Collateral Assumptions. The opinions and advice contained in our letter are subject to the following assumptions: (a) the Borrower (i) has the requisite title and rights to any property involved in the Transactions, including, without limiting the generality of the foregoing, each item of the Collateral existing on the date hereof and (ii) will have the requisite title and rights to each item of the Collateral arising after the date hereof; (b) value (as defined in Section 1-201(44) of the New York UCC) has been given by you to the Borrower for the security interests and other rights in and assignments of the Collateral described in or contemplated by the Credit Documents; (c) the descriptions of the Collateral in the Credit Documents and the Financing Statement reasonably describe the property intended to be described as the Collateral; and (d) all information regarding the secured party on the Financing Statement is accurate and complete in all respects. None of the opinions or advice contained in our letter covers or otherwise addresses any of the following laws, regulations or other governmental requirements or legal issues: 1. Except with respect to the Investment Company Act of 1940, as amended, to the extent of our opinion in opinion paragraph 10, federal securities laws and regulations (including all other laws and regulations administered by the United States Securities and Exchange Commission), state “Blue Sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments; 2. Pension and employee benefit laws and regulations (e.g., ERISA); 3. Federal and state antitrust and unfair competition laws and regulations; 4. Other than as set forth in opinion paragraphs 8 and 12, Federal and state laws and regulations concerning filing and notice requirements (such as the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1986, as amended, and the Exon-Xxxxxx Act, as amended) other than requirements applicable to charter-related documents such as a certificate of merger; 5. Compliance with fiduciary duty requirements; 6. The statutes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions and judicial decisions to the extent that they deal with any of the foregoing; 7. Fraudulent transfer and fraudulent conveyance laws; 8. Federal and state environmental, land use and subdivision, tax, racketeering, health and safety and labor laws and regulations; 9. Federal patent, trademark and copyright, state trademark, and other federal and state intellectual property laws and regulations; 10. Federal and state laws, regulations and policies concerning (i) national and local emergency, (ii) possible judicial deference to acts of sovereign states and (iii) criminal and civil forfeiture laws; 11. Other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); 12. Any laws, regulations, directives and executive orders that prohibit or limit the enforceability of obligations based on attributes of the party seeking enforcement (e.g., the Trading with the Enemy Act and the International Emergency Economic Powers Act); 13. the Anti-Terrorism Order, including Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (together, the “Anti-Terrorism Order”) as amended, all rules and regulations promulgated thereunder and all federal, state and local laws, statutes, ordinances, orders, governmental rules, regulations, licensing requirements and policies relating to the Anti-Terrorism Order, the foreign assets control regulations of the United States Treasury Department, and to the extent the following relate to any such anti-terrorism law or regulation (including without limitation the Executive order of September 23, 2001 Blocking Property and Prohibiting Transactions and Persons Who Commit and Threaten to Commit or Support Terrorism) or the Anti-Terrorism Order: the ownership and operation of, or otherwise regulation of, companies which conduct, operate or otherwise pursue the business or businesses now and in the future conducted, operated or otherwise pursued by the Borrower;
Appears in 1 contract
Collateral Assumptions. The opinions and advice contained in our letter are subject to the following assumptions:
(a) the Borrower Each Loan Party which grants or purports to grant any lien or security interest in any property or Collateral (i) has the requisite title and rights to any property involved in the Transactions, including, without limiting the generality of the foregoing, each item of the Collateral existing on the date hereof and (ii) will have the requisite title and rights to each item of the Collateral arising after the date hereof;.
(b) value Value (as defined in Section 1-201(44) of the New York UCC) has been given by you the Lenders to the Borrower each Loan Party for the security interests and other rights in and assignments of the Collateral described in or contemplated by the Credit Loan Documents;.
(c) the The descriptions of the Collateral in the Credit Documents Security Agreement and the all Financing Statement Statements reasonably describe the property intended to be described as the Collateral; and.
(d) all The representations made by each Loan Party in the Loan Documents to which it is a party with respect to its jurisdiction of organization and chief executive office are true and correct.
(e) The information regarding the secured party listed on the each Financing Statement is accurate and complete in all respects. None of the opinions or advice contained in our letter covers or otherwise addresses any of the following laws, regulations or other governmental requirements or legal issues:
1. Except except with respect to the Investment Company Act of 1940, as amended, to the extent of our opinion in opinion paragraph 1011 of our letter, and federal securities laws and regulations (including all other laws and regulations administered by the United States Securities and Exchange Commission), state “Blue Sky” and other securities laws and regulationsregulations (including all rules and regulations administered by NYSE, FINRA and any other securities or other regulatory authorities), and laws and regulations relating to commodity (and other) futures and indices and other similar instruments;
2. Pension pension and employee benefit laws and regulations (e.g., ERISA);
3. Federal and state antitrust and unfair competition laws and regulations;
4. Other other than as set forth to the extent of our opinions in opinion paragraphs 8 and 12paragraph 10 of our letter, Federal federal and state laws and regulations concerning filing and notice requirements (such as the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1986, as amended, and the Exon-Xxxxxx Act, as amended) other than requirements applicable to charter-related documents such as a certificate of merger;
4. federal and state antitrust and unfair competition laws and regulations;
5. Compliance compliance with fiduciary duty requirements;
6. The the statutes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the federal, state or regional level—e.g., water agencies, joint power districts, turnpike and tollroad authorities, rapid transit districts or authorities, and port authorities), applicable zoning and building laws, ordinances, code, rules or regulations and judicial decisions to the extent that they deal with any of the foregoing;
7. Fraudulent fraudulent transfer and fraudulent conveyance laws;
8. Federal federal and state environmental, tax, land use and subdivision, taxracketeering laws and regulations (e.g., racketeeringRICO), health and safety (e.g. OSHA) and labor laws and regulations;
9. Federal federal patent, trademark and copyright, state trademark, and other federal and state intellectual property laws and regulations;
10. Federal federal and state laws, regulations and policies concerning (i) national and local emergency, (ii) possible judicial deference to acts of sovereign states states, and (iii) criminal and civil forfeiture laws;
11. Other other than to the extent of our opinions in opinion paragraph 7 of our letter with respect to Regulations U and X of the Federal Reserve Board, Federal Reserve Board Regulations;
12. other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes);
1213. Any any laws, regulations, directives and executive orders that prohibit or limit the enforceability of obligations based on attributes of the party seeking enforcement (e.g., the Trading with the Enemy Act and the International Emergency Economic Powers Act);
1314. the effect of any law, regulation or order which hereafter is enacted, promulgated or issued;
15. title to any property;
16. the Anti-Terrorism Order, including Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (together, the “Anti-Terrorism Order”) as amended, all rules and regulations promulgated thereunder and all federal, state and local laws, statutes, ordinances, orders, governmental rules, regulations, licensing requirements and policies relating to the Anti-Terrorism Order, the foreign assets control regulations of the United States Treasury Department, and to the extent the following relate to any Anti-Terrorism Law such anti-terrorism law or regulation (including without limitation the Executive order Order of September 23, 2001 Blocking Property and Prohibiting Transactions and Persons Who Commit and Threaten to Commit or Support Terrorism) or the Anti-Terrorism Order: the ownership and operation of, or otherwise regulation of, companies which conduct, operate or otherwise pursue the business or businesses now and in the future conducted, operated or otherwise pursued by the BorrowerBorrower including, without limitation, the importation, transportation, manufacturing, dealing, purchase, use or storage of explosive materials;
17. the Federal Power Act, as amended, and the regulations implementing the Federal Power Act, all rules and regulations promulgated under any of the foregoing statutes, the rules, regulations and policies of the Federal Energy Regulatory Commission and any other federal or any state or local regulatory authority, and all other federal, state and local laws, orders, regulations, licensing requirements and policies regulating, public utilities, electric utilities or energy facilities or services (and including without limitation any requirement under any such federal, state or local law or regulation that any Loan Party obtain any consent, approval, authorization or order in order to enter into the Loan Documents and perform the transactions contemplated thereby or the effect of any failure to obtain any such consent, approval authorization or order);
18. federal, state and local liquor licensing laws and regulations;
19. the USA Patriot Act of 2001 and the rules, regulations and policies promulgated thereunder and any foreign assets control regulations of the United States Treasury Department or any enabling legislation or orders relating thereto.
20. any insurance, HMO, health insurance laws, regulations, directives or executive orders;
21. federal, state and local laws, regulations, licensing requirements and policies relating to health care, Medicare, Medicaid or CHAMPUS (including those of any state regulatory agency or Centers for Medicare and Medicaid Services);
22. federal, state, or local regulation or order, of any authority, which relates to or otherwise imposes liability or standards of conduct concerning the licensure, certification, qualification, or operation of a clinical or pathology laboratory, medical practice or other aspect of a Person’s business subject to such laws, including but not limited to laws governing Medicare and Medicaid laboratories, laws regarding the professional standards of health care professionals; laws governing patient confidentiality and privacy; laws governing the corporate practice of medicine; laws governing laboratories; laws relating to kickbacks, self-referrals and access to health care, as well as the Employee Health Care Access Act; 21 U.S.C. 301-392, the Federal Food Drug and Cosmetic Act; 21 U.S.C. 821 et seq., the Federal Drug Abuse Act; Sections 1128, 1128A and 1128B of the Social Security Act; The Clinical Laboratory Improvement Amendments of 1988; 42 U.S.C. 1320a-7b, 42 C.F.R. Part 1001, 42 CFR Chapter IV, Subchapter C; Sections 1876 or 1903 of the Social Security Act; 45 CFR, Part 74; 45 CFR, Part 92; 42 CFR 455.109, Section 306 of the Clean Air Act; 42 U.S.C. 1857(h) et seq., Section 508 of the Clean Water Act; 33 U.S.C. 1368 et seq., Executive Order 11738 and Environmental Protection Agency regulations; 40 CFR Part 15, Title VI of the Civil Rights Act of 1964; 42 U.S.C. 2000 d et seq., Section 504 of the Rehabilitation Act of 1933; 29 U.S.C. 7940; Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., the Age Discrimination Act of 1975; 42 U.S.C. 6101 et seq., Section 654 of OBRA ‘81; 42 U.S.C. 9849 and the Americans with Disabilities Act of 1990; P.L. 101-336, OBRAs 1986 through 1993, as amended, the Health Insurance Portability and Accountability Act, as amended, and any other similar federal, state or local Regulations;
23. the enforceability of any purported obligation to reimburse an issuer of a letter of credit to the extent inconsistent with Section 5-103(c) of the Uniform Commercial Code; and
24. the Communications Act of 1934 and any related laws, rules, regulations or orders and any state or federal law governing interstate or intrastate telecommunications and cable communications systems and any related laws, rules, regulations or orders. We have not undertaken any research for purposes of determining whether any Loan Party or any of the Transactions which may occur in connection with the Loan Documents is subject to any law or other governmental requirement other than to those laws and requirements which in our experience would generally be recognized as applicable to the general business entities which are engaged in transactions of the type contemplated by the Loan Documents in the absence of research by lawyers in the State of New York, and none of our opinions covers any such law or other requirement unless (i) one of our Designated Transaction Lawyers had actual knowledge of its applicability at the time our letter was delivered on the date it bears and (ii) it is not excluded from coverage by other provisions in our letter or in any Schedule to our letter. None of the opinions in the letter to which this Schedule is attached covers or otherwise addresses any of the following types of provisions which may be contained in the Loan Documents:
1. Covenants not to compete including, without limitation, covenants not to interfere with business or employee relations, covenants not to solicit customers, and covenants not to solicit or hire employees.
2. Indemnification for gross negligence, bad faith, willful misconduct or other wrongdoing or strict product liability or any indemnification for liabilities arising under securities laws.
3. Provisions mandating contribution towards judgments or settlements among various parties.
4. Waivers of (i) legal or equitable defenses, (ii) rights to damages, (iii) rights to counter-claim or set-off, (iv) statutes of limitations, (v) rights to notice, (vi) the benefits of statutory, regulatory, or constitutional rights, unless and to the extent the statute, regulation, or constitution explicitly allows waiver, (vii) broadly or vaguely stated rights, and (viii) other benefits to the extent they cannot be waived under applicable law.
5. Provisions providing for forfeitures or the recovery of amounts deemed to constitute penalties, or for liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, interest upon interest and, late charges, prepayment charges, and increased interest rates upon default.
6. Time-is-of-the-essence clauses.
7. Provisions which provide a time limitation after which a remedy may not be enforced.
8. Confession of judgment clauses.
9. Except with respect to submission to the jurisdiction of the courts of the State of New York to the extent provided for in Section 5-1402 of the New York General Obligations Law, agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction); provisions restricting access to courts; waiver of the right to jury trial; waiver of service of process requirements which would otherwise be applicable; and provisions otherwise purporting to affect the jurisdiction and venue of courts.
10. Provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings.
11. Provisions appointing one party as an attorney-in-fact for an adverse party or providing that the decision of any particular person will be conclusive or binding on others.
12. Provisions purporting to limit rights of third parties who have not consented thereto or purporting to grant rights to third parties.
13. Provisions which purport to award attorneys’ fees solely to one party.
14. Provisions purporting to create a trust or constructive trust without compliance with applicable trust law.
15. Provisions relating to the application of insurance proceeds and condemnation awards.
16. Provisions that provide for the appointment of a receiver.
17. Provisions or agreements regarding proxies, shareholders agreements, shareholder voting rights, voting trusts, and the like.
18. Confidentiality agreements.
19. Provisions in any of the Loan Documents requiring any Loan Party to perform its obligations under, or to cause any other person to perform its obligations under, or stating that any action will be taken as provided in or in accordance with, any agreement or other document that is not a Loan Document.
20. Provisions, if any, which are contrary to the public policy of any jurisdiction.
Appears in 1 contract
Collateral Assumptions. The opinions and advice contained in our letter are subject to the following assumptions:
(a) each of the Borrower Credit Parties that grants or purports to grant any lien or security interest in any property or the Collateral (i) has the requisite title and rights to any property involved in the Transactions, including, without limiting the generality of the foregoing, each item of the Collateral existing on the date hereof and (ii) will have the requisite title and rights to each item of the Collateral arising after the date date, hereof;
(b) value (as defined in Section 1-201(44) of the New York UCC) has been given by you to the Borrower Credit Parties for the security interests and other rights in and assignments of the Collateral described in or contemplated by the Credit Documents;
(c) the descriptions of the Collateral in the Credit Documents and the Financing Statement Statements reasonably describe the property intended to be described as the Collateral; and
(d) all information regarding the secured party on the Financing Statement Statements is accurate and complete in all respects. None of the opinions or advice contained in our letter covers or otherwise addresses any of the following laws, regulations or other governmental requirements or legal issues:
1. Except with respect to the Investment Company Act of 1940, as amended, to the extent of our opinion in opinion paragraph 1012, federal securities laws and regulations (including all other laws and regulations administered by the United States Securities and Exchange Commission), state “"Blue Sky” " laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments;
2. Pension and employee benefit laws and regulations (e.g., ERISA);
3. Federal and state antitrust and unfair competition laws and regulations;
4. Other than as set forth in opinion paragraphs 8 9 and 1211, Federal and state laws and regulations concerning filing and notice requirements (such as the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1986, as amended, and the Exon-Xxxxxx Act, as amended) other than requirements applicable to charter-related documents such as a certificate of merger;
5. Compliance with fiduciary duty requirements;
6. The statutes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions and judicial decisions to the extent that they deal with any of the foregoing;
7. Fraudulent transfer and fraudulent conveyance laws;
8. Federal and state environmental, land use and subdivision, tax, racketeeringracketeering (e.g., RICO), health and safety and labor laws and regulations;
9. Federal To the extent not otherwise specified in this Schedule C, applicable zoning and building laws, ordinances, code, rules or regulations (e.g., OSHA);
10. Other than to the extent of our opinions in opinion paragraph 11, federal patent, trademark and copyright, state trademark, and other federal and state intellectual property laws and regulations;
1011. Federal and state laws, regulations and policies concerning (i) national and local emergency, (ii) possible judicial deference to acts of sovereign states states, and (iii) criminal and civil forfeiture laws;
1112. Other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes);
1213. Any laws, regulations, directives and executive orders that prohibit or limit the enforceability of obligations based on attributes of the party seeking enforcement (e.g., the Trading with the Enemy Act and the International Emergency Economic Powers Act);
1314. the Anti-Terrorism Order, including Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (together, the “"Anti-Terrorism Order”") as amended, all rules and regulations promulgated thereunder and all federal, state and local laws, statutes, ordinances, orders, governmental rules, regulations, licensing requirements and policies relating to the Anti-Terrorism Order, the foreign assets control regulations of the United States Treasury Department, and to the extent the following relate to any Anti-Terrorism Law such anti-terrorism law or regulation (including without limitation the Executive order of September 23, 2001 Blocking Property and Prohibiting Transactions and Persons Who Commit and Threaten to Commit or Support Terrorism) or the Anti-Terrorism Order: the ownership and operation of, or otherwise regulation of, companies which conduct, operate or otherwise pursue the business or businesses now and in the future conducted, operated or otherwise pursued by any of the BorrowerCredit Parties including, without limitation, the importation, transportation, manufacturing, dealing, purchase, use or storage of explosive materials;
Appears in 1 contract
Collateral Assumptions. The opinions and advice contained in our letter are subject to the following assumptions:
(a) each of the Borrower Credit Parties that grants or purports to grant any lien or security interest in any property or the Collateral (i) has the requisite title and rights to any property involved in the Transactions, including, without limiting the generality of the foregoing, each item of the Collateral existing on the date hereof and (ii) will have the requisite title and rights to each item of the Collateral arising after the date hereof;
(b) value (as defined in Section 1-201(44) of the New York UCC) has been given by you to the Borrower Credit Parties for the security interests and other rights in and assignments of the Collateral described in or contemplated by the Credit Documents;
(c) the descriptions of the Collateral in the Credit Documents and the Financing Statement Statements reasonably describe the property intended to be described as the Collateral; and
(d) all information regarding the secured party on the Financing Statement Statements is accurate and complete in all respects. None of the opinions or advice contained in our letter covers or otherwise addresses any of the following laws, regulations or other governmental requirements or legal issues:
1. Except with respect to the Investment Company Act of 1940, as amended, to the extent of our opinion in opinion paragraph 10, federal securities laws and regulations (including all other laws and regulations administered by the United States Securities and Exchange Commission), state “Blue Sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments;
2. Pension and employee benefit laws and regulations (e.g., ERISA);
3. Federal and state antitrust and unfair competition laws and regulations;
4. Other than as set forth in opinion paragraphs 8 8, 9, and 12, Federal and state laws and regulations concerning filing and notice requirements (such as the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1986, as amended, and the Exon-Xxxxxx Act, as amended) other than requirements applicable to charter-related documents such as a certificate of merger;
5. Compliance with fiduciary duty requirements;
6. The statutes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions and judicial decisions to the extent that they deal with any of the foregoing;
7. Fraudulent transfer and fraudulent conveyance laws;
8. Federal and state environmental, land use and subdivision, tax, racketeering, health and safety and labor laws and regulations;
9. Federal Other than to the extent of our opinions in opinion paragraph 9, federal patent, trademark and copyright, state trademark, and other federal and state intellectual property laws and regulations;
10. Federal and state laws, regulations and policies concerning (i) national and local emergency, (ii) possible judicial deference to acts of sovereign states and (iii) criminal and civil forfeiture laws;
11. Other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes);
12. Any laws, regulations, directives and executive orders that prohibit or limit the enforceability of obligations based on attributes of the party seeking enforcement (e.g., the Trading with the Enemy Act and the International Emergency Economic Powers Act);
13. the Anti-Terrorism Order, including Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (together, the “Anti-Terrorism Order”) as amended, all rules and regulations promulgated thereunder and all federal, state and local laws, statutes, ordinances, orders, governmental rules, regulations, licensing requirements and policies relating to the Anti-Terrorism Order, the foreign assets control regulations of the United States Treasury Department, and to the extent the following relate to any such anti-terrorism law or regulation (including without limitation the Executive order of September 23, 2001 Blocking Property and Prohibiting Transactions and Persons Who Commit and Threaten to Commit or Support Terrorism) or the Anti-Terrorism Order: the ownership and operation of, or otherwise regulation of, companies which conduct, operate or otherwise pursue the business or businesses now and in the future conducted, operated or otherwise pursued by any of the BorrowerCredit Parties including, without limitation, the importation, transportation, manufacturing, dealing, purchase, use or storage of explosive materials;
14. The Federal Power Act, as amended, and the regulations implementing the Federal Power Act, all rules and regulations promulgated under any of the foregoing statutes, the rules, regulations and policies of the Federal Energy Regulatory Commission and any other federal or any state or local regulatory authority, and all other federal state and local laws, orders, regulations, licensing requirements and policies regulating, public utilities, electric utilities or energy facilities or services (and including without limitation any requirement under any such federal, state or local law or regulation that any Credit Party obtain any consent, approval, authorization or order in order to enter into the Credit Documents and perform the transactions contemplated thereby or the effect of any failure to obtain any such consent, approval, authorization or order);
15. The Fair Packaging and Labeling Act, as amended, the Food, Drug and Cosmetic Act, as amended, the Food Security Act of 1985, as amended, the Perishable Agricultural Commodities Act, as amended, the Food, Agriculture, Conservation and Trade Act of 1990, as amended, the Nutritional Labeling and Education Act, as amended, all rules, policies and regulations promulgated under any of the foregoing statutes, and all other federal, state and local laws, orders, regulations, licensing requirements and policies relating to the ownership, operation, processing, production, distribution, purchase or provisions of, or otherwise regulating, food or farm products or animals.
16. Federal, state and local liquor licensing laws and regulations;
17. Title to any property;
18. Except as specifically set forth in opinion paragraph 11, Federal Reserve Board margin regulations; and
19. The effect of any law, regulation or order which becomes effective after the date hereof. We have not undertaken any research for purposes of determining whether any of the Credit Parties or any of the Transactions that may occur in connection with the Credit Agreement or any of the other Credit Documents is subject to any law or other governmental requirement other than to those laws and requirements that in our experience would generally be recognized as applicable to the general business corporations which are engaged in transactions of the type contemplated by the Credit Documents and which are not engaged in regulated business activities in the absence of research by lawyers in the State of New York, and none of our opinions covers any such law or other requirement unless (i) one of our Designated Transaction Lawyers had actual knowledge of its applicability at the time our letter is or was delivered on the date it bears and (ii) it is not excluded from coverage by other provisions in our letter or in any Schedule to our letter. None of the opinions in the letter to which this Schedule is attached covers or otherwise addresses any of the following types of provisions which may be contained in the Credit Documents:
1. Indemnification for gross negligence, bad faith, willful misconduct or wrongdoing or any indemnification for liabilities arising under securities laws;
2. Provisions mandating contribution towards judgments or settlements among various parties;
3. Waivers of (i) legal or equitable defenses, (ii) rights to damages, (iii) rights to counter claim or set off, (iv) statutes of limitations, (v) rights to notice, (vi) the benefits of statutory, regulatory, or constitutional rights, unless and to the extent the statute, regulation, or constitution explicitly allows waiver, (vii) broadly or vaguely stated rights, and (viii) other benefits to the extent they cannot be waived under applicable law;
4. Provisions providing for forfeitures or the recovery of amounts deemed to constitute penalties, or for liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, late charges, prepayment charges, interest upon interest, and increased interest rates upon default;
5. Time-is-of-the-essence clauses;
6. Provisions that provide a time limitation after which a remedy may not be enforced;
7. Confession of judgment clauses;
8. Agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction); provisions restricting access to courts; waiver of the right to jury trial; waiver of service of process requirements which would otherwise be applicable; and provisions otherwise purporting to affect the jurisdiction and venue of courts;
9. Provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings;
10. Provisions appointing one party as an attorney-in-fact for an adverse party or providing that the decision of any particular person will be conclusive or binding on others;
11. Provisions purporting to limit rights of third parties who have not consented thereto or purporting to grant rights to third parties;
12. Provisions that purport to award attorneys’ fees solely to one party;
13. Arbitration agreements;
14. Provisions purporting to create a trust or constructive trust without compliance with applicable trust law;
15. Provisions relating to the application of insurance proceeds and condemnation awards;
16. Provisions that provide for the appointment of a receiver or the taking of possession by the Administrative Agent or Collateral Agent;
17. Provisions or agreements regarding proxies, shareholders agreements, shareholder voting rights, voting trusts, and the like;
18. Confidentiality agreements;
19. Provisions, if any, which are contrary to the public policy of jurisdictions covered by our opinions;
20. Choice-of-law provisions, other than the selection of New York law under the choice of law rules of the State of New York;
21. Provisions in any of the Credit Documents requiring any Credit Party to perform its obligations under, or cause any other person to perform its obligations under, or stating that any action will be taken as provided in or in accordance with, any agreement or other document that is not a Credit Document;
22. Provisions of the Credit Documents insofar as they authorize you or your affiliates to setoff without notice; and
23. Provisions that impose the payment of interest on interest may be unenforceable, void or voidable under applicable law.
Appears in 1 contract
Samples: Asset Based Loan Credit Agreement (Express Parent LLC)
Collateral Assumptions. The opinions and advice contained in our letter are subject to the following assumptions:
(a) the Borrower Each Credit Party which grants or purports to grant any lien or security interest in any property or Collateral (i) has the requisite title and rights to any property involved in the Transactions, including, Transactions including without limiting the generality of the foregoing, each item of the Collateral existing on the date hereof and (ii) will have the requisite title and rights to each item of the Collateral arising after the date hereof;.
(b) value Value (as defined in Section 1-201(44) of the New York UCC) has been given by you to the Borrower each Credit Party for the security interests and other rights in and assignments of the Collateral described in or contemplated by the Credit Loan Documents;.
(c) the The descriptions of the Collateral in the Credit Loan Documents and the Financing Statement reasonably all Uniform Commercial Code financing statements accurately describe the property intended to be described as the Collateral; and.
(d) all The representations made by each Credit Party in the Loan Documents to which it is a party with respect to its jurisdiction of organization and chief executive office are true and correct.
(e) The information regarding the secured party listed on the Financing Statement each Uniform Commercial Code financing statement is accurate and complete in all respects. None of the opinions or advice contained in our letter covers or otherwise addresses any of the following laws, regulations or other governmental requirements or legal issues:
1. Except except with respect to the Investment Company Act of 1940, as amended, to the extent of our opinion in opinion paragraph 1011, federal securities laws and regulations (including all other laws and regulations administered by the United States Securities and Exchange Commission), state “Blue Sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments;
2. Pension pension and employee benefit laws and regulations (e.g., ERISA);
3. Federal and state antitrust and unfair competition laws and regulations;
4. Other other than as set forth to the extent of our opinions in opinion paragraphs 8 and 12paragraph 10, Federal federal and state laws and regulations concerning filing and notice requirements (such as the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1986, as amended, and the Exon-Xxxxxx Act, as amended) other than requirements applicable to charter-related documents such as a certificate of merger;
4. federal and state antitrust and unfair competition laws and regulations;
5. Compliance compliance with fiduciary duty requirements;
6. The the statutes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the federal, state or regional level—e.g., water agencies, joint power districts, turnpike and tollroad authorities, rapid transit districts or authorities, and port authorities) and judicial decisions to the extent that they deal with any of the foregoing;
7. Fraudulent fraudulent transfer and fraudulent conveyance laws;
8. Federal federal and state environmental, tax, land use and subdivision, taxracketeering laws and regulations (e.g., racketeeringRICO), health and safety (e.g. OSHA) and labor laws and regulations;
9. Federal other than to the extent of our opinions in opinion paragraph 10, federal patent, trademark and copyright, state trademark, and other federal and state intellectual property laws and regulations;
10. Federal federal and state laws, regulations and policies concerning (i) national and local emergency, (ii) possible judicial deference to acts of sovereign states states, and (iii) criminal and civil forfeiture laws;
11. Other other than to the extent of our opinions in opinion paragraph 7 with respect to Regulations U and X of the Federal Reserve Board, other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes);
12. Any any laws, regulations, directives and executive orders that prohibit or limit the enforceability of obligations based on attributes of the party seeking enforcement (e.g., the Trading with the Enemy Act and the International Emergency Economic Powers Act);
13. the effect of any law, regulation or order which hereafter is enacted, promulgated or issued;
14. except as specifically set forth in opinion paragraph 7, Federal Reserve Board margin regulations;
15. title to any property; and
16. the Anti-Terrorism Order, including Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (together, the “Anti-Terrorism Order”) as amended, all rules and regulations promulgated thereunder and all federal, state and local laws, statutes, ordinances, orders, governmental rules, regulations, licensing requirements and policies relating to the Anti-Terrorism Order, the foreign assets control regulations of the United States Treasury Department, and to the extent the following relate to any such anti-terrorism law or regulation (including without limitation the Executive order of September 23, 2001 Blocking Property and Prohibiting Transactions and Persons Who Commit and Threaten to Commit or Support Terrorism) or the Anti-Terrorism Order: the ownership and operation of, or otherwise regulation of, companies which conduct, operate or otherwise pursue the business or businesses now and in the future conducted, operated or otherwise pursued by the Borrower;Borrower including, without limitation, the importation, transportation, manufacturing, dealing, purchase, use or storage of explosive materials. We have not undertaken any research for purposes of determining whether any Credit Party or any of the Transactions which may occur in connection with the Credit Agreement or any of the Other Loan Documents is subject to any law or other governmental requirement other than to those laws and requirements which in our experience would generally be recognized as applicable in the absence of research by lawyers in New York, and none of our opinions covers any such law or other requirement unless (i) one of our Designated Transaction Lawyers had actual knowledge of its applicability at the time our letter was delivered on the date it bears and (ii) it is not excluded from coverage by other provisions in our letter or in any Schedule to our letter. None of the opinions in the letter to which this Schedule is attached covers or otherwise addresses any of the following types of provisions which may be contained in the Loan Documents:
1. Covenants not to compete including, without limitation, covenants not to interfere with business or employee relations, covenants not to solicit customers, and covenants not to solicit or hire employees.
2. Indemnification for gross negligence, willful misconduct or other wrongdoing or strict product liability or any indemnification for liabilities arising under securities laws.
3. Provisions mandating contribution towards judgments or settlements among various parties.
4. Waivers of (i) legal or equitable defenses, (ii) rights to damages, (iii) rights to counter claim or set off, (iv) statutes of limitations, (v) rights to notice, (vi) the benefits of statutory, regulatory, or constitutional rights, unless and to the extent the statute, regulation, or constitution explicitly allows waiver, (vii) broadly or vaguely stated rights, and (viii) other benefits to the extent they cannot be waived under applicable law.
5. Provisions providing for forfeitures or the recovery of amounts deemed to constitute penalties, or for liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, interest upon interest and, late charges, prepayment charges, and increased interest rates upon default.
6. Time-is-of-the-essence clauses.
7. Provisions which provide a time limitation after which a remedy may not be enforced.
8. Confession of judgment clauses.
9. Except with respect to submission to the jurisdiction of the courts of the State of New York to the extent provided for in §5-1402 of the New York General Obligations Law, agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction); waiver of service of process requirements which would otherwise be applicable; and provisions otherwise purporting to affect the jurisdiction and venue of courts.
10. Provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings.
11. Provisions appointing one party as an attorney-in-fact for an adverse party or providing that the decision of any particular person will be conclusive or binding on others, except to the extent provided under the UCC.
12. Provisions purporting to limit rights of third parties who have not consented thereto or purporting to grant rights to third parties.
13. Provisions which purport to award attorneys’ fees solely to one party.
14. Provisions purporting to create a trust or constructive trust without compliance with applicable trust law.
15. Provisions that provide for the appointment of a receiver.
16. Provisions or agreements regarding proxies, shareholders agreements, shareholder voting rights, voting trusts, and the like.
17. Confidentiality agreements.
18. Provisions in any of the Loan Documents requiring any Credit Party to perform its obligations under, or to cause any other person to perform its obligations under, or stating that any action will be taken as provided in or in accordance with, any agreement or other document that is not a Loan Document.
19. Provisions, if any, which are contrary to the public policy of any jurisdiction.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Prommis Solutions Holding Corp.)
Collateral Assumptions. The opinions and advice contained in our letter are subject to the following assumptions:
(a) each of the Borrower Credit Parties that grants or purports to grant any lien or security interest in any property or the Collateral (i) has the requisite title and rights to any property involved in the Transactions, including, without limiting the generality of the foregoing, each item of the Collateral existing on the date hereof and (ii) will have the requisite title and rights to each item of the Collateral arising after the date hereof;
(b) value (as defined in Section 1-201(44) of the New York UCC) has been given by you to the Borrower Credit Parties for the security interests and other rights in and assignments of the Collateral described in or contemplated by the Credit Documents;
(c) the descriptions of the Collateral in the Credit Documents and the Financing Statement Statements reasonably describe the property intended to be described as the Collateral; and
(d) all information regarding the secured party on the Financing Statement Statements is accurate and complete in all respects. None of the opinions or advice contained in our letter covers or otherwise addresses any of the following laws, regulations or other governmental requirements or legal issues:
1. Except with respect to the Investment Company Act of 1940, as amended, to the extent of our opinion in opinion paragraph 1011, federal securities laws and regulations (including all other laws and regulations administered by the United States Securities and Exchange Commission), state “Blue Sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments;
2. Pension and employee benefit laws and regulations (e.g., ERISA);
3. Federal and state antitrust and unfair competition laws and regulations;
4. Other than as set forth in opinion paragraphs 8 8, 10, and 1213, Federal and state laws and regulations concerning filing and notice requirements (such as the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1986, as amended, and the Exon-Xxxxxx Act, as amended) other than requirements applicable to charter-related documents such as a certificate of merger;
5. Compliance with fiduciary duty requirements;
6. The statutes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions and judicial decisions to the extent that they deal with any of the foregoing;
7. Fraudulent transfer and fraudulent conveyance laws;
8. Federal and state environmental, land use and subdivision, tax, racketeering, health and safety and labor laws and regulations;
9. Federal Other than to the extent of our opinions in opinion paragraph 10, federal patent, trademark and copyright, state trademark, and other federal and state intellectual property laws and regulations;
10. Federal and state laws, regulations and policies concerning (i) national and local emergency, (ii) possible judicial deference to acts of sovereign states and (iii) criminal and civil forfeiture laws;
11. Other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes);
12. Any laws, regulations, directives and executive orders that prohibit or limit the enforceability of obligations based on attributes of the party seeking enforcement (e.g., the Trading with the Enemy Act and the International Emergency Economic Powers Act);
13. the Anti-Terrorism Order, including Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (together, the “Anti-Terrorism Order”) as amended, all rules and regulations promulgated thereunder and all federal, state and local laws, statutes, ordinances, orders, governmental rules, regulations, licensing requirements and policies relating to the Anti-Terrorism Order, the foreign assets control regulations of the United States Treasury Department, and to the extent the following relate to any such anti-terrorism law or regulation (including without limitation the Executive order of September 23, 2001 Blocking Property and Prohibiting Transactions and Persons Who Commit and Threaten to Commit or Support Terrorism) or the Anti-Terrorism Order: the ownership and operation of, or otherwise regulation of, companies which conduct, operate or otherwise pursue the business or businesses now and in the future conducted, operated or otherwise pursued by any of the BorrowerCredit Parties including, without limitation, the importation, transportation, manufacturing, dealing, purchase, use or storage of explosive materials;
14. The Federal Power Act, as amended, and the regulations implementing the Federal Power Act, all rules and regulations promulgated under any of the foregoing statutes, the rules, regulations and policies of the Federal Energy Regulatory Commission and any other federal or any state or local regulatory authority, and all other federal state and local laws, orders, regulations, licensing requirements and policies regulating, public utilities, electric utilities or energy facilities or services (and including without limitation any requirement under any such federal, state or local law or regulation that any Credit Party obtain any consent, approval, authorization or order in order to enter into the Credit Documents and perform the transactions contemplated thereby or the effect of any failure to obtain any such consent, approval, authorization or order);
15. The Fair Packaging and Labeling Act, as amended, the Food, Drug and Cosmetic Act, as amended, the Food Security Act of 1985, as amended, the Perishable Agricultural Commodities Act, as amended, the Food, Agriculture, Conservation and Trade Act of 1990, as amended, the Nutritional Labeling and Education Act, as amended, all rules, policies and regulations promulgated under any of the foregoing statutes, and all other federal, state and local laws, orders, regulations, licensing requirements and policies relating to the ownership, operation, processing, production, distribution, purchase or provisions of, or otherwise regulating, food or farm products or animals.
16. Federal, state and local liquor licensing laws and regulations;
17. Title to any property;
18. Except as specifically set forth in opinion paragraph 12, Federal Reserve Board margin regulations; and
19. The effect of any law, regulation or order which becomes effective after the date hereof. We have not undertaken any research for purposes of determining whether any of the Credit Parties or any of the Transactions that may occur in connection with the Credit Agreement or any of the other Credit Documents is subject to any law or other governmental requirement other than to those laws and requirements that in our experience would generally be recognized as applicable to the general business corporations which are engaged in transactions of the type contemplated by the Credit Documents and which are not engaged in regulated business activities in the absence of research by lawyers in the State of New York, and none of our opinions covers any such law or other requirement unless (i) one of our Designated Transaction Lawyers had actual knowledge of its applicability at the time our letter is or was delivered on the date it bears and (ii) it is not excluded from coverage by other provisions in our letter or in any Schedule to our letter. None of the opinions in the letter to which this Schedule is attached covers or otherwise addresses any of the following types of provisions which may be contained in the Credit Documents:
1. Indemnification for gross negligence, bad faith, willful misconduct or wrongdoing or any indemnification for liabilities arising under securities laws;
2. Provisions mandating contribution towards judgments or settlements among various parties;
3. Waivers of (i) legal or equitable defenses, (ii) rights to damages, (iii) rights to counter claim or set off, (iv) statutes of limitations, (v) rights to notice, (vi) the benefits of statutory, regulatory, or constitutional rights, unless and to the extent the statute, regulation, or constitution explicitly allows waiver, (vii) broadly or vaguely stated rights, and (viii) other benefits to the extent they cannot be waived under applicable law;
4. Provisions providing for forfeitures or the recovery of amounts deemed to constitute penalties, or for liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, late charges, prepayment charges, interest upon interest, and increased interest rates upon default;
5. Time-is-of-the-essence clauses;
6. Provisions that provide a time limitation after which a remedy may not be enforced;
7. Confession of judgment clauses;
8. Agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction); provisions restricting access to courts; waiver of the right to jury trial; waiver of service of process requirements which would otherwise be applicable; and provisions otherwise purporting to affect the jurisdiction and venue of courts;
9. Provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings;
10. Provisions appointing one party as an attorney-in-fact for an adverse party or providing that the decision of any particular person will be conclusive or binding on others;
11. Provisions purporting to limit rights of third parties who have not consented thereto or purporting to grant rights to third parties;
12. Provisions that purport to award attorneys’ fees solely to one party;
13. Arbitration agreements;
14. Provisions purporting to create a trust or constructive trust without compliance with applicable trust law;
15. Provisions relating to the application of insurance proceeds and condemnation awards;
16. Provisions that provide for the appointment of a receiver or the taking of possession by the Administrative Agent or Collateral Agent;
17. Provisions or agreements regarding proxies, shareholders agreements, shareholder voting rights, voting trusts, and the like;
18. Confidentiality agreements;
19. Provisions, if any, which are contrary to the public policy of jurisdictions covered by our opinions;
20. Choice-of-law provisions, other than the selection of New York law under the choice of law rules of the State of New York;
21. Provisions in any of the Credit Documents requiring any Credit Party to perform its obligations under, or cause any other person to perform its obligations under, or stating that any action will be taken as provided in or in accordance with, any agreement or other document that is not a Credit Document;
22. Provisions of the Credit Documents insofar as they authorize you or your affiliates to setoff without notice; and
23. Provisions that impose the payment of interest on interest may be unenforceable, void or voidable under applicable law.
Appears in 1 contract
