Xxxxxx X. Xxxxxx, Vice President - Law and Corporate Secretary of the Company, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex 11(e) hereto), dated the Time of Delivery, in form and substance satisfactory to you to the effect that: (i) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus; (ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or except where any such failure to qualify would not have a Material Adverse Effect; (iii) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates); (iv) The issuance of the Guarantee and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated 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 subsidiaries or any of their properties; (v) To his knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound; (vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and (viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).
Appears in 1 contract
Xxxxxx X. Xxxxxx, Vice President - Law and Corporate Secretary Esq., General Counsel of the Company, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex 11(e) hereto)opinion, dated the such Time of Delivery, in form and substance satisfactory to you you, to the effect that:
(i) The Company has an authorized capitalization as set forth in the Prospectus, and all Each of the issued shares of capital stock of the Company Company, K&F, Aircraft Braking Systems Corporation and Engineered Fabrics Corporation is duly qualified to do business and in good standing as a foreign corporation in each jurisdiction in which their respective businesses require such qualification (except where failure to so qualify would not have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectusa Material Adverse Effect);
(ii) The Company To the knowledge of such counsel, none of the Company, K&F or any of their respective Subsidiaries is in violation of its corporate charter, by-laws or other constitutive documents, nor in default under any agreement (including loan and credit agreements), indenture or instrument known to such counsel, which default would have a Material Adverse Effect; to the knowledge of such counsel, none of the Company, K&F nor any of their respective Subsidiaries is in violation of any law, ordinance, governmental rule or regulation or court decree to which it may be subject and has been duly qualified obtained each license, permit, patent, certificate, franchise or other governmental authorization or permit (collectively, “permits”) necessary to the ownership of its properties or to the conduct of its business as a foreign corporation described in the Prospectus, other than permits being applied for in the transaction ordinary course of business of the Subsidiaries and is in good standing under other than permits the laws violation of each other jurisdiction in or failure of which it owns or leases properties or conducts any business so as to require such qualification or except where any such failure to qualify obtain would not have a Material Adverse Effect; provided, however, that to the extent of permits that have been applied for, the ownership of such property and the conduct of such business during the pendency of receipt of such permits would not, to the knowledge of such counsel, be expected to have a Material Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly incorporated The execution and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) The issuance of the Guarantee and the Debentures at the Time of Delivery and the compliance delivery by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation by the Company of the transactions herein and therein contemplated hereby, will not (A) to the knowledge of such counsel, 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 credit agreement, or other agreement or instrument known to such counsel 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 properties are subject, nor will such actions which conflict, breach, violation or default has had or would reasonably be expected to have a Material Adverse Effect, except as set forth below, or (B) result in any violation of the provisions of the Restated Certificate of Incorporation charter, bylaws or Amended and Restated By-laws other constitutive documents of the Company or or, to the knowledge of such counsel, other than with respect to the federal securities laws (as to which such counsel need express no opinion), any statute statute, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries Subsidiaries or any of their propertiesproperties or assets, which violation has had or would reasonably be expected to have a Material Adverse Effect;
(viv) To his knowledgethe knowledge of such counsel, there are and except as set forth or referred to in the Prospectus, no legal or governmental proceedings are pending to which or threatened against the Company or any of its subsidiaries is a party Subsidiaries or of which any property or assets of the Company or any of its subsidiaries is Subsidiaries which would affect the subject whichmatter of this Agreement or would be required under the Act to be described in a registration statement or a prospectus delivered at the time of the confirmation of an offering of securities registered under the Act and which are not described in the Prospectus;
(v) To the knowledge of such counsel, if determined adversely the statements made in the Prospectus under the headings “Business—Government Contracts,” “Business—Patents and Licenses,” “Business—Litigation, ““Business—Environmental,” “Risk Factors—Risks Relating to Our Business—We are subject to environmental regulations and our operations may expose us to environmental liabilities” and “Risk Factors—Risks Relating to Our Business—We have been included, and may in the future be included, in claims against prior owners of our facilities,” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and fairly present in all material respects the information disclosed therein; and
(vi) To the knowledge of such counsel, except as set forth in (a) the Securityholders Agreement, dated as of November 18, 2004, among the Company and certain of its Stockholders, Optionholders and Warrantholders (each as defined therein), as amended on December 27, 2004 and Xxxxx 00, 0000, (x) the Registration Rights Agreement, dated as of November 18, 2004, by and among K&F Acquisition, Inc., Xxxxxx Brothers Inc., Xxxxxxx, Xxxxx & Co., Citigroup Global Markets Inc., and X.X. Xxxxxx Securities Inc. and (c) Registration Rights Agreement, dated as of February 11, 2005, by and between K&F Parent, Inc. and Xxxxxx Brothers Inc., there are no contracts, agreements or understandings between the Company or any of its subsidiariesSubsidiary, would individually or in on the aggregate have a Material Adverse Effect; andone hand, and any person, on the other hand, granting such person the right to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither require the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the CommissionSubsidiary, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of file a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act with respect to any securities of the Company or any Subsidiary owned or to be owned by such person or to require the Exchange Act Company or any Subsidiary to include such securities with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required Shares to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit registered pursuant to the Registration Statement or required with any other securities to be incorporated registered pursuant to any other registration statement filed by reference into the Prospectus Company or required to be described in any Subsidiary under the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).Act;
Appears in 1 contract
Samples: Underwriting Agreement (K&F Industries Holdings, Inc.)
Xxxxxx X. XxxxxxXxxxxxx, Vice President - Law and Corporate Secretary Esq., General Counsel of the Company, shall have furnished to you the Lead Managers his written opinion (a draft of opinion, addressed to the International Managers and dated such opinion is attached as Annex 11(e) hereto), dated the Time of DeliveryDelivery Date, in form and substance satisfactory to you the Lead Manager, to the effect that:
(i) This Agreement and the U.S. Underwriting Agreement each has been duly authorized, executed and delivered by the Company;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and (including the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and U.S. Stock being delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(iion such Delivery Date) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or except where any such failure to qualify would not have a Material Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; and all of the issued shares of capital stock of the Bank and each other subsidiary of the Company have been duly and validly xand authorized and issued and are fully paid, non-assessable and (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectusshares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims claims;
(iii) The Company and each of its subsidiaries (other than the Bank) have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such counsel being entitled qualification (other than those jurisdictions in which the failure to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of so qualify would not have a material adverse effect on the Company or the Company and its subsidiariessubsidiaries taken as a whole), provided that such counsel shall state that they believe that both you and have all power and authority necessary to own or hold their respective properties and conduct the businesses in which they are justified in relying upon such opinions and certificates)engaged;
(iv) The issuance issue and sale of the Guarantee shares of Stock and U.S. Stock being delivered on such Delivery Date by the Debentures at the Time of Delivery Company and the compliance by the Company with all of the provisions of the Guarantee this Agreement and the Debentures, the Indenture and this U.S. Underwriting Agreement and the consummation of the transactions herein and therein contemplated hereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property properties or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation charter or Amended and Restated Byby-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their propertiesproperties or assets (including, without limitation, HOLA and the rules and regulations of the OTS); and, except for the registration of the Stock and the U.S. Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Stock and the U.S. Stock by the International Managers and U.S. Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby;
(v) 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 the Stock and U.S. Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(vi) To his knowledgethe 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 or asset of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate might have a Material Adverse Effectmaterial adverse effect on the consolidated financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vivii) Neither To the best of such counsel's knowledge, neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation party to or by-laws or in default in otherwise the performance or observance subject of any material obligationconsent decree, covenant or condition contained in any indenturememorandum of understanding, mortgage, deed of trust, loan agreement, lease or other written agreement or instrument to which it is a party similar supervisory or by which it enforcement agreement or understanding with the OTS, the FDIC or any other government authority or agency responsible for the supervision, regulation or insurance of its properties may be bound;depository institutions or their holding companies; and
(viiviii) The documents incorporated by reference in form of certificate used to evidence the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form Stock complies in all material respects with the all applicable statutory requirements, with any applicable requirements of the Act or articles of incorporation and by- laws of the Exchange ActCompany. In rendering such opinion, such counsel may state that his opinion is limited to matters governed by the laws of the State of Michigan. Such counsel shall also have furnished to the Lead Managers a written statement, addressed to the International Managers and dated such Delivery Date, in form and substance satisfactory to the Lead Manager, to the effect that (x) such counsel is General Counsel to the Company and, as applicablesuch, has acted as counsel to the Company in connection with the preparation of the Registration Statements, and (y) based on the rules and regulations foregoing, no facts have come to the attention of the Commission thereunder; and he has no reason such counsel which lead him to believe that any of such documents, when such documents became effective or were so filedthe Registration Statements, as the case may beof their respective Effective Dates, contained, in the case of a registration statement which became effective under the Act, an contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or, in or that the case of other documents which were filed under the Act or the Exchange Act with the Commission, an Prospectus contains any untrue statement of a material fact or omitted omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filedmade, not misleading; and
(viii) . The Registration Statement foregoing opinion and the Prospectus and any further amendments and supplements thereto made statement may be qualified by the Company prior a statement to the Time of Delivery (other than the financial statements and related schedules therein, as to which effect that such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement Statements or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).
Appears in 1 contract
Samples: International Underwriting Agreement (Flagstar Bancorp Inc)
Xxxxxx X. XxxxxxXxxxxxx, Esq., Senior Vice President - Law and Corporate Secretary General Counsel of the Company, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex 11(eII(b) hereto), dated the such Time of Delivery, in form and substance satisfactory to you you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-non- assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will Shares conform in all material respects to the description of the Common Stock contained in the Prospectus;
(iiiii) 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 qualification, or except where is subject to no material liability or disability by reason of failure to be so qualified in any such failure jurisdiction (such counsel being entitled to qualify would not have a Material Adverse Effectrely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iiiiv) Each Significant Subsidiary subsidiary of the Company has been duly incorporated and is validly existing as a corporation corporation, limited partnership or limited liability company in good standing under the laws of its jurisdiction of incorporationorganization; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand non-assessable, and (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectusshares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(ivv) The issuance Company and its subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that they are relying upon a general review of the Guarantee titles of the Company and its subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the time of acquisition of such property by the Company or its subsidiaries, upon opinions of counsel to the lessors of such property and, in respect of matters of fact, upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future consolidated financial position shareholders' equity or results of operations of the Company and its subsidiaries; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement and the Debentures International Underwriting Agreement have been duly authorized, executed and delivered by the Company;
(viii) The issue and sale of the Shares being delivered at the such Time of Delivery to be sold by the Company and the compliance by the Company with all of the provisions of this Agreement and have the Guarantee and the Debentures, the Indenture and this International Underwriting Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions action result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties;
(vix) To his knowledgeNo consent, there are no legal approval, authorization, order, registration or qualification of or with any such court or governmental proceedings pending to which agency or body is required for the issue and sale of the Shares or the consummation by the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or transactions contemplated by governmental authorities this Agreement and the International Underwriting Agreement, except the registration under the Act of the Shares, and such consents, approvals, authorizations, registrations or threatened qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by othersthe Underwriters and the International Underwriters;
(vix) Neither the Company nor any of its subsidiaries is in violation of its certificate Certificate of incorporation Incorporation or byBy-laws or agreement of limited partnership or limited liability operating agreement or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, or lease or other agreement or other instrument to which it is a party or by which it or any of its properties may be bound;
(viixi) The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the Stock and under the caption "Underwriting", insofar as they relate to agreements to which the Company is a party and insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair;
(xii) The Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act;
(xiii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, applicable and the rules and regulations of the Commission thereunder; and he has they have no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact fact, or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viiixiv) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has except for those referred to in the opinion in subsection (xi) of this Section 7(c), they have no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1therein, in the light of the circumstances under which they were made, not misleading or that, as of the such Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1therein, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. ; In rendering such opinion, such counsel may state that he expresses they express no opinion as to the laws of any jurisdiction other than the federal laws of outside the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).
Appears in 1 contract
Xxxxxx X. Xxxxxx, Vice President - Law and Corporate Secretary General Counsel of the Company, shall have furnished to you his such written opinion (a draft of each such opinion is attached as Annex 11(eII (c) hereto), dated the such Time of Delivery, in form and substance satisfactory to you you, to the effect that:
(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 jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will Shares conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or except where any such failure to qualify would not have a Material Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all All of the issued shares of capital stock of each such subsidiary of the Company have been duly and validly authorized and issued, are fully paid and validly xand non-assessable, and (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectus) are owned directly by or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of to matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe he believes that both you and they he are justified in relying upon such opinions and certificates);
(iv) The issuance Company and its subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Guarantee Prospectus or such as do not materially affect the value of such property and do not interfere with the Debentures at the Time use made and proposed to be made of Delivery and the compliance such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with all such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that such counsel is relying upon a general review of the provisions titles of the Guarantee Company and its subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the Debentures, the Indenture and this Agreement and the consummation time of the transactions herein and therein contemplated will not conflict with or result in a breach or violation acquisition 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 property by the Company or any its subsidiaries, upon opinions of its subsidiaries is a party or by which counsel to the Company or any lessors of its subsidiaries is bound or such property and, in respect to which any matters of the property or assets fact, upon certificates of officers of the Company or any of its subsidiaries is subjectsubsidiaries, nor will provided that such actions result counsel shall state that he believes that both you and he are justified in any violation of the provisions of the Restated Certificate of Incorporation or Amended relying upon such opinions, abstracts, reports, policies and Restated 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 subsidiaries or any of their propertiescertificates);
(v) To his knowledgethe 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 named party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effectmaterial adverse effect on the current or future consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of its subsidiaries is in violation of its certificate Certificate of incorporation Incorporation or byBy-laws or or, to the best of such counsel's knowledge and other than as set forth in the Prospectus, in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(vii) Neither the execution and delivery of this Agreement nor the sale of the Shares contemplated hereby will violate (a) the Communications Act of 1934 (the "Communications Act") as interpreted as of this date, (b) the Telecommunications Act of 1996 (the "Telecom Act of 1996") as interpreted as of this date, (c) any rules or regulations of the Federal Communications Commission applicable to the Company as interpreted as of this date or (d) any rules or regulations of the California Public Utilities Commission, New York Public Service Commission, Massachusetts Department of Public Utilities, Washington Utilities and Transportation Commission, Illinois Commerce Commission, the Oregon Public Utilities Commission or any other jurisdiction where the Company has obtained Competitive Local Exchange Carrier ("CLEC") regulatory approval (collectively, the "State Telecommunications Agencies") as interpreted as of the date of such opinion;
(viii) The documents incorporated Company (a) has made all reports and filings, and paid all fees, required by reference the Federal Communications Commission and any of the State Telecommunications Agencies and (b) has all certificates, orders, permits, licenses, authorizations, consents and approvals of and from, and had made all filings and registrations with, the Federal Communications Commission and any of the State Telecommunications Agencies necessary to own, lease, license and use its properties and assets and to conduct its business as described in the Prospectus; and, except as described in the Prospectus, there are no pending or, to such counsel's knowledge, threatened proceedings before the Federal Communications Commission or any State Telecommunications Agency relating to the revocation or modification or any such certificates, orders, permits, licenses, authorizations, consents or approvals which, if determined adversely, would individually or in the aggregate, result in a material adverse effect on the properties, business, results of operations, condition (financial or otherwise), affairs or prospects of the Company and its subsidiaries, taken as a whole;
(ix) No decree or order of the Federal Communications Commission or any State Telecommunications Agency is outstanding against the Company and no litigation, proceeding, inquiry or investigation has been commenced or, to such counsel's knowledge, threatened, and no formal notice of violation or order to show cause has been issued, against the Company before the Federal Communications Commission or any of the State Telecommunications Agencies;
(x) The statements set forth in the Prospectus under the captions "Risk Factors--We Depend on ILECs for Collocation Space, "Risk Factors--We Depend on ILECs for Transmission Facilities and the Provision of Copper Lines", "Risk Factors--The Quality, Pricing and Availability of the ILEC Copper Lines are Uncertain", "Risk Factors--We Depend on Interconnection Agreements with ILECs for the Success of our Strategy", "Risk Factors--The Market in Which We Operate is Highly Competitive, and We May Not Be Able to Compute Effectively, Especially Against Established Industry Competitors with Significant Greater Financial Resources", "Risk Factors--Our Services are Subject to Government Regulation, and Changes in Current or any further amendment Future Laws or supplement thereto made by Regulations Could Restrict the Company prior Way We Operate our Business", "Risk Factors--Uncertain Federal and State Tax and Other Surcharges on Our Services May Increase our Payment Obligations", and "Business--Government Regulation", to the Time of Delivery (other than the financial extent such statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements constitute summaries of the Telecom Act of 1996 or the Exchange Act, as applicable, and the rules and regulations of the Federal Communications Commission thereunder; and he has no reason to believe that or any of the State Telecommunications Agencies, or insofar as they purport to describe the provisions of the other laws and documents referred to therein are accurate, complete and fair;
(xi) As of the date of such documentsopinion, when (A) the Company has obtained CLEC regulatory approval in each of the States referred to in the Prospectus, which are: [such documents became effective counsel to list such states], and no such regulatory approval has been withdrawn, and no such regulatory approval is the subject of any legal challenge (except as disclosed in the Prospectus) and (B) the Company has not received any notice of rejection or were so fileddenial, nor has it withdrawn, any of its applicants for CLEC approval in any additional States where such applications, as of the case may bedate of the Prospectus, containedare pending approval;
(xii) The Company has the consents, approvals, authorizations, licenses, certificates, permits, or orders of the Federal Communications Commission or the State Telecommunications Agencies, if any is required, for the sale of the Shares as contemplated in the case of a registration statement which became effective under Prospectus, except where the Actfailure to obtain the consents, an untrue statement of approvals, authorizations, licenses, certificates, permits or orders would not individually or in the aggregate, have a material fact adverse effect on the transactions contemplated by this Agreement, or omitted to state result in a material fact required to be stated therein adverse effect on the properties, business, results of operations, condition (financial or necessary to make the statements therein not misleadingotherwise), or, in the case of other documents which were filed under the Act affairs or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light prospects of the circumstances under which they were made when such documents were so filedCompany and its subsidiaries, not misleadingtaken as a whole; and
(viiixiii) The Registration Statement issue and sale of the Prospectus and any further amendments and supplements thereto made Shares being delivered at such Time of Delivery by the Company prior and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material 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 it subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any statute, order, rule or regulation known to such counsel to be applicable to the Time Company or any of Delivery its subsidiaries of any court or government agency or body having jurisdiction (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness federal or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus securities laws which are not filed or incorporated addressed by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (icounsel), (ii) and (iii) of this Section 7(f).;
Appears in 1 contract
Samples: Underwriting Agreement (Northpoint Communications Holdings Inc)
Xxxxxx X. Xxxxxx, Vice President - Law and Corporate Secretary of Esq., general counsel for the Company, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex 11(e) hereto)opinion, dated the such Time of Delivery, in form and substance reasonably satisfactory to you you, to the effect that:
(i) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company has been is duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or qualification, except where any such failure to qualify would be so qualified and in good standing could not have a Material Adverse Effect;.
(iiiii) Each Significant Subsidiary of the Company has been is duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued and outstanding shares of capital stock of each such subsidiary have been duly Significant Subsidiary are validly issued and validly authorized outstanding and issued, are fully paid and validly xand non-assessable, and (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectusshares) are owned of record, and to such counsel's knowledge beneficially, directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely except for those described in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);Prospectus.
(iv) The issuance of the Guarantee and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated 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 subsidiaries or any of their properties;
(viii) To his knowledgesuch 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 whichwhich could reasonably be expected, if determined adversely to the Company or any of its subsidiaries, would either individually or in the aggregate aggregate, to have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;.
(viiv) Neither the Company nor any of its subsidiaries Significant Subsidiaries is in violation of its certificate Certificate of incorporation Incorporation or byBy-laws or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, or lease or other agreement or other instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (, other than the financial statements and related schedules therein, such violations or defaults as could not reasonably be expected to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of have a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f)Material Adverse Effect.
Appears in 1 contract
Xxxxxx X. XxxxxxXxxxxxxxx, III, Esq., Senior Vice President - President-Law and Corporate Secretary Adminstration, of the CompanyCompany and the Issuer, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex 11(eXxxxx XX(c) hereto), dated the Time of Delivery, in form and substance satisfactory to you you, to the effect that:
(i) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock Each of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company Issuer has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or qualification, except where any such the failure to qualify would be so qualified or in good standing could not reasonably be expected to, singly or in the aggregate, have a Material Adverse Effectmaterial adverse effect on the financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates and a copy of such opinions and certificates are furnished to you);
(iiiii) Each Significant Subsidiary of the Company that is an operating company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary Significant Subsidiary of the Company that is an operating company have been duly and validly authorized and issued, are fully paid and validly xand non-assessable, and (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectusshares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificatescertificates and a copy of such opinions and certificates are furnished to you);
(iviii) The issuance To the best of such counsel's knowledge, (i) the Company and each of its Significant Subsidiaries have good and marketable title in fee simple to all real property owned by them, in each case free and clear of all liens, encumbrances and defects, except such as are described in the Prospectus or such as could not reasonably be expected to, singly or in the aggregate, have a material adverse effect on the financial position, stockholders' equity or results of operations of the Guarantee Company and the Debentures at the Time of Delivery its subsidiaries, taken as a whole; and the compliance (ii) any real property and buildings held under lease by the Company and its Significant Subsidiaries are held by them under valid, subsisting and enforceable leases with all such exceptions as are not material to the Company and its subsidiaries, taken as a whole (in giving the opinion in this clause, such counsel may state that no examination of record titles for the purpose of such opinion has been made, and that they are relying upon a general review of the provisions titles of the Guarantee Company and its subsidiaries, upon opinions of local counsel and abstracts, reports and policies of title companies rendered or issued at or subsequent to the Debentures, the Indenture and this Agreement and the consummation time of the transactions herein and therein contemplated will not conflict with or result in a breach or violation acquisition 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 property by the Company or any its Significant Subsidiaries, upon opinions of its subsidiaries is a party or by which counsel to the Company or any lessors of its subsidiaries is bound or to which any such property and, in respect of the property or assets matters of fact, upon certificates of officers of the Company or any of its subsidiaries is subjectSignificant Subsidiaries, nor will provided that such actions result counsel shall state that they believe that both you and they are justified in any violation of the provisions of the Restated Certificate of Incorporation or Amended relying upon such opinions, abstracts, reports, policies and Restated 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 subsidiaries or any of their properties;certificates and copies thereof are furnished to you); and
(viv) To his knowledgethe 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 whichwhich could reasonably be expected to, if determined adversely to singly or in the aggregate, have a material adverse effect on the financial position, stockholders' equity or results of operations of the Company or any of and its subsidiaries, would individually or in the aggregate have taken as a Material Adverse Effect; andwhole. In addition, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express shall state that no opinion), when they became effective or were filed with the Commission, as the case may be, complied as facts have come to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason his attention which lead him to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or Statement, on the Prospectuseffective date thereof, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading or thatthat the Prospectus, as of its date, on the Prospectus date thereof or any further amendment or supplement thereto made by the Company prior to at the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; as to which such counsel need express no opinion) Delivery, 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 and the Forms T-1contained therein, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior (it being understood that such counsel expresses no view with respect to the Time of Delivery (other than the financial statements and related notes, the financial statement schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described financial data included in the Registration Statement or the Prospectus which are not filed Prospectus, or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to Exhibit 25.1 to the matters set forth in (i), (ii) and (iii) of this Section 7(fRegistration Statement).
Appears in 1 contract
Xxxxxx X. XxxxxxX., Vice President - Law and Corporate Secretary a Swiss corporation (the "Subsidiary"), is the only subsidiary of the Company, shall have furnished Company material to you his written opinion the condition (a draft of such opinion is attached as Annex 11(e) heretofinancial or otherwise), dated business prospects, net worth or results of operations of the Time Company and its subsidiaries, taken as a whole; and the complete loss of Deliveryany or all subsidiaries of the Company other than the Subsidiary would not have a material adverse effect on the condition (financial or otherwise), in form business prospects, net worth or results of operations of the Company and substance satisfactory to you to its subsidiaries, taken as a whole.
(b) Each Selling Stockholder severally represents and warrants to, and agrees with, the effect Company and each of the several Underwriters that:
(iii) The Company Such Selling Stockholder has an authorized capitalization as set forth in full power to enter into this Agreement and to sell, assign, transfer and deliver to the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of Underwriters the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered to be sold by such Selling Stockholder hereunder in accordance with the provisions terms of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company this Agreement; this Agreement has been duly qualified executed and delivered by such Selling Stockholder, and is the valid and binding agreement of such Selling Stockholder, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a foreign corporation proceeding in equity or at law); and the execution and delivery of this Agreement have been duly authorized by all necessary corporate or partnership action of such Selling Stockholder.
(i) Such Selling Stockholder has duly executed and delivered a power of attorney and custody agreement (with respect to such Selling Stockholder, the "Power of Attorney" and the "Custody Agreement", respectively), each in the form heretofore delivered to the Representatives, appointing each of Xxxx P. Henckels and Xxxx X. Xxxx, as such Selling Stockholder's attorney-in- fact (each, an "Attorney-in-Fact") each with authority to execute, deliver and perform this Agreement on behalf of such Selling Stockholder and appointing the Company as custodian thereunder (the "Custodian"). Certificates in negotiable form, endorsed in blank or accompanied by blank stock powers duly executed, with signatures appropriately guaranteed, representing the Securities to be sold by such Selling Stockholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement for the transaction purpose of business delivery pursuant to this Agreement. Such Selling Stockholder has full power to enter into the Custody Agreement and is in good standing the Power of Attorney and to perform its obligations under the Custody Agreement, and the execution and delivery of the Custody Agreement and the Power of Attorney have been duly authorized by all necessary corporate or partnership action of such Selling Stockholder. The Custody Agreement and the Power of Attorney have been duly executed and delivered by such Selling Stockholder and, assuming due authorization, execution and delivery by the Custodian, are the legal, valid, binding and enforceable instruments of such Selling Stockholder, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). Such Selling Stockholder agrees that each of the Securities represented by the certificates deposited by such Selling Stockholder with the Custodian is subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, the appointment by such Selling Stockholder of each Attorney-in-Fact and the right, power and authority of each Attorney-in-Fact to execute and deliver this Agreement on behalf of such Selling Stockholder, to agree on the price at which the Securities (including such Selling Stockholder's Securities) are to be sold to the Underwriters, and to carry out the terms of this Agreement, are to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or the Custody Agreement, by any act of such Selling Stockholder, by operation of law or otherwise, or in the case of a corporate or partnership Selling Stockholder by its liquidation or dissolution or by the occurrence of any other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or except where event. If any such failure to qualify would corporate or partnership Selling Stockholder shall liquidate or dissolve, or if any other event should occur, before the delivery of such Securities hereunder, the certificates for such Securities deposited with the Custodian shall be delivered by the Custodian in accordance with the respective terms and conditions of this Agreement as if such liquidation, dissolution or other event had not occurred, regardless of whether or not the Custodian or the Attorneys-in-Fact shall have a Material Adverse Effect;received notice thereof.
(iii) Each Significant Subsidiary Such Selling Stockholder is the lawful owner of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction Securities to be owned sold by others such Selling Stockholder hereunder and except upon sale and delivery of, and payment for, such Securities, as otherwise set forth in the Prospectus) are owned directly or indirectly by the Companyprovided herein, such Selling Stockholder will convey good and marketable title to such Securities, free and clear of all any security interests, liens, encumbrances, equities equities, claims or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);other defects.
(iv) The issuance Such Selling Stockholder has not, directly or indirectly, (A) taken any action designed to cause or result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the Guarantee price of any security of the Company to facilitate the sale or resale of the Securities or (B) since the filing of the Registration Statement (1) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Securities or (2) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Securities under this Agreement).
(v) The sale by such Selling Stockholder of Securities pursuant hereto is not prompted by any adverse information concerning the Company that is not set forth in the Registration Statement or each of the Prospectus and any Integrated Prospectus or, if the Debentures at Prospectus and any required Integrated Prospectus are not in existence, the Time most recent Preliminary Prospectus.
(vi) The sale of Delivery and the Securities to the Underwriters by such Selling Stockholder pursuant to this Agreement, the compliance by such Selling Stockholder with the Company with all of the other provisions of the Guarantee and the Debenturesthis Agreement, the Indenture and this Custody Agreement and the consummation of the other transactions herein contemplated do not (A) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained, such as may be required under state securities or blue sky laws and, if the registration statement filed with respect to the Securities (as amended) is not effective under the Act as of the time of execution hereof, such as may be required (and therein contemplated will not shall be obtained as provided in this Agreement) under the Act, or (B) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under, under any indenture, mortgage, deed of trust, loan agreement lease or other agreement or instrument known to such counsel to which the Company such Selling Stockholder (or any of its subsidiaries subsidiaries) is a party party, or by which the Company such Selling Stockholder (or any of its subsidiaries is bound subsidiaries), or to which any of the property or assets of the Company such Selling Stockholder's (or any of its subsidiaries is subjectsubsidiaries') properties, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated By-laws of the Company are bound, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental agency or body having jurisdiction over the Company authority or any of its subsidiaries or any of their properties;
arbitrator applicable to such Selling Stockholder (v) To his knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries), would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened its charter or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation partnership documents or by-laws or in default in the performance charter or observance partnership documents or by-laws of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;subsidiaries.
(vii) The documents incorporated by reference Such Selling Stockholder has not distributed and, prior to the later of (A) the last Option Closing Date or, if no Option Securities are purchased, the Firm Closing Date and (B) the completion of the distribution of the Securities, will not distribute any offering material in connection with the offering and sale of the Securities other than the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any further amendment or supplement thereto made thereto, or other materials, if any, permitted by the Company prior to the Time of Delivery Act.
(other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements viii) Such Selling Stockholder has reviewed each of the Act or Prospectus and any required Integrated Prospectus or, if the Exchange ActProspectus and any required Integrated Prospectus are not in existence, as applicablethe most recent Preliminary Prospectus, and the rules Registration Statement, and regulations the information regarding such Selling Stockholder set forth therein under the caption "Principal and Selling Stockholders" is complete and accurate.
(ix) Such Selling Stockholder does not have any right to have any securities registered under the Registration Statement in excess of the Commission thereunder; and he has no reason to believe that any number of securities of such documentsSelling Stockholder actually so registered.
(x) Such Selling Stockholder further represents and warrants to, and agrees with each of the several Underwriters that (A) when such documents became effective the Registration Statement or were so filedany amendment thereto was or is declared effective, as the case may be, contained, in the case of a registration statement which became effective under the Act, an it did not or will not include any untrue statement of a material fact or omitted omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) when the Prospectus, any Term Sheet that is a part thereof or any Integrated Prospectus or any amendment or supplement to the Prospectus is filed with the Commission pursuant to Rule 424(b) (or, in if the case of other documents which were Prospectus or part thereof or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), on the date when the Prospectus is otherwise amended or supplemented and on the Firm Closing Date and any Option Closing Date, the Prospectus and, if required to be filed pursuant to Rules 434(c)(2) and 424(b) under the Act Act, the Integrated Prospectus, as amended or the Exchange Act with the Commissionsupplemented at any such time, an did not or will not include any untrue statement of a material fact or omitted omit to state a any 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 filedmade, not misleading; and
. The foregoing provisions of this paragraph (viiix) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume apply to statements or omissions made in any responsibility for the accuracy, completeness Preliminary Prospectus or fairness of the statements contained in the Registration Statement any amendment or the Prospectus, he has no reason to believe that, as of its effective datesupplement thereto, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its datethereto, the Prospectus or any further amendment or supplement thereto made by or, if required to be filed under Rules 434(c)(2) and 424(b) under the Company prior to Act, the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Integrated Prospectus or any further amendment or supplement thereto made by in reliance upon and in conformity with written information furnished to the Company prior to by any Underwriter through the Time of Delivery (other than the financial statements and related schedules Representatives specifically for use therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).
Appears in 1 contract
Samples: Underwriting Agreement (Lecroy Corp)
Xxxxxx X. Xxxxxx, Vice President - Law and Corporate Esq., Secretary of the Company, shall have furnished to you his written opinion (a draft of each such opinion is attached as Annex 11(eXxxxx X(b) hereto), dated the such Time of Delivery, in form and substance satisfactory to you you, to the effect that:
(iA) The Company has an authorized capitalization as set forth in the Company's Quarterly Report on Form 10-Q for the six months ended July 31, 1996 as incorporated by reference in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will Shares conform in all material respects to the description of the Common Stock contained in the Company's Registration Statements on Form 8-A, as amended, referred to under the caption "Incorporation of Certain Documents by Reference" in the Prospectus;
(iii) Xxxx, Gotshal & Xxxxxx LLP, counsel for the Company, shall have furnished to you their written opinion (a draft of each such opinion is attached as Annex I(c) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that:
(A) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or except where any such failure to qualify would not have a Material Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its jurisdiction of incorporation; properties and conduct its business as described in the Prospectus;
(B) The Company has an authorized capitalization as set forth in the Company's Quarterly Report on Form 10-Q for the six months ended July 31, 1996 as incorporated by reference in the Prospectus, and all of the issued shares Shares being delivered at such Time of capital stock of each such subsidiary Delivery have been duly and validly authorized and issued, issued and are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that are required non-assessable; and the Shares conform to the description of the Stock contained in the Company's Registration Statements on Form 8-A referred to under the laws caption "Incorporation of any foreign jurisdiction to be owned Certain Documents by others and except as otherwise set forth Reference" in the Prospectus;
(C) are owned directly or indirectly This Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(ivD) The issuance of the Guarantee and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the International Underwriting Agreement and the consummation by the Company of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated By-laws of the Company or any statute New York, Delaware corporate or any orderU.S. Federal law, rule or regulation (other than foreign and state securities or Blue Sky laws, as to which such counsel need not express any opinion, and other than Federal securities laws, as to which such counsel need not express any opinion except as otherwise set forth herein), or any judgment, writ, injunction, decree, order or ruling of any court or governmental agency or body having jurisdiction over authority binding on the Company or any of its subsidiaries or any Subsidiaries of their propertieswhich such counsel is aware;
(vE) To his knowledgeNo consent, there are no legal approval, authorization, order, registration or qualification of or with any New York, Delaware corporate or U.S. Federal governmental proceedings pending authority is required for the consummation by the Company of the transactions contemplated by the Underwriting Agreement and the International Underwriting Agreement, except for the registration under the Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws as to which the Company or such counsel need not express any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersopinion;
(vi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(viiF) The documents incorporated filed by reference the Company with the Commission and referred to under the caption "Certain Documents Incorporated by Reference" in the Prospectus or any further amendment or supplement thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules therein, and the notes thereto and the other financial and accounting data included in the Registration Statement or the Prospectus or any further amendment or supplement thereto as to which such counsel need express no opinionopinion or belief), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; . Such counsel shall additionally state that it has participated in conferences with directors, officers and he other representatives of the Company, representatives of the Selling Shareholders, representatives of the independent public accountants for the Company, representatives of the Underwriters and representatives of counsel for the Underwriters, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed, and although such counsel has not independently verified and is not passing upon and assumes no reason responsibility for the accuracy, completeness or fairness of the statements contained in such documents, no facts have come to such counsel's attention which lead such counsel to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact fact, or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleadingmisleading (other than the financial statements and schedules and notes thereto and the other financial and accounting data included in the documents incorporated by reference in the Prospectus as to which counsel need express no opinion or belief);
(G) The description of the Stock of the Company, contained in the Company's Registration Statements on Form 8-A, as amended, referred to under the caption "Incorporation of Certain Documents by Reference", insofar as they purport to constitute summaries of the terms of the Stock, and the statements set forth in the International Prospectus under the caption "Certain United States Federal Tax Consequences to Non-U.S. Stockholders" insofar as they purport to summarize the provisions of the laws referred to therein, are accurate and correct in all material respects; and
(viiiH) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the such Time of Delivery (other than the financial statements and schedules and related schedules thereinnotes thereto and the other financial and accounting data included in the Registration Statement or the Prospectus, as to which such counsel need express no opinionopinion or belief) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; . Such counsel shall additionally state that it has participated in conferences with directors, officers and other representatives of the Company, representatives of the Selling Stockholders, representatives of the independent public accountants for the Company, representatives of the Underwriters and representatives of counsel for the Underwriters, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed, and although they do such counsel has not assume any independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has except for those covered by their opinion in subsection (G) of this Section 7(d); no reason facts have come to such counsel's attention which lead such counsel to believe thatthat the Registration Statement, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the such Time of Delivery (other than the financial statements and schedules and the related schedules thereinnotes thereto and the other financial and accounting data included in the Registration Statement or the Prospectus, as to which such counsel need express no opinionopinion or belief) 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 misleading, or thatthat the Prospectus, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; related notes thereto and the other financial and accounting data included in the Registration Statement or the Prospectus, as to which such counsel need express no opinionopinion or belief) 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 and the Forms T-1therein, in the light of the circumstances under in which they were made, not misleading (it being understood that such counsel express no view with respect to the financial statements and related notes, and the other financial and accounting data included in the Registration Statement or Prospectus) or that, as of the such Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the such Time of Delivery (other than the financial statements and related schedules thereinthe notes thereto and the other financial data included in the Registration Statement or the Prospectus, as to which such counsel need express no opinionopinion or belief) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1therein, in the light of the circumstances under in which they were made, not misleading; misleading (it being understood that such counsel express no view with respect to the financial statements and they do not know of any amendment to related notes, and the other financial and accounting data included in the Registration Statement required or Prospectus); and to be filed or of any such counsel's knowledge, there are no contracts or other documents of a character required to be filed or incorporated by reference as an exhibit to the Registration Statement or required to be described or incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are were not filed or filed, incorporated by reference or described as requiredrequired (other than the financial statements and notes thereto and the other financial data included in the documents incorporated by reference in the Prospectus as to which counsel need express no opinion or belief). In rendering such opinion, such counsel may state that he expresses they express no opinion as to the laws of any jurisdiction other than the laws of the State of New York, the corporate laws of the State of Delaware and the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).;
Appears in 1 contract
Samples: Underwriting Agreement (Cuc International Inc /De/)
Xxxxxx X. XxxxxxXxxxxx and Mutare, Vice President - Law Inc. shall jointly and Corporate Secretary of severally, and the Companyother Members listed on the signature pages hereto shall severally but not jointly, shall have furnished to you his written opinion defend and hold harmless Buyer, its officers, directors, employees, partners, members, shareholders, affiliates (a draft of such opinion is attached as Annex 11(e) heretoand their officers, directors, employees, members, partners and shareholders), dated and agents (collectively, the Time of Delivery"Buyer Indemnified Parties") from and against any action, in form loss, liability, damage, claim, fine, penalty, lien or expense, including legal costs, reasonable attorneys' fees, and substance satisfactory to you expenses, (collectively, "Loss") to the effect that:
extent the same arises out of (i) The Company has an authorized capitalization as set forth any breach by Seller or the Members of any representation, warranty, agreement, or covenant made by Seller or the Members herein or in the Prospectusany Transaction Document, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company has been duly qualified as a foreign corporation for Seller's failure to comply with any bulk sales or similar law, except to the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or except where any extent such failure to qualify would not have a Material Adverse Effect;
involves an Assumed Liability, (iii) Each Significant Subsidiary except to the extent such tax is an Assumed Liability, any tax, including use or sales tax, for which Seller or the Members or any of the Company has been duly incorporated and Seller's directors or officers is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to may be owned by others and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely liable in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers conduct of the Company or its subsidiariesBusiness prior to the Closing, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) The issuance any claim arising out of or in connection with the conduct of the Guarantee Business on or prior to the Closing Date alleging that all, or any portion of, the Business infringes any intellectual property right or other interest of any person or entity, and (v) any obligation of Seller or the Members relating to the period prior to the Closing Date, whether the claim relating to such obligation arises before or after the Closing, excluding obligations with respect to Assumed Liabilities except to the extent that any such obligation or Assumed Liability arose from or was the result of any facts or circumstances, the existence of which constitutes a breach of a representation or warranty made by Seller or the Members hereunder. Each Buyer Indemnified Party will give prompt notice to Seller and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation Members of any of the terms claim 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 condition to which the Company foregoing indemnification covenant relates. At its election, Seller or the Members may control the defense of such claim, at its expense, but shall not settle any of its subsidiaries is a party or by which such claim without the Company or any of its subsidiaries is bound or to which any consent of the property respective Buyer Indemnified Party or assets Parties. If shares of Stock issued as part of the Company or any Purchase Price are used to satisfy the obligations of its subsidiaries is subjectSeller and the Members under this Section 1.5(b), nor will such actions result in any violation shares shall be valued at the average of the provisions last reported per share sale price of the Restated Certificate of Incorporation or Amended and Restated By-laws of Stock on the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Nasdaq National Market during the Company or any of its subsidiaries or any of their properties;
ten (v10) To his knowledge, there are no legal or governmental proceedings pending to which trading days immediately preceding the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f)Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wire One Technologies Inc)
Xxxxxx X. Xxxxxx, Vice President - Law and Corporate Secretary of Esq., general counsel for the Company, shall have furnished to you his written opinion (a draft of such opinion is attached as Annex 11(e) hereto)opinion, dated the such Time of Delivery, in form and substance reasonably satisfactory to you you, to the effect that:
(i) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company has been is duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or qualification, except where any such failure to qualify would be so qualified and in good standing could not have a Material Adverse Effect;.
(iiiii) Each Significant Subsidiary of the Company has been is duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued and outstanding shares of capital stock of each such subsidiary have been duly Significant Subsidiary are validly issued and validly authorized outstanding and issued, are fully paid and validly xand non-assessable, and (except for directors' ’ qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectusshares) are owned of record, and to such counsel’s knowledge beneficially, directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely except for those described in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);Prospectus.
(iv) The issuance of the Guarantee and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated 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 subsidiaries or any of their properties;
(viii) To his knowledgesuch 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 whichwhich could reasonably be expected, if determined adversely to the Company or any of its subsidiaries, would either individually or in the aggregate aggregate, to have a Material Adverse Effect; and, to such counsel's ’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;.
(viiv) Neither the Company nor any of its subsidiaries Significant Subsidiaries is in violation of its certificate Certificate of incorporation Incorporation or byBy-laws or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, or lease or other agreement or other instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (, other than the financial statements and related schedules therein, such violations or defaults as could not reasonably be expected to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of have a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f)Material Adverse Effect.
Appears in 1 contract
Xxxxxx X. XxxxxxXxxxxxx, Vice President - Law and Corporate Secretary a shareholder of the CompanyCompany (the "Selling Shareholder"), also proposes to sell to the several Underwriters not more than an additional _______________ shares of the common stock, $.01 par value per share, of the Company (the "Additional Shares"), if and to the extent that you, as Managers of the offering, shall have furnished determined to you his written opinion (a draft exercise, on behalf of the Underwriters, the right to purchase such opinion is attached as Annex 11(e) hereto), dated the Time shares of Delivery, in form and substance satisfactory to you common stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the "Shares." The shares of common stock, $.01 par value per share, of the Company to be outstanding after giving effect that:
(i) to the sales contemplated hereby are hereinafter referred to as the "Common Stock." The Company and the Selling Shareholder are hereinafter sometimes collectively referred to as the "Sellers." The Company has an authorized capitalization filed with the Securities and Exchange Commission (the "Commission") a registration statement, including a prospectus, relating to the Shares. The registration statement as set forth amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter referred to as the "Registration Statement"; the prospectus in the form first used to confirm sales of Shares is hereinafter referred to as the "Prospectus, and all of the issued shares of capital stock of ." If the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the has filed an abbreviated registration statement to register additional shares of Common Stock initially issuable upon conversion of pursuant to Rule 462(b) under the Securities have been duly and validly authorized and reserved for issuance andAct (the "Rule 462 Registration Statement"), when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects then any reference herein to the description of the Common Stock contained in the Prospectus;
(ii) 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 term "Registration Statement" shall be deemed to require include such qualification or except where any such failure to qualify would not have a Material Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) The issuance of the Guarantee and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated 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 subsidiaries or any of their properties;
(v) To his knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Rule 462 Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f)Statement.
Appears in 1 contract
Samples: Underwriting Agreement (Excel Inc)
Xxxxxx X. XxxxxxXxxxx, Vice President - Law and Corporate Secretary Xx., general counsel of the Company, shall have furnished to you the Representatives his written opinion (a draft of such opinion is attached as Annex 11(e) hereto)opinion, dated the Time of DeliveryClosing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to you the Representatives, to the effect that:
(i) The the Company has an authorized capitalization as set forth in the Prospectus, and all each of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company Subsidiaries has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties properties, or conducts any business business, so as to require such qualification or except qualification, other than where any such the failure to qualify be so qualified or in good standing, singly or in the aggregate with all other such failures, would not have a Material Adverse Effect;
(iiiii) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(iv) The issuance of the Guarantee and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated 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 subsidiaries or any of their properties;
(v) To his knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither neither the Company nor any of its subsidiaries is the Subsidiaries is, or with the giving of notice or lapse of time or both would be, in violation of its certificate of incorporation or by-laws or in default in the performance under, its Certificate or observance Articles of any material obligation, covenant Incorporation or condition contained in By-Laws or any indenture, mortgage, deed of trust, loan agreement, lease franchise agreement or other agreement or instrument instrument, in each case, known to such counsel, to which it the Company or any of the Subsidiaries is a party or by which it or any of them or any of their respective properties is bound, except for violations and defaults which singly and in the aggregate are not material to the Company and the Subsidiaries taken as a whole;
(iii) except as described in the Prospectus, each of the Company and the Subsidiaries owns, possesses or has obtained all Permits from all automobile manufacturers and distributors 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 Closing Date and as proposed to be conducted, and neither the Company nor any such Subsidiary has received any actual notice of any proceeding relating to revocation or modification of any such Permit, in each case, other than any Permit that is material to the Company and the Subsidiaries taken as a whole; to the best of such counsel's knowledge, except as described in the Prospectus, each of the Company and the Subsidiaries owns, possesses or has obtained all Permits 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 domestic or foreign courts and other tribunals 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 Closing Date and as proposed to be boundconducted, and neither the Company nor any such Subsidiary has received any actual notice of any proceeding relating to revocation or modification of any such Permit, in each case, other than any Permit that is material to the Company and the Subsidiaries taken as a whole; and to the best of such counsel's knowledge, each of the Company and the Subsidiaries is in compliance with all laws and regulations relating to the conduct of its business as conducted as of the date of the Prospectus, except as described in the Prospectus and except to the extent failure to so comply would not, singly or in the aggregate, have a Material Adverse Effect;
(iv) to the best of such counsel's knowledge, each of the Company and the Subsidiaries owns, possesses or has the right to use the intellectual property employed by it in connection with the business conducted by it as of the date hereof other than any such intellectual property that is not material to the Company and the Subsidiaries taken as a whole;
(v) to the best of such counsel's knowledge, the Company and the Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described or referred to in the Prospectus and except to the extent as would not simply or in the aggregate, have any Material Adverse Effect; and to the best of such counsel's knowledge, any real property and buildings held under lease by the Company and the Subsidiaries are held by them under valid, existing and enforceable leases with such exceptions as would not have a Material Adverse Effect;
(vi) to the best of such counsel's knowledge, each of the Company and the Subsidiaries is in compliance with all Environmental Laws, except, in each case, where noncompliance, singly or in the aggregate, would not have a Material Adverse Effect; there are no Proceedings pending or, to the best of such counsel's knowledge, threatened against or affecting the Company or any of the Subsidiaries under any Environmental Law which, singly or in the aggregate, would have a Material Adverse Effect; and
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery such counsel believes that (other than the financial statements and related schedules schedule therein, as to which such counsel need express no opinion), when they belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that did not contain any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in and that neither the case of other documents which were filed under the Act Prospectus nor any amendment or the Exchange Act with the Commission, an supplement thereto contains any untrue statement of a material fact or omitted 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 when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).
Appears in 1 contract
Xxxxxx X. XxxxxxXxxxxxx, Vice President - Law and Corporate Secretary of counsel for the Company, shall have furnished to you his such counsel's written opinion (a draft of such opinion is attached as Annex 11(eII(d) hereto), dated the such Time of Delivery, in form and substance satisfactory to you you, to the effect that:
(i) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will Shares conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or except where any such failure to qualify would not have a Material Adverse Effect;
(iii) Each Significant Subsidiary subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand (except for directors' qualifying shares or shares representing an immaterial equity interest that non-assessable, and are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectus) are owned owned, directly or indirectly indirectly, by the Company, free and clear of all liens, encumbrances, equities or claims claims, other than liens securing the credit facility with NationsCredit Capital Corp. as described in the Prospectus and the restrictions on transfer of these shares contained in the indenture for the Company's 13% Senior Notes due 2008;
(iii) Based on certificates from government officials, each of the Company and its subsidiaries has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of failure to be so qualified in any such jurisdiction (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates certification of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificatesCompany);
(iv) The issuance issuance, sale and delivery of the Guarantee Shares by the Company and the Debentures at the Time of Delivery and the compliance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions action result in any violation of the provisions of the Restated Certificate Articles of Incorporation or Amended and Restated By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their propertiesproperties (other than Federal or state securities or telecommunications laws as to which such counsel need express no opinion);
(v) Any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries;
(vi) To his such counsel's knowledge and except as described in the Prospectus, the Company and each of its subsidiaries have all Authorizations that are necessary to conduct their businesses as described in the Prospectus, except insofar as the failure to obtain any such Authorization would not result in a Material Adverse Effect; and to the best of such counsel's knowledge neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation, suspension or modification of any such Authorization. All such Authorizations are valid and in full force and effect and the Company and its subsidiaries 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 where the failure to be in full force and effect or be in compliance would not result in a Material Adverse Effect;
(vii) The Company and its subsidiaries own or have had licensed to them or otherwise have the benefit or use under the authority of the owners thereof of, all Intellectual Property Rights that are reasonably necessary for the conduct of the business of the Company and its subsidiaries as described in the Prospectus, except where the failure to own, have licensed to them or otherwise have the benefit or use under the authority of the owners thereof would not result in a Material Adverse Effect; and, to the best knowledge of such counsel, except as set forth or contemplated in the Prospectus, there are no unresolved assertions that the Company or any of its subsidiaries has infringed the Intellectual Property Rights of others, except where such assertions if resolved unfavorably against the Company and its subsidiaries would not result in a Material Adverse Effect;
(viii) No material labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in or contemplated by the Prospectus, or to the best of such counsel's knowledge, is imminent;
(ix) To such counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vix) Neither the Company nor any of its subsidiaries is in violation of its certificate Articles of incorporation Incorporation or byBy-laws or or, to such counsel's knowledge and other than as set forth in the Prospectus, in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except for such defaults which would not result in a Material Adverse Effect;
(viixi) The documents incorporated by reference statements set forth in the Prospectus under the caption "Shares Eligible for Future Sale" and in the Registration Statement under Items 14 and 15 thereof, insofar as such statements constitute summaries of legal matters, documents or any further amendment proceedings referred to therein, such statements fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein in all material repsects; and In addition, such counsel shall state in such counsel's opinion letter or supplement thereto made by in a separate letter that such counsel has participated in the preparation of the Registration Statement and the Prospectus and in conferences with other officers and representatives of the Company, the Selling Shareholders, representatives of the independent auditor of the Company prior to and your representatives at which the Time contents of Delivery (other than the Registration Statement and Prospectus and related matters were discussed. Except for the financial statements and related schedules and other financial data included therein, as to which such counsel need express expresses no opinion)opinion or belief, when they (a) such counsel is of the opinion that the Registration Statement at the time it became effective or were filed with effective, and the CommissionProspectus as of the date thereof and as of the date of its letter, as the case may be, complied as appear on their face to form be appropriately responsive in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; promulgated thereunder and he has (b) no reason facts have come to such counsel's attention that lead such counsel to believe that any of such documents, when such documents (i) the Registration Statement at the time it became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, 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, in or (ii) the case Prospectus as of other documents which were filed under its date and as of the Act date of its letter contained or the Exchange Act with the Commission, contains 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; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do such counsel is not know of any amendment to the Registration Statement required to be filed or aware of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such counsel may state that he expresses no opinion as to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, except with respect to the matters set forth in (i), (ii) and (iii) of this Section 7(f).;
Appears in 1 contract
Samples: Underwriting Agreement (Convergent Communications Inc /Co)
Xxxxxx X. XxxxxxXxxxxxxxx, Vice President - Law and Corporate Secretary of Esq., general counsel for the Company, shall have furnished to you the Representatives his written opinion (a draft of such opinion is attached as Annex 11(e) hereto)opinion, dated the Time of DeliveryClosing Date or the Additional Closing Date, as the case may be, in form and substance reasonably satisfactory to you the Representatives, to the effect that:
(i) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company outstanding prior to the issuance of the Shares to be sold hereunder have been duly authorized and are validly issued, fully paid and non-assessable;
(ii) the Company has been duly qualified to do business and is in good standing as a foreign corporation under the laws of each 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;
(iii) each of the Company's subsidiaries has been duly organized and is validly existing under the laws of its jurisdiction of organization with power and authority (corporate and otherwise) under such laws to own its properties and conduct its business as described in the Prospectus and has been duly qualified to do business and is in good standing under the laws of each jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified and in good standing would not have a Material Adverse Effect; and all of the outstanding shares of capital stock or other ownership interests of each subsidiary have been duly and validly authorized and issued and issued, are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform (except, in all material respects the case of foreign subsidiaries, for directors' qualifying shares and except as otherwise set forth in the Prospectus or pledged under or pursuant to the description Credit Agreement or pledged as security for the Notes) are owned by the Company, directly or indirectly, free and clear of all liens, encumbrances, security interests and similar claims;
(iv) each of the Common Stock contained Significant Joint Ventures has been duly organized and is validly existing as a limited partnership under the laws of Delaware, with power and authority under its partnership agreement and the law of the State of Delaware to own its properties and conduct its business as described in the Prospectus;
(ii) The Company , and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties properties, or conducts any business business, so as to require such qualification or except qualification, other than where any such the failure to qualify be so qualified or in good standing would not have a Material Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock outstanding general and limited partnership interests of each such subsidiary Significant Joint Venture have been duly authorized and validly authorized and issued, are fully fully-paid and validly xand non-assessable (except insofar as any such general partnership interest carries with it liability for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws debts and obligations of any foreign jurisdiction to be owned by others the relevant limited partnership). The Company owns 41% of the outstanding general and limited partnership interests of Equistar, 58.75% of the outstanding general and limited partnership interests of LCR and 75% of the outstanding general and limited partnership interests of Lyondell Methanol, and (except as otherwise set forth in the ProspectusProspectus or pledged under or pursuant to the Credit Agreement or pledged as security for the Notes) the outstanding general and limited partnership interests of the Significant Joint Ventures owned by the Company owned by the Company are owned owned, directly or indirectly by the Companyindirectly, free and clear of all liens, encumbrances, equities security interests and similar claims;
(v) other than as set forth or claims (contemplated in the Prospectus, to the best of such counsel being entitled to rely in respect of counsel's knowledge, there are no legal or governmental investigations, actions, suits or proceedings pending or threatened or contemplated against the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or Company, its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified LCR or Lyondell Methanol or any of their respective properties or to which the Company, its subsidiaries, LCR or Lyondell Methanol is or may be a party or to which any property of the Company, its subsidiaries, LCR or Lyondell Methanol is or may be the subject that, if determined adversely to the Company, its subsidiaries, LCR or Lyondell Methanol, could individually or in relying upon such opinions and certificates)the aggregate reasonably be expected to have a Material Adverse Effect;
(ivvi) The issuance such counsel does not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(vii) none of the Guarantee Company, its subsidiaries, LCR or Lyondell Methanol is, or with the giving of notice or lapse of time or both would be, in violation of or in default under its Certificate of Incorporation or By-Laws or other constitutive documents, or to the best of such counsel's knowledge, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, its subsidiaries, LCR or Lyondell Methanol is a party or by which it or any of them or any of their respective properties is bound, except for violations and defaults which individually and in the aggregate are not material to the Company and its subsidiaries taken as a whole;
(viii) the issue and sale of the Shares being delivered on the Closing Date or the Additional Closing Date, as the case may be, and the Debentures at the Time of Delivery and the compliance performance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and its obligations under this Agreement and the consummation of the transactions contemplated herein and therein contemplated in the other Transaction Documents will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company Company, its subsidiaries, LCR or any of its subsidiaries Lyondell Methanol is a party or by which the Company Company, its subsidiaries, LCR or any of its subsidiaries Lyondell Methanol is bound or to which any of the property or assets of the Company Company, its subsidiaries, LCR or any of its subsidiaries Lyondell Methanol is subject, nor will any such actions action result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated the By-laws Laws of the Company or, to the knowledge of such counsel, any applicable law or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company Company, its subsidiaries, LCR or any of its subsidiaries Lyondell Methanol or any of their respective properties;; and
(vix) To his each of the Company, its subsidiaries, LCR or Lyondell Methanol 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 such as could not reasonably be expected to have a Material Adverse Effect, and to the best of such counsel's knowledge, 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 none of the Company Company, its subsidiaries, LCR or Lyondell Methanol has received any actual notice of its subsidiaries is the subject any proceeding relating to revocation or modification of any such license, permit, certificate, consent, order, approval or other authorization which, if determined adversely to the Company or any of Company, its subsidiaries, would individually LCR or in the aggregate Lyondell Methanol could reasonably be expected to have a Material Adverse Effect; and, and each of the Company, its subsidiaries, LCR or Lyondell Methanol is in compliance with all laws and regulations relating to such counsel's knowledgethe conduct of its business as conducted as of the date hereof, no such proceedings are threatened except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect. Such counsel shall also state that he has participated in conferences with officers and other representatives of the Company, and persons under his direction or contemplated by governmental authorities or threatened by others;
(vi) Neither control have participated in conferences with officers and other representatives of the Company, representatives of the independent accountants of the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements representatives of the Act or Underwriters and their counsel at which the Exchange Act, as applicable, and the rules and regulations contents of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments related matters were discussed; and, although he did not independently verify such information and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements is not passing upon, and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do does not assume any responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or and the Prospectus, he has on the basis of the foregoing (relying as to materiality, to the extent such counsel deems reasonable, upon officers and other representatives of the Company), no reason facts have come to his attention to lead him to believe that, as of its effective date, that (a) the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements statements, the notes thereto and related schedules thereinthe auditors' reports thereon and the other financial, statistical and accounting information contained therein or omitted therefrom, as to which such counsel need express no opinion) has not been asked to comment), at its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, (b) the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein statements, the notes thereto and the Forms T-1; auditors' reports thereon and the other financial, statistical and accounting information contained therein or omitted therefrom, as to which such counsel need express no opinion) has not been asked to comment), at the time the Prospectus was issued, or at the Closing Date, contained or contains an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein and the Forms T-1therein, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion, such Such counsel may state that he expresses no opinion as the opinions expressed are based on and are limited to the laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware and the Revised Uniform Limited Partnership Act of the State of Delaware, except with respect to the matters set forth as currently in (i), (ii) and (iii) of this Section 7(f)effect.
Appears in 1 contract
Xxxxxx X. Xxxxxx, Vice President - Law and Corporate Secretary of Esq., general counsel for the Company, shall have furnished to you the Representatives his written opinion (a draft of such opinion is attached as Annex 11(e) hereto)opinion, dated the Time of DeliveryClosing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory to you the Representatives, to the effect that:
(i) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(ii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties properties, or conducts any business business, so as to require such qualification or except qualification, other than where any such the failure to qualify be so qualified or in good standing would not have a Material Adverse Effect;
(iiiii) Each Significant Subsidiary each of the Company Company's significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X under the Securities Act) has been duly incorporated and is validly existing as a corporation under the laws of its jurisdiction of incorporation with power and authority (corporate and 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 its each other jurisdiction of incorporationin 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 and in good standing would not have a Material Adverse Effect; and all of the issued outstanding shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand non-assessable, and (except except, in the case of foreign subsidiaries, for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims claims;
(iii) other than as set forth or contemplated in the Prospectus, to such counsel being entitled counsel's knowledge, there are no legal or governmental investigations, actions, suits or proceedings pending or threatened in writing against the Company or any of its subsidiaries or any of their respective properties or to rely in respect which the Company or any of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers its subsidiaries is or may be a party or to which any property of the Company or its subsidiaries is or may be the subject which, if determined adversely to the Company or any of its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified could individually or in relying upon such opinions and certificates)the aggregate reasonably be expected to have a Material Adverse Effect;
(iv) The issuance the statements in the Prospectus under "Regulation", insofar as such statements constitute a summary of the Guarantee legal matters, documents or proceedings referred to therein, fairly present in all material respects the information called for with respect to such legal matters, documents or proceedings; and such counsel does not know of any statutes, regulations, contracts or other documents that are required pursuant to the Rules and Regulations to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(v) nothing has come to such counsel's attention that would cause such counsel to believe that (other than the financial statements and related schedules and other financial and statistical data therein, as to which such counsel need express no belief) the Registration Statement or the prospectus included therein at the time the Registration Statement became effective contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as amended or supplemented, if applicable, contains any untrue statement of a material fact 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;
(vi) the issue and sale of the Shares being delivered on the Closing Date or the Additional Closing Date, as the case may be, and the Debentures at the Time of Delivery and the compliance performance by the Company with all of the provisions of the Guarantee and the Debentures, the Indenture and its obligations under this Agreement and the consummation of the transactions contemplated herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will any such actions action result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated the By-laws Laws of the Company or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of Company, its subsidiaries or any of their respective properties;; and
(vvii) To his to such counsel's knowledge, there are no legal or governmental proceedings pending to which neither the Company or nor any of its subsidiaries is a party has received any notice in writing of any proceeding relating to the revocation or modification of which any property of the Company license, permit, certificate, consent, order, approval or other authorization from any of its subsidiaries is the subject federal, state, local or other governmental authority (including foreign regulatory agencies), any self- regulatory organization, any court or other tribunal, domestic or foreign, which, if determined adversely to the Company or any of its subsidiaries, would individually or subsidiaries could result in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound;
(vii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; 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 and the Forms T-1, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of 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 or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as requiredChange. In rendering such opinionopinions, such counsel Xxxxxx Xxxx & Priest LLP and Xx. Xxxxxx may state that he expresses no opinion rely (A) as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York (with respect to Xxxxxx Xxxx & Priest LLP), the Commonwealth of Pennsylvania (with respect to Xx. Xxxxxx) and the General Corporation Law of the State of Delaware, except to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' counsel) of other counsel reasonably acceptable to the Underwriters' counsel, familiar with the applicable laws and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and certificates or other written statements of officials of jurisdictions having custody of documents respecting the corporate existence or good standing of the Company. The opinions of such counsel for the Company shall state that the opinion of any such other counsel upon which they (or he) relied is in form satisfactory to such counsel and, in such counsel's opinion, the Underwriters and they (or he) are justified in relying thereon. With respect to the matters set forth to be covered in (i), (iiSection 6(f)(vii) and Section 6(g)(v) above counsel may state their opinion and their (iiior his) belief are based upon their (or his) participation in the preparation of this Section 7(f)the Registration Statement and the Prospectus and any amendment or supplement thereto and review and discussion of the contents thereof but is without independent check or verification except as specified. The opinions of Xxxxxx Xxxx & Priest LLP and Xx. Xxxxxx described above shall be rendered to the Underwriters at the request of the Company and shall so state therein.
Appears in 1 contract
Xxxxxx X. XxxxxxXxxxx, Vice President - Law and Corporate Secretary General Counsel of the Company, shall have furnished to you the Representatives his written opinion (a draft of such opinion is attached as Annex 11(e) hereto)opinion, dated the Time of DeliveryDelivery for such Designated Securities, in form and substance satisfactory to you the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, Prospectus as amended or supplemented and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and the shares of Common Stock initially issuable upon conversion of the Securities have been duly and validly authorized and reserved for issuance and, when issued and delivered in accordance with the provisions of the Securities, will be duly and validly issued and fully paid and non-assessable, and will conform in all material respects to the description of the Common Stock contained in the Prospectus;
(iiiii) 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 is doing business or leases properties is otherwise required to qualify or conducts any business is subject to no material liability or disability by reason of failure to be so as to require such qualification or except where qualified in any such failure to qualify would not have a Material Adverse Effectjurisdiction;
(iiiiv) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and validly xand non-assessable, and (except for directors' qualifying shares or shares representing an immaterial equity interest that are required under the laws of any foreign jurisdiction to be owned by others and except as otherwise set forth in the Prospectusshares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims claims;
(v) To the best of such counsel being entitled counsel's knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to rely in respect which the Company or any of the opinion in this clause upon opinions its Subsidiaries is a party or of local counsel and in respect of matters of fact upon certificates of officers which any property of the Company or any of its subsidiariesSubsidiaries is the subject which would in the aggregate have a material adverse effect on the consolidated financial position or operations of the Company and its Subsidiaries taken as a whole; and, provided that to the best of such counsel shall state that they believe that both you and they counsel's knowledge, no such proceedings are justified in relying upon such opinions and certificates)threatened by governmental authorities or by others;
(ivvi) This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;
(vii) The issuance Designated Securities have been duly authorized, executed, issued and delivered by the Company and, assuming due authentication and delivery by the Trustee, constitute valid and legally binding obligations of the Guarantee Company enforceable in accordance with their terms and entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Debentures at Designated Securities and the Time Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance and other laws of Delivery general applicability relating to or affecting creditors' rights and to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Guarantee Designated Securities, the Indenture, this Agreement and the Debentures, Pricing Agreement with respect to the Indenture and this Agreement Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any of its subsidiaries Subsidiaries is a party or by which the Company or any of its subsidiaries Subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries Subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation or Amended and Restated By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries Subsidiaries or any of their properties;
(vx) To his knowledgeNo consent, there are no legal approval, authorization, order, registration or qualification of or with any such court or governmental proceedings pending to which agency or body is required for the issue and sale of the Designated Securities or the consummation by the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or transactions contemplated by governmental authorities this Agreement or threatened such Pricing Agreement or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by othersthe Underwriters;
(vixi) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or by-laws or in default The statements set forth in the performance Prospectus as amended or observance supplemented under the captions "Description of any material obligationDebt Securities" and "Description of Notes," insofar as they purport to constitute a summary of the terms of the Securities, covenant or condition contained in any indentureand under the caption "Plan of Distribution," insofar as they purport to describe the provisions of the laws and documents referred to therein, mortgageare accurate, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be boundcomplete and fair;
(viixii) The documents incorporated by reference in the Prospectus as amended or any further amendment or supplement thereto made by the Company prior to the Time of Delivery supplemented (other than the financial statements and related schedules and financial data derived from accounting records included therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he such counsel has no reason to believe that any of such documents, when such documents they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under in which they were made when such documents were so filed, not misleading; and
(viiixiii) The Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and related schedules and financial data derived from accounting records included therein, as to which such counsel need express no opinion) appear on their face to comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although they do such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, he except for those referred to in the opinion in subsection (xi) of this Section 7(c), such counsel has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and financial data derived from accounting records included therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein and the Forms T-1; financial data derived from accounting records included 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 and the Forms T-1therein, in the light of the circumstances under in which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and financial data derived from accounting records included therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein and the Forms T-1therein, in the light of the circumstances under in which they were made, not misleading; and they do such counsel does not know of any amendment to the Registration Statement required to be filed or of 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 rendering such opiniongiving the opinion set forth in this subsection (c), such counsel may state that he expresses no opinion as to the laws of any jurisdiction outside the United States; and such counsel may rely (A) as to matters including the application of laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York Texas and the General Corporation Law of the State law of Delaware, except and as to any other matter to which you consent (which consent shall not be unreasonably withheld), to the extent specified in such opinion, upon the opinion of other counsel whom he believes to be reliable (provided that such counsel shall so state in his opinion), and (B) as to matters of fact on certificates of officers and representatives of the Company and of public officials; and such counsel will not be required to verify independently the accuracy or completeness of information or documents forwarded to him with respect to the matters set forth Registration Statement or the Prospectus (or any such further amendment or supplement thereto); any such opinions of other counsel referred to in clause (i), (iiA) shall specifically state that such opinions may be relied upon by the Underwriters and (iii) of this Section 7(f)their counsel.
Appears in 1 contract