Qualifications and Limitations. In addition to any exceptions, qualifications and assumptions noted above, the foregoing opinions are subject to the following exceptions, qualifications and assumptions: (a) Our opinion is limited to the laws of the State as presently written and interpreted; we have not made a review of the laws of any other jurisdiction, and we express no opinions concerning such laws or whether such laws may apply. For the purposes of our opinion, we have assumed, with your consent, that the State Documents will be governed in their entirety by the laws of the State. (b) This opinion speaks only as of the date hereof, and we undertake no obligation to advise you of legal or factual changes affecting this opinion that occur after the date of this letter. (c) Our opinions are subject to the effects of applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other similar laws in effect from time to time affecting the rights and remedies of creditors generally, including, without limitation, fraudulent conveyance laws and judicially developed doctrines relevant to any of the foregoing laws. (d) Our opinions are subject to the effect of general principles of equity, including, without limitation, limitations on the availability of equitable remedies and concepts of materiality, reasonableness, good faith and fair dealing, and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered in a proceeding in equity or at law). (e) The availability or enforceability of particular remedies (including all self-help remedies, rights to injunctions, specific performance, or appointment of a receiver, custodian or trustee) and waivers in the State Documents may be limited by equitable principles or applicable laws, rules, regulations, court decisions and constitutional requirements in and of the State, but the inclusion of such remedial provisions will not, in our judgment, render any of the State Documents invalid as a whole, or materially interfere with the exercise of the foreclosure remedies normally used by secured lenders in the State, other than by delay resulting from the application of such laws and principles. (f) A court of equity could enjoin Collateral Agent from foreclosing its liens or security interests or enforcing its remedies under the State Documents by reason of any unconscionable or inequitable conduct on Collateral Agent’s part, or if there are equitable defenses, defenses arising from Collateral Agent’s failure to act in accordance with the terms and provisions of the State Documents or other course of conduct, defenses arising as a consequence of the expiration of any period of limitation of actions, or defenses arising out of the doctrine of laches. Deutsche Bank Trust Company of Americas January 29, 2010 Page 7 of 10 (g) Certain provisions of the State Documents may be unenforceable as against public policy to the extent that they (i) may require indemnification for liabilities under the provisions of any federal or state securities laws or with respect to the action, inaction, neglect or conduct of the indemnified party or its representatives or Collateral Agent; (ii) purport to confer, waive or consent to venue or the jurisdiction of any court; (iii) attempt to establish evidentiary standards to be applied in litigation or similar proceedings; (iv) purport to indemnify a party with respect to its own, or its representatives’ or Collateral Agent’s, action, inaction, neglect or conduct; or (v) restrict access to courts or to legal or equitable remedies (including waivers of the right to trial by jury). (h) We express no opinion as to the enforceability of any waiver under the State Documents or any consent thereunder relating to the rights of Grantor or duties owing to Grantor that exist as a matter of law, except to the extent that Grantor may so waive or consent as a matter of law, or any provisions of the State Documents that purport to grant to or limit rights of persons who are not parties to the relevant State Documents. (i) Enforceability of the State Documents may also be limited as follows: (i) the award and the amount of attorneys’ fees are subject to the discretion of the court before which any proceeding involving such State Documents may be brought; (ii) notwithstanding any waiver therein to the contrary, actual notice to Grantor and the opportunity for a judicial hearing may be a condition precedent to the exercise of certain remedies by Collateral Agent; and (iii) notwithstanding stipulations to the contrary in any agreement, the issuance of a decree for specific performance or an injunction, or the appointment of a receiver, custodian, trustee, liquidator or conservator will be subject to the discretion of the court requested to issue any such decree or injunction, and we express no opinion on the question of whether such equitable remedies would be available. (j) We express no opinion as to the validity, binding effect or enforceability of any provision in the State Documents that purports to permit Collateral Agent or any other person to sell or otherwise dispose of any property subject thereto except in compliance with the Tennessee UCC, applicable laws of the United States of America, and other applicable state and local laws, or to impose on Collateral Agent standards for the care of collateral in Collateral Agent’s possession other than as provided in Section 9-207 of the Tennessee UCC. (k) We express no opinion as to the requirements of, effects of, or any entity’s compliance with laws or regulations related to pension laws, zoning laws, securities laws, labor laws, environmental laws, building codes, landlord/tenant laws, the Americans With Disabilities Act, and tax laws, or any related regulations. (l) Tennessee Code Annotated Section ▇▇-▇▇-▇▇▇ provides that a surety may make written demand on the creditor, requiring the creditor to bring suit on the guaranteed debt, if the surety believes that the principal is likely to become insolvent or leave the state without paying Deutsche Bank Trust Company of Americas January 29, 2010 Page 8 of 10 the debt, and that the creditor will forfeit its right to recover from the surety if the creditor does not commence a suit within thirty (30) days after such demand and diligently pursue the suit. We express no opinion as to the enforceability of any waiver of Grantor’s rights (if any) under such statute. (m) We express no opinion concerning Grantor’s rights in or title to any of the Real Property Collateral or other real or personal property. (n) We express no opinion as to the priority of the security interests or liens created or perfected by any of the State Documents, or, except as set forth in Paragraph 7, any obligatory or non-obligatory future advances made or to be made pursuant thereto. (o) We bring to your attention that Section 9-109(d)(8) of the Tennessee UCC provides in part that Chapter 9 of the Tennessee UCC does not apply to a transfer of an interest in or claim in or under any policy of insurance, except as provided with respect to proceeds (T.C.A. § 47-9-315) and priorities in proceeds (T.C.A. § 47-9-322). (p) We express no opinion with respect to security interest in any deposit accounts, escrow accounts, bank accounts or the like. (q) The effectiveness of the Fixture Financing Statement will lapse on the expiration of a period of five (5) years from the date of its filing (or from the date to which such effectiveness has been extended by a properly filed continuation statement) unless a continuation statement is properly filed within the last six (6) months of such effective period or within the sixty (60) days following the expiration of such effective period. (r) We express no opinion as to the assignment pursuant to the State Documents of contracts, rights, privileges, licenses, franchises or other properties that are non-assignable or that are subject to limitations on assignment created by applicable law or by the terms thereof. (s) We express no opinion as to the validity or enforceability of those provisions of the Deed of Trust that (i) permit adjournment of any sale without readvertising, (ii) purport to waive Grantor’s right to require a foreclosure sale by division, (iii) purport to subrogate Collateral Agent to the rights of the holders of any other liens on the Real Property Collateral or UCC Collateral, (iv) purport to provide for the institution of partial foreclosure proceedings with respect to the Real Property Collateral for a portion of the secured indebtedness then due and payable, subject to a continuing lien for the balance of the secured indebtedness not then due, (v) may be applied to require Grantor to “procure insurance for the protection of property for an amount that exceeds the replacement cost of the structures existing on the secured property at the time of the loan or extension of credit,” as construed under T.C.A. § 56-8-106, or (vi) purport to entitle Collateral Agent to receive, after any release, extinguishment, discharge or satisfaction of the indebtedness secured by the State Documents, any insurance proceeds arising from casualty events occurring prior thereto, but the inclusion of such provisions will not, in our judgment, Deutsche Bank Trust Company of Americas January 29, 2010 Page 9 of 10 render any of the State Documents invalid as a whole, or materially interfere with the exercise of the foreclosure remedies normally used by secured lenders in the State, other than by delay resulting from the application of such laws and principles. (t) We express no opinion as to the enforceability of any provision of the State Documents appointing Collateral Agent or permitting Collateral Agent to act as the agent or attorney-in-fact of any other party. (u) A change in the name, state of organization, corporate structure or address of Grantor may invalidate the Fixture Financing Statement unless an amendment thereto is timely filed showing such changes. (v) T.C.A. § 67-5-2003(h) requires the holder of a security interest to withhold from the proceeds of a sale of collateral under Chapter 9 of the Tennessee UCC an amount sufficient to satisfy any personal property taxes assessed against the debtor, and further provides that a secured party that fails to withhold such amount shall be personally liable to the local taxing authority. (w) Notwithstanding the provisions in the State Documents regarding notice of sale to be given to Grantor by mail, a court may require that the Collateral Agent make additional reasonable efforts to locate and notify the Grantor of any sale of any personal property. (x) Our opinions with respect to the perfection of any assignment of rents or leases in the Deed of Trust are based on T.C.A. § ▇▇-▇▇-▇▇▇. Under this statute, upon proper registration (recording) in the register’s office in the Tennessee county where the real property is located, the rent assignment will be perfected as to Grantor and all third parties without the necessity of furnishing notice to Grantor or any lessee under a tenant lease, obtaining possession of the property, impounding the rents from the property, securing the appointment of a receiver, or taking any other affirmative action. We express no opinion as to the continuation of the lien in proceeds from rents after collection of those proceeds by Grantor. Tennessee law is not clear as to, and we express no opinion as to, the extent to which the lien on rents follows the proceeds of such rents. In order to enforce such assignment as against a tenant, however, notice may be required to be given to the tenant; a tenant will not be required to pay to Collateral Agent any payments made by such tenant to Grantor before the tenant’s receipt of such notice. The provisions of the Deed of Trust providing for an absolute assignment of rents and leases may not be enforceable under Tennessee law, but it is nevertheless our opinion that the assignment of rents in the Deed of Trust is enforceable as a conditional collateral assignment if it is not enforceable as an absolute assignment. (y) We express no opinion as to matters of usury, interest, late charges, loan charges, loan fees or commissions, or as to prepayment premiums, prepayment penalties, termination fees, defeasance payments or the like, or as to any provisions of the State Documents relating to any of the foregoing. Origination fees, late charges, service charges or other loan fees are Deutsche Bank Trust Company of Americas January 29, 2010 Page 10 of 10 generally allowable under the case law of the State, if they are reasonable, but are subject to consideration on a case by case basis. To the extent a State court finds such charges to be unreasonable, the charges could be deemed unenforceable as a penalty or forfeiture, or the charges could be characterized as interest, and, therefore, could be considered in determining whether usury limitations have been violated. (z) We express no opinion with respect to enforceability of the Credit Agreement or to the enforceability of the Deed of Trust to the extent the Credit Agreement is incorporated therein.
Appears in 1 contract
Sources: Credit Agreement (DEX ONE Corp)
Qualifications and Limitations. In addition to any exceptions, qualifications and assumptions noted above, the foregoing The opinions set forth above are subject to the following exceptions, qualifications and assumptionslimitations:
(a) Our 1. The opinion is limited expressed in Paragraph B.1 above as to the laws valid existence and good standing of the State as presently written Borrower and interpreted; we have not made a the Delaware Guarantor is based solely on our review of the laws Good Standing Certificates, copies of any other jurisdictionwhich have been made available to you and your counsel, and we express no opinions concerning our opinion with respect to such laws or whether such laws may apply. For the purposes of our opinion, we have assumed, with your consent, that the State Documents will be governed in their entirety by the laws of the State.
(b) This opinion speaks only matters is rendered as of the date hereof, of such certificates and we undertake no obligation to advise you of legal or factual changes affecting this opinion that occur after the date of this letterlimited accordingly.
(c) Our 2. The opinions are subject to the effects of and may be limited by (i) applicable bankruptcy, insolvency, reorganizationliquidation, receivershipfraudulent conveyance or transfer, moratorium and moratorium, reorganization or other similar laws in effect from time to time affecting the creditors’ rights generally; (ii) general equitable principles and remedies rules of creditors generallylaw governing specific performance, includingestoppel, without limitationwaiver, fraudulent conveyance laws injunctive relief and judicially developed doctrines relevant to any of the foregoing laws.
(d) Our opinions are subject to the effect of general principles of equity, including, without limitation, limitations on the availability of other equitable remedies and concepts of materiality, reasonableness, good faith and fair dealing, and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered enforcement is sought in a proceeding at law or in equity or at lawequity).
(e) The availability or enforceability of particular remedies (including all self-help remedies, rights to injunctions, specific performance, or appointment of a receiver, custodian or trustee) and waivers in the State Documents may be limited by equitable principles or applicable laws, rules, regulations, court decisions and constitutional requirements in and of the State, but the inclusion of such remedial provisions will not, in our judgment, render any of the State Documents invalid as a whole, or materially interfere with the exercise of the foreclosure remedies normally used by secured lenders in the State, other than by delay resulting from the application of such laws and principles.
(f) A court of equity could enjoin Collateral Agent from foreclosing its liens or security interests or enforcing its remedies under the State Documents by reason of any unconscionable or inequitable conduct on Collateral Agent’s part, or if there are equitable defenses, defenses arising from Collateral Agent’s failure to act in accordance with the terms and provisions of the State Documents or other course of conduct, defenses arising as a consequence of the expiration of any period of limitation of actions, or defenses arising out of the doctrine of laches. Deutsche Bank Trust Company of Americas January 29, 2010 Page 7 of 10
(g) Certain provisions of the State Documents may be unenforceable as against public policy to the extent that they (i) may require indemnification for liabilities under the provisions of any federal or state securities laws or with respect to the action, inaction, neglect or conduct of the indemnified party or its representatives or Collateral Agent; (ii) purport to confer, waive or consent to venue or the jurisdiction of any court; (iii) attempt to establish evidentiary standards to be applied in litigation or similar proceedings; (iv) purport to indemnify a party with respect to its own, or its representatives’ or Collateral Agent’s, action, inaction, neglect or conduct; or (v) restrict access to courts or to legal or equitable remedies (including waivers of the right to trial by jury).
(h) We express no opinion as to the enforceability of any waiver under the State Documents or any consent thereunder relating to the rights of Grantor or duties owing to Grantor that exist as a matter of law, except to the extent that Grantor may so waive or consent as a matter of law, or any provisions of the State Documents that purport to grant to or limit rights of persons who are not parties to the relevant State Documents.
(i) Enforceability of the State Documents may also be limited as follows: (i) the award and the amount of attorneys’ fees are subject to the discretion of the any court before which any a proceeding involving such State Documents may be brought; (iiiii) notwithstanding any waiver therein duties and standards of good faith, reasonableness and fair dealing imposed on creditors and parties to contracts; (iv) the limitation in certain circumstances of provisions imposing liquidated damages, or increases in interest rates upon delinquency in payment or the occurrence of a default to the contrary, actual notice extent constituting a penalty; (v) a court determination that any fees payable pursuant to Grantor and a provision requiring the opportunity for a judicial hearing may be a condition precedent to the exercise payment of certain remedies by Collateral Agentattorneys’ fees is reasonable; and (iiivi) notwithstanding stipulations applicable laws and interpretations which may affect the validity and enforceability of certain waivers, procedures, remedies and other provisions of the Subject Documents, which limitations, however, do not, in our opinion, make the remedies provided for therein inadequate for the practical realization of the principal benefits intended to the contrary in any agreement, the issuance of a decree for specific performance or an injunction, or the appointment of a receiver, custodian, trustee, liquidator or conservator will be provided thereby (subject to the discretion other qualifications expressed herein and except for the economic consequences of the court requested to issue any judicial, administrative or other procedural delay that may result from such decree laws or injunction, and we express no opinion on the question of whether such equitable remedies would be availableinterpretations).
(j) 3. We express no opinion as to the validity, binding effect or enforceability of any provision in the State Documents of any Subject Document: (i) that purports to permit Collateral Agent grant any right of set-off with respect to any contingent or unmatured obligation; (ii) that is governed by the terms of any two or more provisions that conflict with or contradict each other; (iii) insofar as such provision relates to the subject matter jurisdiction of a court to adjudicate a controversy or personal jurisdiction over the parties; (iv) that waives inconvenient forum or any other person to sell similar provision; (v) that excludes, limits or otherwise dispose waives the liability of any property subject thereto except party for its own negligence, fault or intentional misconduct; (vi) that indemnifies a party for the indemnified party’s own negligence, fault or misconduct; (vii) that indemnifies a party for the indemnified party’s failure to comply with limitations or requirements of applicable law; (viii) providing for the right to injunctive relief without a showing of irreparable harm; (ix) requiring the payment of attorneys’ fees and expenses in compliance with an amount in excess of reasonable August 31, 2018 attorneys’ fees and expenses actually incurred; (x) governed in whole or in part by reference to any document other than the Tennessee UCCSubject Documents; (xi) providing that a guarantor is liable as a primary, rather than secondary, obligation; (xii) that purports to grant any power of attorney; or (xiii) purporting to waive defenses. We express no opinion on any agreement, document or other instrument other than the Subject Documents (the “Other Documents”), regardless of whether such agreement, document or instrument is referenced in, secured by, or a condition of or requirement pursuant to the Subject Documents; or any term, condition or provision of or referenced in any of the Subject Documents that are governed in whole or in part by reference to any of the Other Documents. In addition, certain of the remedial provisions of the Subject Documents may be further limited or rendered unenforceable by other applicable laws or judicially adopted principles which, in our judgment, do not make the remedies provided for therein (taken as a whole) inadequate for the practical realization of the principal benefits purported to be afforded thereby (except for the economic consequences of procedural delay).
4. With respect to our opinion regarding the validity, binding effect or enforceability of any agreement or obligation of any of the Loan Parties, we have assumed that each party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to any Loan Party regarding matters of the law of the States of New York, Arizona or California, or the federal law of the United States of America, and other America that in our experience normally would be applicable state and local laws, to general business entities with respect to such agreement or to impose on Collateral Agent standards for the care of collateral in Collateral Agent’s possession other than as provided in Section 9-207 of the Tennessee UCCobligation).
(k) 5. We express no opinion herein regarding priority or, except as to the requirements ofexpressly provided herein, effects ofperfection of any security interest or other lien or encumbrance under any applicable state, federal or any entity’s compliance with laws foreign law, statute, regulation or regulations related to pension laws, zoning laws, securities laws, labor laws, environmental laws, building codes, landlord/tenant laws, the Americans With Disabilities Act, and tax laws, or any related regulations.
(l) Tennessee Code Annotated Section ▇▇-▇▇-▇▇▇ provides that a surety may make written demand on the creditor, requiring the creditor to bring suit on the guaranteed debt, if the surety believes that the principal is likely to become insolvent or leave the state without paying Deutsche Bank Trust Company of Americas January 29, 2010 Page 8 of 10 the debt, and that the creditor will forfeit its right to recover from the surety if the creditor does not commence a suit within thirty (30) days after such demand and diligently pursue the suitregistration system. We express no opinion as to the enforceability Existing Security Interest or the priority of any waiver of Grantor’s rights (if any) under such statuteliens or security interests except as exclusively provided herein.
(m) We express no opinion concerning Grantor’s rights in or title to any of the Real Property Collateral or other real or personal property.
(n) 6. We express no opinion as to the priority of the security interests or liens created or perfected compliance by any of the State Documents, or, except as set forth in Paragraph 7, Loan Party with any obligatory financial covenants or non-obligatory future advances made or to be made pursuant thereto.
(o) We bring to your attention that Section 9-109(d)(8) of the Tennessee UCC provides in part that Chapter 9 of the Tennessee UCC does not apply to a transfer of an interest in or claim in or under any policy of insurance, except as provided with respect to proceeds (T.C.A. § 47-9-315) and priorities in proceeds (T.C.A. § 47-9-322).
(p) We express no opinion with respect to security interest negative lien provisions contained in any deposit accounts, escrow accounts, bank accounts or the like.
(q) The effectiveness of the Fixture Financing Statement will lapse on the expiration of a period of five (5) years from the date of its filing (or from the date to which such effectiveness has been extended by a properly filed continuation statement) unless a continuation statement is properly filed within the last six (6) months of such effective period or within the sixty (60) days following the expiration of such effective period.
(r) We express no opinion as to the assignment pursuant to the State Documents of contracts, rights, privileges, licenses, franchises or other properties that are non-assignable or that are subject to limitations on assignment created by applicable law or by the terms thereof.
(s) We express no opinion as to the validity or enforceability of those provisions of the Deed of Trust that (i) permit adjournment of any sale without readvertising, (ii) purport to waive Grantor’s right to require a foreclosure sale by division, (iii) purport to subrogate Collateral Agent to the rights of the holders of any other liens on the Real Property Collateral or UCC Collateral, (iv) purport to provide for the institution of partial foreclosure proceedings with respect to the Real Property Collateral for a portion of the secured indebtedness then due and payable, subject to a continuing lien for the balance of the secured indebtedness not then due, (v) may be applied to require Grantor to “procure insurance for the protection of property for an amount that exceeds the replacement cost of the structures existing on the secured property at the time of the loan or extension of credit,” as construed under T.C.A. § 56-8-106, or (vi) purport to entitle Collateral Agent to receive, after any release, extinguishment, discharge or satisfaction of the indebtedness secured by the State Documents, any insurance proceeds arising from casualty events occurring prior thereto, but the inclusion of such provisions will not, in our judgment, Deutsche Bank Trust Company of Americas January 29, 2010 Page 9 of 10 render any of the State Documents invalid as a whole, or materially interfere with the exercise of the foreclosure remedies normally used by secured lenders in the State, other than by delay resulting from the application of such laws and principles.
(t) We express no opinion as to the enforceability of any provision of the State Documents appointing Collateral Agent or permitting Collateral Agent to act as the agent or attorney-in-fact of any other party.
(u) A change in the name, state of organization, corporate structure or address of Grantor may invalidate the Fixture Financing Statement unless an amendment thereto is timely filed showing such changes.
(v) T.C.A. § 67-5-2003(h) requires the holder of a security interest to withhold from the proceeds of a sale of collateral under Chapter 9 of the Tennessee UCC an amount sufficient to satisfy any personal property taxes assessed against the debtor, and further provides that a secured party that fails to withhold such amount shall be personally liable to the local taxing authority.
(w) Notwithstanding the provisions in the State Documents regarding notice of sale to be given to Grantor by mail, a court may require that the Collateral Agent make additional reasonable efforts to locate and notify the Grantor of any sale of any personal property.
(x) Our opinions with respect to the perfection of any assignment of rents or leases in the Deed of Trust are based on T.C.A. § ▇▇-▇▇-▇▇▇. Under this statute, upon proper registration (recording) in the register’s office in the Tennessee county where the real property is located, the rent assignment will be perfected as to Grantor and all third parties without the necessity of furnishing notice to Grantor or any lessee under a tenant lease, obtaining possession of the property, impounding the rents from the property, securing the appointment of a receiver, or taking any other affirmative actionSpecified Contract. We express no opinion as to the continuation waiver by any party of the lien in proceeds from rents after collection of those proceeds by Grantor. Tennessee law is not clear as toany defense, and we express no opinion as torights, privileges or benefit to the extent such waiver is made to which the lien on rents follows the proceeds of such rents. In order to enforce such assignment as against a tenant, however, notice may greater extent than would be required to be given to the tenant; a tenant will not be required to pay to Collateral Agent any payments made permitted by such tenant to Grantor before the tenant’s receipt of such notice. The provisions of the Deed of Trust providing for an absolute assignment of rents and leases may not be enforceable under Tennessee applicable law, but it is nevertheless our opinion that the assignment of rents in the Deed of Trust is enforceable as a conditional collateral assignment if it is not enforceable as an absolute assignment.
(y) 7. We express no opinion as on (i) federal securities laws and regulations and state “Blue Sky” laws and regulations, (ii) federal and state antitrust and unfair competition laws and regulations, (iii) compliance with fiduciary duty requirements, (iv) the statutes, codes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and political subdivisions and judicial decisions to matters of usury, interest, late charges, loan charges, loan fees or commissions, or as to prepayment premiums, prepayment penalties, termination fees, defeasance payments or the like, or as to any provisions of the State Documents relating to extent they deal with any of the foregoing; and (v) federal and state environmental, land use, subdivision, tax, intellectual property, racketeering, federal banking laws and regulations, health and safety, ERISA and labor and employment laws and regulations. Origination feesAugust 31, late charges2018 This opinion letter is limited to the matters stated herein and may not be relied on by you for any other purpose, service charges and no opinion is implied or may be inferred beyond the matters expressly stated. The opinions expressed in this opinion letter are based upon the law in effect on the date hereof and the facts in existence as of the date hereof and the express terms of the Transaction Documents, and we assume no obligation to revise or supplement this opinion letter should (i) such law be changed by legislative action, judicial decision, or otherwise; (ii) such facts be changed or the occurrence or non-occurrence of any event after the date hereof; or (iii) modification of or deviation from the currently express terms of the Transaction Documents. No one other loan fees are Deutsche Bank Trust Company than the Agent and the Lenders identified on the first page of Americas January 29this opinion shall be entitled to rely on the opinions expressed herein; provided, 2010 Page 10 that this opinion letter may be relied upon by any Person that becomes a Lender, as that term is defined in the Credit Agreement, pursuant to an assignment that is made and consented to in accordance with the express provisions of 10 generally allowable Sections 10.06 or 10.13 of the Credit Agreement, on the condition and understanding that (i) we have no responsibility or obligation to consider the applicability or correctness of this opinion letter to any party other than its addressee, (ii) any such reliance by a future assignee must be actual and reasonable under the case law circumstances existing at the time of assignment and (iii) the knowledge of the State, if they are reasonable, but are subject to consideration on a case by case basis. To the extent a State court finds such charges to be unreasonable, the charges could be deemed unenforceable as a penalty or forfeiture, or the charges could be characterized as interest, and, therefore, could be considered in determining whether usury limitations have been violated.
(z) We express no opinion addressee with respect to enforceability matters addressed in this opinion letter as of the date hereof shall be imputed to all future assignees of an interest in any of the Transaction Documents. This opinion letter is being delivered to you based on the understanding that neither this opinion letter nor its contents may be published, communicated or otherwise be made available, in whole or in part, to any other Person without, in each instance, our specific prior written consent, which consent may be withheld in our sole and absolute discretion; provided that the Agent or a Lender may furnish copies of this opinion letter (a) to your accountants and to bank auditors and examiners, in each case in connection with their audit and review activities, (b) to the National Association of Insurance Commissioners and (c) in response to a court order or otherwise in connection with a legal proceeding arising out of the transactions contemplated by the Transaction Documents. This opinion letter is not intended to be employed in any transaction other than this transaction and the opinions herein should not be relied upon in connection with any subsequent modification of the Transaction Documents. We disclaim any responsibility to advise you of changed facts, laws or circumstances which hereafter may be brought to our attention. Sincerely, [▇▇▇▇▇ and ▇▇▇▇▇▇ L.L.P.] August 31, 2018 Bank of America, N.A., as Administrative Agent for the Lenders party to the Amended Credit Agreement (defined below), and the Lenders under the Amended Credit AgreementAgency ManagementMail Code: WA3-132-01-01Houghton Banking ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Ladies and Gentlemen: We have acted as special Ohio counsel to Diagnostic Hybrids, Inc., an Ohio corporation (“DHI”), in connection with the Amended and Restated Credit Agreement (the “Amended Credit Agreement”), dated as of even date herewith, by and among Quidel Corporation, a Delaware corporation (the “Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”). This opinion is being delivered to you pursuant to Section 4.01(a)(vii) of the Amended Credit Agreement. Capitalized terms used herein, which are not otherwise defined or referenced herein, shall have the same meanings given to them in the Amended Credit Agreement. Uncapitalized terms used herein that are defined in Article 9 (and other Articles made applicable by Article 9) of the Uniform Commercial Code, as enacted in the State of Ohio (the “Ohio Code”), Chapter 1309 of the Ohio Revised Code (“R.C.”), have the meanings specified in the Ohio Code unless otherwise defined herein. In connection with this opinion, we have examined and relied on originals or copies of executed counterparts of the following documents:
(i) the Amended Credit Agreement;
(ii) the Reaffirmation Agreement, dated as of even date herewith, by and among the Borrower, DHI and the other Subsidiary Grantors (as defined in the Security Agreement (as defined below)) and the Administrative Agent on behalf of the Secured Parties (as defined in the Security Agreement) (the “Reaffirmation Agreement”);
(iii) the Guaranty Agreement, dated October 6, 2017, by and among the Borrower, DHI and the other Guarantors (as defined in the Guaranty) party thereto and the Administrative Agent, on behalf of itself and the other Guarantied Parties (as defined in the Guaranty) (the “Guaranty”);
(iv) the Credit Agreement, dated October 6, 2017, by and among the Borrower, the Lenders from time to time party thereto and the Administrative Agent (the “Original Credit Agreement”);
(v) the Security Agreement, dated October 6, 2017, by and among the Borrower, DHI and the other Subsidiary Grantors party thereto, and the Administrative Agent (the “Security Agreement”); and
(vi) the Uniform Commercial Code financing statement filed on October [__], 2017 in the office of the Secretary of State of the State of Ohio in favor of the Administrative Agent and attached hereto as Exhibit A (the “Financing Statement”). The Amended Credit Agreement and the Reaffirmation Agreement are hereinafter collectively referred to as the “New Loan Documents”. The New Loan Documents, the Guaranty and the Security Agreement are hereinafter collectively referred to as the “Loan Documents”. We have made such examination of the laws of the State of Ohio as we deemed relevant for the purpose of expressing our opinions. We have also examined (a) a copy of a certificate issued by the Secretary of State of the State of Ohio and dated August [__], 2018 with respect to the enforceability good standing of DHI, a copy of which is attached hereto as Exhibit B (the “Good Standing Certificate”), (b) a certified copy of the Deed articles of Trust incorporation of DHI issued by the Secretary of State of the State of Ohio and dated August [__], 2018, a copy of which is attached hereto as Exhibit C (the “Articles”), (c) the code of regulations of DHI (the “Regulations”), (d) resolutions of the Board of Directors of DHI (the “Resolutions”, and the Resolutions collectively with the Articles and the Regulations, the “Governing Documents”), (e) an executed Certificate of an officer of DHI, dated as of the date hereof, in favor of Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, certifying, among other things, the completeness, accuracy and continuing effectiveness of the Governing Documents (the “Officer’s Certificate”) and (f) such records of DHI and such agreements, certificates of public officials, certificates of officers or other representatives of DHI and others, and such other documents, certificates and records, as we have deemed necessary or appropriate as a basis for the opinions set forth herein. We have relied solely upon the examinations and inquiries recited herein and, except for the examinations and inquiries recited herein, we have not undertaken any independent investigation to determine the existence or absence of any facts, and no inference as to our knowledge concerning such facts should be drawn. Without limiting the generality of the foregoing, we have made no examination of the character, organization, activities, or authority of the Administrative Agent which might have any effect upon our opinions expressed herein, and we have neither examined, nor do we opine upon, any provision or matter to the extent the Credit Agreement is incorporated thereinexamination or opinion would require a financial, mathematical or accounting calculation or determination.
Appears in 1 contract
Sources: Credit Agreement (Quidel Corp /De/)
Qualifications and Limitations. In addition to any exceptions, qualifications and assumptions noted above, the foregoing The opinions set forth above are subject to the following exceptions, qualifications and assumptionslimitations:
(a) Our 1. The opinion is limited expressed in Paragraph B.1 above as to the laws valid existence and good standing of the State as presently written Borrower and interpreted; we have not made a the Delaware Guarantor is based solely on our review of the laws Good Standing Certificates, copies of any other jurisdictionwhich have been made available to you and your counsel, and we express no opinions concerning our opinion with respect to such laws or whether such laws may apply. For the purposes of our opinion, we have assumed, with your consent, that the State Documents will be governed in their entirety by the laws of the State.
(b) This opinion speaks only matters is rendered as of the date hereof, of such certificates and we undertake no obligation to advise you of legal or factual changes affecting this opinion that occur after the date of this letterlimited accordingly.
(c) Our 2. The opinions are subject to the effects of and may be limited by (i) applicable bankruptcy, insolvency, reorganizationliquidation, receivershipfraudulent conveyance or transfer, moratorium and moratorium, reorganization or other similar laws in effect from time to time affecting the creditors’ rights generally; (ii) general equitable principles and remedies rules of creditors generallylaw governing specific performance, includingestoppel, without limitationwaiver, fraudulent conveyance laws injunctive relief and judicially developed doctrines relevant to any of the foregoing laws.
(d) Our opinions are subject to the effect of general principles of equity, including, without limitation, limitations on the availability of other equitable remedies and concepts of materiality, reasonableness, good faith and fair dealing, and other similar doctrines affecting the enforceability of agreements generally (regardless of whether considered enforcement is sought in a proceeding at law or in equity or at lawequity).
(e) The availability or enforceability of particular remedies (including all self-help remedies, rights to injunctions, specific performance, or appointment of a receiver, custodian or trustee) and waivers in the State Documents may be limited by equitable principles or applicable laws, rules, regulations, court decisions and constitutional requirements in and of the State, but the inclusion of such remedial provisions will not, in our judgment, render any of the State Documents invalid as a whole, or materially interfere with the exercise of the foreclosure remedies normally used by secured lenders in the State, other than by delay resulting from the application of such laws and principles.
(f) A court of equity could enjoin Collateral Agent from foreclosing its liens or security interests or enforcing its remedies under the State Documents by reason of any unconscionable or inequitable conduct on Collateral Agent’s part, or if there are equitable defenses, defenses arising from Collateral Agent’s failure to act in accordance with the terms and provisions of the State Documents or other course of conduct, defenses arising as a consequence of the expiration of any period of limitation of actions, or defenses arising out of the doctrine of laches. Deutsche Bank Trust Company of Americas January 29, 2010 Page 7 of 10
(g) Certain provisions of the State Documents may be unenforceable as against public policy to the extent that they (i) may require indemnification for liabilities under the provisions of any federal or state securities laws or with respect to the action, inaction, neglect or conduct of the indemnified party or its representatives or Collateral Agent; (ii) purport to confer, waive or consent to venue or the jurisdiction of any court; (iii) attempt to establish evidentiary standards to be applied in litigation or similar proceedings; (iv) purport to indemnify a party with respect to its own, or its representatives’ or Collateral Agent’s, action, inaction, neglect or conduct; or (v) restrict access to courts or to legal or equitable remedies (including waivers of the right to trial by jury).
(h) We express no opinion as to the enforceability of any waiver under the State Documents or any consent thereunder relating to the rights of Grantor or duties owing to Grantor that exist as a matter of law, except to the extent that Grantor may so waive or consent as a matter of law, or any provisions of the State Documents that purport to grant to or limit rights of persons who are not parties to the relevant State Documents.
(i) Enforceability of the State Documents may also be limited as follows: (i) the award and the amount of attorneys’ fees are subject to the discretion of the any court before which any a proceeding involving such State Documents may be brought; (iiiii) notwithstanding any waiver therein duties and standards of good faith, reasonableness and fair dealing imposed on creditors and parties to contracts; (iv) the limitation in certain circumstances of provisions imposing liquidated damages, or increases in interest rates upon delinquency in payment or the occurrence of a default to the contrary, actual notice extent constituting a penalty; (v) a court determination that any fees payable pursuant to Grantor and a provision requiring the opportunity for a judicial hearing may be a condition precedent to the exercise payment of certain remedies by Collateral Agentattorneys’ fees is reasonable; and (iiivi) notwithstanding stipulations applicable laws and interpretations which may affect the validity and enforceability of certain waivers, procedures, remedies and other provisions of the Transaction Documents, which limitations, however, do not, in our opinion, make the remedies provided for therein inadequate for the practical realization of the principal benefits intended to the contrary in any agreement, the issuance of a decree for specific performance or an injunction, or the appointment of a receiver, custodian, trustee, liquidator or conservator will be provided thereby (subject to the discretion other qualifications expressed herein and except for the economic consequences of the court requested to issue any judicial, administrative or other procedural delay that may result from such decree laws or injunction, and we express no opinion on the question of whether such equitable remedies would be availableinterpretations).
(j) 3. We express no opinion as to the validity, binding effect or enforceability of any provision in the State Documents of any Transaction Document: (i) that purports to permit Collateral Agent grant any right of set-off with respect to any contingent or unmatured obligation; (ii) that is governed by the terms of any two or more provisions that conflict with or contradict each other; (iii) insofar as such provisions relate to the subject matter jurisdiction of a court to adjudicate a controversy or personal jurisdiction over the parties; (iv) that waive inconvenient forum or any other person to sell similar provision; (v) that excludes, limits or otherwise dispose waives the liability of any property subject thereto except party for its own negligence, fault or intentional misconduct; (vi) that indemnifies a party for the indemnified party’s own negligence, fault or misconduct; (vii) that indemnifies a party for the indemnified party’s failure to comply with limitations or requirements of applicable law; (viii) providing for the right to injunctive relief without a showing of irreparable harm; (ix) requiring the payment of attorneys’ fees and expenses, in compliance with an amount in excess of reasonable attorneys’ fees and expenses actually incurred; (x) governed in whole or in part by reference to any document other than the Tennessee UCCTransaction Documents; (xi) providing that a guarantor is liable as a primary, rather than secondary, obligation; (xii) that purports to grant any power of attorney; or (xiii) purporting to waive defenses. In addition, certain of the remedial provisions of the Transaction Documents may be further limited or rendered unenforceable by other applicable laws or judicially adopted principles which, in our judgment do not make the remedies provided for therein (taken as a whole) inadequate for the practical realization of the principal benefits purported to be afforded thereby (except for the economic consequences of procedural delay).
4. With respect to our opinion regarding the validity, binding effect or enforceability of any agreement or obligation of any of the Loan Parties, we have assumed that each party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to any Loan Party regarding matters of the law of the States of New York, Arizona or California, or the federal law of the United States of America, and other America that in our experience normally would be applicable state and local laws, to general business entities with respect to such agreement or to impose on Collateral Agent standards for the care of collateral in Collateral Agent’s possession other than as provided in Section 9-207 of the Tennessee UCCobligation).
(k) 5. We express no opinion herein regarding priority or, except as expressly provided herein, perfection of any security interest or other lien or encumbrance under any applicable state, federal or foreign law, statute, regulation or registration system.
6. We express no opinion as to the requirements of, effects of, compliance by any Loan Party with any financial covenants or negative lien provisions contained in any entity’s compliance with laws or regulations related to pension laws, zoning laws, securities laws, labor laws, environmental laws, building codes, landlord/tenant laws, the Americans With Disabilities Act, and tax laws, or any related regulations.
(l) Tennessee Code Annotated Section ▇▇-▇▇-▇▇▇ provides that a surety may make written demand on the creditor, requiring the creditor to bring suit on the guaranteed debt, if the surety believes that the principal is likely to become insolvent or leave the state without paying Deutsche Bank Trust Company of Americas January 29, 2010 Page 8 of 10 the debt, and that the creditor will forfeit its right to recover from the surety if the creditor does not commence a suit within thirty (30) days after such demand and diligently pursue the suitSpecified Contract. We express no opinion as to the enforceability waiver by any party of any waiver of Grantor’s rights (if any) under such statute.
(m) We express no opinion concerning Grantor’s rights in or title to any of the Real Property Collateral or other real or personal property.
(n) We express no opinion as to the priority of the security interests or liens created or perfected by any of the State Documents, or, except as set forth in Paragraph 7, any obligatory or non-obligatory future advances made or to be made pursuant thereto.
(o) We bring to your attention that Section 9-109(d)(8) of the Tennessee UCC provides in part that Chapter 9 of the Tennessee UCC does not apply to a transfer of an interest in or claim in or under any policy of insurance, except as provided with respect to proceeds (T.C.A. § 47-9-315) and priorities in proceeds (T.C.A. § 47-9-322).
(p) We express no opinion with respect to security interest in any deposit accounts, escrow accounts, bank accounts or the like.
(q) The effectiveness of the Fixture Financing Statement will lapse on the expiration of a period of five (5) years from the date of its filing (or from the date to which such effectiveness has been extended by a properly filed continuation statement) unless a continuation statement is properly filed within the last six (6) months of such effective period or within the sixty (60) days following the expiration of such effective period.
(r) We express no opinion as to the assignment pursuant to the State Documents of contractsdefense, rights, privileges, licenses, franchises privileges or other properties that are non-assignable or that are subject benefit to limitations on assignment created the extent such waiver is made to a greater extent than would be permitted by applicable law or by the terms thereoflaw.
(s) We express no opinion as to the validity or enforceability of those provisions of the Deed of Trust that (i) permit adjournment of any sale without readvertising, (ii) purport to waive Grantor’s right to require a foreclosure sale by division, (iii) purport to subrogate Collateral Agent to the rights of the holders of any other liens on the Real Property Collateral or UCC Collateral, (iv) purport to provide for the institution of partial foreclosure proceedings with respect to the Real Property Collateral for a portion of the secured indebtedness then due and payable, subject to a continuing lien for the balance of the secured indebtedness not then due, (v) may be applied to require Grantor to “procure insurance for the protection of property for an amount that exceeds the replacement cost of the structures existing on the secured property at the time of the loan or extension of credit,” as construed under T.C.A. § 56-8-106, or (vi) purport to entitle Collateral Agent to receive, after any release, extinguishment, discharge or satisfaction of the indebtedness secured by the State Documents, any insurance proceeds arising from casualty events occurring prior thereto, but the inclusion of such provisions will not, in our judgment, Deutsche Bank Trust Company of Americas January 29, 2010 Page 9 of 10 render any of the State Documents invalid as a whole, or materially interfere with the exercise of the foreclosure remedies normally used by secured lenders in the State, other than by delay resulting from the application of such laws and principles.
(t) We express no opinion as to the enforceability of any provision of the State Documents appointing Collateral Agent or permitting Collateral Agent to act as the agent or attorney-in-fact of any other party.
(u) A change in the name, state of organization, corporate structure or address of Grantor may invalidate the Fixture Financing Statement unless an amendment thereto is timely filed showing such changes.
(v) T.C.A. § 67-5-2003(h) requires the holder of a security interest to withhold from the proceeds of a sale of collateral under Chapter 9 of the Tennessee UCC an amount sufficient to satisfy any personal property taxes assessed against the debtor, and further provides that a secured party that fails to withhold such amount shall be personally liable to the local taxing authority.
(w) Notwithstanding the provisions in the State Documents regarding notice of sale to be given to Grantor by mail, a court may require that the Collateral Agent make additional reasonable efforts to locate and notify the Grantor of any sale of any personal property.
(x) Our opinions with respect to the perfection of any assignment of rents or leases in the Deed of Trust are based on T.C.A. § ▇▇-▇▇-▇▇▇. Under this statute, upon proper registration (recording) in the register’s office in the Tennessee county where the real property is located, the rent assignment will be perfected as to Grantor and all third parties without the necessity of furnishing notice to Grantor or any lessee under a tenant lease, obtaining possession of the property, impounding the rents from the property, securing the appointment of a receiver, or taking any other affirmative action7. We express no opinion as on (i) federal securities laws and regulations and state “Blue Sky” laws and regulations, (ii) federal and state antitrust and unfair competition laws and regulations, (iii) compliance with fiduciary duty requirements, (iv) the statutes, codes and ordinances, the administrative decisions and the rules and regulations of counties, towns, municipalities and political subdivisions and judicial decisions to the continuation of the lien in proceeds from rents after collection of those proceeds by Grantor. Tennessee law is not clear as to, and we express no opinion as to, the extent to which the lien on rents follows the proceeds of such rents. In order to enforce such assignment as against a tenant, however, notice may be required to be given to the tenant; a tenant will not be required to pay to Collateral Agent any payments made by such tenant to Grantor before the tenant’s receipt of such notice. The provisions of the Deed of Trust providing for an absolute assignment of rents and leases may not be enforceable under Tennessee law, but it is nevertheless our opinion that the assignment of rents in the Deed of Trust is enforceable as a conditional collateral assignment if it is not enforceable as an absolute assignment.
(y) We express no opinion as to matters of usury, interest, late charges, loan charges, loan fees or commissions, or as to prepayment premiums, prepayment penalties, termination fees, defeasance payments or the like, or as to any provisions of the State Documents relating to they deal with any of the foregoing; and (v) federal and state environmental, land use, subdivision, tax, intellectual property, racketeering, federal banking laws and regulations, health and safety, ERISA and labor and employment laws and regulations. Origination feesThis opinion letter is limited to the matters stated herein and may not be relied on by you for any other purpose, late chargesand no opinion is implied or may be inferred beyond the matters expressly stated. The opinions expressed in this opinion letter are based upon the law in effect on the date hereof and the facts in existence as of the date hereof and the express terms of the Transaction Documents, service charges and we assume no obligation to revise or supplement this opinion letter should (i) such law be changed by legislative action, judicial decision, or otherwise; (ii) such facts be changed or the occurrence or non-occurrence of any event after the date hereof; or (iii) modification of or deviation from the currently express terms of the Transaction Documents. No one other loan fees are Deutsche Bank Trust Company than the Agent and the Lenders identified on the first page of Americas January 29this opinion shall be entitled to rely on the opinions expressed herein; provided, 2010 Page 10 that this opinion letter may be relied upon by any Person that becomes a Lender, as that term is defined in the Credit Agreement, pursuant to an assignment that is made and consented to in accordance with the express provisions of 10 generally allowable Sections 10.06 or 10.13 of the Credit Agreement, on the condition and understanding that (i) we have no responsibility or obligation to consider the applicability or correctness of this opinion letter to any party other than its addressee, (ii) any such reliance by a future assignee must be actual and reasonable under the case law circumstances existing at the time of assignment and (iii) the knowledge of the State, if they are reasonable, but are subject to consideration on a case by case basis. To the extent a State court finds such charges to be unreasonable, the charges could be deemed unenforceable as a penalty or forfeiture, or the charges could be characterized as interest, and, therefore, could be considered in determining whether usury limitations have been violated.
(z) We express no opinion addressee with respect to enforceability matters addressed in this opinion letter as of the date hereof shall be imputed to all future assignees of an interest in any of the Transaction Documents. This opinion letter is being delivered to you based on the understanding that neither this opinion letter nor its contents may be published, communicated or otherwise be made available, in whole or in part, to any other person without, in each instance, our specific prior written consent, which consent may be withheld in our sole and absolute discretion; provided that the Agent or a Lender may furnish copies of this opinion letter (a) to your accountants and to bank auditors and examiners, in each case in connection with their audit and review activities, (b) to the National Association of Insurance Commissioners and (c) in response to a court order or otherwise in connection with a legal proceeding arising out of the transactions contemplated by the Transaction Documents. This opinion letter is not intended to be employed in any transaction other than this transaction and the opinions herein should not be relied upon in connection with any subsequent modification of the Transaction Documents. We disclaim any responsibility to advise you of changed facts, laws or circumstances which hereafter may be brought to our attention. Sincerely, October 6, 2017 Page 6 October 6, 2017 Bank of America, N.A., as Administrative Agent for the Lenders party to the Credit Agreement (defined below), and the Lenders under the Credit AgreementAgency ManagementMail Code: WA3-132-01-01Houghton Banking ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Ladies and Gentlemen: We have acted as special Ohio counsel to Diagnostic Hybrids, Inc., an Ohio corporation (“DHI”), in connection with the Credit Agreement (the “Credit Agreement”), dated as of even date herewith, by and among Quidel Corporation, a Delaware corporation (the “Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”). This opinion is being delivered to you pursuant to Section 4.01(a)(vii) of the Credit Agreement. Capitalized terms used herein, which are not otherwise defined or referenced herein, shall have the same meanings given to them in the Credit Agreement. Uncapitalized terms used herein that are defined in Article 9 (and other Articles made applicable by Article 9) of the Uniform Commercial Code, as enacted in the State of Ohio (the “Ohio Code”), Chapter 1309 of the Ohio Revised Code (“R.C.”), have the meanings specified in the Ohio Code unless otherwise defined herein. In connection with this opinion, we have examined and relied on originals or copies of executed counterparts of the following documents:
(i) the Credit Agreement;
(ii) the Security Agreement, dated of even date herewith, by and among the Borrower, DHI and the other Subsidiary Grantors (as defined in the Security Agreement) party thereto, and the Administrative Agent (the “Security Agreement”);
(iii) the Guaranty Agreement, dated of even date herewith, by and among the Borrower, DHI and the other Guarantors (as defined in the Guaranty) party thereto and the Administrative Agent, on behalf of itself and the other Guarantied Parties (as defined in the Guaranty) (the “Guaranty”);
(iv) the Grant of Trademark Security Interest, dated of even date herewith, made by DHI in favor of the Administrative Agent, on behalf of itself and the other Secured Parties (as defined therein) (the “Intellectual Property Security Agreement”); and
(v) the Uniform Commercial Code financing statement to be filed in the office of the Secretary of State of the State of Ohio in favor of the Administrative Agent in the form attached hereto as Exhibit A (the “Financing Statement”). The Security Agreement, the Guaranty and the Intellectual Property Security Agreement or are hereinafter collectively referred to as the “Collateral Documents”. The Credit Agreement and the Collateral Documents are hereinafter collectively referred to as the “Loan Documents”. We have made such examination of the laws of the State of Ohio as we deemed relevant for the purpose of expressing our opinions. We have also examined (a) a copy of a certificate issued by the Secretary of State of the State of Ohio and dated September 29, 2017 with respect to the enforceability good standing of DHI, a copy of which is attached hereto as Exhibit B (the “Good Standing Certificate”), (b) a certified copy of the Deed articles of Trust incorporation of DHI issued by the Secretary of State of the State of Ohio and dated September 26, 2017, a copy of which is attached hereto as Exhibit C (the “Articles”), (c) the code of regulations of DHI (the “Regulations”), (d) resolutions of the Board of Directors of DHI (the “Resolutions”, and the Resolutions collectively with the Articles and the Regulations, the “Governing Documents”), (e) an executed Certificate of an officer of DHI, dated as of the date hereof, in favor of Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, certifying, among other things, the completeness, accuracy and continuing effectiveness of the Governing Documents (the “Officer’s Certificate”) and (f) such records of DHI and such agreements, certificates of public officials, certificates of officers or other representatives of DHI and others, and such other documents, certificates and records, as we have deemed necessary or appropriate as a basis for the opinions set forth herein. We have relied solely upon the examinations and inquiries recited herein and, except for the examinations and inquiries recited herein, we have not undertaken any independent investigation to determine the existence or absence of any facts, and no inference as to our knowledge concerning such facts should be drawn. Without limiting the generality of the foregoing, we have made no examination of the character, organization, activities, or authority of the Administrative Agent which might have any effect upon our opinions expressed herein, and we have neither examined, nor do we opine upon, any provision or matter to the extent the Credit Agreement is incorporated thereinexamination or opinion would require a financial, mathematical or accounting calculation or determination.
Appears in 1 contract
Sources: Credit Agreement (Quidel Corp /De/)