Counsel for the Designated. Company shall have furnished to the Representatives a written opinion, dated the Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives (such counsel being entitled to state that such counsel has made no investigation of the laws of any jurisdiction other than the jurisdiction of organization of the Designated Company and that such counsel’s opinion is confined to matters of the law of such jurisdiction and, as to all matters governed by the laws of the United States and the State of New York, such opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by subsection (e) of this Section 8), substantially to the effect that: (i) The Designated Company has been duly organized in its jurisdiction of organization, with the requisite power and authority to execute and perform its obligations under this Agreement, the applicable Terms Agreement, the Designated Debt Securities and the Indenture; (ii) This Agreement and the applicable Terms Agreement have been duly authorized, executed and delivered by the Designated Company and the consent to service of process contained in Section 17 of this Agreement does not conflict with the law of the jurisdictions of incorporation of the Designated Company; (iii) The issue, sale and delivery of the Designated Securities and the compliance by the Designated Company with all of the provisions of the Indenture, this Agreement and the Terms Agreement relating to the Designated Securities and the consummation by the Designated Company of the transactions contemplated herein and therein will not contravene (x) the provisions of the Designated Company’s charter, or (y) any law, order, rule or regulation having the force of law in the jurisdiction of organization of the Designated Company and applicable to the Designated Company; (iv) No consent, license, approval or authorization of any governmental or other agency or body described in the jurisdiction of organization of the Designated Company is required for the issuance and sale of the Designated Securities by the Designated Company in the manner contemplated herein or the consummation of the other transactions contemplated by this Agreement, the Terms Agreement or the Indenture; (v) The Indenture and the Designated Debt Securities have been duly authorized, executed and delivered by the Designated Company, do not conflict with the laws of the jurisdictions of incorporation of the Designated Company and are enforceable under such laws; no taxes or recording fees are required to be paid in the jurisdiction of organization of the Designated Company with respect to the execution of the Indenture; (vi) The statements in the Prospectus set forth under the caption “Tax Considerations—[jurisdiction of organization of the Designated Company]” with respect to matters of the law of the jurisdiction of organization of the Designated Company constitute a fair summary of such laws; (vii) The choice of the laws of the State of New York as the law governing this Agreement, the Indenture and the Designated Debt Securities does not conflict with the law of the jurisdictions of incorporation of the Designated Company and the submission to the non-exclusive jurisdiction of the New York courts contained in Section 17 of this Agreement is valid and binding under the laws of the jurisdiction of organization of the Designated Company; and (viii) A final judgment by a New York court will be recognized and enforceable against the Designated Company in the jurisdictions of incorporation of the Designated Company. In giving the opinion set forth in subparagraphs (iii), (iv), (v), and (vi) of this subsection (d), such counsel may state that in the case of default by the Designated Company in the performance of its obligations under this Agreement or any other agreement referred to in such opinion, any proceedings in a court in the jurisdiction of organization of the Designated Company to pursue remedies would be subject to the following: (a) a judgment rendered by a court outside the jurisdiction of organization of the Designated Company would not be enforced by the courts in the jurisdiction of organization of the Designated Company without a retrial or re-examination if such judgment was obtained by fraud or in a manner opposed to natural justice or if the enforcement thereof were contrary to public policy in the jurisdiction of organization of the Designated Company; and (b) in any proceedings to enforce in a court in the jurisdiction of organization of the Designated Company a foreign judgment it is open to the defendant to raise any counterclaim which he could have brought if the action had originally been brought in the jurisdiction of organization of the Designated Company unless the subject of the counterclaim was in issue and decided in the foreign proceedings; and in giving the opinion in subparagraph (v) above, such counsel may assume that the Designated Securities conform to the specimen thereof examined by such counsel. If the Designated Company is Novartis Capital Corporation, the opinions set forth in subparagraphs (i) through (vi) shall only be required to the extent not already covered by the opinion required by subsection (e) of this Section 8;
Appears in 2 contracts
Samples: Underwriting Agreement (Novartis Capital CORP), Underwriting Agreement (Novartis Securities Investment Ltd.)
Counsel for the Designated. Trust and the Company satisfactory to the Representatives shall have furnished to the Representatives a their written opinionopinions, dated the each Time of Delivery for such Designated Securities, respectively, in form and substance reasonably satisfactory to the Representatives (such counsel being entitled to state that such counsel has made no investigation of the laws of any jurisdiction other than the jurisdiction of organization of the Designated Company and that such counsel’s opinion is confined to matters of the law of such jurisdiction andRepresentatives, as to all matters governed by the laws of the United States and the State of New York, such opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by subsection (e) of this Section 8), substantially to the effect that:
(i) The Designated Company has been duly organized incorporated and is validly existing as a corporation in its jurisdiction good standing under the laws of organizationthe State of Ohio, with the requisite power and authority (corporate and other) to execute own, lease and perform operate its obligations under this Agreement, properties and conduct its business as described in the applicable Terms Agreement, the Designated Debt Securities and the IndentureProspectus as amended or supplemented;
(ii) This Agreement and the applicable Terms Pricing Agreement have been duly authorized, executed and delivered by the Designated Company and the consent to service of process contained in Section 17 of this Agreement does not conflict with the law of the jurisdictions of incorporation of the Designated Company;
(iii) The issue, sale and delivery of the Designated Securities and the compliance by the Designated Company with all of the provisions of the Indenture, this Agreement and the Terms Agreement relating respect to the Designated Securities and the consummation by the Designated Company of the transactions contemplated herein and therein will not contravene (x) the provisions of the Designated Company’s charter, or (y) any law, order, rule or regulation having the force of law in the jurisdiction of organization of the Designated Company and applicable to the Designated Company;
(iv) No consent, license, approval or authorization of any governmental or other agency or body described in the jurisdiction of organization of the Designated Company is required for the issuance and sale of the Designated Securities by the Designated Company in the manner contemplated herein or the consummation of the other transactions contemplated by this Agreement, the Terms Agreement or the Indenture;
(v) The Indenture and the Designated Debt Securities have been duly authorized, executed and delivered by the Designated Trust and the Company;
(iii) The Designated Securities have been duly authorized by the Company as depositor on behalf of the Designated Trust; the Designated Securities conform to the description of the Securities contained in the Prospectus as amended or supplemented; the issuance by the Company of the Designated Guarantee and the Designated Subordinated Debentures, do the compliance by the Company with all of the provisions of this Agreement and the Pricing Agreement and the Company Agreements, the execution, delivery and performance by the Company of the Company Agreements and the consummation of the transactions herein and therein contemplated will not conflict with the laws or result in a breach or violation of any of the jurisdictions terms or provisions of, or constitute a default under, any indenture, mortgage, deed of incorporation trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Designated Trust, the Company or any of its subsidiaries or any of their properties;
(iv) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Designated Company and are enforceable under Securities being delivered at such laws; no taxes Time of Delivery or recording fees are required to be paid in the jurisdiction of organization issuance of the Designated Guarantee and the Designated Subordinated Debentures or the consummation by the Designated Trust or the Company of the transactions contemplated by this Agreement or such Pricing Agreement and the Company Agreements, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with respect the purchase and distribution of the Designated Securities by the Underwriters or the issuance of the Designated Guarantee and Designated Subordinated Debentures by the Company;
(v) The Designated Subordinated Debentures are in the form prescribed in or pursuant to the execution Indenture, have been duly and validly authorized by the Company by all necessary corporate action and, when completed, executed and authenticated as specified in or pursuant to the Indenture and issued and delivered, will be valid and binding obligations of the IndentureCompany, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to affecting creditors' rights and to general equity principles;
(vi) The statements Company Agreements have each been duly authorized, executed and delivered by the parties thereto and constitute valid and legally binding instruments, enforceable in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Prospectus set forth Indenture, the Designated Guarantee and the Designated Trust Agreement have been duly qualified under the caption “Tax Considerations—[jurisdiction of organization of the Designated Company]” with respect to matters of the law of the jurisdiction of organization of the Designated Company constitute a fair summary of such lawsTrust Indenture Act;
(vii) The choice issuance by the Company of the laws Guarantee and the Subordinated Debentures, the compliance by the Company with all of the State of New York as the law governing this Agreement, the Indenture and the Designated Debt Securities does not conflict with the law of the jurisdictions of incorporation of the Designated Company and the submission to the non-exclusive jurisdiction of the New York courts contained in Section 17 provisions of this Agreement is valid and binding the Pricing Agreement and the Company Agreements, the execution, delivery and performance by the Company of the Company Agreements and the consummation of the transactions herein and therein contemplated will not result in any violation of the provisions of the Company's Articles of Incorporation or Code of Regulations;
(viii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and they have no reason to believe that any of such documents, when they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the laws Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the jurisdiction of organization of the Designated Companycircumstances under which they were made when such documents were so filed, not misleading; and
(viiiix) A final judgment by a New York court will be recognized The Registration Statement and enforceable against the Designated Company in the jurisdictions of incorporation of the Designated Company. In giving the opinion set forth in subparagraphs (iii), (iv), (v)Prospectus as amended or supplemented, and (vi) of this subsection (d), such counsel may state that in the case of default any further amendments and supplements thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the performance Registration Statement or the Prospectus, they have no reason to believe that, as of its obligations under this Agreement effective date, the Registration Statement or any further amendment thereto made by the Designated Trust or the Company prior to such Time of Delivery (other agreement referred than the financial statements and related schedules therein, as to in which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any proceedings in further amendment or supplement thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a court material fact or omitted to state a material fact necessary to make the statements therein, in the jurisdiction of organization light of the circumstances under which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Designated Trust or the Company prior to pursue remedies would be subject such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the following: (a) Registration Statement required to be filed or any contracts or other documents of a judgment rendered character required to be filed as an exhibit to the Registration Statement or required to be incorporated by a court outside reference into the jurisdiction of organization of the Designated Company would not Prospectus as amended or supplemented or required to be enforced by the courts described in the jurisdiction of organization of Registration Statement or the Designated Company without a retrial Prospectus as amended or re-examination if such judgment was obtained supplemented which are not filed or incorporated by fraud reference or in a manner opposed to natural justice or if the enforcement thereof were contrary to public policy in the jurisdiction of organization of the Designated Company; and (b) in any proceedings to enforce in a court in the jurisdiction of organization of the Designated Company a foreign judgment it is open to the defendant to raise any counterclaim which he could have brought if the action had originally been brought in the jurisdiction of organization of the Designated Company unless the subject of the counterclaim was in issue and decided in the foreign proceedings; and in giving the opinion in subparagraph (v) above, such counsel may assume that the Designated Securities conform to the specimen thereof examined by such counsel. If the Designated Company is Novartis Capital Corporation, the opinions set forth in subparagraphs (i) through (vi) shall only be required to the extent not already covered by the opinion required by subsection (e) of this Section 8described as required;
Appears in 1 contract
Samples: Underwriting Agreement (Fifth Third Capital Trust Iv)
Counsel for the Designated. Trust and the Company satisfactory to the Representatives shall have furnished to the Representatives a their written opinionopinions, dated the each Time of Delivery for such Designated Securities, respectively, in form and substance reasonably satisfactory to the Representatives (such counsel being entitled to state that such counsel has made no investigation of the laws of any jurisdiction other than the jurisdiction of organization of the Designated Company and that such counsel’s opinion is confined to matters of the law of such jurisdiction andRepresentatives, as to all matters governed by the laws of the United States and the State of New York, such opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by subsection (e) of this Section 8), substantially to the effect that:
(i) The Designated Company has been duly organized incorporated and is validly existing as a corporation in its jurisdiction good standing under the laws of organizationthe State of Delaware, and The Chase Manhattan Bank (the "Bank") has been duly incorporated and is validly existing as a banking corporation in good standing under the laws of the State of New York, in each case with the requisite full corporate power and authority to execute own, lease and perform operate its obligations under this Agreement, properties and conduct its business as described in the applicable Terms Agreement, the Designated Debt Securities and the IndentureProspectus as amended or supplemented;
(ii) This The Pricing Agreement and with respect to the applicable Terms Agreement have Designated Securities has been duly authorized, executed and delivered by the Designated Company and the consent to service of process contained in Section 17 of this Agreement does not conflict with the law of the jurisdictions of incorporation of the Designated Company;
(iii) The issueexecution, sale delivery and delivery performance by the Company of this Agreement and the Company Agreements and the consummation by the Company and the Designated Trust of the Designated Securities transactions herein and the compliance by the Designated Company with all therein contemplated will not result in any violation of the provisions of the IndentureCompany's Certificate of Incorporation or By-Laws or conflict with or result in a breach or violation of any of the terms or provisions of, this Agreement and or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Terms Agreement relating Company is a party or by which the Company is bound or to which any of the Designated Securities and property or assets of the consummation Company is subject, nor will such actions by the Designated Company result in any violation of the transactions contemplated herein and therein will not contravene (x) the provisions of the Designated Company’s charter, any statute or (y) any law, order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the force of law in the jurisdiction of organization of the Designated Company and applicable to the Designated Companyor its properties;
(iv) No consent, licenseapproval, approval authorization, order, registration or authorization qualification of or with any New York State or Federal court or governmental or other agency or body described in or any Delaware court or governmental agency or body acting pursuant to the jurisdiction of organization of the Designated Company Delaware General Corporation Law is required for the issuance issue and sale of the Designated Securities being delivered at such Time of Delivery or the issuance of the Designated Guarantee and the Designated Subordinated Debentures or the consummation by the Designated Company in the manner contemplated herein Trust or the consummation Company of the other transactions contemplated by this AgreementAgreement and the Company Agreements, except such as have been obtained under the Terms Agreement Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters or the Indentureissuance of the Designated Guarantee and Designated Subordinated Debentures by the Company;
(v) The statements set forth (i) in the Prospectus under the captions "Description of Junior Subordinated Debentures", "Description of Preferred Securities", "Description of Guarantees" and "Relationship Among the Preferred Securities, the Corresponding Junior 11 Subordinated Debentures and the Guarantees", and (ii) in the Prospectus as amended or supplemented under the captions "Certain Terms of Series ___ Capital Securities", "Certain Terms of Series ___ Subordinated Debentures" and "Certain Terms of Series ___ Guarantee", insofar as they purport to constitute summaries of certain terms of the Designated Securities and the Company Agreements, in each case constitute accurate summaries of the Company Agreements and of the terms of such securities, as set forth in the Company Agreements, in all material respects;
(vi) The Designated Subordinated Debentures are in the form prescribed in or pursuant to the Indenture, have been duly and validly authorized by the Company by all necessary corporate action and, when completed, executed and authenticated as specified in or pursuant to the Indenture and issued and delivered against payment therefor as specified in the Company Agreements, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, to general equitable principles (whether considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing;
(vii) The Indenture, the Designated Debt Securities Guarantee and the Trust Agreement for the Designated Trust have each been duly authorized, executed and delivered by the Designated CompanyCompany and, do not conflict with assuming due authorization, execution and delivery by the laws of the jurisdictions of incorporation of the Designated Company and are enforceable under such laws; no taxes or recording fees are required to be paid Debenture Trustee (in the jurisdiction of organization of the Designated Company with respect to the execution case of the Indenture;
), by the Guarantee Trustee (vi) The statements in the Prospectus set forth under the caption “Tax Considerations—[jurisdiction of organization case of the Designated Company]” with respect to matters Guarantee) and by the Trustees (in the case of the law Trust Agreement) constitute valid and legally binding obligations of the jurisdiction Company, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, to general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of organization of good faith and fair dealing; and the Indenture, the Designated Company constitute a fair summary of such laws;
(vii) The choice of the laws of the State of New York as the law governing this Agreement, the Indenture Guarantee and the Designated Debt Securities does not conflict with the law of the jurisdictions of incorporation of the Designated Company and the submission to the non-exclusive jurisdiction of the New York courts contained in Section 17 of this Trust Agreement is valid and binding have been duly qualified under the laws of the jurisdiction of organization of the Designated Company; andTrust Indenture Act;
(viii) A final judgment The Designated Trust is not an "investment company" or an entity "controlled" by a New York court will be recognized and enforceable against the Designated Company an "investment company", as such terms are defined in the jurisdictions Investment Company Act of incorporation of 1940, as amended;
(ix) The Registration Statement and the Designated Company. In giving the opinion set forth in subparagraphs (iii), (iv), (v)Prospectus as amended or supplemented, and (vi) of this subsection (d), such counsel may state that in the case of default any further amendments and supplements thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules and other financial and statistical data therein and the Form T-1 Statements of Eligibility and Qualification of the Trustees, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they have not independently verified and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the performance of its obligations under this Agreement Registration Statement or any other agreement the Prospectus, except for those referred to in such opinion, any proceedings in a court in the jurisdiction of organization of the Designated Company to pursue remedies would be subject to the following: (a) a judgment rendered by a court outside the jurisdiction of organization of the Designated Company would not be enforced by the courts in the jurisdiction of organization of the Designated Company without a retrial or re-examination if such judgment was obtained by fraud or in a manner opposed to natural justice or if the enforcement thereof were contrary to public policy in the jurisdiction of organization of the Designated Company; and (b) in any proceedings to enforce in a court in the jurisdiction of organization of the Designated Company a foreign judgment it is open to the defendant to raise any counterclaim which he could have brought if the action had originally been brought in the jurisdiction of organization of the Designated Company unless the subject of the counterclaim was in issue and decided in the foreign proceedings; and in giving the opinion in subparagraph subsection (v) above, such counsel may assume that the Designated Securities conform to the specimen thereof examined by such counsel. If the Designated Company is Novartis Capital Corporation, the opinions set forth in subparagraphs (i) through (vi) shall only be required to the extent not already covered by the opinion required by subsection (e) of this Section 8;7(c), they have no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Designated Trust or the Company prior to such Time of
Appears in 1 contract
Counsel for the Designated. Company Trust and the Guarantor satisfactory to the Representatives shall have furnished to the Representatives a their written opinion, dated the respective Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives (such counsel being entitled to state that such counsel has made no investigation of the laws of any jurisdiction other than the jurisdiction of organization of the Designated Company and that such counsel’s opinion is confined to matters of the law of such jurisdiction andRepresentatives, as to all matters governed by the laws of the United States and the State of New York, such opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by subsection (e) of this Section 8), substantially to the effect that:
(i) The Designated Company Guarantor has been duly organized incorporated and is validly existing as a corporation in its good standing under the laws of the jurisdiction of organizationits incorporation, with the requisite power and authority (corporate and other) to execute own its properties and perform conduct its obligations under this Agreement, business as described in the applicable Terms Agreement, the Designated Debt Securities and the IndentureProspectus as amended or supplemented;
(ii) This Agreement The Guarantor has an authorized capitalization as set forth in the Prospectus as amended or supplemented and all of the applicable Terms Agreement issued shares of capital stock of the Guarantor have been duly authorized, executed and delivered by the Designated Company validly authorized and the consent to service of process contained in Section 17 of this Agreement does not conflict with the law of the jurisdictions of incorporation of the Designated Companyissued and are fully paid and non-assessable;
(iii) The issueExcept as described in the Prospectus, sale and delivery as amended or supplemented on or prior to the date of the Designated Securities and the compliance by the Designated Company with all of the provisions of the Indenture, this Agreement and the Terms Pricing Agreement relating to the Designated Securities and Securities, there is no action, suit or proceeding pending, nor to the consummation by best of such counsel's knowledge, is there any action, suit or proceeding threatened, which might reasonably be expected to result in a material adverse change in the Designated Company financial condition, results of operations or business of the transactions contemplated herein Guarantor and therein will not contravene (x) the provisions of the Designated Company’s charter, its subsidiaries taken as a whole or (y) any law, order, rule or regulation having the force of law which is required to be disclosed in the jurisdiction of organization of the Designated Company and applicable to the Designated CompanyRegistration Statement;
(iv) No consent, license, approval or authorization of any governmental or other agency or body described in This Agreement and the jurisdiction of organization of Pricing Agreement with respect to the Designated Company is required for the issuance and sale of the Designated Securities by the Designated Company in the manner contemplated herein or the consummation of the other transactions contemplated by this Agreement, the Terms Agreement or the Indenture;
(v) The Indenture and the Designated Debt Securities have been duly authorized, executed and delivered by the Designated Company, do not conflict with Trust and the laws of Guarantor;
(v) The Designated Securities have been duly authorized by the jurisdictions of incorporation depositor on behalf of the Designated Company Trust, are duly and validly issued and nonassessable beneficial interests in the Designated Trust and are enforceable under such lawsentitled to the benefits provided by the Trust Agreement; no taxes or recording fees are required and the Designated Securities conform to be paid the descriptions thereof in the jurisdiction of organization of the Designated Company with respect to the execution of the IndentureProspectus as amended or supplemented;
(vi) The statements in issuance by the Prospectus set forth under the caption “Tax Considerations—[jurisdiction of organization Guarantor of the Designated Company]” Guarantee and the Subordinated Debentures, the compliance by the Guarantor with respect to matters all of the law provisions of this Agreement, the execution, delivery and performance by the Guarantor of the jurisdiction of organization Guarantor Agreements and the consummation of the Designated Company transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a fair summary default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such lawscounsel to which the Guarantor or any of its Significant Subsidiaries is a party or by which the Guarantor or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Guarantor or any of its Significant Subsidiaries is subject, nor will such actions result in any violation of the provisions of the Guarantor's Amended and Restated Certificate of Incorporation, as amended (the "Amended and Restated Certificate of Incorporation") or Amended and Restated By-laws or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body (including any insurance regulatory agency or body) having jurisdiction over the Guarantor or any of its Significant Subsidiaries or any of their properties;
(vii) The choice Guarantor Agreements have each been duly authorized, executed and delivered by the parties thereto and constitute valid and legally binding obligations of the Guarantor, enforceable in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); the State of New York Guarantor Agreements conform to the descriptions thereof in the Prospectus as amended or supplemented; the law governing this Subordinated Debentures are entitled to the benefits provided by the Indenture; and the Trust Agreement, the Indenture and the Designated Debt Securities does not conflict with the law of the jurisdictions of incorporation of the Designated Company and the submission to the non-exclusive jurisdiction of the New York courts contained in Section 17 of this Agreement is valid and binding Guarantee have been duly qualified under the laws of the jurisdiction of organization of the Designated Company; andTrust Indenture Act;
(viii) A final judgment by a New York court will be recognized The issue and enforceable against the Designated Company in the jurisdictions of incorporation sale of the Designated Company. In giving Securities and the opinion set forth compliance by the Designated Trust with all of the provisions of the Designated Securities, the Trust Agreement, this Agreement and the Pricing Agreement with respect to the Designated Securities, the purchase by the Designated Trust of the Subordinated Debentures and the consummation of the transactions herein and therein contemplated will not conflict with or result in subparagraphs a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument known to such counsel to which the Designated Trust is a party or by which the Designated Trust is bound or to which any of the property or assets of the Designated Trust is subject;
(iiiix) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue of the Guarantee or the consummation by the Guarantor of the transactions contemplated by this Agreement or such Pricing Agreement or the Guarantor Agreements, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
(x) Neither the Designated Trust nor the Guarantor is an "investment company" or an entity controlled by an "investment company" required to be registered under the Investment Company Act;
(xi) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion), (iv)when they became effective or were filed with the Commission, (v)as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and (vi) the rules and regulations of the Commission thereunder; and based upon specified participation of such counsel in connection with the preparation of the Registration Statement, such counsel has no reason to believe that any of such documents, when they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein in the light of the circumstances under which they were made when such documents were so filed, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data included in any of the documents mentioned in this subsection (d), clause and that such counsel may state that he has not independently verified factual statements in any such documents; and
(xii) The Registration Statement and the case of default Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Guarantor or the Designated Company in Trust on or prior to the performance of its obligations under this Agreement or any other agreement referred to in such opinion, any proceedings in a court in the jurisdiction of organization date of the Designated Company to pursue remedies would be subject Pricing Agreement relating to the following: Designated Securities (aother than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) a judgment rendered by a court outside comply as to form in all material respects with the jurisdiction of organization requirements of the Designated Company would not be enforced by Act and the courts Trust Indenture Act and the rules and regulations thereunder; based upon specified participation of such counsel in connection with the jurisdiction of organization preparation of the Designated Company without a retrial or re-examination if such judgment was obtained by fraud or in a manner opposed to natural justice or if Registration Statement and the enforcement thereof were contrary to public policy in the jurisdiction of organization of the Designated Company; and (b) in any proceedings to enforce in a court in the jurisdiction of organization of the Designated Company a foreign judgment it is open to the defendant to raise any counterclaim which he could have brought if the action had originally been brought in the jurisdiction of organization of the Designated Company unless the subject of the counterclaim was in issue and decided in the foreign proceedings; and in giving the opinion in subparagraph (v) aboveProspectus, such counsel may assume that has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Guarantor or the Designated Trust on or prior to the date of the Pricing Agreement relating to the Designated Securities conform (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Guarantor or the Designated Trust on or prior to the specimen thereof examined by such counsel. If date of the Pricing Agreement relating to the Designated Company is Novartis Capital CorporationSecurities (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the opinions set forth statements therein, in subparagraphs light of the circumstances in which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Guarantor or the Designated Trust on or prior to the date of the Pricing Agreement relating to the Designated Securities (iother than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) through (vi) shall only be contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading; and such counsel does not know of any amendment to the Registration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the extent Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not already covered filed or incorporated by reference or described as required; it being understood that such counsel may state that he has not independently verified factual statements in the opinion required by subsection Prospectus (e) of this Section 8or any such amendment or supplement);
Appears in 1 contract
Counsel for the Designated. Company Trust and the Guarantor satisfactory to the Representatives shall have furnished to the Representatives a their written opinion, dated the respective Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives (such counsel being entitled to state that such counsel has made no investigation of the laws of any jurisdiction other than the jurisdiction of organization of the Designated Company and that such counsel’s opinion is confined to matters of the law of such jurisdiction andRepresentatives, as to all matters governed by the laws of the United States and the State of New York, such opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by subsection (e) of this Section 8), substantially to the effect that:
(i) The Designated Company Guarantor has been duly organized incorporated and is validly existing as a corporation in its good standing under the laws of the jurisdiction of organizationits incorporation, with the requisite power and authority (corporate and other) to execute own its properties and perform conduct its obligations under this Agreement, business as described in the applicable Terms Agreement, the Designated Debt Securities and the IndentureProspectus as amended or supplemented;
(ii) This Agreement The Guarantor has an authorized capitalization as set forth in the Prospectus as amended or supplemented and all of the applicable Terms Agreement issued shares of capital stock of the Guarantor have been duly authorized, executed and delivered by the Designated Company validly authorized and the consent to service of process contained in Section 17 of this Agreement does not conflict with the law of the jurisdictions of incorporation of the Designated Companyissued and are fully paid and non-assessable;
(iii) The issueExcept as described in the Prospectus, sale and delivery as amended or supplemented on or prior to the date of the Designated Securities and the compliance by the Designated Company with all of the provisions of the Indenture, this Agreement and the Terms Pricing Agreement relating to the Designated Securities and Securities, there is no action, suit or proceeding pending, nor to the consummation by best of such counsel's knowledge, is there any action, suit or proceeding threatened, which might reasonably be expected to result in a material adverse change in the Designated Company financial condition, results of operations or business of the transactions contemplated herein Guarantor and therein will not contravene (x) the provisions of the Designated Company’s charter, its subsidiaries taken as a whole or (y) any law, order, rule or regulation having the force of law which is required to be disclosed in the jurisdiction of organization of the Designated Company and applicable to the Designated CompanyRegistration Statement;
(iv) No consent, license, approval or authorization of any governmental or other agency or body described in This Agreement and the jurisdiction of organization of Pricing Agreement with respect to the Designated Company is required for the issuance and sale of the Designated Securities by the Designated Company in the manner contemplated herein or the consummation of the other transactions contemplated by this Agreement, the Terms Agreement or the Indenture;
(v) The Indenture and the Designated Debt Securities have been duly authorized, executed and delivered by the Designated Company, do not conflict with Trust and the laws of Guarantor;
(v) The Designated Securities have been duly authorized by the jurisdictions of incorporation depositor on behalf of the Designated Company Trust, are duly and validly issued and nonassessable beneficial interests in the Designated Trust and are enforceable under such lawsentitled to the benefits provided by the Trust Agreement; no taxes or recording fees are required and the Designated Securities conform to be paid the descriptions thereof in the jurisdiction of organization of the Designated Company with respect to the execution of the IndentureProspectus as amended or supplemented;
(vi) The statements in issuance by the Prospectus set forth under the caption “Tax Considerations—[jurisdiction of organization Guarantor of the Designated Company]” Guarantee and the Subordinated Debentures, the compliance by the Guarantor with respect to matters all of the law provisions of this Agreement, the execution, delivery and performance by the Guarantor of the jurisdiction of organization Guarantor Agreements and the consummation of the Designated Company transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a fair summary default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such lawscounsel to which the Guarantor or any of its Significant Subsidiaries is a party or by which the Guarantor or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Guarantor or any of its Significant Subsidiaries is subject, nor will such actions result in any violation of the provisions of the Guarantor's Certificate of Incorporation or by-laws or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body (including any insurance regulatory agency or body) having jurisdiction over the Guarantor or any of its Significant Subsidiaries or any of their properties;
(vii) The choice Guarantor Agreements have each been duly authorized, executed and delivered by the parties thereto and constitute valid and legally binding obligations of the Guarantor, enforceable in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); the State of New York Guarantor Agreements conform to the descriptions thereof in the Prospectus as amended or supplemented; the law governing this Subordinated Debentures are entitled to the benefits provided by the Indenture; and the Trust Agreement, the Indenture and the Designated Debt Securities does not conflict with the law of the jurisdictions of incorporation of the Designated Company and the submission to the non-exclusive jurisdiction of the New York courts contained in Section 17 of this Agreement is valid and binding Guarantee have been duly qualified under the laws of the jurisdiction of organization of the Designated Company; andTrust Indenture Act;
(viii) A final judgment by a New York court will be recognized The issue and enforceable against the Designated Company in the jurisdictions of incorporation sale of the Designated Company. In giving Securities and the opinion set forth compliance by the Designated Trust with all of the provisions of the Designated Securities, the Trust Agreement, this Agreement and the Pricing Agreement with respect to the Designated Securities, the purchase by the Designated Trust of the Subordinated Debentures and the consummation of the transactions herein and therein contemplated will not conflict with or result in subparagraphs a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument known to such counsel to which the Designated Trust is a party or by which the Designated Trust is bound or to which any of the property or assets of the Designated Trust is subject;
(iiiix) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue of the Guarantee or the consummation by the Guarantor of the transactions contemplated by this Agreement or such Pricing Agreement or the Guarantor Agreements, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
(x) Neither the Designated Trust nor the Guarantor is an "investment company" or an entity controlled by an "investment company" required to be registered under the Investment Company Act;
(xi) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion), (iv)when they became effective or were filed with the Commission, (v)as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and (vi) the rules and regulations of the Commission thereunder; and based upon specified participation of such counsel in connection with the preparation of the Registration Statement, such counsel has no reason to believe that any of such documents, when they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein in the light of the circumstances under which they were made when such documents were so filed, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data included in any of the documents mentioned in this subsection (d), clause and that such counsel may state that he has not independently verified factual statements in any such documents; and
(xii) The Registration Statement and the case of default Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Guarantor or the Designated Company in Trust on or prior to the performance of its obligations under this Agreement or any other agreement referred to in such opinion, any proceedings in a court in the jurisdiction of organization date of the Designated Company to pursue remedies would be subject Pricing Agreement relating to the following: Designated Securities (aother than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) a judgment rendered by a court outside comply as to form in all material respects with the jurisdiction of organization requirements of the Designated Company would not be enforced by Act and the courts Trust Indenture Act and the rules and regulations thereunder; based upon specified participation of such counsel in connection with the jurisdiction of organization preparation of the Designated Company without a retrial or re-examination if such judgment was obtained by fraud or in a manner opposed to natural justice or if Registration Statement and the enforcement thereof were contrary to public policy in the jurisdiction of organization of the Designated Company; and (b) in any proceedings to enforce in a court in the jurisdiction of organization of the Designated Company a foreign judgment it is open to the defendant to raise any counterclaim which he could have brought if the action had originally been brought in the jurisdiction of organization of the Designated Company unless the subject of the counterclaim was in issue and decided in the foreign proceedings; and in giving the opinion in subparagraph (v) aboveProspectus, such counsel may assume that has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Guarantor or the Designated Trust on or prior to the date of the Pricing Agreement relating to the Designated Securities conform (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Guarantor or the Designated Trust on or prior to the specimen thereof examined by such counsel. If date of the Pricing Agreement relating to the Designated Company is Novartis Capital CorporationSecurities (other than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the opinions set forth statements therein, in subparagraphs light of the circumstances in which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Guarantor or the Designated Trust on or prior to the date of the Pricing Agreement relating to the Designated Securities (iother than the financial statements and related schedules and other financial data therein, as to which such counsel need express no opinion) through (vi) shall only be contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading; and such counsel does not know of any amendment to the Registration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the extent Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not already covered filed or incorporated by reference or described as required; it being understood that such counsel may state that he has not independently verified factual statements in the opinion required by subsection Prospectus (e) of this Section 8or any such amendment or supplement);
Appears in 1 contract
Counsel for the Designated. Trust and the Company satisfactory to the Representatives shall have furnished to the Representatives a their written opinionopinions, dated the each Time of Delivery for such Designated Securities, respectively, in form and substance reasonably satisfactory to the Representatives (such counsel being entitled to state that such counsel has made no investigation of the laws of any jurisdiction other than the jurisdiction of organization of the Designated Company and that such counsel’s opinion is confined to matters of the law of such jurisdiction andRepresentatives, as to all matters governed by the laws of the United States and the State of New York, such opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by subsection (e) of this Section 8), substantially to the effect that:
(i) The Designated Company has been duly organized incorporated and is validly existing as a corporation in its jurisdiction good standing under the laws of organizationthe State of Ohio, with the requisite power and authority (corporate and other) to execute own, lease and perform operate its obligations under this Agreement, properties and conduct its business as described in the applicable Terms Agreement, the Designated Debt Securities and the IndentureProspectus as amended or supplemented;
(ii) This Agreement and the applicable Terms Pricing Agreement have been duly authorized, executed and delivered by the Designated Company and the consent to service of process contained in Section 17 of this Agreement does not conflict with the law of the jurisdictions of incorporation of the Designated Company;
(iii) The issue, sale and delivery of the Designated Securities and the compliance by the Designated Company with all of the provisions of the Indenture, this Agreement and the Terms Agreement relating respect to the Designated Securities and the consummation by the Designated Company of the transactions contemplated herein and therein will not contravene (x) the provisions of the Designated Company’s charter, or (y) any law, order, rule or regulation having the force of law in the jurisdiction of organization of the Designated Company and applicable to the Designated Company;
(iv) No consent, license, approval or authorization of any governmental or other agency or body described in the jurisdiction of organization of the Designated Company is required for the issuance and sale of the Designated Securities by the Designated Company in the manner contemplated herein or the consummation of the other transactions contemplated by this Agreement, the Terms Agreement or the Indenture;
(v) The Indenture and the Designated Debt Securities have been duly authorized, executed and delivered by the Designated Trust and the Company;
(iii) The Designated Securities have been duly authorized by the Company as depositor on behalf of the Designated Trust; the Designated Securities conform to the description of the Securities contained in the Prospectus as amended or supplemented; the issuance by the Company of the Designated Guarantee and the Designated Junior Subordinated Debentures, do the compliance by the Company with all of the provisions of this Agreement and the Pricing Agreement and the Company Agreements, the execution, delivery and performance by the Company of the Company Agreements and the consummation of the transactions herein and therein contemplated will not conflict with the laws or result in a breach or violation of any of the jurisdictions terms or provisions of, or constitute a default under, any indenture, mortgage, deed of incorporation trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Designated Trust, the Company or any of its subsidiaries or any of their properties;
(iv) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Designated Company and are enforceable under Securities being delivered at such laws; no taxes Time of Delivery or recording fees are required to be paid in the jurisdiction of organization issuance of the Designated Guarantee and the Designated Junior Subordinated Debentures or the consummation by the Designated Trust or the Company of the transactions contemplated by this Agreement or such Pricing Agreement and the Company Agreements, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with respect the purchase and distribution of the Designated Securities by the Underwriters or the issuance of the Designated Guarantee and Designated Junior Subordinated Debentures by the Company;
(v) The Designated Junior Subordinated Debentures are in the form prescribed in or pursuant to the execution Indenture, have been duly and validly authorized by the Company by all necessary corporate action and, when completed, executed and authenticated as specified in or pursuant to the Indenture and issued and delivered, will be valid and binding obligations of the IndentureCompany, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to affecting creditors' rights and to general equity principles;
(vi) The statements Company Agreements have each been duly authorized, executed and delivered by the parties thereto and constitute valid and legally binding instruments, enforceable in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Prospectus set forth Indenture, the Designated Guarantee and the Designated Trust Agreement have been duly qualified under the caption “Tax Considerations—[jurisdiction of organization of the Designated Company]” with respect to matters of the law of the jurisdiction of organization of the Designated Company constitute a fair summary of such lawsTrust Indenture Act;
(vii) The choice issuance by the Company of the laws Guarantee and the Junior Subordinated Debentures, the compliance by the Company with all of the State of New York as the law governing this Agreement, the Indenture and the Designated Debt Securities does not conflict with the law of the jurisdictions of incorporation of the Designated Company and the submission to the non-exclusive jurisdiction of the New York courts contained in Section 17 provisions of this Agreement is valid and binding the Pricing Agreement and the Company Agreements, the execution, delivery and performance by the Company of the Company Agreements and the consummation of the transactions herein and therein contemplated will not result in any violation of the provisions of the Company's Articles of Incorporation or Code of Regulations;
(viii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and they have no reason to believe that any of such documents, when they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the laws Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the jurisdiction of organization of the Designated Companycircumstances under which they were made when such documents were so filed, not misleading; and
(viiiix) A final judgment by a New York court will be recognized The Registration Statement and enforceable against the Designated Company in the jurisdictions of incorporation of the Designated Company. In giving the opinion set forth in subparagraphs (iii), (iv), (v)Prospectus as amended or supplemented, and (vi) of this subsection (d), such counsel may state that in the case of default any further amendments and supplements thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the performance Registration Statement or the Prospectus, they have no reason to believe that, as of its obligations under this Agreement effective date, the Registration Statement or any further amendment thereto made by the Designated Trust or the Company prior to such Time of Delivery (other agreement referred than the financial statements and related schedules therein, as to in which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any proceedings in further amendment or supplement thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a court material fact or omitted to state a material fact necessary to make the statements therein, in the jurisdiction of organization light of the circumstances under which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Designated Trust or the Company prior to pursue remedies would be subject such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the following: (a) Registration Statement required to be filed or any contracts or other documents of a judgment rendered character required to be filed as an exhibit to the Registration Statement or required to be incorporated by a court outside reference into the jurisdiction of organization of the Designated Company would not Prospectus as amended or supplemented or required to be enforced by the courts described in the jurisdiction of organization of Registration Statement or the Designated Company without a retrial Prospectus as amended or re-examination if such judgment was obtained supplemented which are not filed or incorporated by fraud reference or in a manner opposed to natural justice or if the enforcement thereof were contrary to public policy in the jurisdiction of organization of the Designated Company; and (b) in any proceedings to enforce in a court in the jurisdiction of organization of the Designated Company a foreign judgment it is open to the defendant to raise any counterclaim which he could have brought if the action had originally been brought in the jurisdiction of organization of the Designated Company unless the subject of the counterclaim was in issue and decided in the foreign proceedings; and in giving the opinion in subparagraph (v) above, such counsel may assume that the Designated Securities conform to the specimen thereof examined by such counsel. If the Designated Company is Novartis Capital Corporation, the opinions set forth in subparagraphs (i) through (vi) shall only be required to the extent not already covered by the opinion required by subsection (e) of this Section 8described as required;
Appears in 1 contract
Counsel for the Designated. Trust and the Company satisfactory to the Representatives shall have furnished to the Representatives a their written opinionopinions, dated the each Time of Delivery for such Designated Securities, respectively, in form and substance reasonably satisfactory to the Representatives (such counsel being entitled to state that such counsel has made no investigation of the laws of any jurisdiction other than the jurisdiction of organization of the Designated Company and that such counsel’s opinion is confined to matters of the law of such jurisdiction andRepresentatives, as to all matters governed by the laws of the United States and the State of New York, such opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by subsection (e) of this Section 8), substantially to the effect that:
(i) The Designated Company has been duly organized incorporated and is validly existing as a corporation in its jurisdiction good standing under the laws of organizationthe Commonwealth of Pennsylvania, with and has the requisite corporate power and authority to execute own its properties and perform conduct its obligations business as described in the Prospectus as amended or supplemented; and each of the Company's principal wholly owned banking subsidiaries, as described in the Prospectus as amended or supplemented, has been duly established and is validly existing as a national banking association or a state bank, as the case may be, under this Agreement, the applicable Terms Agreement, laws of the Designated Debt Securities and the Indenturejurisdiction of its formation;
(ii) The Company has an authorized capitalization as set forth in the Prospectus as amended or supplemented;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction;
(iv) All of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued, is fully paid and non-assessable (except, in the case of each of its national bank subsidiaries, as provided in 12 U.S.C. Section 55, as amended), and, except for directors' qualifying shares, is owned by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(v) To the best of such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, taking into account the likelihood of the outcome, the damages or other relief sought and other relevant factors, would individually or in the aggregate have a material adverse effect on the financial position, shareholders' equity or results of operation of the Company and its subsidiaries on a consolidated basis; to the best of such counsel's knowledge, there are no legal or governmental proceedings pending to which the Designated Trust is a party or of which any property of the Designated Trust is the subject; and to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) This Agreement and the applicable Terms Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Designated Company Trust and the consent to service of process contained in Section 17 of this Agreement does not conflict with the law of the jurisdictions of incorporation of the Designated Company;
(iiivii) The issueDesignated Securities have been duly authorized by the Company as depositor on behalf of the Designated Trust, sale are duly and delivery validly issued and non-assessable beneficial interests in the Designated Trust and are entitled to the benefits provided by the Trust Agreement; and the Designated Securities conform to the description of the Securities contained in the Prospectus as amended or supplemented;
(viii) The Designated Subordinated Debentures are in the form prescribed in or pursuant to the Indenture, have been duly and validly authorized by the Company by all necessary corporate action and are valid and binding obligations of the Company, enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to affecting creditors' rights and to general equity principles; the Designated Subordinated Debentures are entitled to the benefits of the Indenture; and the Designated Securities and the Designated Subordinated Debentures conform to the descriptions thereof in the Prospectus;
(ix) The Company Agreements have each been duly authorized, executed and delivered by the parties thereto and constitute valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; the Company Agreements conform to the descriptions thereof in the Prospectus as amended or supplemented; and the Indenture, the Designated Guarantee and the Designated Trust Agreement have been duly qualified under the Trust Indenture Act;
(x) The issuance by the Company of the Designated Subordinated Debentures and the Designated Guarantee, the compliance by the Designated Company with all of the provisions of the Indenture, this Agreement and the Terms Pricing Agreement relating to and the Designated Securities Company Agreements, the execution, delivery and performance by the Company of the Company Agreements and the consummation by the Designated Company of the transactions contemplated herein and therein contemplated will not contravene (x) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Designated Company’s charterArticles of Incorporation, as amended, or (y) the By-Laws of the Company or any law, statute or any order, rule or regulation having the force of law in the jurisdiction of organization of the Designated Company and applicable to the Designated Company;
(iv) No consent, license, approval or authorization of any court or governmental or other agency or body described in having jurisdiction over the jurisdiction Company or any of organization its subsidiaries or any of the Designated Company their properties; and no consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body is required for the issuance issue and sale of the Designated Securities by or the Designated Company in the manner contemplated herein Subordinated Debentures or the consummation of the other transactions contemplated by this Agreement, the Terms Pricing Agreement or the IndentureCompany Agreements, except such as have been obtained under the Act and the Trust Indenture Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the sale and distribution of the Designated Securities or the Designated Subordinated Debentures;
(vxi) The Indenture statements set forth (A) in the Prospectus under the captions "Description of Junior Subordinated Debentures", "Description of Preferred Securities", "Description of Guarantees" and "Relationship Among the Preferred Securities, the Corresponding Junior Subordinated Debentures, the Expense Agreement and the Guarantees", and (B) in the Prospectus as amended or supplemented under the captions "Certain Terms of Series A Capital Securities", "Certain Terms of Series A Subordinated Debentures" and "Certain Terms of Series A Guarantee", insofar as they constitute a summary of the terms of the Securities, Subordinated Debentures, the Guarantees and the Company Agreements (including the Designated Securities, the Designated Subordinated Debentures and the Designated Debt Securities have been duly authorizedGuarantees), executed and delivered (x) in the Prospectus under the caption "Plan of Distribution" and (y) in the Prospectus as amended or supplemented under the caption "Underwriting", are, insofar they purport to describe the provisions of the laws and documents referred to therein, in each case are accurate, complete and fair;
(xii) The Designated Trust is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Designated CompanyInvestment Company Act;
(xiii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules therein, do not conflict as to which such counsel need express no opinion), when they became effective or were filed with the laws Commission, as the case may be, complied as to form in all material respects with the requirements of the jurisdictions of incorporation Act or the Exchange Act, as applicable, and the rules and regulations of the Designated Company Commission thereunder; and are enforceable they have no reason to believe that any of such documents, when they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under such laws; no taxes the Act, an untrue statement of a material fact or recording fees are omitted to state a material fact required to be paid stated therein or necessary to make the statements therein not misleading, or, in the jurisdiction case of organization other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the Designated Company with respect to the execution of the Indenture;
(vi) The statements in the Prospectus set forth circumstances under the caption “Tax Considerations—[jurisdiction of organization of the Designated Company]” with respect to matters of the law of the jurisdiction of organization of the Designated Company constitute a fair summary of which they were made when such laws;
(vii) The choice of the laws of the State of New York as the law governing this Agreementdocuments were so filed, the Indenture and the Designated Debt Securities does not conflict with the law of the jurisdictions of incorporation of the Designated Company and the submission to the non-exclusive jurisdiction of the New York courts contained in Section 17 of this Agreement is valid and binding under the laws of the jurisdiction of organization of the Designated Companymisleading; and
(viiixiv) A final judgment by a New York court will be recognized The Registration Statement and enforceable against the Designated Company in the jurisdictions of incorporation of the Designated Company. In giving the opinion set forth in subparagraphs (iii), (iv), (v)Prospectus as amended or supplemented, and (vi) of this subsection (d), such counsel may state that in the case of default any further amendments and supplements thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the performance of its obligations under this Agreement Registration Statement or any other agreement the Prospectus, except for those referred to in such opinion, any proceedings in a court in the jurisdiction of organization of the Designated Company to pursue remedies would be subject to the following: (a) a judgment rendered by a court outside the jurisdiction of organization of the Designated Company would not be enforced by the courts in the jurisdiction of organization of the Designated Company without a retrial or re-examination if such judgment was obtained by fraud or in a manner opposed to natural justice or if the enforcement thereof were contrary to public policy in the jurisdiction of organization of the Designated Company; and (b) in any proceedings to enforce in a court in the jurisdiction of organization of the Designated Company a foreign judgment it is open to the defendant to raise any counterclaim which he could have brought if the action had originally been brought in the jurisdiction of organization of the Designated Company unless the subject of the counterclaim was in issue and decided in the foreign proceedings; and in giving the opinion in subparagraph (v) above, such counsel may assume that the Designated Securities conform to the specimen thereof examined by such counsel. If the Designated Company is Novartis Capital Corporation, the opinions set forth in subparagraphs (i) through (vi) shall only be required to the extent not already covered by the opinion required by subsection (eviii) of this Section 87(c), they have no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Designated Trust or the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required;
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