force and effect;
3.5 That the matters set out in the Companies House Certificate of each of the English Subsidiary Guarantors were at the time of entry into the Indenture and are now true and accurate in all respects;
3.6 That each director of each of the English Subsidiary Guarantors had at the time of entry into the Indenture and has since then disclosed any interest which he may have in the transactions contemplated by the Indenture in accordance with the provisions of the Companies Act 1985 and the articles of association of such relevant English Subsidiary Guarantor and that none of the directors of that English Subsidiary Guarantor had or has any interest in such transactions except to the extent permitted by the articles of association of that English Subsidiary Guarantor;
3.7 That upon entry into the transactions contemplated by the Indenture there had been and that since then there has been no alteration in the status or condition of each of the English Subsidiary Guarantors as revealed by a search carried out against each of the English Subsidiary Guarantors at the Companies Registration Office in London at 5.45 p.m. on 4 April 2007 and an enquiry by telephone in respect of each of the English Subsidiary Guarantors at the Central Index of Winding Up Petitions at 10.36 a.m. on 4 April 2007;
3.8 That the directors of each of the English Subsidiary Guarantors, in resolving to give the guarantees under the Indenture and to execute, deliver and perform the obligation under the Indenture, acted bona fide and in the interests of that English Subsidiary Guarantor;
3.9 The absence of any other arrangements between any one or more of the parties to the Indenture and/or other persons which modify or supersede any of the terms of any of the Indenture;; CORPORATE DOCUMENTS
3.10 That (v) that all actsmatters confirmed and certified in the Corporate Documents are true and accurate; MISCELLANEOUS
(vi) that the Notes, conditions or things required to the Exchange Notes and any other securities will only be fulfilledissued by the Issuers, performed or effected and will be issued, offered and sold in connection the form set out in, on the terms and in accordance with the provisions of the Indenture under and that any Notes, Exchange Notes or securities will be executed, authenticated and issued in the laws of any jurisdiction other than England have been duly fulfilled, performed and effectedform scheduled to the Indenture (if applicable); and
3.11 That as a matter of New York (vii) that any applicable law (being the law by other than those of The Netherlands on which each of them is expressed to be governedwe opine) the Indenture constitutes legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their respective termswould not affect or qualify our opinion as set out below.
Appears in 1 contract
Samples: Guarantee Agreement (Goodman Fielder New Zealand LTD)
