Morris, Nichols, Arsht. Tunnxxx, xxecial Delaware counsel to the Offerors, shall have furnished to you their signed opinion, dated as of Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act, 12 DEL. C. secs. 3801 ET SEQ. (the "Delaware Act"), with the business trust power and authority to (a) own its property and conduct its business as described in the Prospectus, (b) execute and deliver, and perform its obligations under, this Agreement and (c) issue and perform its obligations under the Trust Preferred Securities.
(ii) The Trust Agreement constitutes a legal, valid and binding obligation of the Company and the trustees of the Trust in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware Act, all necessary trust action has been taken on the part of the Trust to duly authorize the execution and delivery of this Agreement by the Trust and the performance of its obligations hereunder.
(iv) The Designated Preferred Securities have been duly authorized for issuance by the Trust Agreement and, when issued and delivered in accordance with the terms of the Trust Agreement and this Agreement and as described in the Prospectus, will be validly issued and (subject to the terms of the Trust Agreement) fully paid and non-assessable undivided beneficial interests in the assets of the Trust. The holders of the Preferred Securities 23 will be entitled to the benefits of the Trust Agreement and will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the Delaware General Corporation Law. Such opinion may note that the holders of the Preferred Securities may be required to make payment or provide indemnity or security as set forth in the Trust Agreement.
(v) Under the Trust Agreement and the Delaware Act, the issuance of the Preferred Securities is not subject to preemptive rights.
(vi) The issuance and sale by the Trust of the Designated Preferred Securities and the Common Securities, the execution, delivery and performance by the Trust of this Agreement, and the consummation by the Trust of the transactions contemplated by this Agreement do not violate (a) any of the provisions of the Certificate of Trust or the Trust Agreement or (b) any applicable Delaware law or admini...
Morris, Nichols, Arsht. Xxxxxxx LLP., special Delaware counsel to the Borrower, and (iv) Fulbright and Xxxxxxxx L.L.P., special Texas counsel to the Borrower, each such opinion to be dated the Effective Date and in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
Morris, Nichols, Arsht. Xxxxxxx LLP, special Delaware counsel to the Bank, the Transferor and the Issuer, shall have furnished to the Underwriters a written opinion, addressed to the Underwriters and dated the Closing Date, in form and substance satisfactory to the Underwriters, substantially to the effect that:
(i) The Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq. (referred to in this subsection (k) as the “Statutory Trust Act”).
(ii) The Trust Agreement constitutes a legal, valid and binding obligation of each of the Transferor and the Owner Trustee, enforceable against each of the Transferor and the Owner Trustee in accordance with its terms, provided that such counsel expresses no opinion with respect to the enforceability of (a) any other document referenced or incorporated by reference in the Trust Agreement (other than the LLC Agreement (as defined below) to the extent addressed by the opinion in Section 8(k)(xxiii) below), (b) any purported waiver or consent granted by the Transferor or the Owner Trustee pursuant to the Trust Agreement except to the extent the Transferor or the Owner Trustee, as applicable, may so waive or consent and has effectively so waived or consented in accordance with applicable law, or (c) the Trust Agreement against or with respect to any person or entity that is not a party thereto, and further, such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights and remedies, as from time to time in effect, (B) application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law), (C) considerations of public policy or the effect of applicable law relating to fiduciary duties and (D) principles of course of dealing or course of performance and standards of good faith, fair dealing, materiality and reasonableness that may be applied by a court to the exercise of rights and remedies.
(iii) The Trust has requisite statutory trust power and authority under the Trust Agreement and the Statutory Trust Act to execute, deliver and perform each of the Transaction Documents to which the Trust is a party, to issue the Notes and to grant the Trust Estate (as defined in the Indenture) to the Indenture Trustee as security for the Not...
