Model Closing Opinion Letter (Annotated) - American Bar Association

2 Model Closing Opinion Letter (Annotated)
60
[Date of Closing]
Note: The Opinion Letter should be dated the closing date (generally
the date the money passes). The Opinion Giver generally has
no duty to update for changes in the Law or fact that occur after the
date of the Opinion Letter; 5 however, the Opinion Letter should
take into account facts and circumstances that will necessarily
arise in the future, and address any required future performance
based on the relevant facts and law that exist on the date of the
Opinion Letter. Thus if future obligatory action requires the future
discretionary approval of a governmental authority, that fact
should be disclosed in the Opinion Letter.
To the parties identified in Schedule A hereto:
Ladies and Gentlemen:
We have acted as Counsel for [Name of BORROWER] (the
“Company”), a Pennsylvania [Delaware] corporation, in connection
with (i) [the preparation, execution and delivery of] the
Revolving Credit and Term Loan Agreement dated [date] (the
“Credit Agreement”) among the Company, the Banks parties
thereto and [name of AGENT] as Agent for the Banks [, and (ii)
the initial borrowing(s) made thereunder evidenced by the
Revolving Credit Notes dated [date] (the “Notes”) of the Company
in favor of the Banks]. (The Credit Agreement and the Notes
are hereinafter collectively referred to as the “Loan Documents.”)
Note: An Opinion Letter should set forth the Opinion Giver’s relationship
with the client (identifying the client as such) and its role
in the Transaction. The Comment to Rule 2.3 of the Pennsylvania
Rules of Professional Conduct states that in connection with a
third-party legal opinion,
“. . . it is essential to identify the person by whom the lawyer is
retained. This should be made clear not only to the person under
examination, but also to others to whom the results are to
be made available.”
5. See ABA Principles, par. IV. Where performance of the Transaction will
take place over a period of time (e.g., supply contracts) or in stages with
serial closings (e.g., loan takedowns or conversions of shares), the Opinion
Giver usually provides the Opinion Letter only at the outset, and the
Opinion Giver addresses the required future performance based on the
relevant facts and law that exist on the date of the Opinion Letter.