No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCo, Inc. 000 Xxxxxxxx Xxxx Road Purchase, New York 10577 Ladies and Gentlemen: We understand that PepsiCo, Inc., a North Carolina corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of February 25, 2009 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. We, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. Total $ The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October , 2008, preliminary prospectus supplement dated , 20 , Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. Re: PepsiCo, Inc. 3.75% Senior Notes due 2014 Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC Xxxxxx Xxxxxxx & Co., Inc. as Representatives of the several Underwriters named in the Underwriting Agreement c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as special counsel for PepsiCo, Inc. (the “Company”), a North Carolina corporation, in connection with the Terms Agreement dated February 25, 2009 (together with the PepsiCo, Inc. Underwriting Agreement Standard Provisions (the “Standard Provisions”) dated February 25, 2009 incorporated therein, the “Underwriting Agreement”) among you, as the representatives of the several underwriters named in the Underwriting Agreement (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $1,000,000,000 aggregate principal amount of its 3.75% Senior Notes due 2014 (the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered to you at the request of the Company pursuant to Section 5(a) of the Standard Provisions. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25, 2009 relating to the Notes, the free writing prospectus set forth in Schedule II to the Underwriting Agreement (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25, 2009 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that: 1. The Indenture was duly qualified under the Trust Indenture Act of 1939, as amended, and assuming due authorization, execution and delivery thereof by the Company, the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto. 2. Assuming the due authorization of the Notes by the Company, the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto. 3. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Indenture, the Notes and the Underwriting Agreement (collectively, the “Documents”) is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion in this paragraph (3).
Appears in 1 contract
Samples: Terms Agreement (Pepsico Inc)
No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCoXxxxxx Oil Corporation 000 Xxxxx Xxxxxx, Inc. 000 X.X. Xxx 0000 Xx Xxxxxx, Xxxxxxxx Xxxx Road Purchase, New York 10577 00000-0000 Ladies and Gentlemen: We understand that PepsiCo, Inc.Xxxxxx Oil Corporation, a North Carolina Delaware corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Xxxxxx Oil Corporation Underwriting Agreement Standard Provisions dated as of February 25, 2009 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. We, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. [Name] Total $ [$] The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price [Number][Principal Amount] of Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) ___ days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October _______ ___, 20082009, preliminary prospectus supplement dated ___, 20 20___, Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. Re: PepsiCo, Inc. 3.75% Senior Notes due 2014 Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC Xxxxxx Xxxxxxx & Co., Inc. as Representatives of the several Underwriters named in the Underwriting Agreement c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as special counsel for PepsiCo, Inc. (the “Company”), a North Carolina corporation, in connection with the Terms Agreement dated February 25, 2009 (together with the PepsiCo, Inc. Underwriting Agreement Standard Provisions (the “Standard Provisions”) dated February 25, 2009 incorporated therein, the “Underwriting Agreement”) among you, as the representatives of the several underwriters named in the Underwriting Agreement (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $1,000,000,000 aggregate principal amount of its 3.75% Senior Notes due 2014 (the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered to you at the request of the Company pursuant to Section 5(a) of the Standard Provisions. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25, 2009 relating to the Notes, the free writing prospectus set forth in Schedule II to the Underwriting Agreement (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25, 2009 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that:
1. The Indenture was duly qualified under the Trust Indenture Act of 1939, as amended, and assuming due authorization, execution and delivery thereof by the Company, the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
2. Assuming the due authorization of the Notes by the Company, the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
3. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Indenture, the Notes and the Underwriting Agreement (collectively, the “Documents”) is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion in this paragraph (3).
Appears in 1 contract
No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCo, Inc. 000 Xxxxxxxx Xxxx Road Purchase, New York 10577 Ladies and Gentlemen: We understand that PepsiCo, Inc., a North Carolina corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of February 25October [___], 2009 2008 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. We, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. [Name] Total $ The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) ___days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October ___, 2008, preliminary prospectus supplement dated ___, 20 20___, Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. October 24, 2008 Re: PepsiCo, Inc. 3.757.90% Senior Notes due 2014 2018 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC Xxxxxx Xxxxxxx & Co.The Xxxxxxxx Capital Group, Inc. L.P. as Representatives of the several Underwriters named in the Underwriting Agreement referred to below c/o Morgan Xxxxxxx Merrill Lynch, Pierce, Xxxxxx & Co. Xxxxx Incorporated 0000 Xxxxxxxx Xxx Xxxx4 World Financial Center 000 Xxxxx Xxxxxx New York, Xxx Xxxx 00000 New York 10080 Ladies and Gentlemen: We have acted as special counsel for PepsiCo, Inc. (the “Company”), a North Carolina corporation, in connection with the Terms Agreement dated February 25October 21, 2009 2008 (together with the PepsiCo, Inc. incorporated Underwriting Agreement Standard Provisions (the “Standard Provisions”) dated February 25October 21, 2009 incorporated therein2008, the “Underwriting Agreement”) among the Company and you, as the representatives of the several underwriters named in the Underwriting Agreement therein (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $1,000,000,000 2,000,000,000 aggregate principal amount of its 3.757.90% Senior Notes due 2014 2018 (the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered furnished to you at the request of the Company pursuant to Section 5(a) of the Standard ProvisionsUnderwriting Agreement. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25October 21, 2009 2008 relating to the Notes, the free writing prospectus set forth in Schedule II to the Underwriting Agreement (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25October 21, 2009 2008 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof of the registration statement with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that:
1. The Indenture was duly qualified under the Trust Indenture Act of 1939, as amended, upon the filing of the Registration Statement with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act, and assuming due authorization, execution and delivery thereof by the Company, the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we counsel need not express no any opinion as to (xw) the enforceability of any waiver of rights under any usury or stay law or law, (yx) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto, or (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
2. Assuming the due authorization of the Notes by the Company, the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we counsel need not express no any opinion as to (xw) the enforceability of any waiver of rights under any usury or stay law or law, (yx) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, Code or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto, or (y) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
3. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Indenture, the Notes and the Underwriting Agreement (collectively, the “Documents”) is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion in this paragraph (3).
Appears in 1 contract
Samples: Terms Agreement (Pepsico Inc)
No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCo, Inc. 000 Xxxxxxxx Xxxx Road Purchase, New York 10577 Ladies and Gentlemen: We understand that PepsiCo, Inc., a North Carolina corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of February 25October 19, 2009 2010 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. We, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. Total $ The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) ___ days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October ___, 2008, preliminary prospectus supplement dated ___, 20 20___, Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. October 26, 2010 Re: PepsiCo, Inc. 3.750.875% Senior Notes due 2014 2013 3.125% Senior Notes due 2020 4.875% Senior Notes due 2040 X.X. Xxxxxx Xxxxxxx & Co. Incorporated Securities LLC BNP Paribas Securities Corp. UBS Securities LLC Xxxxxx Xxxxxxx & Co., Inc. as Representatives of the several Underwriters named in the Underwriting Agreement c/o Morgan X.X. Xxxxxx Securities LLC 000 Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as special counsel for PepsiCo, Inc. (the “Company”), a North Carolina corporation, in connection with the Terms Agreement dated February 25October 19, 2009 2010 (together with the PepsiCo, Inc. Underwriting Agreement Standard Provisions (the “Standard Provisions”) dated February 25October 19, 2009 2010 incorporated therein, the “Underwriting Agreement”) among you, as the representatives of the several underwriters named in the Underwriting Agreement (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $500,000,000 aggregate principal amount of its 0.875% Senior Notes due 2013 (the “2013 Notes”), $1,000,000,000 aggregate principal amount of its 3.753.125% Senior Notes due 2014 2020 (the “2020 Notes”) and $750,000,000 aggregate principal amount of its 4.875% Senior Notes due 2040 (the “2040 Notes” and, together with the 2013 Notes and the 2020 Notes, the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered to you at the request of the Company pursuant to Section 5(a) of the Standard Provisions. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25October 19, 2009 2010 relating to the Notes, the free writing prospectus set dated October 19, 2010 filed by the Company pursuant to Rule 433 under the Act setting forth in Schedule II to certain terms of the Underwriting Agreement Notes (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25October 19, 2009 2010 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that:
1. The Indenture was duly qualified under the Trust Indenture Act of 1939, as amended, and assuming due authorization, execution and delivery thereof by the Company, the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
2. Assuming the due authorization of the Notes by the Company, the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
3. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Indenture, the Notes and the Underwriting Agreement (collectively, the “Documents”) is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion in this paragraph (3).
Appears in 1 contract
Samples: Terms Agreement (Pepsico Inc)
No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCo, Inc. 000 Xxxxxxxx Xxxx Road Purchase, New York 10577 Ladies and Gentlemen: We understand that PepsiCo, Inc., a North Carolina corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of February 25October 1, 2009 2008 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. We, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. [Name] Total $ [$] The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) ___ days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October ___, 2008, preliminary prospectus supplement dated ___, 20 20___, Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. Re: PepsiCo, Inc. 3.75% Senior Notes due 2014 Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC Xxxxxx Xxxxxxx & Co., Inc. as Representatives of the several Underwriters named in the Underwriting Agreement c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as special counsel for PepsiCo, Inc. (the “Company”), a North Carolina corporation, in connection with the Terms Agreement dated February 25, 2009 (together with the PepsiCo, Inc. Underwriting Agreement Standard Provisions (the “Standard Provisions”) dated February 25, 2009 incorporated therein, the “Underwriting Agreement”) among you, as the representatives of the several underwriters named in the Underwriting Agreement (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $1,000,000,000 aggregate principal amount of its 3.75% Senior Notes due 2014 (the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered to you at the request of the Company pursuant to Section 5(a) of the Standard Provisions. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25, 2009 relating to the Notes, the free writing prospectus set forth in Schedule II to the Underwriting Agreement (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25, 2009 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that:
1. The Indenture was duly qualified under the Trust Indenture Act of 1939, as amended, and assuming due authorization, execution and delivery thereof by the Company, the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
2. Assuming the due authorization of the Notes by the Company, the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
3. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Indenture, the Notes and the Underwriting Agreement (collectively, the “Documents”) is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion in this paragraph (3).
Appears in 1 contract
Samples: Underwriting Agreement (Pepsico Inc)
No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (ai) the purchase purchase, resale and sale of the Underwritten Securities Rights Entitlements and the Rights Equity Shares pursuant to the Standard Provisions and the applicable Terms this Agreement, including the determination of the public offering price of the Underwritten Securities Issue Price and any related discounts and commissions, is an arm’s-arm’s length commercial transaction between the Company, on the one hand, and the several UnderwritersLead Managers, and any Affiliate through which the Lead Managers may be acting, on the other hand, (bii) in connection with the offering issuance, sale and delivery contemplated hereby and hereby, the process leading to such transaction each Underwriter is and has been any resale, the Lead Managers are acting solely as a principal and is not the as an agent or as a fiduciary of the Company, Company or its stockholders, creditors, employees or any other party, (ciii) no Underwriter has the Lead Managers have not assumed or will assume an advisory or fiduciary responsibility in favor favour of the Company with respect to the offering Issue contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has the Lead Managers have advised or is are currently advising the Company on other matters) and the Lead Managers have no Underwriter has any obligation to the Company with respect regard to the offering Issue contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms this Agreement, (div) the Underwriters Lead Managers and their respective affiliates Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the CompanyCompany and that nothing contained herein would preclude or limit in any way the ability of the Lead Managers and their Affiliates from providing similar services to other customers or otherwise acting on behalf of other customers or for their own account or otherwise, and (ev) the Underwriters Lead Managers have not provided any legal, accounting, regulatory or tax advice with respect to the offering issuance, sale and delivery contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCo, Inc. 000 Xxxxxxxx Xxxx Road Purchase, New York 10577 Ladies and Gentlemen: We understand that PepsiCo, Inc., a North Carolina corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of February 25, 2009 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. WeFurthermore, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. Total $ The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October , 2008, preliminary prospectus supplement dated , 20 , Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants agrees that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. Re: PepsiCo, Inc. 3.75% Senior Notes due 2014 Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC Xxxxxx Xxxxxxx & Co., Inc. as Representatives of the several Underwriters named in the Underwriting Agreement c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as special counsel solely responsible for PepsiCo, Inc. (the “Company”), a North Carolina corporation, making its own judgments in connection with the Terms Issue (irrespective of whether the Lead Managers have advised or are currently advising the Company on related or other matters). This Agreement dated February 25, 2009 (together with the PepsiCo, Inc. Underwriting Agreement Standard Provisions Engagement Letters supersedes any prior agreement or understanding (the “Standard Provisions”) dated February 25, 2009 incorporated therein, the “Underwriting Agreement”) among you, as the representatives of the several underwriters named in the Underwriting Agreement (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $1,000,000,000 aggregate principal amount of its 3.75% Senior Notes due 2014 (the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”whether written or oral) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered to you at the request of the Company pursuant to Section 5(a) of the Standard Provisions. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed Lead Managers with the Securities and Exchange Commission (the “Commission”) pursuant respect to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25, 2009 relating to the Notes, the free writing prospectus set forth in Schedule II to the Underwriting Agreement (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25, 2009 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectussubject matter hereof.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that:
1. The Indenture was duly qualified under the Trust Indenture Act of 1939, as amended, and assuming due authorization, execution and delivery thereof by the Company, the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
2. Assuming the due authorization of the Notes by the Company, the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
3. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Indenture, the Notes and the Underwriting Agreement (collectively, the “Documents”) is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion in this paragraph (3).
Appears in 1 contract
Samples: Issue Agreement
No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCo, Inc. 000 Xxxxxxxx Xxxx Road Purchase, New York 10577 Ladies and Gentlemen: We understand that PepsiCo, Inc., a North Carolina corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of February 25, 2009 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. We, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. Total $ The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October , 2008, preliminary prospectus supplement dated , 20 , Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. Re: PepsiCo, Inc. 3.75% Senior Notes due 2014 Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC Xxxxxx Xxxxxxx & Co., Inc. as Representatives of the several Underwriters named in the Underwriting Agreement c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as special counsel for PepsiCo, Inc. (the “Company”), a North Carolina corporation, in connection with the Terms Agreement dated February 25, 2009 (together with the PepsiCo, Inc. Underwriting Agreement Standard Provisions (the “Standard Provisions”) dated February 25, 2009 incorporated therein, the “Underwriting Agreement”) among you, as the representatives of the several underwriters named in the Underwriting Agreement (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $1,000,000,000 aggregate principal amount of its 3.75% Senior Notes due 2014 (the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered to you at the request of the Company pursuant to Section 5(a) of the Standard Provisions. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25, 2009 relating to the Notes, the free writing prospectus set forth in Schedule II to the Underwriting Agreement (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25, 2009 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that:
1. The Indenture was duly qualified Company is validly existing as a corporation in good standing under the Trust Indenture Act laws of 1939, as amendedthe State of Delaware, and assuming due authorizationthe Company has corporate power and authority to issue the Underwritten Securities, execution to enter into the Terms Agreement and delivery thereof the Indenture and to perform its obligations thereunder.
2. The Indenture has been duly authorized, executed and delivered by the Company, the Indenture Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability effect of any waiver fraudulent conveyance, fraudulent transfer or similar provisions of rights under any usury or stay applicable law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions conclusion expressed with respect theretoabove.
23. Assuming the due authorization of the Notes by the Company, the NotesThe Underwritten Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Terms Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes Underwritten Securities are to be issued, provided that we express no opinion as to (x) the enforceability effect of any waiver fraudulent conveyance, fraudulent transfer or similar provisions of rights under any usury or stay applicable law or (y) on the applicability (conclusion expressed above.
4. The Terms Agreement has been duly authorized, executed and if applicabledelivered by the Company.
5. The Company is not, and after giving effect to the effect) offering and sale of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Codethe Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
6. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Indenture, the Underwritten Securities and the Terms Agreement (collectively, the “Documents”) will not contravene (i) any provision of the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, or the General Corporation Law of the State of Delaware provided that counsel need not express an opinion as to federal or state securities laws, (ii) the certificate of incorporation or by-laws of the Company, or (iii) any comparable provision of state law agreement that is specified in an annex to the questions addressed above or on the conclusions expressed with respect theretoopinion.
37. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the IndentureDocuments, or the Notes and General Corporation Law of the Underwriting Agreement (collectively, the “Documents”) State of Delaware is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which counsel need not express an opinion. Counsel has considered the statements included in the Disclosure Package and the Prospectus under the captions “Description of Debt Securities” and “Description of the notes” insofar as they summarize provisions of the Indenture and the Underwritten Securities. In counsel’s opinion, such statements fairly summarize these provisions in all material respects. The statements included in the Disclosure Package and the Prospectus under the caption “Material U.S. federal income tax considerations for Non-U.S. Holders,” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, in counsel’s opinion fairly and accurately summarize the matters referred to therein in all material respects. In rendering the opinions in paragraphs (2) through (4) above, counsel may assume that each party to the Documents (other than the Company) has been duly incorporated and is validly existing and in good standing under the laws of the jurisdiction of its organization. In addition, counsel may assume that (i) the execution, delivery and performance by each party thereto of each Document to which it is a party, (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that counsel will not make such assumption to the extent that counsel has specifically opined as to such matters with respect to the Company, and (ii) each Document (other than the Terms Agreement) is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect of the Company). Counsel need not express an opinion as to any law, rule or regulation that is applicable to the Company, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate. The primary purpose of our professional engagement was not to establish or confirm factual matters, financial, accounting or quantitative information or oil and gas reserve data. Furthermore, many determinations involved in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly set forth in our opinion letter separately delivered to you today as to statements included in the Time of Sale Prospectus and the Prospectus under the captions “Description of Debt Securities,” “Description of the notes” and “Material U.S. federal income tax considerations for Non-U.S. Holders”). However, in the course of our acting as counsel to the Company in connection with the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus, we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees of, and independent public accountants for, the Company the information furnished, whether or not subject to our check and verification. We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and written statements of officers and other representatives of the Company and others as to the existence and consequence of certain factual and other matters. On the basis of the information gained in the course of the performance of the services rendered above, but without independent check or verification except as stated above:
(i) the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations of the Commission thereunder; and
(ii) nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Underwritten Securities:
(a) on the date of the Terms Agreement, the Registration Statement contained any 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,
(b) at the Time of Sale, the Time of Sale Prospectus contained any 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, not misleading, or
(c) the Prospectus as of the date of the Terms Agreement or as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In providing this letter to you and the other several Underwriters, we have not been called to pass upon, and we express no opinion view regarding, the financial statements or financial schedules or other financial or accounting data, or any oil and gas reserve data, included in this paragraph (3)the Registration Statement, the Time of Sale Prospectus, the Prospectus, or the Statement of Eligibility of the Trustee on Form T-1. In addition, we express no view as to the conveyance of the Time of Sale Prospectus or the information contained therein to investors. 1. The execution, delivery and performance by the Company of its obligations under the Terms Agreement, the Indenture and the Underwritten Securities will not contravene any provision of the Restated Charter or By-Laws of the Company, or of any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries taken as a whole, or, to counsel’s knowledge, of any judgment, order, or decree of any governmental body, agency, or court having jurisdiction over the Company or any of its subsidiaries, in each of the foregoing cases except as would not reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole.
Appears in 1 contract
No Advisory or Fiduciary Relationships. The Company acknowledges and agrees that (a) the purchase and sale of the Underwritten Securities pursuant to the Standard Provisions and the applicable Terms Agreement, including the determination of the public offering price of the Underwritten Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in the Standard Provisions and the applicable Terms Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. To: PepsiCo, Inc. 000 Xxxxxxxx Xxxx Road Purchase, New York 10577 Ladies and Gentlemen: We understand that PepsiCo, Inc., a North Carolina corporation (the “Company”), proposes to issue and sell [describe Underwritten Securities, and specify if Underwritten Securities include both Firm Securities and Optional Securities] (such securities also being hereinafter referred to as the “Underwritten Securities”) subject to the terms and conditions stated herein and in the PepsiCo, Inc. Underwriting Agreement Standard Provisions dated as of February 25, 2009 attached hereto (the “Standard Provisions”). Each of the applicable provisions in the Standard Provisions is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. We, the underwriters named below (the “Underwriters”), offer to purchase, severally and not jointly, the number or amount of [Underwritten] [Firm] Securities opposite our names set forth below at a purchase price set forth below. Total $ The Underwritten Securities and the offering thereof shall have the following additional terms: [Number][Principal Amount] of Underwritten Securities [Number of Firm Securities] [Number of Optional Securities] Initial public offering price Purchase price Lock-up period specified in Section 9(a)(vi) of the Standard Provisions (if applicable) days beginning from the date of this Terms Agreement Time of Sale Prospectus Base Prospectus dated October , 2008, preliminary prospectus supplement dated , 20 , Representative of the Underwriters Address and facsimile number for notices to the Representative and the Underwriters Time of Sale Closing Time Closing Location Other terms and conditions [Amount of reimbursement to the Company from the Underwriters] The Representative represents and warrants that it is duly authorized to execute and deliver this Terms Agreement on behalf of the several Underwriters named above. Re: PepsiCo, Inc. 3.75% Senior Notes due 2014 Xxxxxx Xxxxxxx & Co. Incorporated UBS Securities LLC Xxxxxx Xxxxxxx & Co., Inc. as Representatives of the several Underwriters named in the Underwriting Agreement c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: We have acted as special counsel for PepsiCo, Inc. (the “Company”), a North Carolina corporation, in connection with the Terms Agreement dated February 25, 2009 (together with the PepsiCo, Inc. Underwriting Agreement Standard Provisions (the “Standard Provisions”) dated February 25, 2009 incorporated therein, the “Underwriting Agreement”) among you, as the representatives of the several underwriters named in the Underwriting Agreement (the “Underwriters”), and the Company, under which you and the other Underwriters have severally agreed to purchase from the Company $1,000,000,000 aggregate principal amount of its 3.75% Senior Notes due 2014 (the “Notes”). The Notes are to be issued pursuant to the provisions of an Indenture dated as of May 21, 2007 (the “Indenture”) between the Company and The Bank of New York Mellon, as Trustee. This opinion is being delivered to you at the request of the Company pursuant to Section 5(a) of the Standard Provisions. We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. We have participated in the preparation of the Company’s registration statement on Form S-3 (File No. 333-154314) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, the preliminary prospectus supplement dated February 25, 2009 relating to the Notes, the free writing prospectus set forth in Schedule II to the Underwriting Agreement (the “Issuer Free Writing Prospectus”) and the prospectus supplement dated February 25, 2009 relating to the Notes (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act upon the filing thereof with the Commission on October 15, 2008 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated October 15, 2008 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Notes (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Notes under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.” We have assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), except for required XXXXX formatting changes, to physical copies of the documents submitted for our examination. Based upon the foregoing, we are of the opinion that:
1. The Indenture was duly qualified Company is validly existing as a corporation in good standing under the Trust Indenture Act laws of 1939, as amendedthe State of Delaware, and assuming due authorizationthe Company has corporate power and authority to issue the Underwritten Securities, execution to enter into the Terms Agreement and delivery thereof the Indenture and to perform its obligations thereunder.
2. The Indenture has been duly authorized, executed and delivered by the Company, the Indenture Company and is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law or (y) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law to the questions addressed above or on the conclusions expressed with respect thereto.
23. Assuming the due authorization of the Notes by the Company, the NotesThe Underwritten Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Terms Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes Underwritten Securities are to be issued.
4. The Terms Agreement has been duly authorized, executed and delivered by the Company.
5. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
6. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Indenture, the Underwritten Securities and the Terms Agreement (collectively, the “Documents”) will not contravene (i) any provision of the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, or the General Corporation Law of the State of Delaware provided that we counsel need not express no an opinion as to federal or state securities laws, (xii) the enforceability certificate of any waiver incorporation or by-laws of rights under any usury or stay law the Company, or (yiii) the applicability (and if applicable, the effect) of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, as amended, or any comparable provision of state law agreement that is specified in an annex to the questions addressed above or on the conclusions expressed with respect theretoopinion.
37. No consent, approval, authorization, or order of, or qualification with, any state governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the IndentureDocuments, or the Notes and General Corporation Law of the Underwriting Agreement (collectively, the “Documents”) State of Delaware is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which counsel need not express an opinion. Counsel has considered the statements included in the Disclosure Package and the Prospectus under the captions “Description of Debt Securities” and “Description of the notes” insofar as they summarize provisions of the Indenture and the Underwritten Securities. In counsel’s opinion, such statements fairly summarize these provisions in all material respects. The statements included in the Disclosure Package and the Prospectus under the caption “Material U.S. federal income tax considerations for Non-U.S. Holders,” insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, in counsel’s opinion fairly and accurately summarize the matters referred to therein in all material respects. In rendering the opinions in paragraphs (2) through (4) above, counsel may assume that each party to the Documents (other than the Company) has been duly incorporated and is validly existing and in good standing under the laws of the jurisdiction of its organization. In addition, counsel may assume that (i) the execution, delivery and performance by each party thereto of each Document to which it is a party, (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that counsel will not make such assumption to the extent that counsel has specifically opined as to such matters with respect to the Company, and (ii) each Document (other than the Terms Agreement) is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect of the Company). Counsel need not express an opinion as to any law, rule or regulation that is applicable to the Company, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate. The primary purpose of our professional engagement was not to establish or confirm factual matters, financial, accounting or quantitative information or oil and gas reserve data. Furthermore, many determinations involved in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly set forth in our opinion letter separately delivered to you today as to statements included in the Time of Sale Prospectus and the Prospectus under the captions “Description of Debt Securities,” “Description of the notes” and “Material U.S. federal income tax considerations for Non-U.S. Holders”). However, in the course of our acting as counsel to the Company in connection with the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus, we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees of, and independent public accountants for, the Company the information furnished, whether or not subject to our check and verification. We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and written statements of officers and other representatives of the Company and others as to the existence and consequence of certain factual and other matters. On the basis of the information gained in the course of the performance of the services rendered above, but without independent check or verification except as stated above:
(i) the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the applicable rules and regulations of the Commission thereunder; and
(ii) nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Underwritten Securities:
(a) on the date of the Terms Agreement, the Registration Statement contained any 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,
(b) at the Time of Sale, the Time of Sale Prospectus contained any 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, not misleading, or
(c) the Prospectus as of the date of the Terms Agreement or as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In providing this letter to you and the other several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or financial schedules or other financial or accounting data, or any oil and gas reserve data, included in the Registration Statement, the Time of Sale Prospectus, the Prospectus, or the Statement of Eligibility of the Trustee on Form T-1. In addition, we express no view as to the conveyance of the Time of Sale Prospectus or the information contained therein to investors.
1. The execution, delivery and performance by the Company of its obligations under the Terms Agreement, the Indenture and the Underwritten Securities will not contravene any provision of the Restated Charter or By-Laws of the Company, or of any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries taken as a whole, or, to counsel’s knowledge, of any judgment, order, or decree of any governmental body, agency, or court having jurisdiction over the Company or any of its subsidiaries, in each of the foregoing cases except as would not reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole.
2. The Company has been duly qualified as a foreign corporation for the transaction of business in the states of Arkansas and Texas and is in good standing under the laws of the state of Delaware. The Company is not required to be qualified as a foreign corporation for the transaction of business in any other jurisdiction.
3. Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors’ qualifying shares and except as otherwise set forth in the Registration Statement, the Time of Sale Prospectus and Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
4. To counsel’s knowledge, there is no legal or governmental proceeding pending or threatened to which the Company or any of its Significant Subsidiaries is a party, or by which any of the properties of the Company or its Significant Subsidiaries is bound, which would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole; and to counsel’s knowledge, there is no agreement or other document that is required to be described in the Registration Statement, the Prospectus or the Time of Sale Prospectus, or that is required to be filed as an exhibit to the Registration Statement, that is not so described or filed. In rendering such opinion, counsel may rely, as to matters of fact, to the extent counsel deems proper, on certificates of responsible officers of the Company and public officials. Such opinion will be limited to the laws of the State of New York and the federal laws of the United States of America. Insofar as such opinion involves matters governed by the laws of the State of Delaware, counsel may rely, without independent investigation, on the opinion of Delaware counsel for the Company. The undersigned, [Name], [Chief Financial Officer], and [Name], [Treasurer], each of Xxxxxx Oil Corporation, a Delaware corporation (the “Company”), pursuant to Section 5(d) of the Standard Provisions attached to the Terms Agreement, dated May 15, 2012 (the “Terms Agreement”), between the Company, X.X. Xxxxxx Securities LLC and Xxxxx Fargo Securities, LLC, as representatives of the several underwriters listed therein certify that, to the best of their knowledge, after reasonable investigation:
1. There has been no material adverse change (or development involving a prospective material adverse change), in the business, properties, earnings or financial condition of the Company and its subsidiaries on a consolidated basis from that set forth in the Company’s last periodic report filed with the Commission under the Exchange Act;
2. The representations and warranties of the Company in the Terms Agreement are true and correct at and as of the date hereof with the same force and effect as though expressly made at and as of this paragraph (date;
3). The Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date hereof under or pursuant to the Terms Agreement;
4. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement.
5. There has not been any material downgrading, nor any notice given of any intended or potential material downgrading or of a possible material change that does not indicate the direction of the possible material change, in the rating accorded any of the Company’s securities, including the Underwritten Securities, by either Xxxxx’x Investors Service, Inc. or Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Terms Agreement.
Appears in 1 contract
