Conditions to the Obligations of SBI. The obligations of SBI to purchase the DECS shall be subject to the accuracy of the representations and warranties on the part of the Trust, the Company and the Sellers contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4(b) hereof, to the accuracy of the statements of the Trust, the Company and the Sellers made in any certificates pursuant to the provisions hereof, to the performance by the Trust, the Company and the Sellers of their respective obligations hereunder and to the following additional conditions: (a) If the Trust Registration Statement or the Company Registration Statement has not become effective prior to the Execution Time, unless SBI agrees in writing to a later time, such Trust Registration Statement or Company Registration Statement will become effective not later than (i) 6:00 PM, New York City time, on the date of determination of the public offering price of the DECS, if such determination occurred at or prior to 3:00 PM, New York City time, on such date or (ii) 12:00 Noon, New York City time, on the business day following the day on which the public offering price of the DECS was determined, if such determination occurred after 3:00 PM, New York City time, on such date; if filing of the Trust Prospectus or the Company Prospectus, or any supplements thereto, is required pursuant to Rule 497(h) or Rule 424(b), such Trust Prospectus or Company Prospectus, and any such supplements, will be filed in the manner and within the time period required by such Rule; and no stop order suspending the effectiveness of the Trust Registration Statement or the Company Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) SBI shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Trust, dated the Closing Date, with respect to such matters as SBI may reasonably request. Such opinion shall also be addressed to the Sellers. (c) SBI shall have received the opinion of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Company, dated the Closing Date, in form and substance satisfactory to SBI, to the effect that: (i) each of the Company, [DIMON International, Inc., Florimex Worldwide, Inc., DIMON do Brasil Tabacos Ltds, DIMON Zimbabwe (PVY) LTD, DIMON GMBH, Florimex Worldwide B.V., Florimex U.S.A. and Baardse B.V.] (individually an "Opinion Subsidiary" and collectively the "Opinion Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Company Prospectus; (ii) all the outstanding shares of capital stock of each Opinion Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Company Prospectus, all outstanding shares of capital stock of each of the Opinion Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances; (iii) the Company's authorized equity capitalization is as set forth in the Company Prospectus; all of the Shares have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the description thereof contained in the Company Prospectus; there are no preemptive or other similar rights to subscribe for or to purchase any of the Shares; and the form of the certificates evidencing the Shares complies with all formal requirements of Virginia law; (iv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or any of their respective properties of a character required to be disclosed in the Company Registration Statement which is not adequately disclosed in the Company Prospectus, and there is no franchise, contract or other document of a character required to be described in the Company Registration Statement or Company Prospectus, or to be filed as an exhibit, which is not described or filed as required; (v) the Company Registration Statement has become effective under the Act; any required filing of any Preliminary Company Prospectus and the Company Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Company Registration Statement has been issued, and no proceedings for that purpose have been instituted or threatened; (vi) the Company Registration Statement and the Company Prospectus (except for financial statements and schedules included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the Act and the rules and regulations of the Commission thereunder; and the documents incorporated by reference in the Company Registration Statement and the Company Prospectus (other than the financial statements and schedules included therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied on their face as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; (vii) this Agreement has been duly authorized, executed and delivered by the Company; (viii) neither the performance of this Agreement by the Company, nor the distribution of the Shares and the consummation of the other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the Articles of Incorporation or By-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any judgment, order or decree known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries; (ix) no holders of securities of the Company other than the Sellers have rights to the registration of such securities under the Company Registration Statement; and (x) no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such as may be required under state securities or Blue Sky laws (as to which such counsel need express no opinion) in connection with the purchase and distribution of the DECS by SBI and the distribution of the Shares pursuant to the terms of the DECS. In addition, such counsel shall state that they have participated in conferences with directors, officers and other representatives of the Company, representatives of the independent public accountants for the Company, the Sellers and counsel for the Sellers, SBI and counsel for SBI, at which conferences the contents of the Company Registration Statement and the Company Prospectus and related matters were discussed, and, although such counsel have not independently verified and are not passing upon and assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Company Registration Statement and the Company Prospectus (except to the extent specified elsewhere in such opinion or with reference to such counsel), no facts have come to the attention of such counsel that lead such counsel to believe that, at the Company Effective Date, the Company Registration Statement included any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Company Prospectus includes any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel express no view with respect to the financial statements and related notes, the financial statement schedules or other financial, statistical and accounting information or data contained or incorporated by reference in the Company Registration Statement or Company Prospectus). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Virginia, the State of North Carolina, the State of New York or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for SBI and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Company Prospectus in this paragraph (c) include any supplements thereto at the Closing Date. Such opinion shall also be addressed to the Sellers. (d) SBI shall have received the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Sellers, dated the Closing Date, in the form attached hereto as Exhibit B, and the opinions of Hunton & ▇▇▇▇▇▇▇▇, North Carolina counsel for the individual Sellers, and of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ PLLC, North Carolina counsel for the Trust Sellers, each dated the Closing Date, in form and substance satisfactory to SBI, to the effect that: (i) each of the Trust Sellers has been duly created and is validly existing and in good standing under the law of the State of North Carolina; (ii) this Agreement has been duly authorized by each of the Trust Sellers and duly executed and delivered by each of the Sellers under the law of the State of North Carolina; each of the Contracts and Collateral Agreements and the Reimbursement Agreement have been duly authorized by each of the Trust Sellers and duly executed and delivered by each Seller under the law of the State of North Carolina and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and legally binding agreement of such Seller, enforceable against such Seller in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting creditors' rights generally, and to general equitable principles; and the compliance by each Seller with all of the provisions of this Agreement, the Contract and Collateral Agreement to which such Seller is a party and the Reimbursement Agreement, and the consummation of the transactions herein and therein contemplated, will not violate any North Carolina law, rule or regulation or any order or decree known to such counsel of any court or governmental agency or body having jurisdiction over any Seller or any of its properties; (iii) no consent, approval, license, authorization, order or validation of, and no filing, recording, or registration with, any North Carolina governmental authority, agency or body or, to such counsel's knowledge, any court is required for the compliance by each Seller with all of the provisions of this Agreement, the Contract and Collateral Agreement to which such Seller is a party and the Reimbursement Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the DECS and the Shares; (iv) the Certificate of Spouse attached as Exhibit C to each Collateral Agreement will, when executed and delivered by the spouse of any individual Seller, be effective and sufficient to foreclose any claims such spouse may have with respect to the Collateral (as defined therein) pledged thereunder that may be superior to the rights of the Trust in such Collateral in the event of a change in the marital status of such Seller; and (v) the enforceability of each Contract and Collateral Agreement against the related Seller will not be adversely affected by the death or legal incapacity of such Seller (in the case of individual Sellers) or any settlor or beneficiary of such Seller (in the case of Trust Sellers). (e) SBI shall have received from Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for SBI and the Trust, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the DECS, the Trust Registration Statement, the Trust Prospectus (together with any supplement thereto), the Fundamental Documents, the Company Registration Statement, the Company Prospectus (together with any supplement thereto) and other related matters as SBI may reasonably require, and the Trust and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (f) The Trust shall have furnished to SBI a certificate of the Trust, signed by the Managing Trustee and dated the Closing Date, to the effect that: (i) the representations and warranties of the Trust in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Trust has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) no stop order suspending the effectiveness of the Trust Registration Statement or the use of the Trust Prospectus has been issued and no proceedings for that purpose have been instituted or, to the Trust's knowledge, threatened. (g) The Company shall have furnished to SBI a certificate of the Company, signed by the Chairman of the Board and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Company Registration Statement, the Company Prospectus, any supplements to the Company Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Company Registration Statement or the use of the Company Prospectus has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in, or incorporated by reference in, the Company Prospectus (exclusive of any supplement thereto), there has been no Company Material Adverse Effect, except as set forth in or contemplated in the Company Prospectus (exclusive of any supplement thereto). (h) Each of the Sellers shall have furnished to SBI a certificate, dated the Closing Date, reasonably satisfactory to SBI as to the accuracy of the respective representations and warranties of such Seller herein at and as of the Closing Date, as to the performance by such Seller of all of such Seller's obligations hereunder to be performed at or prior to the Closing Date and as to such other matters as SBI may reasonably request. (i) At the Execution Time and at the Closing Date, Price Waterhouse LLP shall have furnished to SBI a letter or letters, dated as of such dates, in form and substance satisfactory to SBI, confirming that they are independent accountants within the meaning of the Act and the applicable published rules and regulations thereunder [and that they have performed a r
Appears in 1 contract
Sources: Underwriting Agreement (Decs Trust)
Conditions to the Obligations of SBI. The obligations of SBI to purchase the DECS shall be subject to the accuracy of the representations and warranties on the part of the Trust, the Company and the Sellers contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4(b) hereof, to the accuracy of the statements of the Trust, the Company and the Sellers made in any certificates pursuant to the provisions hereof, to the performance by the Trust, the Company and the Sellers of their respective obligations hereunder and to the following additional conditions:
(a) If the Trust Registration Statement or the Company Registration Statement has not become effective prior to the Execution Time, unless SBI agrees in writing to a later time, such Trust Registration Statement or Company Registration Statement will become effective not later than (i) 6:00 PM, New York City time, on the date of determination of the public offering price of the DECS, if such determination occurred at or prior to 3:00 PM, New York City time, on such date or (ii) 12:00 Noon9:30 AM, New York City time, on the business day following the day on which the public offering price of the DECS was determined, if such determination occurred after 3:00 PM, New York City time, on such date; if filing of the Trust Prospectus or the U.S. Company Prospectus, or any supplements thereto, is required pursuant to Rule 497(h) or Rule 424(b), such Trust Prospectus or U.S. Company Prospectus, and any such supplements, will be filed in the manner and within the time period required by such Rule; and no stop order suspending the effectiveness of the Trust Registration Statement or any part thereof or the Company Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatenedthreatened by the Ontario Securities Commission or the Commission; and all requests for additional information on the part of the Ontario Securities Commission or the Commission shall have been complied with to the reasonable satisfaction of SBI.
(b) SBI shall have received the opinion of ▇▇▇▇Rich▇▇▇▇, ▇▇▇▇▇▇ & Finger▇inger, special Delaware counsel for the Trust, dated the Closing Date, with respect to such matters as SBI may reasonably request. Such opinion shall also be addressed to the Sellers.
(c) SBI shall have received the opinion of Hunton & Ogil▇▇ ▇▇▇▇▇▇▇, ▇▇nadian counsel for the CompanyCompany and the Sellers, dated the Closing Date, in form and substance satisfactory to SBI, to the effect that:
(i) each of the Company, [DIMON InternationalPlastibec Limited, Inc.Roybridge Investments Limited, Florimex WorldwideRoyal Building Systems (Canada) Limited, Inc.Royal Plastics Inc. and Royplast Limited (collectively, DIMON do Brasil Tabacos Ltdsother than the Company, DIMON Zimbabwe (PVY) LTD, DIMON GMBH, Florimex Worldwide B.V., Florimex U.S.A. and Baardse B.V.] (individually an "Opinion Subsidiary" and collectively the "Canadian Opinion Subsidiaries") has been duly incorporated is a corporation amalgamated, continued or incorporated, as the case may be, and is validly existing as a corporation in good standing subsisting under the laws of the jurisdiction in which it is chartered of its amalgamation, continuance or organizedincorporation, with full corporate power and authority to own its properties and conduct its business as described in the Canadian Prospectus and the U.S. Company Prospectus, and is duly qualified as an extra-provincial corporation under the laws of the Province of Ontario or Quebec to the extent required by applicable law;
(ii) the certificates for the Shares comply in all material respects with the applicable requirements of the Canada Business Corporation Act; and the holders of outstanding multiple voting shares or subordinate voting shares of capital stock of each Opinion Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Company Prospectus, all outstanding shares of capital stock of each of are not entitled to preemptive or other rights to subscribe for the Opinion Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrancesShares;
(iii) the Company's authorized equity capitalization is as set forth statements in the Canadian Prospectus and the U.S. Company Prospectus; all Prospectus under the heading "Description of Share Capital," insofar as they purport to summarize certain provisions of the Shares have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the description thereof contained in the Company Prospectus; there are no preemptive or other similar rights to subscribe for or to purchase any Articles of Incorporation of the SharesCompany, provide a fair summary of such provisions, and under the headings "Certain Income Tax Considerations," insofar as they purport to describe the provisions of the laws of Canada, fairly summarize the matters therein described; and the form statements in the Trust Prospectus under the headings "Risk Factors--Risk Relating to Bankruptcy of the certificates evidencing Sellers" and "Certain Canadian Income Tax Considerations," insofar as they purport to describe the Shares complies with all formal requirements provisions of Virginia lawthe laws of Canada, fairly summarize the matters therein described;
(iv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or any of their respective properties of a character required to be disclosed in the Company Registration Statement which is not adequately disclosed in the Company Prospectus, and there is no franchise, contract or other document of a character required to be described in the Company Registration Statement or Company Prospectus, or to be filed as an exhibit, which is not described or filed as required;
(v) the Company Registration Statement has become effective under the Act; any required filing of any Preliminary Company Prospectus and the Company Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Company Registration Statement has been issued, and no proceedings for that purpose have been instituted or threatened;
(vi) the Company Registration Statement and the Company Prospectus (except for financial statements and schedules included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the Act and the rules and regulations of the Commission thereunder; and the documents incorporated by reference in the Company Registration Statement and the Company Prospectus (other than the financial statements and schedules included therein, as to which such counsel need express no opinion), when they were filed with the Commission, complied on their face as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viiiv) neither the performance of this Agreement by the Company, nor the distribution of the Shares and the consummation of the other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the Articles of Incorporation or By-laws of the Company or the terms of any material indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any judgment, order or decree known bound (as identified by the Company to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiariescounsel);
(ix) no holders of securities of the Company other than the Sellers have rights to the registration of such securities under the Company Registration Statement; and
(xvi) no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body in Canada is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained;
(vii) the Company is eligible to file a short form prospectus with the Ontario Securities Commission and use the PREP Procedures in respect of the Shares;
(viii) a receipt has been obtained in respect of the Canadian Prospectus from the Ontario Securities Commission, and to the best of such counsel's knowledge the Ontario Securities Commission has not revoked such receipt; all necessary authorizations, approvals, permits, consents and orders have been obtained under the securities laws of the Province of Ontario to permit the Shares to be delivered in accordance with the terms of the Contracts; and no other authorization, approval, permit, consent or license of any government, governmental instrumentality or court of Canada or of the Province of Ontario is required for the issuance, sale and delivery of the DECs and the delivery of the Shares in accordance with the terms of the Contracts;
(ix) insofar as matters of Canadian law are concerned, the Company Registration Statement and the filing of the Company Registration Statement with the Commission have been duly authorized by and on behalf of the Company; and the Company Registration Statement has been duly executed pursuant to such authorization by and on behalf of the Company;
(x) the submission by the Company, each Seller and each Corporate Seller Control Person in Section 14 hereof to the jurisdiction of any New York Court (as defined herein), and service of process effected in the manner set forth in Section 14 hereof, in each case will be recognized by the courts of the Provinces of Ontario and Quebec as conferring jurisdiction on any New York Court; the submission by each Seller and each Corporate Seller Control Person in Section 8.9 of the applicable Contract, Section 10(e)(ii) of the applicable Collateral Agreement and Section ___ of the applicable Collateral Agency Agreement to the jurisdiction of any New York Court (as defined therein), and service of process effected in the manner set forth in such Section 8.9, 10(e)(ii) or ____ thereof, in each case will be recognized by the courts of the Provinces of Ontario and Quebec as conferring jurisdiction on any New York Court; the laws of the Provinces of Ontario and Quebec permit an action to be brought in an Ontario or Quebec court on any final and conclusive judgment in personam of a court of the State of New York or a federal court sitting in the State of New York (each, a "New York Court"), that is not impeachable as void or voidable under New York law, for a sum certain if: (A) the court rendering such judgment properly exercised jurisdiction over the judgment debtor, as recognized by the courts of the Provinces of Ontario and Quebec; (B) such judgment was not obtained by fraud or in a manner contrary to natural justice and the enforcement thereof would not be inconsistent with public policy, as such term is understood under the laws of the Provinces of Ontario and Quebec and the federal laws of Canada applicable therein or contrary to any order made by the Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada); (C) the enforcement of such judgment does not constitute, directly or indirectly, the enforcement of foreign revenue, expropriatory or penal laws in the Provinces of Ontario and Quebec; (D) no new admissible evidence relevant to the action is discovered prior to the rendering of judgment by the court in the Provinces of Ontario and Quebec; (E) the action to enforce such as may be required judgment is commenced within the relevant limitation period prescribed under state securities or Blue Sky the laws of the Provinces of Ontario and Quebec; and (F) in the case of a judgment obtained by default, there has been no manifest error in the granting of such judgment;
(xi) the Canadian Prospectus and any Supplementary Material in connection with the offering of the Shares (including the PREP Information if applicable, but excluding the financial, statistical and accounting information included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the Canadian Securities Laws, including the PREP Procedures, if applicable, as interpreted and applied by the Ontario Securities Commission in connection with the purchase transactions contemplated by this Agreement;
(xii) no stamp duty, registration or documentary taxes, duties or similar charges are payable under the laws of the Province of Ontario, the Province of Quebec or the federal laws of Canada applicable therein in connection with the creation, issuance and distribution delivery to SBI of the DECS by SBI or the authorization, execution and the distribution delivery of the Shares pursuant Contracts and this Agreement;
(xiii) to the terms best of such counsel's knowledge without a specific investigation for the purposes of this opinion, there is no action, proceeding or investigation pending of threatened against the Company which questions the validity of the DECS. In addition, such counsel shall state that they have participated in conferences with directors, officers and other representatives issuance of the Company, representatives of the independent public accountants for the Company, the Sellers and counsel for the Sellers, SBI and counsel for SBI, at which conferences the contents of the Company Registration Statement and the Company Prospectus and related matters were discussed, and, although such counsel have not independently verified and are not passing upon and assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Company Registration Statement and the Company Prospectus (except to the extent specified elsewhere in such opinion or with reference to such counsel), no facts have come to the attention of such counsel that lead such counsel to believe that, at the Company Effective Date, the Company Registration Statement included any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Company Prospectus includes any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel express no view with respect to the financial statements and related notes, the financial statement schedules or other financial, statistical and accounting information or data contained or incorporated by reference in the Company Registration Statement or Company Prospectus). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Virginia, the State of North Carolina, the State of New York DECS or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for SBI and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Company Prospectus in this paragraph (c) include any supplements thereto at the Closing Date. Such opinion shall also be addressed to the Sellers.offering thereof by SBI;
(d) SBI shall have received the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Sellers, dated the Closing Date, in the form attached hereto as Exhibit B, and the opinions of Hunton & ▇▇▇▇▇▇▇▇, North Carolina counsel for the individual Sellers, and of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ PLLC, North Carolina counsel for the Trust Sellers, each dated the Closing Date, in form and substance satisfactory to SBI, to the effect that:
(ixiv) each of the Trust Sellers has been duly created is a corporation incorporated and is validly existing and in good standing subsisting under the law laws of the State Province of North CarolinaOntario or Canada;
(iixv) this Agreement has been duly authorized by each of the Trust Sellers and duly authorized, executed and delivered by each of the Sellers under the law of the State of North CarolinaSellers; each of the Contracts and Contracts, the Collateral Agreements Agreements, the Collateral Agency Agreement and the Reimbursement Agreement have been duly authorized by each of the Trust Sellers and duly authorized, executed and delivered by each Seller under the law of the State of North Carolina and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and legally binding agreement of such Seller, enforceable against such Seller in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting creditors' rights generally, and to general equitable principles; and the compliance by each Seller with all of the provisions of this Agreement, the Contract Contract, Collateral Agreement and the Collateral Agency Agreement to which such Seller is a party and the Reimbursement Agreement, and the consummation of the transactions herein and therein contemplated, will not violate any North Carolina lawstatute, rule or regulation or any order or decree known to such counsel of any court or governmental agency or body having jurisdiction over any Seller or any of its properties; (xvi) this Agreement has been duly executed and delivered by each of the Corporate Seller Control Persons; each of the Contracts to which it is a party and the Reimbursement Agreement has been duly executed and delivered by each Corporate Seller Control Person and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a valid and legally binding agreement of such Corporate Seller Control Person, enforceable against such Corporate Seller Control Person in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting creditors' rights generally, and to general equitable principles; and the compliance by each Corporate Seller Control Person with all of the provisions of this Agreement, the Contract to which it is a party and the Reimbursement Agreement, and the consummation of the transactions herein and therein contemplated, will not result in a breach or default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument identified on an annexed schedule furnished by such Corporate Seller Control Person and which such Corporate Seller Control Person has represented lists all material agreements and instruments to which such Corporate Seller Control Person is a party or by which such Corporate Seller Control Person is bound or to which any of the property or assets of such Corporate Seller Control Person is subject, nor will such action violate any statute, rule or regulation or any order or decree known to such counsel of any court or governmental agency or body having jurisdiction over any Corporate Seller Control Person or any of his properties;
(iiixvii) no consent, approval, license, authorization, order or validation of, and no filing, recording, filing recording or registration with, any North Carolina governmental authority, agency or body or, to such counsel's knowledge, any court is required for the compliance by each Seller with all of the provisions of this Agreement, each of the Contract Contract, the Collateral Agreement and the Collateral Agency Agreement to which such Seller is a party and the Reimbursement Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the DECS and the Shareshave been obtained;
(ivxviii) no consent, approval, license, authorization, order or validation of, and no filing recording or registration with, any governmental authority, agency or body or, to such counsel's knowledge, any court is required for the Certificate compliance by each Corporate Seller Control Person with all of Spouse attached the provisions of this Agreement, the Contract and the Reimbursement Agreement, except such as Exhibit C to each Collateral Agreement will, when executed and delivered by the have been obtained;
(xix) a spouse of any individual Seller, be effective and sufficient to foreclose Corporate Seller Control Person does not have any claims such spouse may have with respect to the Collateral (as defined therein) pledged thereunder that may be superior to the rights of the Trust in such Collateral in the event of a change in the marital status of such Seller; andCorporate Seller Control Person;
(vxx) the enforceability of each Contract Contract, Collateral Agreement and Collateral Agency Agreement against the related Seller will not be adversely affected by (A) binding on and legally enforceable against the estate of a deceased Corporate Seller Control Person or the legal representative, attorney, or guardian of a Corporate Seller Control Person who becomes legally incapable and (B) binding on and legally enforceable against any Seller despite the death or legal incapacity of any office, director, or shareholder of such Seller Seller;
(xxi) insofar as the laws of the Provinces of Ontario and Quebec are applicable thereto, each Collateral Agreement creates a valid security interest in favour of the Collateral Agent in the Collateral (as defined therein) in which the Seller now has rights, and is sufficient to create a valid security interest in favour of the Collateral Agent in any Collateral (as defined therein) in which the Seller hereafter acquires rights when those rights are acquired by the Seller, in each case to secure performance of individual Sellersthe obligations described therein as being secured thereby;
(xxii) assuming the deposit and maintenance of the Multiple Voting shares pledged as Collateral (as defined therein) under the applicable Collateral Agreement, the law of the Province of Ontario will govern the perfection of the security interest therein in favor of the Collateral Agent;
(xxiii) registration has been made in all public offices provided for under the laws of the Provinces of Ontario and Quebec and the federal laws of Canada where such registration is necessary or any settlor desirable to preserve, protect or beneficiary perfect the security interests created by the Collateral Agreement in favour of such Seller (the Collateral Agent in the case Collateral (as defined therein) and no other registration, notice or other action is necessary or desirable to preserve, protect or perfect the security interest created by the Collateral Agreement in favour of Trust Sellers).the Collateral Agent;
(exxiv) SBI shall have received from Clearysuch counsel has conducted, Gottliebor has caused to be conducted, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for SBI and the Trust, such opinion or opinions, dated the Closing Date, with respect searches identified in Schedule A to the issuance and sale opinion for filing or registrations made in those offices of the DECSpublic record in Ontario, the Trust Registration Statement, the Trust Prospectus (together with any supplement thereto), the Fundamental Documents, the Company Registration Statement, the Company Prospectus (together with any supplement thereto) and other related matters as SBI may reasonably require, and the Trust and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Trust shall have furnished to SBI a certificate of the Trust, signed by the Managing Trustee and dated the Closing Date, to the effect that:
(i) the representations and warranties of the Trust in this Agreement are true and correct in all material respects on and each case as of the Closing Date with the same effect as if made on the Closing Date and the Trust has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) no stop order suspending the effectiveness of the Trust Registration Statement or the use of the Trust Prospectus has been issued and no proceedings for that purpose have been instituted or, to the Trust's knowledge, threatened.
(g) The Company shall have furnished to SBI a certificate of the Company, signed by the Chairman of the Board and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Company Registration Statement, the Company Prospectus, any supplements to the Company Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Company Registration Statement or the use of the Company Prospectus has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in, or incorporated by reference in, the Company Prospectus (exclusive of any supplement thereto), there has been no Company Material Adverse Effect, except as dates set forth in or contemplated in the Company Prospectus (exclusive of any supplement thereto).
(h) Each of the Sellers shall have furnished to SBI a certificate, dated the Closing Date, reasonably satisfactory to SBI as to the accuracy of the respective representations and warranties of such Seller herein at and as of the Closing Date, as to the performance by such Seller of all of such Seller's obligations hereunder to be performed at or prior to the Closing Date and as to such other matters as SBI may reasonably request.
(i) At the Execution Time and at the Closing Date, Price Waterhouse LLP shall have furnished to SBI a letter or letters, dated as of such dates, in form and substance satisfactory to SBI, confirming that they are independent accountants within the meaning of the Act and the applicable published rules and regulations thereunder [and that they have performed a rforth
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