Xxxxx X. Xxxxxxxx, Esq., counsel to the Company, shall have furnished to the Underwriters such counsel's written opinion, addressed to the Underwriters and dated the Closing Date, in form and substance satisfactory to the Underwriters, to the effect that: 1. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business in, 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 necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company. 3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements have been duly authorized, executed and delivered by the 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 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 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 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 contemplated hereby and 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 to which the Company is a party or by which the Company 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) result in a violation of the provisions of the charter documents or the by-laws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its 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 lien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement. 5. The direction by the Company 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 the United States is 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 connection with the purchase and distribution of 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 process before or, to the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, 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 Agreement or the Certificates. 8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale of the Offered Certificates to the Underwriters, such Certificates are owned by the Company, free and clear of all Liens.
Appears in 2 contracts
Samples: Underwriting Agreement (Equivantage Acceptance Corp), Underwriting Agreement (Equivantage Acceptance Corp)
Xxxxx X. XxxxxxxxXxxxxxx, Esq., counsel to General Counsel of the Company, shall have furnished to the Underwriters such counsel's you her written opinion, addressed to the Underwriters and dated the Closing DateTime of Delivery, in form and substance satisfactory to the Underwritersyou, to the effect that:
1. The (i) Each of the Company and each of the Subsidiaries listed on Schedule III has been duly organized qualified as a foreign corporation for the transaction of business and is validly existing as a corporation 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, except where the State of Delaware failure to so qualify and is duly qualified to do business in, and is be 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 could not reasonably be expected to have a material adverse effect on Material Adverse Effect;
(ii) To such counsel’s knowledge and other than as set forth in the Company's ability to perform its obligations under this Agreement, the Pooling and Servicing Agreement or the Insurance Agreement); Pricing Disclosure Package and the Company has all power and authority necessary to own Final Offering Memorandum, there are no legal or hold its properties and to conduct the business in which it is engaged and to enter into and perform its 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument governmental proceedings pending to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements have been duly authorized, executed and delivered by the 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 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 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 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 contemplated hereby and 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 to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company or any of its subsidiaries is subjectSubsidiaries (other than Jostens, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, (iiInc. and its Subsidiaries) result in a violation of the provisions of the charter documents or the by-laws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its 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 lien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction by the Company 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 the United States is 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 connection with the purchase and distribution of 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 process before or, to the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any property of its properties the Company or such subsidiary is the subject: (a) that subject which, if determined adversely to the Company or any of its Subsidiaries (other than Jostens, Inc. and its Subsidiaries), would individually or in the aggregate have a material adverse effect on Material Adverse Effect; and, to such counsel’s knowledge, no such proceedings are threatened by governmental authorities or threatened by others;
(iii) Other than the businessRegistration Rights Agreement and the Existing Exchange and Registration Rights Agreements or as described in the Pricing Disclosure Package and the Final Offering Memorandum, results there are no contracts, agreements or understandings between the Company or any of operations its Subsidiaries and any person granting such person the right to require the Company or financial condition any of its Subsidiaries to file a registration statement under the Securities Act with respect to any securities of the CompanyCompany or to require the Company or any of its Subsidiaries to include such securities with the Exchange Securities registered pursuant to any Registration Statement (as such term is defined in the Registration Rights Agreement); and
(biv) asserting the invalidity All of the Pooling issued shares of capital stock of each of Xxx Xxxxxxx Holdings Inc. 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 Agreement or the Certificates.
8. The Certificates AHC I Acquisition Corp. have been duly and validly authorized and issued, andare fully paid and non assessable, immediately prior to and (except as otherwise set forth in the sale of Pricing Disclosure Package and the Offered Certificates to the Underwriters, such Certificates Final Offering Memorandum) are owned directly by the CompanyVisant Corporation, free and clear of all Liensliens, encumbrances, equities or claims.
Appears in 2 contracts
Samples: Purchase Agreement (Visant Corp), Purchase Agreement (Visant Holding Corp)
Xxxxx X. XxxxxxxxXxxxx, Esq., as counsel to for the CompanySelling Shareholder, shall have furnished to the Underwriters such counsel's Representatives his written opinion, addressed to the Underwriters and dated the Closing Delivery Date, in form and substance satisfactory to the UnderwritersRepresentatives, to the effect that:
1. (i) The Company Selling Shareholder has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business infull right, 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 necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements have been duly authorized, executed and delivered by the 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 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 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 Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement, Agreement by the Pooling and Servicing Agreement, the Insurance Agreement Selling Shareholder and the Purchase Agreements consummation by the Company, the consummation Selling Shareholder of the transactions on the part of the Selling Shareholder contemplated hereby and 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 statute, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company Selling Shareholder is a party or by which the Company Selling Shareholder is bound or to which any of the property or assets of the Company or any of its subsidiaries Selling Shareholder 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 actions result in a any violation of the provisions of the charter documents or the 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 Selling Shareholder or any of its properties the property or assets, which breach or violation would have a material adverse effect on the business, operations or financial condition assets of the Company, or (iii) result in the creation or imposition of any lien, charge or encumbrance upon the Trust or upon the CertificatesSelling Shareholder; and, except as otherwise contemplated by for the Pooling and Servicing Agreement.
5. The direction by the Company 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 registration of the Pooling Stock under the Securities Act and Servicing Agreement.
6. No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of the United States is 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 Exchange Act or and applicable state securities or "blue sky" laws in connection with the purchase and distribution of the Offered Certificates Stock 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 process before orsuch counsel need express no opinion), to the best of no consent, approval, authorization or order of, or filing or registration with, any such counsel's knowledge, without independent investigation, threatened by any court, administrative court or governmental agency or other tribunal to which body is required for the Company is a party or execution, delivery and performance of which any of its properties is this Agreement by the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, results of operations or financial condition of the Company; (b) asserting the invalidity of the Pooling Selling Shareholder 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 Selling Shareholder of the transactions on the part of the Selling Shareholder contemplated hereby;
(ii) This Agreement has been duly executed and delivered by or on behalf of the Pooling Selling Shareholder; and
(iii) Upon payment for, 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 delivery of, the Pooling and Servicing Agreementshares of Stock to be sold by the Selling Shareholder under this Agreement in accordance with the terms hereof, the Insurance AgreementUnderwriters will acquire all of the rights of the Selling Shareholder in such shares and will also acquire the interest of the Selling Shareholder in such shares free of any adverse claim (within the meaning of the Uniform Commercial Code). In rendering such opinion, this Agreement such counsel may (i) state that his opinion is limited to matters governed by the Federal laws of the United States of America and the laws of the State of New York and (ii) in rendering the opinion in Section 9 above, rely upon a certificate of the Selling Shareholder in respect of matters of fact as to ownership of, and the absence of adverse claims regarding, the shares of Stock sold by the Selling Shareholder, provided that such counsel shall furnish copies thereof to the Representatives and state that he believes that both the Underwriters and he are justified in relying upon such certificate. Such counsel shall also have furnished to the Representatives a written statement, addressed to the Underwriters and dated the Delivery Date, in form and substance reasonably satisfactory to the Representatives, to the effect that (x) such counsel has acted as counsel to the Selling Shareholder in connection with the preparation of the Registration Statements, and (y) based on the foregoing, no facts have come to the attention of such counsel which lead him to believe that the Registration Statements (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement), as of their respective Effective Dates, contained any untrue statement of a material fact relating to the Selling Shareholder or omitted to state such a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and other financial data contained therein, as to which such counsel need make no such written statement) contains any untrue statement of a material fact relating to the Selling Shareholder or omits to state such a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that such counsel, as counsel to the Selling Shareholder, does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statements or the CertificatesProspectus.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale of the Offered Certificates to the Underwriters, such Certificates are owned by the Company, free and clear of all Liens.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxxxxx, Esq., counsel to General Counsel of the CompanyCompany (or such other person who shall be General Counsel of the Company at such Time of Delivery), shall have furnished to the Underwriters such counsel's Representatives her written opinion, addressed to the Underwriters and dated the Closing DateTime of Delivery for such Designated Securities, in form and substance satisfactory to the UnderwritersRepresentatives, to the effect that:
1. (i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Illinois, with corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership or leasing of property requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Company and its subsidiaries, taken as a whole;
(ii) Each of the Significant Subsidiaries of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State jurisdiction of Delaware its organization and is duly qualified to do transact business in, and is in good standing as a foreign corporation under the laws of, in each jurisdiction in which its ownership or lease of property or the conduct of its business or the ownership or leasing of its property requires such qualification (qualification, except where failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Company and its subsidiaries, taken as a whole;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any such failure would not of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, individually or in the aggregate, could reasonably be expected to 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 consolidated financial position of the Company has all power and authority necessary its subsidiaries; to own the best of such counsel’s knowledge, no such proceedings are threatened or hold its properties and to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Insurance contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Purchase Agreements, and Pricing Agreement with respect 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements Designated Securities have been duly authorized, executed and delivered by the Company andCompany;
(v) The Designated Securities have been duly authorized, assuming executed, authenticated, issued and delivered; and the due authorizationDesignated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented and in the Permitted Free Writing Prospectuses, execution if any;
(vi) The Indenture has been duly authorized, executed and delivery of such agreements delivered by the other parties theretoCompany 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, such agreements constitute valid and binding obligationsthe Indenture, enforceable against the Company, in accordance with 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 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 Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery Pricing Agreement with respect to the Designated Securities 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 and therein contemplated hereby and thereby and the issuance and delivery of the Certificates do not and will not (iA) 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 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, (iiC) result in a any violation of the provisions of the charter documents or the by-laws of the Company or any applicable law, statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties subsidiaries or assetsany of their respective properties, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, in any such case described in clause (B) or (iiiC) result the effects of which would, individually or in the creation or imposition of any lienaggregate, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction by the Company be materially adverse 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 its subsidiaries taken as a whole; 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 best of the Pooling and Servicing Agreement.
6. No such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body of the United States is required for the issuance issue and sale by the Company of the Certificates, and the sale of the Offered Certificates to the Underwriters, Designated Securities or the consummation by the Company of the other transactions contemplated by this Agreement, such Pricing Agreement or the Pooling and Servicing Agreement Indenture, except such as have been obtained under the Securities Act and the Insurance Agreement, except Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under the Securities Act or state securities or "blue sky" Blue Sky laws in connection with the purchase and distribution of the Offered Certificates Designated Securities by the Underwriters Underwriters;
(viii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules and other financial and statistical data therein, as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which such counsel need express no opinion), when they became effective or were filed with the Company has received service of process before or, to the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, 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 AgreementCommission, as the case may be, complied as to form in all material respects 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 (d) that might materially supplemented and adversely affect the performance any further amendments and supplements thereto made by the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement, this Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale 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 Offered Certificates Securities Act and the Trust Indenture Act and the rules and regulations thereunder; and such counsel does not know of any amendment to the UnderwritersRegistration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such Certificates are owned by counsel shall state that she or members of her staff have participated in conferences with other officers and representatives of the Company, free representatives of special counsel and clear the independent registered public accountants for the Company and the Underwriters and their representatives at which the contents of all Liensthe 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, or making any representation that she has independently verified or checked the accuracy, completeness or fairness of such statements. Notwithstanding the foregoing, no facts have come to such counsel’s attention that 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 thereto), as of the last time it became effective preceding the time the applicable 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 (ii) the General Disclosure Package as of the Pricing Effective Time 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.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxx, Esq., counsel to Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to the Underwriters such counsel's his written opinion, addressed to the Underwriters and dated the Closing such Delivery Date, in form and substance reasonably satisfactory to the Underwriters, substantially to the effect that:
1. The (i) Each of the Company and its Significant Subsidiaries which is incorporated in the United States has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation, has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in the State of Delaware Prospectus, and is duly qualified to do business in, and is in good standing as a foreign corporation under the laws of, authorized to do business in each jurisdiction described in Schedule 6 in which the ownership, leasing and operation of its ownership or lease of property or 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 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 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 failure would not have a material adverse effect on shares of capital stock or other equity interest of such subsidiaries owned by the Company's ability to perform its obligations under this Agreement, the Pooling and Servicing Agreement or the Insurance Agreement); and the .
(iii) The Company has all requisite corporate power and authority necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into execute, deliver and perform its obligations under this AgreementAgreement and to consummate the transactions contemplated hereby, including, without limitation, the Pooling corporate power and Servicing Agreementauthority to issue, sell and deliver the Insurance Agreement and the Purchase Agreements, and to cause the Certificates to be issuedShares as provided herein.
2. (iv) Except as set forth in the Prospectus, there are no preemptive or other rights to 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 (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 Significant Subsidiaries which are incorporated in the United States is not (i) in violation of its respective charter documents or the by-laws or bylaws, (ii) is in default in the performance or observance of any material obligation, agreement, covenant agreement or condition contained in any contractmaterial bond, debenture, note or any other evidence of indebtedness or in any other instrument, indenture, mortgage, loan agreementdeed of trust, noteretrocessional treaty or arrangement, lease or other instrument material agreement to which the Company it is a party or by which it is bound or to which any of its properties may be boundis subject or (iii) is in violation of any U.S. federal or Missouri law, which default might result in any material adverse change in the financial condition of statute, rule, regulation, judgment or court decree applicable to the Company or that might materially its Significant Subsidiaries which are incorporated in the United States, except in the case of clauses (ii) and adversely affect the properties (iii) for any such violation or assets, taken as default which would not reasonably be expected to have a whole, of the CompanyMaterial Adverse Effect.
3. This Agreement, the Pooling (vii) The execution and Servicing Agreement, the Insurance Agreement and the Purchase Agreements have been duly authorized, executed and delivered delivery by the 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 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 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 Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement, the Pooling and Servicing Agreement, issuance of the Insurance Agreement Shares and the Purchase Agreements consummation by the Company, the consummation Company of the transactions contemplated hereby and thereby and the issuance and delivery of the Certificates do not and will not (i) 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 indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets properties of the Company or any of its subsidiaries is subjectSignificant Subsidiaries which are incorporated in the United States, which breach or violation would have a material adverse effect on the business, operations or financial condition an acceleration of the Companyindebtedness pursuant to, (iii) result in a violation of the provisions of the charter documents or the by-laws bylaws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties Significant Subsidiaries which are incorporated in the United States, (ii) any bond, debenture, note, indenture, mortgage, deed of trust or assetsother agreement or instrument known to such counsel to which the Company or any of its Significant Subsidiaries which are incorporated in the United States is a party or by which any of them or their property is or may be bound, which breach (iii) any U.S. federal or violation would have a material adverse effect on the businessMissouri statute, operations rule or financial condition 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 authority having jurisdiction over the Company, or (iii) result any of its Significant Subsidiaries which are incorporated in the creation United States or imposition of any lientheir assets or properties, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction 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 Trustee qualification that the rights to executeindemnification or contribution provided for herein may be violative of public policy underlying certain laws, issuerules or regulations (including federal and state securities laws, authenticate rules or regulations) and deliver the Certificates has except for such consents as may have been duly authorized obtained by the Company and, assuming that the Trustee has been duly authorized to do so, when executed 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 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.
6NASD. No consent, approval, authorizationauthorization or order of, orderor filing, registration registration, qualification, license or qualification permit of or with with, any court or governmental agency, body, administrative agency or body or, to the knowledge of the United States such counsel, any court, is required for the execution and delivery by the Company of this Agreement, the issuance of the Certificates, Shares and the sale of the Offered Certificates to the Underwriters, or the consummation by the Company of the other 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 Pooling and Servicing Agreement issuance of the Shares 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 connection with the purchase and distribution consummation of the Offered Certificates transactions contemplated hereby and thereby (other than compliance by the Underwriters 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 as adversely affect the issuance of the Shares, if at all, or (iii) have been previously obtained.
7(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. There To the best knowledge of such counsel and except as would not have a Material Adverse Effect, all such Authorizations are no actions, proceedings or investigations pending 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, 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.
(x) The Incorporated Documents or any further amendment or supplement thereto made by the Company prior to the applicable Delivery Date (other than the financial statements, notes and schedules or any other financial, statistical or accounting data included or incorporated by reference in or omitted from the Incorporated Documents, as to which such counsel need express no opinion), when they were filed with the Company has received service Commission and as of process before orthe applicable Delivery Date, complied and comply, as the case may be, as to form in all material respects with the requirements of the Exchange Act.
(xi) To the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency there are no contracts or other tribunal documents which are required to which be described in the Company is a party Prospectus or of which any of its properties is the subject: (a) that if determined adversely filed as exhibits to the Company would Registration Statement by the Securities Act which have a material adverse effect on not been described or filed as exhibits to the businessRegistration Statement. In addition, results such counsel shall state that he has, or members of operations or financial condition his staff have, participated in conferences with other officers and other representatives of the Company; (b) asserting , representatives of Deloitte & Touche, the invalidity Underwriters and their counsel in connection with the preparation of the Pooling Registration Statement and Servicing Agreementthe Prospectus at which conferences the contents of the Registration Statement and the Prospectus were discussed, reviewed and revised. Although such counsel is not passing upon, and does not assume responsibility for, the Insurance Agreement accuracy, completeness or fairness of such statements and has not made any independent investigation thereof (except as indicated above), on the Certificates; (c) seeking to prevent the issuance basis of the Certificates information which was developed in the course thereof, such counsel will advise the Underwriters that such counsel has no reason to believe that (i) the Registration Statement, on the Effective Date, contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the consummation statements therein not misleading and (ii) the Prospectus as such Prospectus may have been amended or supplemented, if applicable), at the time such Prospectus was circulated and on the applicable Delivery Date, 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, in the light of the circumstances under which they were made, not misleading. Such counsel need not express any view as to the financial statements, notes and schedules or any other financial, statistical or accounting data included or incorporated by reference in or omitted from the Registration Statement and the Prospectus. The opinions of such counsel described in this paragraph shall be rendered to the Underwriters at the request of the Company of any of the transactions contemplated by the Pooling and Servicing Agreementshall so state therein. Such opinions may contain customary recitals, the Insurance Agreement or this Agreement, as the case may be; or (d) that might materially conditions 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 Agreement or the Certificatesqualifications.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale of the Offered Certificates to the Underwriters, such Certificates are owned by the Company, free and clear of all Liens.
Appears in 1 contract
Samples: Underwriting Agreement (Reinsurance Group of America Inc)
Xxxxx X. XxxxxxxxXxxxxxxxxx, Esq.General Counsel of the Company (or such other person who shall be General Counsel of the Company at such Time of Delivery), counsel to the Companyor Xxxx X. Xxxxx, Divisional Vice President and Associate General Counsel, shall have furnished to the Underwriters Representatives such counsel's ’s written opinion, addressed to the Underwriters and dated the Closing DateTime of Delivery for such Designated Securities, in form and substance satisfactory to the UnderwritersRepresentatives, to the effect that:
1. (i) The Company is validly existing as a corporation in good standing under the laws of the State of Illinois, with corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership or leasing of property requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Company and its subsidiaries, taken as a whole;
(ii) Each of the Significant Subsidiaries of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State jurisdiction of Delaware its organization and is duly qualified to do transact business in, and is in good standing as a foreign corporation under the laws of, in each jurisdiction in which its ownership or lease of property or the conduct of its business or the ownership or leasing of its property requires such qualification (qualification, except where failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Company and its subsidiaries, taken as a whole;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any such failure would not of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, individually or in the aggregate, could reasonably be expected to 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 consolidated financial position of the Company has all power and authority necessary its subsidiaries; to own the best of such counsel’s knowledge, no such proceedings are threatened or hold its properties and to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Insurance contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Purchase Agreements, and Pricing Agreement with respect 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements Designated Securities have been duly authorized, executed and delivered by the Company andCompany;
(v) The Designated Securities have been duly authorized, assuming executed, authenticated, issued and delivered; and the due authorizationDesignated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented and in the Permitted Free Writing Prospectuses, execution if any;
(vi) The Indenture has been duly authorized, executed and delivery of such agreements delivered by the other parties theretoCompany 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, such agreements constitute valid and binding obligationsthe Indenture, enforceable against the Company, in accordance with 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 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 Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery Pricing Agreement with respect to the Designated Securities 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 and therein contemplated hereby and thereby and the issuance and delivery of the Certificates do not and will not (iA) 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 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, (iiC) result in a any violation of the provisions of the charter documents or the by-laws of the Company or any applicable law, statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties subsidiaries or assetsany of their respective properties, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, in any such case described in clause (B) or (iiiC) result the effects of which would, individually or in the creation or imposition of any lienaggregate, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction by the Company be materially adverse 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 its subsidiaries taken as a whole; 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 best of the Pooling and Servicing Agreement.
6. No such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body of the United States is required for the issuance issue and sale by the Company of the Certificates, and the sale of the Offered Certificates to the Underwriters, Designated Securities or the consummation by the Company of the other transactions contemplated by this Agreement, such Pricing Agreement or the Pooling and Servicing Agreement Indenture, except such as have been obtained under the Securities Act and the Insurance Agreement, except Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under the Securities Act or state securities or "blue sky" Blue Sky laws in connection with the purchase and distribution of the Offered Certificates Designated Securities by the Underwriters Underwriters;
(viii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules and other financial and statistical data therein, as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which such counsel need express no opinion), when they became effective or were filed with the Company has received service of process before or, to the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, 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 AgreementCommission, as the case may be, complied as to form in all material respects 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 (d) that might materially supplemented and adversely affect the performance any further amendments and supplements thereto made by the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement, this Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale 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 Offered Certificates Securities Act and the Trust Indenture Act and the rules and regulations thereunder; and such counsel does not know of any amendment to the UnderwritersRegistration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such Certificates are owned by 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, free representatives of special counsel and clear the independent registered public accountants for the Company and the Underwriters and their representatives at which the contents of all Liensthe 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, or making any representation that such counsel has independently verified or checked the accuracy, completeness or fairness of such statements. Notwithstanding the foregoing, no facts have come to such counsel’s attention that would lead such counsel 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 thereto), as of the last time it became effective preceding the time the applicable 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 (ii) the General Disclosure Package as of the Pricing Effective Time 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.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxxxxx, Esq., counsel to General Counsel of the Company, Company (or such other person who shall be General Counsel of the Company at such Time of Delivery) shall have furnished to the Underwriters such counsel's Representatives his written opinion, addressed to the Underwriters and dated the Closing DateTime of Delivery for such Designated Securities, in form and substance satisfactory to the UnderwritersRepresentatives, to the effect that:
1. (i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Illinois, with corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership or leasing of property requires such qualification, except where the failure to qualify would not in the aggregate have a material adverse effect upon the Company and its subsidiaries taken as a whole;
(ii) Each of the Significant Subsidiaries of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State jurisdiction of Delaware its organization and is duly qualified to do transact business in, and is in good standing as a foreign corporation under the laws of, in each jurisdiction in which its ownership or lease of property or the conduct of its business or the ownership or leasing of its property requires such qualification (qualification, except where any such failure to qualify would not in the aggregate have a material adverse effect upon the Company and its subsidiaries taken as a whole;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, individually or in the aggregate, could reasonably be expected to 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 consolidated financial position of the Company has all power and authority necessary its subsidiaries; to own the best of such counsel’s knowledge, no such proceedings are threatened or hold its properties and to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Insurance contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Purchase Agreements, and Pricing Agreement with respect 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements Designated Securities have been duly authorized, executed and delivered by the Company andCompany;
(v) The Designated Securities have been duly authorized, assuming the due authorizationexecuted, execution authenticated, issued and delivery of such agreements by the other parties thereto, such agreements delivered and constitute valid and legally binding obligationsobligations of the Company entitled to the benefits provided by the Indenture, enforceable against the Companysubject, in accordance with their respective termsas to enforcement, except as enforcement thereof may be limited by (x) to bankruptcy, insolvency, reorganization, moratorium or reorganization and other similar laws now or hereafter in effect of general applicability relating to or affecting creditors' ’ rights generallyand to general equity principles; 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;
(yvi) general principles The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and, assuming due execution and delivery by the Trustee, constitutes and, at the Time of equity Delivery for such Designated Securities (regardless of whether enforcement is sought as defined in a proceeding in equity or at lawSection 3 hereof), will constitute, a valid and legally binding instrument, enforceable 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;
(zvii) The issue and sale of the Designated Securities and the compliance by the Company with respect to rights all of indemnity under the provisions of the Designated Securities, the Indenture, this Agreement and the Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery Pricing Agreement with respect to the Designated Securities 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 and therein contemplated hereby and 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, 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, the effects of which breach would, individually or violation would have in the aggregate, be materially adverse to the Company and its subsidiaries taken as a material adverse effect on the businesswhole, operations or financial condition of the Company, (ii) nor will such action result in a any violation of the provisions of the charter documents Restated Articles of Incorporation or the byBy-laws 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 properties subsidiaries or assets, which breach or violation would have a material adverse effect on the business, operations or financial condition any of the Company, or (iii) result in the creation or imposition of any lien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling their respective properties; and Servicing Agreement.
5. The direction by the Company 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 no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body of the United States is required for the issuance issue and sale by the Company of the Certificates, and the sale of the Offered Certificates to the Underwriters, Designated Securities or the consummation by the Company of the other transactions contemplated by this Agreement, such Pricing Agreement or the Pooling and Servicing Agreement Indenture, except such as have been obtained under the Securities Act and the Insurance Agreement, except Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under the Securities Act or state securities or "blue sky" Blue Sky laws in connection with the purchase and distribution of the Offered Certificates Designated Securities by the Underwriters Underwriters;
(viii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules and other financial and statistical data therein, as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which such counsel need express no opinion), when they became effective or were filed with the Company has received service of process before or, to the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, 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 AgreementCommission, as the case may be, complied as to form in all material respects 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 (d) that might materially supplemented and adversely affect the performance any further amendments and supplements thereto made by the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement, this Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale 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 Offered Certificates Securities Act and the Trust Indenture Act and the rules and regulations thereunder; and such counsel does not know of any amendment to the UnderwritersRegistration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such Certificates are owned by counsel shall state that she or members of her staff have participated in conferences with other officers and representatives of the Company, free representatives of special counsel and clear the independent certified public accountants for the Company and the Underwriters and their representatives at which the contents of all Liensthe 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, or making any representation that she has independently verified or checked the accuracy, completeness or fairness of such statements. Notwithstanding the foregoing, no facts have come to such counsel’s attention that 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 thereto), as of the last time it became effective preceding the time the applicable 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 (ii) the General Disclosure Package as of the Pricing Effective Time 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.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxXxx, Esq.Associate Counsel of Torchmark Corporation, counsel to the Companyparent of United, shall have furnished to the Underwriters such counsel's Representatives her written opinion, addressed to the Underwriters and opinion dated the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to the UnderwritersRepresentatives, to the effect that:
1. The Company (i) this Agreement has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business in, 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 necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements have been duly authorized, executed and delivered by such Selling Stockholder and compliance with all of the Company and, assuming the due authorization, execution and delivery provisions of such agreements by the other parties thereto, such agreements constitute valid and binding obligations, enforceable against the Company, in accordance with 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 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 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 contemplated hereby and thereby and the issuance and delivery of the Certificates do not and herein 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 statute, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company such Selling Stockholder is a party or by which the Company 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, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, (ii) result in a violation of the provisions of the charter documents or the 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 properties default which would not, individually or assetsin the aggregate, which breach or violation would have a material adverse effect on the business, operations assets, or financial condition of such Selling Stockholder or the Company, or (iii) result in ability of such Selling Stockholder to consummate the creation or imposition of any lien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction by the Company 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 sales of the Pooling and Servicing Agreement.Shares;
6. No (ii) no consent, approval, authorization, order, registration authorization or qualification order of or with any court or governmental agency or body of the United States is required for the issuance consummation of the Certificates, and transactions contemplated by this Agreement in connection with 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, Shares hereunder except such consents, approvals, authorizations, registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Securities Act state or state foreign securities or "blue sky" sky laws in connection with the purchase and distribution of such Shares by the Offered Certificates 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 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 process before or, pursuant to the best of such counsel's knowledgeUnderwriting Agreement, without independent investigation, threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely good and valid title to the Company would have a material adverse effect on the business, 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 Shares to prevent the issuance of the Certificates or the consummation be sold 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 Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale of the Offered Certificates to the Underwriters, such Certificates are owned by the CompanySelling Stockholders, free and clear of all Liens.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 such lien, encumbrance, equity or claim or any other adverse claim within the meaning of the Uniform Commercial Code;
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxx, Esq., counsel to Vice President and General Counsel of the Company, or other counsel for the Company satisfactory to such Agent, shall have furnished to the Underwriters such counsel's Agent his written opinion, addressed to the Underwriters and dated the Closing DateDate 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 the Underwriterssuch Agent, to the effect that:
1. (i) The Company has been duly organized incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business in, 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 incorporation and has the power and authority (corporate and other) to own its properties and conduct its business requires as described in the Prospectus as amended or supplemented;
(ii) The authorized capital stock of the Company is as set forth in the Prospectus as amended or supplemented;
(iii) To the best of such qualification (except where counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceed- ings pending to which the Company or any such failure of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, individually or in the aggregate, would not reasonably be expected to 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 necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the consolidated financial condition position of the Company or that might materially and adversely affect the properties or assetsits 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;
(iv) The Company has the corporate power and authority to execute and deliver this Agreement and 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;
(v) Assuming that at the time of the Company.
3. This 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 Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements Securities will have been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery of such agreements by the other parties thereto, such agreements will constitute valid and legally binding obligationsobligations 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, Company in accordance with their respective its terms, except subject, as enforcement thereof may be limited by (x) to enforcement, to bankruptcy, insolvency, reorganization, moratorium or reorganization and other similar laws now or hereafter in effect of general applicability relating to or affecting creditors' rights generallyand to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, (y) general principles the compliance by the Company with all of equity (regardless the provisions of whether enforcement is sought in a proceeding in equity or at law)the Securities, and (z) with respect to rights of indemnity under the Indenture, this Agreement and the Insurance Agreement, limitations of public policy under any applicable securities laws.
4. The execution, delivery and performance of this Agreement, the Pooling and Servicing Agreement, the Insurance Purchase Agreement and the Purchase Agreements by the Company, the consummation of the transactions herein and therein contemplated hereby and 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 is a party or by which the Company 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 result in a any violation of the provisions of the charter documents or the by-laws Restated Certificate of 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 of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, or properties;
(iiiviii) result in the creation or imposition of any lien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction by the Company 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 the United States is required for the issuance solicitation of offers to purchase Securities, the Certificates, issue and the sale of the Offered Certificates to the Underwriters, Securities or the consummation by the Company of the other transactions contemplated by this Agreement, any applicable Purchase Agreement, or the Pooling and Servicing Agreement Indenture, except such as have been obtained under the Act and the Insurance Agreement, except Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Securities Act or state any securities or "blue sky" 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 distribution with purchases of Securities by an Agent as principal, as the case may be, in each case in the manner contemplated hereby;
(ix) The documents incorporated by reference in the Prospectus (other than the financial statements and related schedules or other financial data therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Offered Certificates Exchange Act and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading;
(x) The Registration Statement and the Prospectus as amended and supplemented and any further amendments and supplements thereto made by the Underwriters Company prior to the date of such opinion (other than the financial statements and related schedules or other financial data therein, as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; such counsel 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 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 received service of process before orbecome effective under the Act and, to the best of such counsel's knowledge, without independent investigation, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, 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 Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale of the Offered Certificates to the Underwriters, such Certificates are owned by the Company, free and clear of all Liens.Commission;
Appears in 1 contract
Samples: Distribution Agreement (International Multifoods Corp)
Xxxxx X. XxxxxxxxXxxxxxxxxx, Esq.General Counsel of the Company (or such other person who shall be General Counsel of the Company at such Time of Delivery), counsel to the Companyor Xxxx X. Xxxxx, Divisional Vice President and Associate General Counsel, shall have furnished to the Underwriters such counsel's Representatives her written opinion, addressed to the Underwriters and dated the Closing DateTime of Delivery for such Designated Securities, in form and substance satisfactory to the UnderwritersRepresentatives, to the effect that:
1. (i) The Company is validly existing as a corporation in good standing under the laws of the State of Illinois, with corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership or leasing of property requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Company and its subsidiaries, taken as a whole;
(ii) Each of the Significant Subsidiaries of the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State jurisdiction of Delaware its organization and is duly qualified to do transact business in, and is in good standing as a foreign corporation under the laws of, in each jurisdiction in which its ownership or lease of property or the conduct of its business or the ownership or leasing of its property requires such qualification (qualification, except where failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Company and its subsidiaries, taken as a whole;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any such failure would not of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that, individually or in the aggregate, could reasonably be expected to 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 consolidated financial position of the Company has all power and authority necessary its subsidiaries; to own the best of such counsel’s knowledge, no such proceedings are threatened or hold its properties and to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Insurance contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Purchase Agreements, and Pricing Agreement with respect 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 performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements Designated Securities have been duly authorized, executed and delivered by the Company andCompany;
(v) The Designated Securities have been duly authorized, assuming executed, authenticated, issued and delivered; and the due authorizationDesignated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented and in the Permitted Free Writing Prospectuses, execution if any;
(vi) The Indenture has been duly authorized, executed and delivery of such agreements delivered by the other parties theretoCompany 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, such agreements constitute valid and binding obligationsthe Indenture, enforceable against the Company, in accordance with 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 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 Insurance Agreement, limitations of public policy under applicable securities laws.
4. The execution, delivery Pricing Agreement with respect to the Designated Securities 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 and therein contemplated hereby and thereby and the issuance and delivery of the Certificates do not and will not (iA) 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 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, (iiC) result in a any violation of the provisions of the charter documents or the by-laws of the Company or any applicable law, statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties subsidiaries or assetsany of their respective properties, which breach or violation would have a material adverse effect on the business, operations or financial condition of the Company, in any such case described in clause (B) or (iiiC) result the effects of which would, individually or in the creation or imposition of any lienaggregate, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing Agreement.
5. The direction by the Company be materially adverse 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 its subsidiaries taken as a whole; 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 best of the Pooling and Servicing Agreement.
6. No such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body of the United States is required for the issuance issue and sale by the Company of the Certificates, and the sale of the Offered Certificates to the Underwriters, Designated Securities or the consummation by the Company of the other transactions contemplated by this Agreement, such Pricing Agreement or the Pooling and Servicing Agreement Indenture, except such as have been obtained under the Securities Act and the Insurance Agreement, except Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under the Securities Act or state securities or "blue sky" Blue Sky laws in connection with the purchase and distribution of the Offered Certificates Designated Securities by the Underwriters Underwriters;
(viii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules and other financial and statistical data therein, as have been previously obtained.
7. There are no actions, proceedings or investigations pending with respect to which such counsel need express no opinion), when they became effective or were filed with the Company has received service of process before or, to the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely to the Company would have a material adverse effect on the business, 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 AgreementCommission, as the case may be, complied as to form in all material respects 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 (d) that might materially supplemented and adversely affect the performance any further amendments and supplements thereto made by the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement, this Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale 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 Offered Certificates Securities Act and the Trust Indenture Act and the rules and regulations thereunder; and such counsel does not know of any amendment to the UnderwritersRegistration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required. In addition, such Certificates are owned by 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, free representatives of special counsel and clear the independent registered public accountants for the Company and the Underwriters and their representatives at which the contents of all Liensthe 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, or making any representation that such counsel has independently verified or checked the accuracy, completeness or fairness of such statements. Notwithstanding the foregoing, no facts have come to such counsel’s attention that 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 thereto), as of the last time it became effective preceding the time the applicable 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 (ii) the General Disclosure Package as of the Pricing Effective Time 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.
Appears in 1 contract
Xxxxx X. XxxxxxxxXxxxxxx, Esq., counsel to General Counsel of the Company, shall have furnished to the Underwriters such counsel's you his written opinion, addressed to the Underwriters and dated the Closing Date, in form and substance satisfactory to the Underwriters, you to the effect that:
1. The (i) 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, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect on the Company and its subsidiaries taken as a whole;
(ii) each of the Company's subsidiaries has been duly incorporated or organized and is validly existing as a corporation, partnership or limited liability company under the laws of its jurisdiction of incorporation or organization with power and authority (corporate, partnership or other) to own its properties and conduct its business as described in the 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, or conducts any business, so as to require such qualification, other than where the State of Delaware failure to be so qualified and is duly qualified to do business in, 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 Material Adverse Effect on the CompanyCompany and its subsidiaries taken as a whole;
(iii) 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 ability to perform its obligations under this Agreementknowledge, the Pooling and Servicing Agreement threatened against or the Insurance Agreement); and affecting the Company has all power and authority necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its 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 any of its charter documents subsidiaries or the by-laws any of their respective properties or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is or may be a party or by to which it or its properties may be bound, which default might result in any material adverse change in the financial condition property of the Company or that might materially its subsidiaries is or may be the subject which, if determined adversely to the Company or any of its subsidiaries, could individually or in the aggregate have, or reasonably be expected to have a Material Adverse Effect on the Company and adversely affect the properties or assets, its subsidiaries taken as a whole; 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 Company.Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required;
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements have been duly authorized, executed and delivered by (iv) neither the Company andnor any of its subsidiaries is, assuming or with the due authorization, execution and delivery giving of such agreements by the other parties thereto, such agreements constitute valid and binding obligations, enforceable against the Companynotice or lapse of time or both would be, in accordance with 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 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 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 contemplated hereby and 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 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 is a party or by which the Company is bound or to which any of the property or assets of the Company or any of its subsidiaries is subjecta party or by which it or any of them or any of their respective properties is bound, except for violations and defaults which breach individually and in the aggregate are not material to the Company and its subsidiaries taken as a whole or violation would have a material adverse effect on to the business, operations or financial condition holders of the Company, Securities; and
(iiv) result in a violation of the provisions of the charter documents or the by-laws 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 statute such subsidiary has received any actual notice of any proceeding relating to revocation or modification of any such license, permit, certificate, consent, order, rule approval or regulation other authorization, the revocation or modification of any court or governmental agency or body having jurisdiction over which could reasonably be expected to have a Material Adverse Effect on the Company or any of and its properties or assets, which breach or violation would have subsidiaries taken as a material adverse effect on the business, operations or financial condition of the Company, or (iii) result in the creation or imposition of any lien, charge or encumbrance upon the Trust or upon the Certificateswhole, except as otherwise contemplated by described in the Pooling and Servicing Agreement.
5. The direction by the Company 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 the United States is required for the issuance of the Certificates, Registration Statement 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 Prospectus; 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 connection with the purchase and distribution of 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 process before or, to the best of such counsel's knowledge, without independent investigation, threatened by any court, administrative agency or other tribunal to which each of the Company and its subsidiaries is a party or of which any in compliance with all laws and regulations relating to the conduct of its properties is business as conducted as of the subject: (a) that if determined adversely 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 would have and its subsidiaries taken as a material adverse effect on the businesswhole. The opinion of Xxxxx X. Xxxxxxx, results of operations or financial condition General Counsel of the Company; (b) asserting , described above shall be rendered to the invalidity Underwriters at the request of the Pooling Company and Servicing Agreementshall so state therein. In rendering the opinions pursuant to paragraphs (f) or (g), such counsel may rely (A) as to matters involving the Insurance Agreement or application of laws other than the Certificates; (c) seeking to prevent the issuance laws of the Certificates or United States and the consummation by the Company States of any of the transactions contemplated by the Pooling Delaware, New York and Servicing AgreementPennsylvania, 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 Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale 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 the Offered Certificates other counsel reasonably acceptable to the Underwriters' counsel, familiar with the applicable laws; (B) as to matters of fact, to the extent such Certificates are owned by 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 such other counsel upon which they relied is in form satisfactory to such counsel and, free in such counsel's opinion, the Underwriters and clear 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 all Liensthe Registration Statement and the Prospectus and any amendment or supplement thereto (other than the documents incorporated by reference therein) and review and discussion of the contents thereof (including the documents incorporated by reference therein) but is without independent check or verification except as specified.
Appears in 1 contract
Samples: Underwriting Agreement (Universal Health Services Inc)
Xxxxx X. XxxxxxxxX. Xxxxxxx, Esq., counsel to General Counsel of the Company, shall have furnished to the Underwriters such counsel's written opinion, addressed to the Underwriters and dated the Closing Date, in a form and substance reasonably satisfactory to the Underwriters, to the effect that:
(1. ) The Company has been is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and 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 do transact business in, and is in good standing as a foreign corporation under the laws of, in each jurisdiction in which its such qualification is required, whether by reason of ownership or lease leasing of property or the conduct of its business requires such qualification (business, except where any such the failure to so qualify would not have a material adverse effect on Material Adverse Effect.
(2) All of the issued and outstanding shares of capital stock of the Company 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 and are owned by the Company's ability to perform its obligations under , directly or indirectly, free and clear of all Liens, 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, the Pooling and Servicing Agreement or the Insurance Agreement); and the Company has all power and authority necessary to own or hold its properties and to conduct the business in which it is engaged and to enter into and perform its obligations under this Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase AgreementsIndenture and the consummation of the transactions contemplated hereby and thereby will not conflict with, and constitute a default under or violate (or with respect to cause clause (y), impose or create any lien upon any material property or assets of the Certificates Company or any of its Significant Subsidiaries under) (x) any of the terms, conditions or provisions of the respective certificates of incorporation or by laws of the Company or its Significant Subsidiaries, (y) to be issuedthe best of such counsel's knowledge, any of the terms, conditions or provisions of any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or its Significant Subsidiaries is a party or by which the Company or its Significant Subsidiaries is bound, or to which any of the property or assets of the Company or its Significant Subsidiaries is subject, except with respect to such conflicts, defaults or violations which would not have a Material Adverse Effect, or (z) any decree of any court or governmental authority binding on the Company or its Significant Subsidiaries, of which such counsel is aware, except those which would not have a Material Adverse Effect.
2. The Company is not in violation (4) To the best of its charter documents or the by-laws or 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, loan agreement, note, lease or other instrument to which the Company is a party or by which it or its properties may be bound, which default might result in any material adverse change in the financial condition of the Company or that might materially and adversely affect the properties or assets, taken as a whole, of the Company.
3. This Agreement, the Pooling and Servicing Agreement, the Insurance Agreement and the Purchase Agreements have been duly authorized, executed and delivered by the 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 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 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 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 contemplated hereby and 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 to which the Company or its Significant Subsidiaries is a party or by which the Company 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 where such default could have a material adverse effect on the business, operations or financial condition of the Company, (ii) result in a violation of the provisions of the charter documents or the by-laws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its 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 lien, charge or encumbrance upon the Trust or upon the Certificates, except as otherwise contemplated by the Pooling and Servicing AgreementMaterial Adverse Effect.
(5. The direction by the Company 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 the United States is 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 connection with the purchase and distribution of 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 process before or, to ) To the best of such counsel's knowledge, without independent investigation, there are no legal or governmental proceedings pending or threatened by any court, administrative agency or other tribunal which could reasonably be expected to which the Company is a party or of which any of its properties is the subject: (a) that if determined adversely to the Company would have a material adverse effect 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 subsections (e)(A) and (B) of this Section, Weil, Gotshal & Xxxxxx LLP and Ms. Tiffany shall additionally state that each such counsel (together with, in the case of Mr. Tiffany, attorneys on the businessher staff acting under her supervision) have participated in conferences with directors, results of operations or financial condition officers and other representatives of the Company; (b) asserting the invalidity , representatives of the Pooling independent public accountants for the Company, representatives of the Underwriters and Servicing Agreementrepresentatives of counsel for the Underwriters, at which conferences the Insurance Agreement contents of the Final Prospectus and related matters were discussed, and, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Prospectus (except in the case of Weil, Gotshal & Xxxxxx LLP to the extent specified in subsections (e)(A)(4)), no facts have come to such counsel's attention which lead it or him to believe that the Final Prospectus, on the date thereof or at the Closing Date (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 AgreementOption 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 contained therein, in light of the circumstances under which they were made, not misleading (dit being understood that such counsel expresses no view with respect to the financial statements and related notes, the financial statement schedules and the other financial, statistical and accounting data included in the Final Prospectus). References to the Final Prospectus in this subsection (c) that might materially shall include any amendment or 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 adversely affect the performance by opinion of Xxxxx X. X. Xxxxxxx, Esq. described in subsection (e)(B) shall be rendered to the Underwriters at the request of the Company of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement, this Agreement or the Certificatesshall so state therein.
8. The Certificates have been duly and validly authorized and issued, and, immediately prior to the sale of the Offered Certificates to the Underwriters, such Certificates are owned by the Company, free and clear of all Liens.
Appears in 1 contract
Samples: Debt Securities Purchase Agreement (Hughes Electronics Corp)
