Draft 24 March 2014
Template legal opinion to be issued to LME Clear Limited by a German member's own external or
internal counsel. Please delete this banner from the final opinion.
[On letter head of relevant law firm etc]
[insert date] 2014
LME Clear Limited ("LME Clear")
56 Leadenhall Street
London
EC3A 2DX
Dear Sirs
Capacity opinion for the following member: [specify member]
1.
We have acted as German legal advisers to [specify member] (the “Member”) in
connection with the participation in the clearing and settlement system operated by LME
Clear (the "LME Clear System") of the Member. Unless otherwise defined in this opinion,
capitalised terms used below shall have the meanings attributed to them in the Member
Documents (as defined in schedule 1 hereto).
2.
DOCUMENTS EXAMINED
For the purposes of this opinion, we have examined the documents listed in Schedule 2
hereto each in the form attached to this letter, which we have deemed necessary or
appropriate for the purposes of this opinion. Except for these documents, we have not
examined any contracts or other documents entered into by or affecting the Member.
3.
SEARCHES
3.1
We have carried out a search in the commercial register relating to the Member at the
court of registration in [●] on [●] at about [●] (Frankfurt time), which revealed that the
Member is registered in the commercial register of the local court (Amtsgericht) of [●]
under [HRA/HRB] [●] as a [public limited liability company (Aktiengesellschaft); limited
liability company (Gesellschaft mit beschränkter Haftung) / limited partnership
(Kommanditgesellschaft)], that [●][and [●] is/are registered as managing director
(Geschäftsführer/Vorstandsmitglied) having individual authority to act on behalf of [●]
alone/jointly [and released from the restrictions of Section 181 German Civil Code
(Bürgerliches Gesetzbuch)], and that no order or resolution to wind up the Member, no
notice of opening or the rejection of opening insolvency proceedings by the insolvency
court, and no notice of the appointment of a preliminary insolvency administrator
(vorläufiger Insolvenzverwalter) or an insolvency administrator (Insolvenzverwalter) of the
Member is registered.
3.2
We have conducted an online search for the Member on [●] at about [●] Frankfurt time at
www.insolvenzbekanntmachungen.de with regard to registrations of an insolvency court
at the registered seat of the member. This search has not revealed any insolvency
registrations.
Classification: Confidential
-2-
3.3
We have conducted such searches as we have deemed necessary or appropriate but
have not conducted any further searches, and accordingly this opinion is given on the
assumption that such searches (if made) would not reveal any circumstances which
would require an amendment of this opinion.
4.
SCOPE OF OPINION
4.1
This opinion is given only with respect to German law in force as applied by German
courts at the date of this opinion. No opinion is expressed or implied as to the laws of any
other territory as to which no enquiries have been made or as to European Union law as it
affects any jurisdiction other than Germany, or as to matters of fact.
4.2
Concepts of German law are addressed in this letter in the English language. In certain
cases, however, the original German terms are provided in brackets next to English
terms. The concepts described by these German terms may not be identical to the
concepts described by the English terms as they exist under the laws of other
jurisdictions. Therefore, the German word or phrase in brackets shall prevail wherever an
English word or phrase translated from such German word or phrase in brackets appears
in the text of this letter.
4.3
We express no opinion on the incorporation, validity and existence of any Party under any
law other than German law and any Party´s (other than the Member´s) corporate power to
enter into the Agreements and to exercise its rights and perform its obligations
thereunder, any corporate or other actions required by its articles of association to
authorise the execution of the Agreements by any Party under the respective foreign law
of its incorporation and the performance of its obligations thereunder.
4.4
We do not assume any obligation to inform anybody of any change of German law or its
application after the date of this opinion or to update this opinion.
5.
ASSUMPTIONS
In rendering this opinion, we have assumed:
(a)
all documents submitted to us as originals are authentic and complete and all
signatures and seals are genuine;
(b)
all documents supplied to us as photocopies or facsimile transmitted copies or
other copies conform to the originals and such originals are authentic and
complete;
(c)
each Member Document constitutes valid and legally binding obligations of all
Parties thereto under the law by which it is expressed to be governed; and
(d)
the search referred to in section 3.2 will not necessarily reveal whether or not an
application for the commencement of any insolvency proceedings has been made,
a respective resolution has been passed, or an appointment relating thereto made
or terminated or proceedings commenced, since particulars of such matters are
only
registered
(and
afterwards
displayed
at
www.
Insolvenzbekanntmachungen.de) if an application for registration is made and
since they are not recorded immediately after such application for registration is
made but only within the period needed for processing the application and
registration.
Classification: Confidential
-3-
6.
OPINION
6.1
Based on the foregoing and subject to the qualifications and observations set out below,
we are of the opinion that:
7.
(a)
The Member is duly incorporated and validly existing under the laws of Germany.
(b)
The Member has the necessary corporate power to enter into each Member
Document, exercise its rights and perform its obligations under each Member
Document.
(c)
All corporate and other action required by the constitutional documents of the
Member to authorise the execution and delivery of each Member Document and
the exercise of its rights and the performance of its obligations under each
Member Document has been duly taken.
(d)
Each Member Document has been duly executed by the Member.
(e)
The execution and delivery by the Member of each Member Document and the
performance of its obligations thereunder does not and will not breach:
(i)
the constitutional documents of the Member; or
(ii)
any provision of German law applicable to [public limited liability
companies
(Aktiengesellschaften)
limited
liability
companies
(Gesellschaften
mit
beschränkter
Haftung)/limited
partnerships
(Kommanditgesellschaften)] generally.
(f)
The Member is not entitled to claim immunity from suit, execution, attachment or
other legal process in Germany.
(g)
Based on our search carried out at the commercial register no order or resolution
for any administration, suspension of payments, receivership, winding-up or
similar insolvency proceedings has been registered in relation to the Member, nor
has there been registered any notice of the appointment of an administrator,
receiver, liquidator or similar insolvency representative over any part of the assets,
business or undertaking of the Member, or notice of any application for such an
appointment.
QUALIFICATIONS
(a)
The opinion set forth above as regards the Member's corporate power to exercise
its rights and perform its obligations under each Member Document is subject to
all limitations resulting from the laws of administration, suspension of payments,
liquidation, insolvency, reorganisation, suretyship or similar laws of general
application affecting creditors’ rights.
(b)
We express no opinion as to the correctness of any warranties given by the
Member (expressly or impliedly) under or by virtue of the Member Documents,
save if and insofar as the matters warranted are the subject-matter of specific
opinions in this letter.
Classification: Confidential
-4-
8.
OBSERVATIONS
We have not considered the particular circumstances of any Party to the Member
Documents (save the Member to the extent expressly stated herein) or the effect of such
particular circumstances on the Member Documents or the transactions contemplated
thereby.
9.
GOVERNING LAW
This opinion is given on the basis that it is to be governed by and construed in accordance with German law. Exclusive place of jurisdiction (ausschließlicher Gerichtsstand) for
any dispute in connection with this opinion is [Frankfurt am Main], Germany.
10.
BENEFIT OF OPINION
10.1
This opinion is provided to LME Clear and may be relied on by LME Clear for the
purposes of the Member Documents. This opinion may also be disclosed for information
only to (but not relied on by):
10.2
(a)
the auditors, legal and other professional advisers and the regulators of LME
Clear or the Member or any affiliate of LME Clear; and
(b)
any person to whom LME Clear is required to disclose this opinion under
applicable law.
No recipient may disclose this opinion to any other person or quote or refer to it in any
public document or file it with any person, without our prior written consent in each
specific case.
Yours faithfully
[insert name of law firm etc]
Classification: Confidential
-5-
SCHEDULE 1
List of Member Documents
Date
Description
Parties
1.
(not dated)
LME Clear Limited
Members
2.
[specify
date]
[specify
date]
Rules and Procedures of LME
Clear Limited
(the "Rules")
Clearing Membership Agreement
(the "Membership Agreement")
Security Deed (English Law)
(the "English Pledge")
4.
[specify
date]
Security Deed (Belgian Law)
(the "Belgian Pledge")
5.
[specify
date]
Security Deed (Luxembourg Law)
(the "Luxembourg Pledge")
6.
[specify
date]
Security Deed (New York Law)
(the "US Pledge")
7.
[specify
date]
Member-to-Client Security Deed
(the "Member-to-Client Pledge")
3.
LME Clear Limited
[specify member]
[specify member]
in favour of
LME Clear Limited
[specify member]
in favour of
LME Clear Limited
[specify member]
in favour of
LME Clear Limited
[specify member]
in favour of
LME Clear Limited
[specify member]
in favour of
Client
Each document listed in paragraphs 1-7 is referred to as a "Member Document".
"Party" means any party to a Member Document.
Classification: Confidential
Governing
law
English
English
English
Belgian
Luxembourg
New York,
USA
English
-6-
SCHEDULE 2
Evidence of authority
1.
Description
A copy of a certified excerpt from the commercial register (beglaubigter
Handelsregisterauszug) for the Member registered under [HRA/HRB] [●] at the
local court of [●] dated [●];
2.
The current version of the Memo and Articles of the member dated [●]
3.
If required under the Memo and Articles a specific shareholders/members’
resolution consenting to becoming a member and signing the Member
Documents
[As the case may be] Power of attorney issued and signed by [●] and [●][insert
name and position of persons who are registered as legal representatives of
the Member and referred to in this opinion under 3.1] on behalf of the Member
4.
Classification: Confidential