Model Closing Opinion Letter (Annotated) - American Bar Association

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2 Model Closing Opinion Letter (Annotated) Optional Paragraphs 107 11. Securities Laws Registration 107 (E)(5) Arbitration Provision 107 (E)(6) Assumptions As to Authenticity, etc. 107 (E)(7) Assumptions As to Other Parties 108 (E)(8) Presumption of Regularity and Continuity 108 Model Closing Opinion Letter Index 109 Text of Model Opinion Letter Basic Provisions Without Annotations 115 58
Annotated Text of Model Closing Opinion Letter (Opinion Text in Bold-Face) Introductory Note. Several of the ABA Guidelines should be emphasized before the Opinion Preparer commences to draft the Opinion Letter: Early in the negotiation of the transaction documents, counsel for the opinion recipient should specify the opinions the opinion recipient wishes to receive. The opinion giver should respond promptly with any concerns or proposed exceptions, providing, to the extent practicable, the form of its proposed opinions. Both sides should work in good faith to agree on a final form of opinion letter. Discussion of opinion issues while the transaction documents are being prepared can produce constructive adjustments in the documents and the transaction structure and help to avoid delays in closing the transaction. Should a problem be identified that might prevent delivery of an opinion in the form discussed, the opinion giver should promptly alert counsel for the opinion recipient. (Guideline 2.1). In addition, Guideline 3.1 sets forth a “golden rule,” to the effect that an Opinion should not be requested that the Opinion Recipient’s counsel would not give if it were the Opinion Giver and had the requisite expertise. Moreover, as pointed out in Guideline 1.2, the “opinions included in a closing opinion should be limited to reasonably specific and determinable matters that involve the exercise of professional judgment by the opinion giver. The benefit of an opinion to the recipient should warrant the time and expense required to prepare it.” 4 * * * * * * * * * * 4. See the California Remedies Report, which is a thoughtful report on the cost/benefit analysis involved in opinion giving. State Bar of California Business Law Section, Report on Third-party Remedies Opinions (September 2004). 59
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Model Closing Opinion Letter (Annotated) - American Bar Association

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