Model Closing Opinion Letter (Annotated) - American Bar Association

2 Model Closing Opinion Letter (Annotated)
(7) Concurrence. An Opinion that an Other Opinion is “satisfactory
in form and substance” is considered to be the same as a
“concurrence” in the Other Opinion, requiring an independent investigation
of the Law involved. Because concurrences are typically
time-consuming and not cost-effective, ordinarily a concurrence
should not be requested. See TriBar Report § 5.1 n.99; ABA Guideline
2.2.
E. Additional Assumptions and Qualifications
(E) The foregoing opinions are subject to the following additional
assumptions and qualifications:
Note: Many of the following paragraphs from (E)(1) to (E)(4), and
(optional) (E)(5) to (E)(8), are meant to be simply suggestive of possible
assumptions or qualifications that may or may not be appropriate
in any specific transaction.
1. Pennsylvania Qualification as to Usury
(E)(1) With respect to the opinion in paragraph 7, we call
your attention to the provisions of Section 911(b) of the Pennsylvania
Crimes Code (the “Crimes Code”), 18 Pa.C.S. § 911(b),
which makes it unlawful to use or invest income derived from a
pattern of “racketeering activity” in the establishment or operation
of any enterprise. “Racketeering activity,” as defined in the
Crimes Code, includes the collection of money or other property
in full or partial satisfaction of a debt which arose as the result of
the lending of money or other property at a rate of interest
exceeding 25% per annum where not otherwise authorized by
law. Accordingly, the opinion expressed in paragraph 7 is qualified
to the extent, if any, that the statute referenced in this paragraph
(E)(1) may be applicable to this transaction.
Note: Because Opinion paragraph 7 opines as to violation of applicable
statutory law of Pennsylvania, depending on the circumstances,
a usury qualification may be appropriate as to Opinion
paragraph 7. See note (b) to Opinion 7, p. 86, above.
2. Qualification as to Right of Set-off
(E)(2) We express no opinion as to (i) Section ___ of the
Credit Agreement insofar as it authorizes each Bank to set off
and apply any deposits at any time held, and any other indebtedness
at any time owing, by such Bank to or for the account of the
102