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HomeMy WebLinkAboutexhibit3EXHIBIT A-1 FORM OF OPINION OF OUTSIDE COUNSEL FOR PARTY A [LETTERHEAD OF CADWALADER, WICKERSHAM & TAFT] [Date] [Name] [Address] Ladies and Gentlemen: We act as a counsel to Morgan Stanley Capital Services Inc. ("MSCS") in connection with certain matters. We have been requested by MSCS to review the documents referred to herein and to render the opinion expressed herein. In such connection, we have reviewed, (i) an ISDA Master Agreement dated as of , 200_ (including the Schedule thereto) and (ii) a Confirmation dated , 200_ , (collectively, the "Agreement") between MSCS and (the "Counterparty"). In these regards, we have reviewed original, conformed, reproduction, or specimen copies, identified to our satisfaction, of the Agreement and other relevant documents, and have made such examination of applicable law as we have deemed necessary for the purpose of rendering the opinion expressed herein. Based upon the foregoing, we are of the opinion, subject to the qualifications expressed herein, that the Agreement constitutes the legal and binding agreement of MSCS and is enforceable against MSCS in accordance with its terms. The opinion expressed herein is subject to the following qualifications: (A) We are licensed to practice law in the State of New York, for purposes of the opinion expressed herein we do not purport to be experts on any law other than the law of the State of New York and the federal law of the United States of America, and we do not express any opinion herein concerning any law other than the substantive law of the State of New York and of the United States of America (as applicable, without regard to conflict of law principles). (B) In our review of the documents referred to in the first paragraph of this letter, we have assumed and have not independently verified that all signatures are genuine, that all documents submitted to or obtained by us as originals are authentic, and that all documents submitted to or obtained by us as conformed, reproduction, or specimen copies conform to the original documents and all such originals are authentic. (C) As to certain matters of fact, we have relied upon and have not independently verified statements, representations, and warranties of MSCS and its representatives, including statements, representations, and warranties contained in the Agreement, and have assumed and have not NYLIB5 790734.3 A-1-1 independently verified that all such statements, representations, and warranties are true, accurate, and complete. (D) In rendering the opinions expressed herein, we have assumed and have not independently verified under the law of any jurisdiction that the opinions expressed in the letter dated the date hereof of Mark Steffensen, Esq., Counsel to MSCS, addressed to the Counterparty in connection with the Agreement are valid, reasonable, true, accurate, and complete. (E) We have assumed and have not independently verified under the law of any jurisdiction the legal capacity, power, and authority of the Counterparty to execute, deliver, and perform its obligations under the Agreement, and of the individuals who executed and delivered the Agreement on behalf of the Counterparty to do so. We have also assumed and have not independently verified. under the law of any jurisdiction that the Agreement constitutes the legal, valid, and binding agreement of the Counterparty and is enforceable against the Counterparty in accordance with its terms. In addition, we have relied upon and have not independently verified statements, representations, and warranties of the Counterparty and its representatives, including statements, representations, and warranties contained in the Agreement, and have assumed and have not independently verified that all such statements, representations, and warranties are true, accurate, and complete. (F) The enforceability of each of the Agreement and the rights and remedies thereunder are subject to, and may be limited by: (i) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship, or other similar laws from time to time in effect relating to or affecting generally the enforcement of creditors' rights; (ii) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith, and fair dealing (regardless of whether considered in a proceeding at law or in equity); (iii) the availability of equitable remedies; (iv) the discretion of a court or other authority or body to grant, impose, or render remedies under specific circumstances; (v) Sections 9-406 and 9-408 of the New York Uniform Commercial Code to the extent the Agreement purports to prohibit, restrict, or require the consent of the other party for, the transfer of, or the creation, attachment or perfection of a security interest in, the Agreement or an interest therein; (vi) limitations imposed by public policy, although we are not aware of any such limitations that would be relevant to the enforceability of the Agreement; (vii) each party to the Agreement acting in a commercially reasonable manner and in good faith in performing its obligations and exercising its rights and remedies thereunder; and (viii) the discretion of a court or other authority or body to invalidate or decline to enforce any right, remedy, or provision of the Agreement (including without limitation the termination payment provisions of the Agreement) determined by it to be a penalty. (G) We express no opinion herein as to (i) whether a court or other authority or body located outside of the State of New York would enforce the governing law and submission to jurisdiction provisions of the Agreement and (ii) the creation, legality, validity, perfection, enforceability, or priority of any lien, security interest, or other encumbrance created or purported to be created pursuant to the agreement. We are furnishing this letter to you solely for your benefit in connection with the transactions referred to herein. Without our prior written consent, this letter is not to be relied upon, used, circulated, quoted or otherwise referred to by, or assigned to, any other person (including any person that seeks to assert your rights in respect of this letter (other than your successor in interest by means of merger, consolidation, transfer of a business or other similar transaction)) or for any other purpose. In addition, we disclaim any obligation to update this letter for changes in fact or law, or otherwise. NYLIB5 790734.3 A-1-2 Very truly yours,