Xxxxx X. Xxxxxx, General Counsel for the Company, shall have furnished to you her written opinion (a draft of such opinion is attached as Annex II(a) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; (ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus; (iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates); (iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus); (v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates); (vi) To such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vii) This Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by the Company; (viii) The compliance by the Company with all of the provisions of this Agreement and the International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and (ix) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required.
Appears in 2 contracts
Samples: Underwriting Agreement (Essex International Inc /), Underwriting Agreement (Goldman Sachs Group Lp)
Xxxxx X. XxxxxxXxxxxxxx, General Counsel for Esq., counsel to the Company, shall have furnished to you her the Underwriters such counsel's written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, addressed to the Underwriters and dated such Time of Deliverythe Closing Date, in form and substance satisfactory to youthe Underwriters, to the effect that:
(i) 1. The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of DelawareDelaware and is duly qualified to do business in, with and is in good standing as a foreign corporation under the laws of, each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (except where any such failure would not have a material adverse effect on the Company's ability to perform its obligations under this Agreement, the Pooling and Servicing Agreement or the Insurance Agreement); and the Company has all power and authority (corporate and other) necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its business as described obligations under this Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements, and to cause the Certificates to be issued.
2. The Company is not in violation of its charter documents or the by-laws or in default in the Prospectus;
(ii) The Company has an authorized capitalization as set forth performance or observance of any material obligation, agreement, covenant or condition contained in the Prospectusany contract, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and indenture, mortgage, loan agreement, note, lease or other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement instrument to which the Company is a party and the Shares conform to the description of the Stock contained or by which it or its properties may be bound, which default might result in any material adverse change in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers financial condition of the Company or Essexthat might materially and adversely affect the properties or assets, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than taken as set forth in the Prospectusa whole, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is Company.
3. This Agreement, the subject which have a reasonable possibility of success Pooling and whichServicing Agreement, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Insurance Agreement and the International Underwriting Agreement Purchase Agreements have been duly authorized, executed and delivered by the Company;
(viii) The compliance Company and, assuming the due authorization, execution and delivery of such agreements by the Company other parties thereto, such agreements constitute valid and binding obligations, enforceable against the Company, in accordance with all their respective terms, except as enforcement thereof may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (y) general principles of the provisions equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and (z) with respect to rights of indemnity under this Agreement and the International Underwriting Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements by the Company, the consummation of the transactions herein contemplated hereby and therein contemplated thereby and the issuance and delivery of the Certificates do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, (ii) result in any a violation of the provisions of the Certificate of Incorporation charter documents or Bythe by-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries properties or assets, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, or (iii) result in the creation or imposition of any of their properties; andlien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
(ix) Neither 5. The direction by the Company nor to the Trustee to execute, issue, authenticate and deliver the Certificates has been duly authorized by the Company and, assuming that the Trustee has been duly authorized to do so, when executed by the Company and authenticated and delivered by the Trustee in accordance with the Pooling and Servicing Agreement, the Certificates will be validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement.
6. No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of its subsidiaries the United States is (A) required for the issuance of the Certificates, and the sale of the Offered Certificates to the Underwriters, or the consummation by the Company of the other transactions contemplated by this Agreement, the Pooling and Servicing Agreement and the Insurance Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under the Securities Act or state securities or "blue sky" laws in violation connection with the purchase and distribution of its Certificate the Offered Certificates by the Underwriters or as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which the Company has received service of Incorporation or By-laws or (B) in default in process before or, to the performance or observance best of such counsel's knowledge, without independent investigation, threatened by any material obligationcourt, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease administrative agency or other agreement or instrument tribunal to which it the Company is a party or by of which it or any of its properties may be bound exceptis the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, in results of operations or financial condition of the Company; (b) asserting the invalidity of the Pooling and Servicing Agreement, the Insurance Agreement or the Certificates; (c) seeking to prevent the issuance of the Certificates or the consummation by the Company of any of the transactions contemplated by the Pooling and Servicing Agreement, the Insurance Agreement or this Agreement, as the case may be; or (d) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement, this clause (B)Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, for such defaults that would notand, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto immediately prior to such Time the sale of Delivery, at the time it became effective, and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects Offered Certificates to the requirements Underwriters, such Certificates are owned by the Company, free and clear of the Act and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredall Liens.
Appears in 2 contracts
Samples: Underwriting Agreement (Equivantage Acceptance Corp), Underwriting Agreement (Equivantage Acceptance Corp)
Xxxxx X. XxxxxxXxxxxxx, General Counsel for of the Company, shall have furnished to you her written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, dated such the Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock Each of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description each of the Stock contained in the Prospectus;
(iii) The Company Subsidiaries listed on Schedule III has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of except where the failure to so qualify and be so qualified in any such jurisdiction (such counsel being entitled good standing could not reasonably be expected to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates)have a Material Adverse Effect;
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(viii) To such counsel's ’s knowledge and other than as set forth in the ProspectusPricing Disclosure Package and the Final Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries Subsidiaries (other than Jostens, Inc. and its Subsidiaries) is a party or of which any property of the Company or any of its subsidiaries such subsidiary is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of its subsidiariesSubsidiaries (other than Jostens, Inc. and its Subsidiaries), would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiariesMaterial Adverse Effect; and, to such counsel's ’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiiii) This Other than the Registration Rights Agreement and the International Underwriting Agreement have been duly authorized, executed Existing Exchange and delivered by Registration Rights Agreements or as described in the Company;
(viii) The compliance by the Company with all of the provisions of this Agreement Pricing Disclosure Package and the International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not conflict with Final Offering Memorandum, there are no contracts, agreements or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which understandings between the Company or any of its subsidiaries is a party or by which Subsidiaries and any person granting such person the right to require the Company or any of its subsidiaries is bound Subsidiaries to file a registration statement under the Securities Act with respect to any securities of the Company or to which any of the property or assets of require the Company or any of its subsidiaries Subsidiaries to include such securities with the Exchange Securities registered pursuant to any Registration Statement (as such term is subject, nor will such action result defined in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their propertiesRegistration Rights Agreement); and
(ixiv) Neither All of the Company nor any issued shares of its subsidiaries is capital stock of each of Xxx Xxxxxxx Holdings Inc. and AHC I Acquisition Corp. have been duly and validly authorized and issued, are fully paid and non assessable, and (A) in violation of its Certificate of Incorporation or By-laws or (B) in default except as otherwise set forth in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, Pricing Disclosure Package and the Prospectus Final Offering Memorandum) are owned directly by Visant Corporation, free and any amendment clear of all liens, encumbrances, equities or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredclaims.
Appears in 2 contracts
Samples: Purchase Agreement (Visant Holding Corp), Purchase Agreement (Visant Corp)
Xxxxx X. XxxxxxXxxxxxxxxx, General Counsel for of the CompanyCompany (or such other person who shall be General Counsel of the Company at such Time of Delivery), shall have furnished to you the Representatives her written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, dated such the Time of DeliveryDelivery for such Designated Securities, in form and substance satisfactory to youthe Representatives, to the effect that:
(i) The Company has been duly incorporated and incorporated, is validly existing as a corporation in good standing under the laws of the State of DelawareIllinois, with corporate power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization Prospectus as set forth in the Prospectusamended or supplemented, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of to transact business and is in good standing under the laws of in each other jurisdiction in which it owns the conduct of its business or leases properties the ownership or conducts any business so as to require leasing of property requires such qualification, or is subject to no material liability or disability by reason of except where the failure to be so qualified or in any such jurisdiction (such counsel being entitled to rely good standing would not, in respect of the opinion in this clause aggregate, have a material adverse effect upon opinions of local counsel the Company and in respect of matters of fact upon certificates of officers of the Companyits subsidiaries, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates)taken as a whole;
(ivii) Each Material Subsidiary is of the Significant Subsidiaries of the Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its the jurisdiction of incorporation; its organization and all of the issued shares of capital stock of each Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been is duly qualified as a foreign corporation for the transaction of to transact business and is in good standing under the laws of in each jurisdiction in which it owns the conduct of its business or leases properties the ownership or conducts any business so as to require leasing of its property requires such qualification, or is subject to no material liability or disability by reason of except where failure to be so qualified or in any such jurisdiction (such counsel being entitled to rely good standing would not, in respect of the opinion in this clause aggregate, have a material adverse effect upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essexand its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates)taken as a whole;
(viiii) To the best of such counsel's ’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which have a reasonable possibility of success and whichthat, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate aggregate, could reasonably be expected to have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations position of the Company and its subsidiaries; and, to the best of such counsel's ’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiiv) This Agreement and the International Underwriting Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;
(viiiv) The Designated Securities have been duly authorized, executed, authenticated, issued and delivered; and the Designated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented and in the Permitted Free Writing Prospectuses, if any;
(vi) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the International Underwriting Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not (A) result in any violation of the provisions of the Restated Articles of Incorporation or the By-Laws of the Company, nor, to the best of such counsel’s knowledge, either (B) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action or (C) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any applicable law, statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties; and
(ix) Neither the Company nor , in any of its subsidiaries is (A) such case described in violation of its Certificate of Incorporation or By-laws or clause (B) in default in or (C) the performance or observance effects of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would notwould, individually or in the aggregate, be materially adverse to the Company and its subsidiaries taken as a whole; and to the best of such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale by the Company of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement, such Pricing Agreement or the Indenture, except such as have a Material Adverse Effect. Such counsel shall also state that been obtained under the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in the Prospectus and any amendment as amended or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel supplemented (except other than the financial statements and related schedules and other information of an accounting or financial nature included and statistical data therein, as to which such counsel will need express no viewopinion), appeared on their face when they became effective or were filed with the Commission, as the case may be, complied as to be appropriately responsive form in all material respects to with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and
(ix) The Registration Statement at the date of the first use of the Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, as of their respective dates, as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and related schedules and other financial and statistical data therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the applicable Trust Indenture Act and the rules and regulations thereunder; although and such counsel will does not assume responsibility for know of any amendment to the accuracy Registration Statement required to be filed or completeness any contracts or other documents of a character required to be filed as an exhibit to the statements made Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such counsel shall state that she or members of her staff have participated in conferences with other officers and representatives of the Company, representatives of special counsel and the independent registered public accountants for the Company and the Underwriters and their representatives at which the contents of the Registration Statement, the General Disclosure Package and the Prospectus and related matters were discussed. However, except as specifically noted above, such counsel is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, except and provided in subsection (ii) or making any representation that she has independently verified or checked the accuracy, completeness or fairness of this Section 7(c) and except insofar as such statements relate statements. Notwithstanding the foregoing, no facts have come to such counsel; and ’s attention that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason would lead her to believe that (except for financial statements and schedules and other financial and related statistical data as to which such counsel expresses no belief) (i) the Registration Statement (or any post-effective amendment made thereto prior to such Time thereto), as of Delivery, at the last time it became effective preceding the time the Registration Statement or such amendment became effectiveapplicable Pricing Agreement was entered into, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that (ii) the Prospectus or any amendment or supplement made thereto prior to such General Disclosure Package as of the Pricing Effective Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus (or any amendment or supplement thereto), as of its date and as of the Time of Delivery, contained or contains an 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 each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredmisleading.
Appears in 1 contract
Xxxxx X. XxxxxxXxXxx, General Associate Counsel for of Torchmark Corporation, the Companyparent of United, shall have furnished to you the Representatives her written opinion (a draft of such opinion is attached dated the Closing Date or the Additional Closing Date, as Annex II(a) hereto), dated such Time of Deliverythe case may be, in form and substance satisfactory to youthe Representatives, to the effect that:
(i) The Company this Agreement has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by the Company;
(viii) The such Selling Stockholder and compliance by the Company with all of the provisions of this Agreement and the International Underwriting Agreement and the consummation of the transactions contemplated herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries such Selling Stockholder is a party or by which the Company or any of its subsidiaries such Selling Stockholder is bound or to which any of the property or assets of the Company or any of its subsidiaries such Selling Stockholder is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the Company property of such Selling Stockholder, except for any such breach, violation or any of its subsidiaries or any of their properties; and
(ix) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that material adverse effect on the Registration Statement and any amendment made thereto prior to such Time of Deliverybusiness, at the time it became effectiveassets, and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, the date financial condition of such amendment Selling Stockholder or supplement and the date ability of such Selling Stockholder to consummate the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects to the requirements sales of the Act and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection Shares;
(ii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated by this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel Agreement in connection with such matters and as General Counsel the sale of the Company did not disclose Shares hereunder except such as have been obtained under the Securities Act and such as may be required under state or foreign securities or blue sky laws in connection with the purchase and distribution of such Shares by the Underwriter and such approval of the underwriting arrangements as may be required under the rules of the NASD;
(iii) such Selling Stockholder has full right, power and authority to sell, assign, transfer and deliver such Shares hereunder; and
(iv) upon delivery of the Shares on behalf of the Selling Stockholder and upon payment therefor by the Underwriters pursuant to the Underwriting Agreement, good and valid title to the Shares to be sold by such Selling Stockholders, free and clear of all liens, encumbrances, equities or claims, will be transferred to the Underwriters to the extent the Underwriters have purchased such Shares in good faith and without notice of any information that gave such counsel reason to believe that the Registration Statement lien, encumbrance, equity or claim or any amendment made thereto prior to such Time of Delivery, at other adverse claim within the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light meaning of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required.Uniform Commercial Code;
Appears in 1 contract
Xxxxx X. XxxxxxXxxxxxxx, General Counsel for Esq., counsel to the Company, shall have furnished to you her the Underwriters such counsel's written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, addressed to the Underwriters and dated such Time of Deliverythe Closing Date, in form and substance satisfactory to youthe Underwriters, to the effect that:
(i) 1. The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of DelawareDelaware and is duly qualified to do business in, with and is in good standing as a foreign corporation under the laws of, each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (except where any such failure would not have a material adverse effect on the Company's ability to perform its obligations under this Agreement, the Pooling and Servicing Agreement or the Insurance Agreement); the Company has all power and authority (corporate and other) necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its business as described obligations under this Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements, and to cause the Certificates to be issued.
2. The Company is not in violation of its charter documents or the by-laws or in default in the Prospectus;
(ii) The Company has an authorized capitalization as set forth performance or observance of any material obligation, agreement, covenant or condition contained in the Prospectusany contract, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and indenture, mortgage, loan agreement, note, lease or other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement instrument to which the Company is a party and the Shares conform to the description of the Stock contained or by which it or its properties may be bound, which default might result in any material adverse change in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers financial condition of the Company or Essexthat might materially and adversely affect the properties or assets, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than taken as set forth in the Prospectusa whole, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is Company.
3. This Agreement, the subject which have a reasonable possibility of success Pooling and whichServicing Agreement, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Insurance Agreement and the International Underwriting Agreement Purchase Agreements have been duly authorized, executed and delivered by the Company;
(viii) The compliance Company and, assuming the due authorization, execution and delivery of such agreements by the Company other parties thereto, such agreements constitute valid and binding obligations, enforceable against the Company, in accordance with all their respective terms, except as enforcement thereof may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (y) general principles of the provisions equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and (z) with respect to rights of indemnity under this Agreement and the International Underwriting Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements by the Company, the consummation of the transactions herein contemplated hereby and therein contemplated thereby and the issuance and delivery of the Certificates do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, (ii) result in any a violation of the provisions of the Certificate of Incorporation charter documents or Bythe by-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries properties or assets, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, or (iii) result in the creation or imposition of any of their properties; andlien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
(ix) Neither 5. The direction by the Company nor to the Trustee to execute, issue, authenticate and deliver the Certificates has been duly authorized by the Company and, assuming that the Trustee has been duly authorized to do so, when executed by the Company and authenticated and delivered by the Trustee in accordance with the Pooling and Servicing Agreement, the Certificates will be validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement.
6. No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of its subsidiaries the United States is (A) required for the issuance of the Certificates, and the sale of the Offered Certificates to the Underwriters, or the consummation by the Company of the other transactions contemplated by this Agreement, the Pooling and Servicing Agreement and the Insurance Agreement, except such consents, approvals, authorizations, registrations or qualifications as may be required under the Securities Act or state securities or "blue sky" laws in violation connection with the purchase and distribution of its Certificate the Offered Certificates by the Underwriters or as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which the Company has received service of Incorporation or By-laws or (B) in default in process before or, to the performance or observance best of such counsel's knowledge, without independent investigation, threatened by any material obligationcourt, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease administrative agency or other agreement or instrument tribunal to which it the Company is a party or by of which it or any of its properties may be bound exceptis the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, in results of operations or financial condition of the Company; (b) asserting the invalidity of the Pooling and Servicing Agreement, the Insurance Agreement or the Certificates; (c) seeking to prevent the issuance of the Certificates or the consummation by the Company of any of the transactions contemplated by the Pooling and Servicing Agreement, the Insurance Agreement or this Agreement, as the case may be; or (d) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement, this clause (B)Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, for such defaults that would notand, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto immediately prior to such Time the sale of Delivery, at the time it became effective, and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects Offered Certificates to the requirements Underwriters, such Certificates are owned by the Company, free and clear of the Act and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredall Liens.
Appears in 1 contract
Samples: Underwriting Agreement (Equivantage Acceptance Corp)
Xxxxx X. XxxxxxXxxxxxx, General Counsel Esq., Senior Vice President--Law and External Relations of Parent, acting as counsel for the CompanyParent and the Selling Shareholder, shall have furnished to you her his written opinion (a draft of such opinion is attached as Annex II(a) hereto), dated such the Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company Each of the Parent and the Selling Shareholder has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and ; all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) Selling Shareholder have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiii) This Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by or on behalf of the Company;
(viii) The Parent and the Selling Shareholder; and the sale of the Shares to be sold by the Selling Shareholder hereunder and thereunder and the compliance by the Company Parent and the Selling Shareholder with all of the provisions of this Agreement and the International Underwriting Agreement and the consummation of the transactions herein and therein contemplated (including the Stock Repurchase Transaction) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company Parent or any of its subsidiaries the Selling Shareholder is a party or by which the Company Parent or any of its subsidiaries the Selling Shareholder is bound bound, to or to which any of the property or assets of the Company Parent or any of its subsidiaries the Selling Shareholder is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company Parent or any statute the Selling Shareholder or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company Parent or the Selling Shareholder or their respective properties (in rendering the opinion in this clause (ii), such counsel may state that it is not opining on the registration under the Act of the Shares and the requirements under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters and the International Underwriters);
(iii) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement and the International Underwriting Agreement in connection with the Shares to be sold by such Selling Shareholder hereunder or thereunder, except such as have been obtained under the Act and such as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of such Shares by the Underwriters or the International Underwriters;
(iv) Immediately prior to the First Time of Delivery such Selling Shareholder had good and valid title to the Shares to be sold at the First Time of Delivery by such Selling Shareholder under this Agreement and the International Underwriting Agreement, free and clear of all liens, encumbrances, equities or claims, and full right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder and thereunder;
(v) Upon delivery to the Underwriters by the Selling Shareholder of a certificate or certificates for the Shares to be sold by it against receipt of the purchase price therefor as provided in this Agreement and the International Underwriting Agreement, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will have been transferred to each of the several Underwriters or International Underwriters, as the case may be, who will have purchased such Shares in good faith and without notice of any such lien, encumbrance, equity or claim or any other adverse claim within the meaning of its subsidiaries or any of their propertiesthe Uniform Commercial Code; and
(ixvi) Neither The consummation by the Company nor Parent and the Selling Shareholder of the Stock Repurchase Transaction will not result in any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-the federal securities laws or (B) in default in state Blue Sky laws. In rendering such opinion, such counsel may state that they express no opinion as to the performance or observance laws of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in jurisdiction outside the case of this clause (B), for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required.United States;
Appears in 1 contract
Xxxxx X. XxxxxxXxxxxxxxxx, General Counsel for of the CompanyCompany (or such other person who shall be General Counsel of the Company at such Time of Delivery), or Xxxx X. Xxxxx, Divisional Vice President and Associate General Counsel, shall have furnished to you her the Representatives such counsel’s written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, dated such the Time of DeliveryDelivery for such Designated Securities, in form and substance satisfactory to youthe Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareIllinois, with corporate power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization Prospectus as set forth in the Prospectusamended or supplemented, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of to transact business and is in good standing under the laws of in each other jurisdiction in which it owns the conduct of its business or leases properties the ownership or conducts any business so as to require leasing of property requires such qualification, or is subject to no material liability or disability by reason of except where the failure to be so qualified or in any such jurisdiction (such counsel being entitled to rely good standing would not, in respect of the opinion in this clause aggregate, have a material adverse effect upon opinions of local counsel the Company and in respect of matters of fact upon certificates of officers of the Companyits subsidiaries, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates)taken as a whole;
(ivii) Each Material Subsidiary is of the Significant Subsidiaries of the Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its the jurisdiction of incorporation; its organization and all of the issued shares of capital stock of each Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been is duly qualified as a foreign corporation for the transaction of to transact business and is in good standing under the laws of in each jurisdiction in which it owns the conduct of its business or leases properties the ownership or conducts any business so as to require leasing of its property requires such qualification, or is subject to no material liability or disability by reason of except where failure to be so qualified or in any such jurisdiction (such counsel being entitled to rely good standing would not, in respect of the opinion in this clause aggregate, have a material adverse effect upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essexand its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates)taken as a whole;
(viiii) To the best of such counsel's ’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which have a reasonable possibility of success and whichthat, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate aggregate, could reasonably be expected to have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations position of the Company and its subsidiaries; and, to the best of such counsel's ’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiiv) This Agreement and the International Underwriting Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;
(viiiv) The Designated Securities have been duly authorized, executed, authenticated, issued and delivered; and the Designated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented and in the Permitted Free Writing Prospectuses, if any;
(vi) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the International Underwriting Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not (A) result in any violation of the provisions of the Restated Articles of Incorporation or the By-Laws of the Company, nor, to the best of such counsel’s knowledge, either (B) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action or (C) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any applicable law, statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties; and
(ix) Neither the Company nor , in any of its subsidiaries is (A) such case described in violation of its Certificate of Incorporation or By-laws or clause (B) in default in or (C) the performance or observance effects of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would notwould, individually or in the aggregate, be materially adverse to the Company and its subsidiaries taken as a whole; and to the best of such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale by the Company of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement, such Pricing Agreement or the Indenture, except such as have a Material Adverse Effect. Such counsel shall also state that been obtained under the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in the Prospectus and any amendment as amended or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel supplemented (except other than the financial statements and related schedules and other information of an accounting or financial nature included and statistical data therein, as to which such counsel will need express no viewopinion), appeared on their face when they became effective or were filed with the Commission, as the case may be, complied as to be appropriately responsive form in all material respects to with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and
(ix) The Registration Statement at the date of the first use of the Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, as of their respective dates, as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and related schedules and other financial and statistical data therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the applicable Trust Indenture Act and the rules and regulations thereunder; although and such counsel will does not assume responsibility for know of any amendment to the accuracy Registration Statement required to be filed or completeness any contracts or other documents of a character required to be filed as an exhibit to the statements made Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such counsel shall state that such counsel or members of such counsel’s staff have participated in conferences with other officers and representatives of the Company, representatives of special counsel and the independent registered public accountants for the Company and the Underwriters and their representatives at which the contents of the Registration Statement, the General Disclosure Package and the Prospectus and related matters were discussed. However, except as specifically noted above, such counsel is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, except and provided in subsection (ii) or making any representation that such counsel has independently verified or checked the accuracy, completeness or fairness of this Section 7(c) and except insofar as such statements relate statements. Notwithstanding the foregoing, no facts have come to such counsel; and ’s attention that the work of would lead such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that (except for financial statements and schedules and other financial and related statistical data as to which such counsel expresses no belief) (i) the Registration Statement (or any post-effective amendment made thereto prior to such Time thereto), as of Delivery, at the last time it became effective preceding the time the Registration Statement or such amendment became effectiveapplicable Pricing Agreement was entered into, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that (ii) the Prospectus or any amendment or supplement made thereto prior to such General Disclosure Package as of the Pricing Effective Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus (or any amendment or supplement thereto), as of its date and as of the Time of Delivery, contained or contains an 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 each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredmisleading.
Appears in 1 contract
Xxxxx X. XxxxxxXxxxxxxxxx, General Counsel for of the CompanyCompany (or such other person who shall be General Counsel of the Company at such Time of Delivery), or Xxxx X. Xxxxx, Divisional Vice President and Associate General Counsel, shall have furnished to you the Representatives her written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, dated such the Time of DeliveryDelivery for such Designated Securities, in form and substance satisfactory to youthe Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of DelawareIllinois, with corporate power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization Prospectus as set forth in the Prospectusamended or supplemented, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of to transact business and is in good standing under the laws of in each other jurisdiction in which it owns the conduct of its business or leases properties the ownership or conducts any business so as to require leasing of property requires such qualification, or is subject to no material liability or disability by reason of except where the failure to be so qualified or in any such jurisdiction (such counsel being entitled to rely good standing would not, in respect of the opinion in this clause aggregate, have a material adverse effect upon opinions of local counsel the Company and in respect of matters of fact upon certificates of officers of the Companyits subsidiaries, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates)taken as a whole;
(ivii) Each Material Subsidiary is of the Significant Subsidiaries of the Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of its the jurisdiction of incorporation; its organization and all of the issued shares of capital stock of each Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been is duly qualified as a foreign corporation for the transaction of to transact business and is in good standing under the laws of in each jurisdiction in which it owns the conduct of its business or leases properties the ownership or conducts any business so as to require leasing of its property requires such qualification, or is subject to no material liability or disability by reason of except where failure to be so qualified or in any such jurisdiction (such counsel being entitled to rely good standing would not, in respect of the opinion in this clause aggregate, have a material adverse effect upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essexand its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates)taken as a whole;
(viiii) To the best of such counsel's ’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which have a reasonable possibility of success and whichthat, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate aggregate, could reasonably be expected to have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations position of the Company and its subsidiaries; and, to the best of such counsel's ’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiiv) This Agreement and the International Underwriting Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;
(viiiv) The Designated Securities have been duly authorized, executed, authenticated, issued and delivered; and the Designated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented and in the Permitted Free Writing Prospectuses, if any;
(vi) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the International Underwriting Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not (A) result in any violation of the provisions of the Restated Articles of Incorporation or the By-Laws of the Company, nor, to the best of such counsel’s knowledge, either (B) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action or (C) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any applicable law, statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties; and
(ix) Neither the Company nor , in any of its subsidiaries is (A) such case described in violation of its Certificate of Incorporation or By-laws or clause (B) in default in or (C) the performance or observance effects of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would notwould, individually or in the aggregate, be materially adverse to the Company and its subsidiaries taken as a whole; and to the best of such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale by the Company of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement, such Pricing Agreement or the Indenture, except such as have a Material Adverse Effect. Such counsel shall also state that been obtained under the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in the Prospectus and any amendment as amended or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel supplemented (except other than the financial statements and related schedules and other information of an accounting or financial nature included and statistical data therein, as to which such counsel will need express no viewopinion), appeared on their face when they became effective or were filed with the Commission, as the case may be, complied as to be appropriately responsive form in all material respects to with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and
(ix) The Registration Statement at the date of the first use of the Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, as of their respective dates, as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and related schedules and other financial and statistical data therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the applicable Trust Indenture Act and the rules and regulations thereunder; although and such counsel will does not assume responsibility for know of any amendment to the accuracy Registration Statement required to be filed or completeness any contracts or other documents of a character required to be filed as an exhibit to the statements made Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such counsel shall state that such counsel or members of such counsel’s staff have participated in conferences with other officers and representatives of the Company, representatives of special counsel and the independent registered public accountants for the Company and the Underwriters and their representatives at which the contents of the Registration Statement, the General Disclosure Package and the Prospectus and related matters were discussed. However, except as specifically noted above, such counsel is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus, except and provided in subsection (ii) or making any representation that such counsel has independently verified or checked the accuracy, completeness or fairness of this Section 7(c) and except insofar as such statements relate statements. Notwithstanding the foregoing, no facts have come to such counsel; and ’s attention that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason would lead her to believe that (except for financial statements and schedules and other financial and related statistical data as to which such counsel expresses no belief) (i) the Registration Statement (or any post-effective amendment made thereto prior to such Time thereto), as of Delivery, at the last time it became effective preceding the time the Registration Statement or such amendment became effectiveapplicable Pricing Agreement was entered into, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that (ii) the Prospectus or any amendment or supplement made thereto prior to such General Disclosure Package as of the Pricing Effective Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus (or any amendment or supplement thereto), as of its date and as of the Time of Delivery, contained or contains an 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 each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredmisleading.
Appears in 1 contract
Xxxxx X. XxxxxxXxxxxxx, General Counsel for of the Company, shall have furnished to you her his written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, dated such Time of Deliverythe Closing Date, in form and substance satisfactory to you, you to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties properties, or conducts any business business, so as to require such qualification, or is subject to no material liability or disability by reason of other than where the failure to be so qualified or in any such jurisdiction good standing would not have a Material Adverse Effect on the Company and its subsidiaries taken as a whole;
(such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers ii) each of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 's subsidiaries has been duly incorporated or organized and is validly existing as a corporation in good standing corporation, partnership or limited liability company under the laws of its jurisdiction of incorporation; incorporation or organization with power and all of the issued shares of capital stock of each Material Subsidiary have been duly authority (corporate, partnership or other) to own its properties and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than conduct its business as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") Prospectus and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties properties, or conducts any business business, so as to require such qualification, or is subject to no material liability or disability by reason of other than where the failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of good standing would not have a Material Adverse Effect on the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates)its subsidiaries taken as a whole;
(viiii) To such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental investigations, actions, suits or proceedings pending or, to the best of such counsel's knowledge, threatened against or affecting the Company or any of its subsidiaries or any of their respective properties or to which the Company or any of its subsidiaries is or may be a party or of to which any property of the Company or any of its subsidiaries is or may be the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of its subsidiaries, would could individually or in the aggregate have, or reasonably be expected to have a material adverse effect Material Adverse Effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiariessubsidiaries taken as a whole; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; and such counsel does not know of any statutes, regulations, contracts or other documents required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required;
(viiiv) This Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by the Company;
(viii) The compliance by neither the Company nor any of its subsidiaries is, or with all the giving of the provisions notice or lapse of this Agreement and the International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not conflict with time or result both would be, in a breach or violation of any of the terms or provisions of, or constitute a in default under, its Certificate of Incorporation or By-Laws or comparable instruments or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company it or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries them or any of their propertiesrespective properties is bound, except for violations and defaults which individually and in the aggregate are not material to the Company and its subsidiaries taken as a whole or to the holders of the Securities; and
(ixv) Neither each of the Company and its subsidiaries owns, possesses or has obtained all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all federal, state, local and other governmental authorities (including foreign regulatory agencies), all self-regulatory organizations and all courts and other tribunals, domestic or foreign, necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as conducted as of the date hereof, except where the failure to have such authorizations would not have a Material Adverse Effect on the Company and its subsidiaries taken as a whole, and neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance such subsidiary has received any actual notice of any material obligationproceeding relating to revocation or modification of any such license, agreementpermit, covenant or condition contained in any indenturecertificate, mortgageconsent, deed of trustorder, loan agreement, lease approval or other agreement authorization, the revocation or instrument modification of which could reasonably be expected to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that Effect on the Company and its subsidiaries taken as a whole, except as described in the Registration Statement and the Prospectus; and to the best of such counsel's knowledge, each of the Company and its subsidiaries is in compliance with all laws and regulations relating to the conduct of its business as conducted as of the date of the Prospectus, except where the failure to comply with such laws and regulations would not have a Material Adverse Effect on the Company and its subsidiaries taken as a whole. The opinion of Xxxxx X. Xxxxxxx, General Counsel of the Company, described above shall be rendered to the Underwriters at the request of the Company and shall so state therein. In rendering the opinions pursuant to paragraphs (f) or (g), such counsel may rely (A) as to matters involving the application of laws other than the laws of the United States and the States of Delaware, New York and Pennsylvania, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' counsel) of other counsel reasonably acceptable to the Underwriters' counsel, familiar with the applicable laws; (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company. The opinion of such counsel for the Company shall state that the opinion of any amendment made thereto prior such other counsel upon which they relied is in form satisfactory to such Time counsel and, in such counsel's opinion, the Underwriters and they are justified in relying thereon. With respect to the matters to be covered in subparagraph (f)(viii) above counsel may state their opinion and belief is based upon their participation in the preparation of Delivery, at the time it became effective, Registration Statement and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, (other than the date of such amendment or supplement documents incorporated by reference therein) and the date the statement is made by such counsel (except the financial statements review and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects to the requirements discussion of the Act and contents thereof (including the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy documents incorporated by reference therein) but is without independent check or completeness of the statements made in the Registration Statement and Prospectus, verification except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredspecified.
Appears in 1 contract
Samples: Underwriting Agreement (Universal Health Services Inc)
Xxxxx X. XxxxxxXxxxxxx, Esq., Executive Vice President, General Counsel for and Secretary of the Company, shall have furnished to you her the Underwriters his written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, addressed to the Underwriters and dated such Time of DeliveryDelivery Date, in form and substance reasonably satisfactory to youthe Underwriters, substantially to the effect that:
(i) The Each of the Company and its Significant Subsidiaries which is incorporated in the United States has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State its respective jurisdiction of Delawareincorporation, with has all requisite corporate power and authority (corporate to own, lease and other) to own operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in the Prospectus;, and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction described in Schedule 6 in which the ownership, leasing and operation of its property and the conduct of its business requires such qualification (except where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect).
(ii) The Company has an authorized capitalization entities listed on Schedule 2 hereto are the only subsidiaries, direct or indirect, of the Company. Except as otherwise set forth in the Prospectus, the Company owns, directly or indirectly through other subsidiaries, the percentage indicated on Schedule 2 of the outstanding capital stock or other securities evidencing equity ownership of such subsidiaries, free and clear of any security interest and, to the knowledge of such counsel, any claim, lien, limitation on voting rights or encumbrance; and all of the such securities have been duly authorized, validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights. There are no outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or instruments convertible into or exchangeable for, any such shares of capital stock or other equity interest of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted subsidiaries owned by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;Company.
(iii) The Company has been duly qualified all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, including, without limitation, the corporate power and authority to issue, sell and deliver the Shares as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);herein.
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than Except as set forth in the Prospectus, there are no legal preemptive or governmental proceedings pending other rights to which subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's articles of incorporation or by-laws or any agreement or other instrument known to such counsel.
(v) The Company had an authorized capitalization as of September 30, 2003, as set forth in the Prospectus and all issued shares of capital stock of the Company or (other than the Shares), have been duly and validly authorized and issued by the Company and are fully paid and non-assessable.
(vi) To the knowledge of such counsel, neither the Company nor any of its subsidiaries Significant Subsidiaries which are incorporated in the United States is (i) in violation of its respective charter or bylaws, (ii) is in default in the performance of any obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or in any other instrument, indenture, mortgage, deed of trust, retrocessional treaty or arrangement, or other material agreement to which it is a party or of by which any property of the Company it is bound or to which any of its subsidiaries properties is the subject which have a reasonable possibility or (iii) is in violation of success and whichany U.S. federal or Missouri law, if determined adversely statute, rule, regulation, judgment or court decree applicable to the Company or any of its subsidiaries, would individually or Significant Subsidiaries which are incorporated in the aggregate United States, except in the case of clauses (ii) and (iii) for any such violation or default which would not reasonably be expected to have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;Material Adverse Effect.
(vii) This Agreement The execution and the International Underwriting Agreement have been duly authorized, executed and delivered by the Company;
(viii) The compliance delivery by the Company with all of this Agreement, the issuance of the provisions of this Agreement and the International Underwriting Agreement Shares and the consummation by the Company of the transactions herein contemplated hereby and therein contemplated thereby will not conflict with violate or result in constitute a breach or violation of any of the terms or provisions of, or a default under (or an event that with notice or the lapse of time, or both, would constitute a default default), or require consent under, or result in the imposition of a lien or encumbrance on any properties of the Company or any of its Significant Subsidiaries which are incorporated in the United States, or an acceleration of indebtedness pursuant to, (i) the charter or bylaws of the Company or any of its Significant Subsidiaries which are incorporated in the United States, (ii) any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement trust or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries Significant Subsidiaries which are incorporated in the United States is a party or by which the Company or any of its subsidiaries them or their property is bound or to which may be bound, (iii) any of the property U.S. federal or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any orderMissouri statute, rule or regulation reasonably recognized by such counsel as applicable to transactions of this kind, or (iv) any judgment, order or decree known to such counsel of any U.S. federal or Missouri court or governmental agency or body authority having jurisdiction over the Company or Company, any of its subsidiaries Significant Subsidiaries which are incorporated in the United States or their assets or properties, other than compliance by the Company with securities and corporation laws, as applicable, as to which such counsel need not express any opinion, except for any such violations, breaches or defaults which would not reasonably be expected to have a Material Adverse Effect, and provided, that such opinion may be subject to the qualification that the rights to indemnification or contribution provided for herein may be violative of their properties; andpublic policy underlying certain laws, rules or regulations (including federal and state securities laws, rules or regulations) and except for such consents as may have been obtained by the Company or such consents or filings as may be required under state or foreign securities or Blue Sky laws and regulations or such as may be required by the NASD. No consent, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any governmental agency, body, administrative agency or, to the knowledge of such counsel, any court, is required for the execution and delivery by the Company of this Agreement, the issuance of the Shares and the consummation by the Company of the transactions contemplated hereby and thereby (other than compliance by the Company with securities and corporation laws, as applicable, as to which such counsel need not express any opinion), except such as (i) would not reasonably be expected to have a Material Adverse Effect, (ii) would not prohibit or adversely affect the issuance of the Shares, if at all, or (iii) may be required under state or foreign securities or Blue Sky laws and regulations or such as may be required by the NASD. No consents or waivers from any other person are required the execution, delivery and performance by the Company of this Agreement, the issuance of the Shares and the consummation of the transactions contemplated hereby and thereby (other than compliance by the Company with securities and corporation laws, as applicable, as to which such counsel need not express any opinion), other than such consents and waivers as (i) would not reasonably be expected to have a Material Adverse Effect, (ii) would not prohibit or adversely affect the issuance of the Shares, if at all, or (iii) have been obtained.
(viii) To the best knowledge of such counsel, the Company and each of its Significant Subsidiaries which are incorporated in the United States has (i) all Authorizations necessary to engage in the business currently conducted by it in the manner described in the Prospectus, except where failure to hold such Authorizations would not have a Material Adverse Effect and (ii) no reason to believe that any governmental body or agency is considering limiting, suspending or revoking any such Authorization. To the best knowledge of such counsel and except as would not have a Material Adverse Effect, all such Authorizations are valid and in full force and effect and the Company and its Significant Subsidiaries which are incorporated in the United States are in compliance in all material respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities having jurisdiction with respect thereto. Except as described in the Prospectus, no insurance regulatory agency or body has issued any order or decree impairing, restricting or prohibiting the payment of dividends by any Significant Subsidiary which is incorporated in the United States of the Company to its parent, other than any such orders or decrees the issuance of which could not reasonably be expected to have a Material Adverse Effect.
(ix) Neither the Company nor any of its subsidiaries is is, or after the application of the net proceeds from the sale of the Shares will be, an "investment company" as defined, and subject to regulation under, the Investment Company Act.
(Ax) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it The Incorporated Documents or any of its properties may be bound except, in the case of this clause (B), for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, and the Prospectus and any further amendment or supplement thereto made thereto by the Company prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel applicable Delivery Date (except other than the financial statements statements, notes and schedules or any other information of an financial, statistical or accounting data included or financial nature included thereinincorporated by reference in or omitted from the Incorporated Documents, as to which such counsel will need express no viewopinion), appeared on their face when they were filed with the Commission and as of the applicable Delivery Date, complied and comply, as the case may be, as to be appropriately responsive form in all material respects to with the requirements of the Exchange Act.
(xi) To the best of such counsel's knowledge, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act and which have not been described or filed as exhibits to the applicable rules and regulations thereunder; although Registration Statement. In addition, such counsel will not assume responsibility for the accuracy shall state that he has, or completeness members of his staff have, participated in conferences with other officers and other representatives of the statements made Company, representatives of Deloitte & Touche, the Underwriters and their counsel in connection with the preparation of the Registration Statement and Prospectusthe Prospectus at which conferences the contents of the Registration Statement and the Prospectus were discussed, except reviewed and provided in subsection (ii) revised. Although such counsel is not passing upon, and does not assume responsibility for, the accuracy, completeness or fairness of this Section 7(c) and except insofar as such statements relate to such counsel; and that has not made any independent investigation thereof (except as indicated above), on the work basis of the information which was developed in the course thereof, such counsel in connection with such matters and as General Counsel of will advise the Company did not disclose any information Underwriters that gave such counsel has no reason to believe that (i) the Registration Statement or any amendment made thereto prior to such Time of DeliveryStatement, at on the time the Registration Statement or such amendment became effectiveEffective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that misleading and (ii) the Prospectus as such Prospectus may have been amended or any amendment or supplement made thereto prior to such Time of Deliverysupplemented, if applicable), at its datethe time such Prospectus was circulated and on the applicable Delivery Date, the date of such amendment contained or supplement and the date of such counsel's statement, included contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view)misleading. Such counsel shall further state that such counsel does need not know of express any contracts view as to the financial statements, notes and schedules or any other documents of a character required to be filed as an exhibit to financial, statistical or accounting data included or incorporated by reference in or omitted from the Registration Statement or required to be and the Prospectus. The opinions of such counsel described in this paragraph shall be rendered to the Registration Statement or Underwriters at the Prospectus which are not filed or described as requiredrequest of the Company and shall so state therein. Such opinions may contain customary recitals, conditions and qualifications.
Appears in 1 contract
Samples: Underwriting Agreement (Reinsurance Group of America Inc)
Xxxxx X. XxxxxxX. Xxxxxxx, Esq., General Counsel for of the Company, shall have furnished to you her written opinion (in a draft of such opinion is attached as Annex II(a) hereto), dated such Time of Delivery, in form and substance reasonably satisfactory to youthe Underwriters, to the effect that:
(i1) The Company has been is a corporation duly incorporated and is incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware, Delaware with corporate power and authority (corporate to own, lease and other) to own operate its properties and to conduct its business as described in the Registration Statement and as shall be described in the Final Prospectus;. To the best of such counsel's knowledge, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.
(ii2) The Company has an authorized capitalization as set forth in the Prospectus, and all All of the issued and outstanding shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly authorized and validly issued, and are fully paid and nonassessable and are owned of record by General Motors Corporation. All of the issued and outstanding shares of capital stock of each of the Significant Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable; the Shares non assessable and are free of preemptive and other preferential rights to subscribe for or purchase shares of Stock granted owned by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Companyor indirectly, free and clear of all liensLiens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than as set forth in the Registration Statement and as shall be described in the Final Prospectus.
(3) The execution and delivery of this Agreement and the Indenture and the consummation of the transactions contemplated hereby and thereby will not conflict with, there are no legal constitute a default under or governmental proceedings pending violate (or with respect to which the Company clause (y), impose or create any of its subsidiaries is a party lien upon any material property or of which any property assets of the Company or any of its subsidiaries is Significant Subsidiaries under) (x) any of the subject which have a reasonable possibility terms, conditions or provisions of success and which, if determined adversely to the respective certificates of incorporation or by laws of the Company or any its Significant Subsidiaries, (y) to the best of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by the Company;
(viii) The compliance by the Company with all of the provisions of this Agreement and the International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms terms, conditions or provisions ofof any contract, or constitute a default under, any indenture, mortgage, deed of trustloan agreement, loan agreement note, lease or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries Significant Subsidiaries is a party or by which the Company or any of its subsidiaries Significant Subsidiaries is bound bound, or to which any of the property or assets of the Company or any of its subsidiaries Significant Subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute or any order, rule or regulation known except with respect to such counsel conflicts, defaults or violations which would not have a Material Adverse Effect, or (z) any decree of any court or governmental agency or body having jurisdiction over authority binding on the Company or any its Significant Subsidiaries, of its subsidiaries or any of their properties; andwhich such counsel is aware, except those which would not have a Material Adverse Effect.
(ix4) Neither To the Company nor any best of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in such counsel's knowledge, no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which it the Company or its Significant Subsidiaries is a party or is bound where such default could have a Material Adverse Effect.
(5) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which could reasonably be expected to have a Material Adverse Effect and which are not disclosed in the Registration Statement or as shall be described in the Final Prospectus. In giving their opinions required by which it or any subsections (e)(A) and (B) of its properties may be bound exceptthis Section, Weil, Gotshal & Xxxxxx LLP and Ms. Tiffany shall additionally state that each such counsel (together with, in the case of this clause (B)Mr. Tiffany, attorneys on her staff acting under her supervision) have participated in conferences with directors, officers and other representatives of the Company, representatives of the independent public accountants for such defaults that would notthe Company, individually or in representatives of the aggregate, have a Material Adverse Effect. Such Underwriters and representatives of counsel shall also state that for the Registration Statement and any amendment made thereto prior to such Time of DeliveryUnderwriters, at which conferences the time it became effective, and contents of the Final Prospectus and any amendment or supplement made thereto prior to such Time of Deliveryrelated matters were discussed, as of its dateand, the date of such amendment or supplement and the date the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations thereunder; although such counsel will has not assume independently verified and is not passing upon and assumes no responsibility for the accuracy accuracy, completeness or completeness fairness of the statements made contained in the Registration Statement and ProspectusFinal Prospectus (except in the case of Weil, except and provided Gotshal & Xxxxxx LLP to the extent specified in subsection subsections (ii) of this Section 7(c) and except insofar as such statements relate e)(A)(4)), no facts have come to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason 's attention which lead it or him to believe that the Registration Statement Final Prospectus, on the date thereof or any amendment made thereto prior to such Time of Delivery, at the time Closing Date (or the Registration Statement or such amendment became effectiveOption Closing Date, as the case may be), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (in each case except for it being understood that such counsel expresses no view with respect to the financial statements and related notes, the financial statement schedules and the other information of an financial, statistical and accounting or financial nature data included therein, as to which such counsel will express no viewin the Final Prospectus). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit References to the Registration Statement Final Prospectus in this subsection (c) shall include any amendment or required to be supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. The opinion of Weil, Gotshal & Xxxxxx LLP described in subsection (e)(A) and the Registration Statement or opinion of Xxxxx X. X. Xxxxxxx, Esq. described in subsection (e)(B) shall be rendered to the Prospectus which are not filed or described as requiredUnderwriters at the request of the Company and shall so state therein.
Appears in 1 contract
Samples: Debt Securities Purchase Agreement (Hughes Electronics Corp)
Xxxxx X. XxxxxxXxxxxxx, Vice President and General Counsel of the Company, or other counsel for the CompanyCompany satisfactory to such Agent, shall have furnished to you her such Agent his written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, dated the Closing Date and each applicable date referred to in Section 4(i) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, in form and substance satisfactory to yousuch Agent, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State jurisdiction of Delaware, with its incorporation and has the power and authority (corporate and other) to own its properties and conduct its business as described in the ProspectusProspectus as amended or supplemented;
(ii) The authorized capital stock of the Company has an authorized capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and other preferential rights to subscribe for Prospectus as amended or purchase shares of Stock granted by the Company or pursuant to an agreement to which the Company is a party and the Shares conform to the description of the Stock contained in the Prospectussupplemented;
(iii) The Company has been duly qualified as a foreign corporation for To the transaction best of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Essex, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings proceed- ings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which have a reasonable possibility of success and which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate aggregate, would reasonably be expected to have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations position of the Company and its subsidiaries; , taken as a whole, or which is required to be disclosed in the Registration Statement and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiiv) This The Company has the corporate power and authority to execute and deliver this Agreement and the International Underwriting any Purchase Agreement and to perform its obligations hereunder and thereunder; and this Agreement and any applicable Purchase Agreement have been duly authorized, executed and delivered by the Company;
(viiiv) Assuming that at the time of the issuance, sale and delivery of each particular Security there will not have occurred any change in law affecting the validity, legally binding character or enforce- ability of such Security, that the terms of the Securities have been established in accordance with the Indenture and that the Securities are issued and delivered by the Company in accordance with this Agreement and any Purchase Agreement, the Securities will have been duly authorized, executed and delivered by the Company and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and enforceable in accordance with their terms and the terms of the Indenture (subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles); and the Indenture conforms and the Securities will conform, in all material re- spects, to the descriptions thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by the Company with all of the provisions of the Securities, the Indenture, this Agreement and the International Underwriting any applicable Purchase Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-laws Incorporation, as amended, of the Company or the Bylaws of the Company or, to such counsel's knowledge, any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries properties;
(viii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the solicitation of their properties; andoffers to purchase Securities, the issue and sale of the Securities or the consummation by the Company of the other transactions contemplated by this Agreement, any applicable Purchase Agreement, or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under any securities or Blue Sky laws of any state or foreign jurisdiction in connection with the solicitation by the Agents of offers to purchase Securities from the Company and with purchases of Securities by an Agent as principal, as the case may be, in each case in the manner contemplated hereby;
(ix) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default The documents incorporated by reference in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or Prospectus (other agreement or instrument to which it is a party or by which it or any of its properties may be bound except, in the case of this clause (B), for such defaults that would not, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto prior to such Time of Delivery, at the time it became effective, and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel (except than the financial statements and related schedules or other information of an accounting or financial nature included data therein, as to which such counsel will need express no viewopinion), appeared on their face when they were filed with the Commission, complied as to be appropriately responsive form in all material respects to with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder; although and such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel has no reason to believe that the Registration Statement or any amendment made thereto prior to of such Time of Deliverydocuments, at the time the Registration Statement or such amendment became effectivewhen they were so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such documents were so filed, not misleading misleading;
(in each case except for x) The Registration Statement and the Prospectus as amended and supplemented and any further amendments and supplements thereto made by the Company prior to the date of such opinion (other than the financial statements and related schedules or other information of an accounting or financial nature included data therein, as to which such counsel will need express no view). Such opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; such counsel shall has no reason to believe that, as of its effective date, the Registration Statement or any further amendment or supplement thereto made by the Company prior to the date of such opinion (other than the financial statements and related schedules or other financial data therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state that a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of the date of such opinion, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to the date of such opinion (other than the financial statements and related schedules or other financial data therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and such counsel does not know of any amendment to the Registration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incor- porated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required.; and
(xi) The Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission;
Appears in 1 contract
Samples: Distribution Agreement (International Multifoods Corp)
Xxxxx X. XxxxxxXxxxxxxx, General Counsel for Esq., counsel to the Company, shall have furnished to you her the Underwriters such counsel's written opinion (a draft of such opinion is attached as Annex II(a) hereto)opinion, addressed to the Underwriters and dated such Time of Deliverythe Closing Date, in form and substance satisfactory to youthe Underwriters, to the effect that:
(i) 1. The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of DelawareDelaware and is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification (except where any such failure would not have a material adverse effect on the Company's ability to perform its obligations under this Agreement[,] [or] the Pooling and Servicing Agreement [or the Insurance Agreement]), with and has all power and authority (corporate and other) necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its business as described obligations under this Agreement, the Pooling and Servicing Agreement[, the Insurance Agreement] and the Purchase Agreements, and cause the Certificates to be issued.
2. The Company is not in violation of its certificate of incorporation or by-laws or in default in the Prospectus;
(ii) The Company has an authorized capitalization as set forth performance or observance of any material obligation, agreement, covenant or condition contained in the Prospectusany contract, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; the Shares are free of preemptive and indenture, mortgage, loan agreement, note, lease or other preferential rights to subscribe for or purchase shares of Stock granted by the Company or pursuant to an agreement instrument to which the Company is a party and the Shares conform to the description of the Stock contained or by which it or its properties may be bound, which default might result in any material adverse change in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that she believes that both you and she are justified in relying upon such opinions and certificates);
(iv) Each Material Subsidiary is 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 Material Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares) are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims, other than as described in the Prospectus, including the liens resulting from the Restated Credit Agreement (as defined in the Prospectus);
(v) Essex Group, Inc. ("Essex") has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers financial condition of the Company or Essexwhich might materially and adversely affect the properties or assets, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(vi) To such counsel's knowledge and other than taken as set forth in the Prospectusa whole, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is Company.
3. This Agreement, the subject which have a reasonable possibility of success Pooling and whichServicing Agreement[, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position, stockholders' equity, cash flows or results of operations of the Company and its subsidiaries; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement Insurance Agreement] and the International Underwriting Agreement Purchase Agreements have been duly authorized, executed and delivered by the Company;
(viii) The compliance Company and, assuming the due authorization, execution and delivery of such agreements by the other parties thereto, such agreements constitute valid and binding obligations, enforceable against the Company in accordance with all their respective terms, subject as to enforceability to (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (y) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (z) with respect to rights of indemnity under this Agreement[ and the provisions Insurance Agreement], limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement Agreement, the Pooling and Servicing Agreement[, the Insurance Agreement] and the International Underwriting Agreement and Purchase Agreements by the Company, the consummation of the transactions herein contemplated hereby and therein contemplated thereby, and the issuance and delivery of the Certificates (i) do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, (ii) nor will such action actions result in any a violation of the provisions of the Certificate certificate of Incorporation incorporation or Byby-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries properties or assets, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, and (iii) nor will such actions result in the creation or imposition of any of their properties; andlien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
(ix) Neither 5. The direction by the Company nor to the Trustee to execute, issue, authenticate and deliver the Certificates has been duly authorized by the Company and, assuming that the Trustee has been duly authorized to do so, when executed by the Company and authenticated and delivered by the Trustee in accordance with the Pooling and Servicing Agreement, the Certificates will be validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement.
6. No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of its subsidiaries the United States is (A) required for the issuance of the Certificates, and the sale of the Offered Certificates to the Underwriters, or the consummation by the Company of the other transactions contemplated by this Agreement, the Pooling and Servicing Agreement [and the Insurance Agreement], except such consents, approvals, authorizations, registrations or qualifications as may be required under the Securities Act or state securities or Blue Sky laws in violation connection with the purchase and distribution of its Certificate the Offered Certificates by the Underwriters or as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which the Company has received service of Incorporation or By-laws or (B) in default in process before or, to the performance or observance best of such counsel's knowledge, without independent investigation, threatened by any material obligationcourt, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease administrative agency or other agreement or instrument tribunal to which it the Company is a party or by of which it or any of its properties may be bound exceptis the subject: (a) which if determined adversely to the Company would have a material adverse effect on the business, in results of operations or financial condition of the Company; (b) asserting the invalidity of the Pooling and Servicing Agreement[, the Insurance Agreement] or the Certificates; (c) seeking to prevent the issuance of the Certificates or the consummation by the Company of any of the transactions contemplated by the Pooling and Servicing Agreement[, the Insurance Agreement] or this Agreement, as the case may be; or (d) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, [the Insurance Agreement,] this clause (B)Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, for such defaults that would notand, individually or in the aggregate, have a Material Adverse Effect. Such counsel shall also state that the Registration Statement and any amendment made thereto immediately prior to such Time the sale of Delivery, at the time it became effective, and the Prospectus and any amendment or supplement made thereto prior to such Time of Delivery, as of its date, the date of such amendment or supplement and the date the statement is made by such counsel (except the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view), appeared on their face to be appropriately responsive in all material respects Offered Certificates to the requirements Underwriters, such Certificates are owned by the Company, free and clear of the Act and the applicable rules and regulations thereunder; although such counsel will not assume responsibility for the accuracy or completeness of the statements made in the Registration Statement and Prospectus, except and provided in subsection (ii) of this Section 7(c) and except insofar as such statements relate to such counsel; and that the work of such counsel in connection with such matters and as General Counsel of the Company did not disclose any information that gave such counsel reason to believe that the Registration Statement or any amendment made thereto prior to such Time of Delivery, at the time the Registration Statement or such amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any amendment or supplement made thereto prior to such Time of Delivery, at its date, the date of such amendment or supplement and the date of such counsel's statement, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case except for the financial statements and other information of an accounting or financial nature included therein, as to which such counsel will express no view). Such counsel shall further state that such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as requiredall Liens.
Appears in 1 contract
Samples: Underwriting Agreement (Equivantage Acceptance Corp)