UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 9, 2025
ECHOSTAR CORPORATION
(Exact name of registrant as specified in its charter)
001-33807
(Commission File Number)
| Nevada | 26-1232727 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 9601 South Meridian Boulevard | |
| Englewood, Colorado | 80112 |
| (Address of principal executive offices) | (Zip code) |
(303) 723-1000
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Class A common stock, $0.01 par value | SATS | The Nasdaq Stock Market L.L.C. |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
EXPLANATORY NOTE
This Current Report on Form 8-K is being filed solely for the purpose of filing the opinions of counsel relating to certain securities to be issued as a takedown off EchoStar Corporation’s effective shelf registration statement on Form S-3 (File No. 333-276368), pursuant to a prospectus supplement filed with the Securities and Exchange Commission on May 9, 2025. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy securities, nor shall there be any sale of securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
Item 9.01. Financial Statements and Exhibits.
| Exhibit No. | Description | |
| 5.1 | Legal Opinion of White & Case LLP (New York). | |
| 5.2 | Legal Opinion of Brownstein Hyatt Farber Schreck, LLP. | |
| 5.3 | Legal Opinion of White & Case LLP (UK). | |
| 23.1 | Consent of White & Case LLP (New York) (included as part of Exhibit 5.1). | |
| 23.2 | Consent of Brownstein Hyatt Farber Schreck, LLP (included as part of Exhibit 5.2). | |
| 23.3 | Consent of White & Case LLP (UK) (included as part of Exhibit 5.3). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized.
| ECHOSTAR CORPORATION | ||
| Date: May 9, 2025 | By: | /s/ Dean Manson |
| Dean Manson Chief Legal Officer and Secretary |
||
Exhibit 5.1

May 9, 2025
|
EchoStar Corporation 9601 South Meridian Boulevard Englewood, Colorado 80112 |
|
| Re: | $150,000,000 in aggregate principal amount of 10.75% Senior Secured Notes due 2029 |
Ladies and Gentlemen:
We have acted as New York counsel to (i) EchoStar Corporation, a Nevada corporation (“EchoStar”) and (ii) the guarantors named in (1) Part A of Schedule I (the “Delaware Guarantors”), (2) Part B of Schedule I (the “Colorado Guarantors”), and (3) Part C of Schedule I (the “UK Guarantor” and together with the Delaware Guarantors and the Colorado Guarantors, the “Guarantors”), in connection with EchoStar’s offering of (the “Registered Direct Offering”) $150,000,000 aggregate principal amount of 10.75% Senior Secured Notes due 2029 to be issued by EchoStar and guaranteed by the Guarantors (the “Additional Notes”) as an additional issuance of the $5,355,999,854 aggregate principal amount of 10.75% Senior Secured Notes due 2029 issued by EchoStar on November 12, 2024 and guaranteed by the Guarantors. The Additional Notes and the guarantees thereof are included in EchoStar’s registration statement on Form S-3 (Registration No. 333-276368) filed on January 4, 2024 under the Securities Act of 1933, as amended (the “Securities Act”), as amended by Post-Effective Amendment No. 1 filed with the Securities and Exchange Commission (as amended, or supplemented, the “Registration Statement”) and are being offered pursuant to a base prospectus dated November 5, 2024 (the “Base Prospectus”) and a prospectus supplement dated May 9, 2025 filed with the Commission pursuant to Rule 424(b) under the Securities Act (together with the Base Prospectus, the “Prospectus”). The Additional Notes are being offered pursuant to a purchase agreement, dated as of May 8, 2025 (the “Purchase Agreement”), by and among EchoStar, the Guarantors and the purchasers party thereto.
The Additional Notes and the Guarantees (as defined below) will be issued pursuant to the terms of an indenture (the “Indenture”), dated as of November 12, 2024, by and among EchoStar, the Delaware Guarantors, the other guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee (in such capacity, the “Trustee”) and collateral agent (in such capacity, the “Collateral Agent”). The Additional Notes will be guaranteed by the Delaware Guarantors (the “Additional Notes Delaware Guarantees”) and the other guarantors named therein and pursuant to the terms of the Indenture.
In connection with our opinions expressed below, we have examined originals or copies certified to our satisfaction of the following documents and such other documents, certificates and other statements of government officials and corporate officers of EchoStar and the Guarantors as we deemed necessary for the purposes of the opinions set forth in this opinion letter:
| (i) | the Indenture; |
| (ii) | the form of Additional Notes included in the Indenture; |
| (iii) | the form of Additional Notes Delaware Guarantees included in the Indenture; |
| (iv) | a copy of the Certificate of Formation of each Delaware Guarantor, certified by the Secretary of State of the State of Delaware on October 8, 2024; |
| (v) | a copy of the LLC Agreement of each Delaware Guarantor as in effect on the date hereof; |
| (vi) | a copy of the resolutions of the members of each Delaware Guarantor adopted on May 8, 2025; |
| (vii) | the Registration Statement; |
| (viii) | the Prospectus; and |
| (ix) | the Purchase Agreement. |
We have relied, to the extent we deem such reliance proper, upon certificates of public officials and, as to any facts material to our opinions, upon certificates of officers of the parties and the representations of the parties. In rendering such opinions, we have assumed without independent investigation or verification of any kind the genuineness of all signatures, the legal capacity of all natural persons signing all documents, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies, the truthfulness, completeness and correctness of all factual representations and statements contained in all documents, and the accuracy and completeness of all public records examined by us.
In considering documents executed by EchoStar Corporation, the Colorado Guarantors, the UK Guarantors or parties other than the Delaware Guarantors, we have assumed (a) that the EchoStar Corporation, the Colorado Guarantors, the UK Guarantors had the power, corporate or other, and authority to enter into and perform all their obligations thereunder, (b) the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity, binding and enforceable effect thereof in accordance with their respective terms and (c) that the Trustee is in compliance generally and with respect to acting as trustee under the Indenture, with all applicable laws and regulations.
In rendering the opinion contained herein, we have assumed that: (i) each party has the power, corporate or other, and authority to enter into and perform all their obligations under the documents that have been executed by such party and the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity, binding and enforceable effect thereof; (ii) the Registration Statement and any supplements and amendments thereto, will remain effective and will comply with all applicable laws at the time of issuance of the Additional Notes and Guarantees thereunder; (iii) a prospectus supplement providing supplemental information to the Registration Statement has been timely filed with the Commission and complies with all applicable laws; (iv) EchoStar has issued and delivered the Additional Notes and the Guarantors have issued and delivered the Guarantees in the manner contemplated by the Registration Statement; (v) the resolutions authorizing (x) EchoStar to issue, offer and sell the Additional Notes has been adopted by the board of directors of EchoStar (or an authorized committee thereof) and will be in full force and effect at all times at which the Additional Notes are offered or sold by EchoStar and (y) each Guarantor approving the Guarantees of the Additional Notes has been adopted by the member of the applicable Guarantor and will be in full force and effect at all times at which the Additional Notes are offered or sold by EchoStar; and (vi) all the Additional Notes and Guarantees are in substantially the form attached to the Indenture.
We have further assumed that the Additional Notes and Guarantees will be delivered by EchoStar and the Guarantors in accordance with applicable laws and sold as contemplated in the Registration Statement.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations set forth in this opinion letter, having considered such questions of law as we have deemed necessary as a basis for the opinion expressed below, we are of the opinion that, when the Additional Notes have been duly authorized by all necessary corporate action, executed, issued and delivered by EchoStar and authenticated by the Trustee and Collateral Agent in accordance with the provisions of the Additional Notes as set forth in the Registration Statement, (a) the Additional Notes will constitute valid and binding obligations of EchoStar enforceable against EchoStar in accordance with their terms and (b) the Guarantees will constitute valid and binding obligations of each Guarantor enforceable against such Guarantor in accordance with their terms.
The foregoing opinions as to enforceability of obligations of EchoStar and the Guarantors are subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and the discretion of the court before which any proceedings therefor may be brought (such principles of equity are of general application, and in applying such principles, a court may include a covenant of good faith and fair dealing and apply concepts of reasonableness and materiality), (ii) provisions of law which may require that a judgment for money damages rendered by a court in the United States be expressed only in U.S. dollars; and (iii) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency. Rights to indemnification and contribution may also be limited by Federal and state securities laws.
We express no opinion as to the validity, legally binding effect or enforceability of any provision in any agreement or instrument that (i) requires or relates to payment of any interest at a rate or in an amount which a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or a forfeiture or (ii) relates to governing law and submission by the parties to the jurisdiction of one or more particular courts.
The opinions expressed above are limited to questions arising under the law of the State of New York. We do not express any opinion as to the laws of any other jurisdiction. Various issues concerning the laws of the State of Nevada and the State of Colorado, as applicable, and the laws of England and Wales are addressed in the opinions of Brownstein Hyatt Farber Schreck, LLP and White & Case LLP (UK), respectively, which are filed as exhibits to the Current Report on Form 8-K. We express no opinion with respect to those matters herein, and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have, with EchoStar’s consent, assumed such matters.
This opinion letter is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion letter is provided solely in connection with the Registered Direct Offering pursuant to the Registration Statement and is not to be relied upon for any other purpose.
The opinions expressed above are as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinions expressed in this opinion letter.
We hereby consent to the filing of this opinion letter with the Commission. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, | |
| /s/ White & Case LLP |
AJE: JM: EM: SA: CH
SCHEDULE I
Guarantors
| A. | Delaware Guarantors |
| a. | Northstar Wireless, LLC |
| b. | SNR Wireless LicenseCo, LLC |
| c. | Northstar Spectrum LLC |
| d. | SNR Wireless HoldCo, LLC |
| B. | Colorado Guarantors |
| a. | Gamma Acquisition L.L.C. |
| b. | Gamma Acquisition HoldCo, L.L.C. |
| c. | DBSD Corporation |
| C. | UK Guarantor |
| a. | DBSD Services Limited |
Exhibit 5.2
|
|
Brownstein Hyatt Farber Schreck, LLP |
| 702.382.2101 main | |
| 100 North City Parkway, Suite 1600 | |
| Las Vegas, Nevada 89106 |
May 9, 2025
EchoStar Corporation
9601 South Meridian Boulevard
Englewood, Colorado 80112
To the addressee set forth above:
We have acted as local Nevada counsel to EchoStar Corporation, a Nevada corporation (the “Company”), and local Colorado counsel to DBSD Corporation, a Colorado corporation (“DBSD”), Gamma Acquisition L.L.C., a Colorado limited liability company (“GALLC”), and Gamma Acquisition HoldCo, L.L.C., a Colorado limited liability company (together with DBSD and GALLC, the “Colorado Guarantors”, and together with the Company, the “Opinion Parties”), in connection with the issuance and sale by the Company of an additional $150,000,000 aggregate principal amount of its 10.750% Senior Secured Notes due 2029 (the “Notes”), as described in the Registration Statement on Form S-3 (File No. 333-276368), as amended by the Post-Effective Amendment No. 1 to Form S-3 (as amended, the “Registration Statement”), including the base prospectus dated November 5, 2024, contained therein (the “Base Prospectus”), as supplemented by the prospectus supplement dated May 9, 2025 (the Base Prospectus, as so supplemented, the “Prospectus”), each as filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act“). The Notes are being issued pursuant to (i) that certain Note Purchase Agreement, dated as of May 8, 2025, by and among the Company, as issuer, and the purchasers party thereto (the “Note Purchase Agreement”), and (ii) that certain EchoStar New Notes Indenture, dated as of November 12, 2024 (the “Indenture”, and together with the Note Purchase Agreement, the “Transaction Documents”), by and among the Company, the Guarantors (as defined therein) party thereto, including the Colorado Guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee and as collateral agent, which Indenture includes the Notes Guarantees (as defined therein). The Notes and the Notes Guarantees are hereinafter collectively referred to as the “Securities”.
In our capacity as such counsel, we are familiar with the proceedings taken and proposed to be taken by the Opinion Parties in connection with the authorization, issuance and sale of the Securities as contemplated by the Transaction Documents, and as described in the Registration Statement and Prospectus. For purposes of this opinion letter, and except to the extent set forth in the opinions expressed below, we have assumed that all such proceedings have been or will be timely completed in the manner presently proposed in the Registration Statement, the Prospectus and the Transaction Documents, and the terms of the issuance of any Securities will be in compliance with applicable law.
www.bhfs.com
EchoStar Corporation
May 9, 2025
Page 2
For purposes of issuing this opinion letter, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction as being true copies of (i) the Registration Statement, including the Prospectus, (ii) the Transaction Documents, (iii) the articles of incorporation and bylaws, or the articles of organization and operating agreements, as applicable, each as amended to date, of each of the Opinion Parties (collectively, the “Governing Documents”), and (iv) such agreements, instruments and other documents, or forms thereof, and such corporate or limited liabilty company records (including resolutions of the board of directors or the sole member, as applicable) of each of the Opinion Parties, as we have deemed necessary or appropriate. For purposes of issuing this opinion letter, we have also obtained from officers and other representatives and agents of the Opinion Parties and from public officials, and have relied upon, such certificates, representations and assurances, and such public filings, as we have deemed necessary or appropriate.
Without limiting the generality of the foregoing, in issuing this opinion letter, we have, with your permission, assumed without independent verification that (i) the statements of fact and representations and warranties set forth in the documents we have reviewed are true and correct as to factual matters, in each case as of the date or dates of such documents and as of the date hereof; (ii) each natural person executing a document had at all relevant times and currently has sufficient legal capacity to do so; (iii) all documents submitted to us as originals are authentic, the signatures on all documents we reviewed are genuine, and all documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies conform to the original documents; and (iv) all corporate and limited liability company, as applicable, records made available to us by the Opinion Parties, and all public records we have reviewed, are accurate and complete.
We are qualified to practice law in the States of Nevada and Colorado. The opinions set forth herein are expressly limited to and based exclusively on the general corporate laws of the State of Nevada and the general corporate and limited liability company laws of the State of Colorado, each as in effect on the date hereof, and we do not purport to be experts on, or to express any opinion with respect to the applicability thereto or to the effect thereon of, the laws of any other jurisdiction. We express no opinion concerning, and we assume no responsibility as to laws or judicial decisions related to, or any orders, consents or other authorizations or approvals as may be required by, any federal laws, rules or regulations, including, without limitation, any federal securities laws, rules or regulations, any state securities or “Blue Sky” laws, rules or regulations, any federal or state bankruptcy or insolvency laws or other laws, rules or regulations relating to fraudulent transfers, or any federal or state laws, rules, or regulations relating to broadcast communications, including any rules or regulations promulgated by the Federal Communications Commission or any similar or equivalent state regulatory agency.
Based upon the foregoing and in reliance thereon, and having regard to legal considerations and other information that we deem relevant, we are of the opinion that:
1. The Company is validly existing as a corporation and is in good standing under the laws of the State of Nevada. Each of the Colorado Guarantors is validly existing as a corporation or limited liability company, as applicable, and is in good standing under the laws of the State of Colorado.
EchoStar Corporation
May 9, 2025
Page 3
2. Each of the Opinion Parties has the corporate or limited liability company power and authority, as applicable, to execute and deliver the Note Purchase Agreement and to perform its obligations under the Transaction Documents to which it is a party.
3. The execution and delivery by each of the Opinion Parties of the Note Purchase Agreement, the performance by each of the Opinion Parties of its obligations under the Transaction Documents to which it is a party and the consummation of the transactions have been duly authorized by each of the Opinion Parties.
4. The Note Purchase Agreement has been duly executed and delivered by each of the Opinion Parties party thereto.
5. The Securities have been duly authorized by the Opinion Parties for issuance and sale pursuant to the Indenture.
The opinions expressed herein are based upon the applicable laws of the States of Nevada and Colorado and the facts in existence on the date hereof. In delivering this opinion letter to you, we disclaim any obligation to update or supplement the opinions set forth herein or to apprise you of any changes in such laws or facts after such time as the Registration Statement is declared effective. No opinion is offered or implied as to any matter, and no inference may be drawn, beyond the strict scope of the specific issues expressly addressed by the opinions set forth herein.
We hereby consent to the filing of this opinion letter as an exhibit to the Company’s Current Report on Form 8-K and to the reference to our firm therein under the heading “Legal Matters”. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Brownstein Hyatt Farber Schreck, LLP
Exhibit 5.3
|
9 May 2025
DBSD Services Limited |
|
(together, “you” or “your”)
DBSD Services Limited (the “Company”)
We have acted as English legal advisers to the Company in connection with the offer and sale of $150,000,000 Aggregate Principal Amount of 10.75% Senior Secured Notes due 2029 (the “Notes”). Terms used but not otherwise defined in this opinion shall have the meanings given to them in the Opinion Documents (as defined below) and Appendix 1 (as the case may be).
This opinion is limited to English law. We do not undertake to advise you of any changes in our opinions expressed in this letter resulting from matters that may arise after the date of this letter or that hereafter may be brought to our attention. This opinion is given on the basis that it will be governed by, and construed in accordance with, English law and that any dispute arising out of, or in connection with, it shall be subject to the exclusive jurisdiction of the English courts.
For the purposes of this opinion, we have examined each of the documents listed in Appendix 1.
| (a) | On 9 May 2025 we carried out a search of the Companies House online database and on 9 May 2025 we carried out a search of the filing history page of the Companies House online database in respect of DBSD Services Limited (the “Company Searches”). The Company Searches did not reveal: |
| (i) | any current order or resolution for the winding-up of the Company; |
| (ii) | any current order for the administration of the Company; |
| (iii) | any current notice of appointment in respect of the Company of a liquidator, receiver, administrative receiver or administrator; or |
| (iv) | any current order for a moratorium in respect of the Company. |
| (b) | On 9 May 2025 at 10:10 a.m. London time an information services provider on our behalf made an enquiry of the Central Registry of Winding-up Petitions of the High Court (the “Winding-up Enquiry”) which indicated that no petition for the winding-up of the Company has been presented. |
| 9 May 2025 | ![]() |
On the assumptions set out in Appendix 2 and subject to the qualifications set out in Appendix 3, we are of the opinion that:
| 1. | the Company is incorporated in England and Wales and registered in England and Wales as a private limited company. |
| 2. | the Company has the requisite corporate capacity and power to enter into the Opinion Documents to which it is a party and to perform its obligations thereunder. |
| 3. | the execution by the Company of the Opinion Documents has been duly authorised by all necessary corporate actions on the part of the Company and the execution and performance of the Opinion Documents by the Company does not conflict with or result in any breach or violation by the Company of any term of its articles of association or of any law in force in England applicable to companies generally. |
This letter is given solely in connection with the issue of the Notes. We consent to the filing of this opinion letter as an exhibit to a Current Report on Form 8-K of EchoStar Corporation and its incorporation by reference into the Registration Statement (as defined below). We do not, by giving this consent or otherwise, concede that we are within the category of persons whose consent is required by the Securities Act or the General Rules and Regulations promulgated under the Securities Act, or that we are “experts” in relation to any matters relating to the Opinion Documents, the Notes, or the United States Securities and Exchange Commission (the “Commission”) Registration Statement on Form S-3, as amended by Post-Effective Amendment No. 1 filed with the Securities and Exchange Commission on 5 November 2024 (Registration No. 333-276368) (as amended, or supplemented, the “Registration Statement”), the base prospectus included therein or the prospectus supplements dated 8 November 2024 and 9 May 2025 filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended, relating to the offering and sale of the Notes, other than those matters governed by the laws of England and Wales.
Yours faithfully,
/s/ White & Case LLP
JG:SH
Appendix 1
List of Documents Examined
| 1. | A PDF copy of the executed counterparts of the note purchase agreement relating to the Notes dated as of 8 May 2025 between, among others, Echostar Corporation, the Company and the Purchasers as listed on the Schedules thereto. |
| 2. |
A PDF copy of the executed counterparts of the indenture dated as of 12 November 2024 between, among others, Echostar Corporation as issuer, each of the guarantors thereto, including the Company and The Bank of New York Mellon Trust Company, N.A., as trustee and collateral agent relating to the 10.75% Senior Secured Notes due 2029.
The documents listed in paragraphs 1 and 2 are the “Opinion Documents”. |
| 3. | A copy of the written resolutions of the sole director of DBSD Services Limited at which a resolution was passed approving transactions contemplated by the Opinion Documents and approving the terms and authorising the execution of the Opinion Documents (the “DBSD Board Resolutions”). |
| 4. | A copy of the written resolutions of the shareholders of DBSD Services Limited at which a resolution was passed approving transactions contemplated by the Opinion Documents and approving the terms and authorising the execution of the Opinion Documents (the “DBSD Shareholder Resolutions”). |
| 5. | A copy of the certificate of an authorised signatory of DBSD Services Limited related to the DBSD Board Resolutions, the DBSD Shareholder Resolutions and the constitutional documents of DBSD Services Limited. |
Appendix 2
Assumptions
| 1. | All signatures (including electronic signatures), stamps and seals are genuine, all documents submitted to us as originals are authentic and complete, all documents or extracts of documents submitted to us as copies or received by facsimile transmission or in portable document format (PDF) conform to the paper form originals and the person who has delivered or transmitted documents or extracts of documents to us was authorised to do so by the parties thereto and the person, if other than the person whose signature it purports to be, who affixed any electronic signature to the Opinion Documents on behalf of another person, had the authority of the latter person to do so. |
| 2. | Any document examined by us in an unexecuted form will be or has been executed in the same form and that no amendments (whether oral, in writing or by conduct of the parties) have been made to any of the documents since they were examined by us. |
| 3. | Save that this assumption does not apply to the Company, each of the parties to the Opinion Documents has the capacity and authority to execute, deliver, and perform the same and has validly authorised, duly executed and delivered the Opinion Documents according to all applicable laws. |
| 4. | The Opinion Documents have been duly executed on behalf of the Company by the person authorised by the DBSD Board Resolutions passed at the relevant meeting referred to above. |
| 5. | The DBSD Board Resolutions and the DBSD Shareholder Resolutions as specified in Appendix 1 are a true record of the matters described therein. The DBSD Board Resolutions and the DBSD Shareholder Resolutions were duly adopted, has not been amended or rescinded and is in full force and effect. |
| 6. | In resolving to enter into the Opinion Documents, the sole director of the Company acted in good faith to promote the success of the Company for the benefit of its members and in accordance with any other duty, breach of which could give rise to the Opinion Documents and the related transactions being avoided. |
| 7. | The information revealed by the Company Searches was accurate in all respects and has not, since the time of such search, been altered. |
| 8. | The information provided by the information services provider in respect of the Winding-up Enquiry was accurate in all respects and has not, since the time of such enquiry, been altered. |
| 9. | The Company was not unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 at the time it entered into the Opinion Documents and the Company will not as a result of entering into the Opinion Documents or the transactions contemplated thereby be unable to pay its debts within the meaning of that section. |
| 10. | The Company is not in any form of insolvency or analogous process in any jurisdiction including, without limitation, the passing of a resolution for its voluntary winding up, the presentation of a petition, an application or order being made by a court for its winding up, dissolution or administration or the commencement of a moratorium and no receiver, trustee, administrator (whether out of court or otherwise), monitor or similar officer has been appointed in relation to the Company or any of its assets. |
| 11. | Any requirement or provision of law of any jurisdiction (other than England) which might affect the legality or binding effect of the Opinion Documents or the enforceability thereof in any jurisdiction has been complied with. |
| 12. | Where there are any arrangements involving any of the parties to the Opinion Documents none of them modify or supersede any of the respective terms of the Opinion Documents or affect the conclusions in this opinion. |
| 13. | We assume that the entry into the Opinion Documents by the Company, the assumption of its obligations thereunder and the consummation by the Company of the transactions contemplated therein does not constitute the giving of financial assistance in contravention of Section 678 or Section 679 of the Companies Act. |
| 14. | In so far as this opinion relates to the obligations of and guarantees and security given by the Company under the Opinion Documents, such obligations, guarantees and security have been entered into or given in good faith and for the purposes of carrying on the Company’s business and that there are reasonable grounds for believing that the giving of such guarantee and security will promote its success for the benefit of the members as a whole. |
| 15. | No law of any jurisdiction other than England or the interpretation of any provisions of the Opinion Documents under any law of any jurisdiction other than England would render the execution and delivery of the Opinion Documents by any party thereto, the performance of any obligations thereunder or the consummation of the transactions contemplated thereby, illegal or ineffective, or unenforceable or otherwise affect the conclusions of this opinion. |
| 16. | The Opinion Documents constitute the entire agreement between the parties thereto and there are no other arrangements involving any of the parties to the Opinion Documents which modify or supersede any of their respective terms or which would affect the conclusions in this opinion. The Opinion Documents have not been amended or waived in any manner since their respective execution. |
Appendix 3
Qualifications
| 1. | The term “enforceable”, as used in this opinion, means that obligations assumed by the Company under the Opinion Documents to which it is a party are of a type which English courts and/or arbitral tribunals applying English law enforce and not that those obligations will necessarily be enforced, whether in court or arbitral proceedings in England or elsewhere, in accordance with their terms. |
| 2. | The manner and extent to which the Opinion Documents are enforceable may be affected: |
| (a) | by laws relating to bankruptcy, insolvency, liquidation, administration, receivership, reorganisation, reconstruction (including, in relation to non-UK financial institutions, the Bank Recovery and Resolution Directive (Directive 2014/59/EU) as implemented in the relevant Member State), voidable transactions, moratoria or similar laws generally relating to or otherwise affecting creditors’ rights generally; |
| (b) | by the way in which the English courts and/or any arbitral tribunal applying English law exercise their inherent discretions; |
| (c) | by principles of English law limiting the enforcement or validity of certain terms; |
| (d) | by the implication of contractual terms by the English courts or by any arbitral tribunal applying English law; |
| (e) | by provisions of English law applicable to the vitiation, modification or discharge of contracts; |
| (f) | where the rights and obligations of the respective parties thereunder may be held to have been suspended, impaired or waived by representation, conduct or delay; |
| (g) | where, in the case of any guarantee or surety obligation, equitable defences may relieve a person of such obligations; |
| (h) | by a finding by the English courts or any arbitral tribunal applying English law that a provision of the Opinion Documents constitutes a penalty; and |
| (i) | by the interpretation or application of English law by an arbitral tribunal seated in England which is not bound by conflicts of laws as applied by an English court and therefore may differ to the manner in which an English court applies English conflicts of laws rules. |
| 3. | Where there is a valid jurisdiction clause in favour of the English courts, the exercise of jurisdiction by the English courts is subject to the following: |
| (a) | an English court will generally only exercise jurisdiction to hear a case and give judgment against a defendant if the defendant has been served with the court proceedings or the court has dispensed with service and consequently where the defendant or its agent cannot be served and service has not been dispensed with, the English courts may not exercise jurisdiction; |
| (b) | an English court may refuse to assume or exercise jurisdiction when it concludes that it is required to do so by the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 or the Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018; and |
| (c) | an English court may stay proceedings on case management grounds if concurrent proceedings are being brought elsewhere. |
| 4. | Claims under the Opinion Documents may become subject to a defence of set-off or satisfaction of a counterclaim or time barred under applicable limitation legislation. |
| 5. | Any disposition of a company’s property (which may include the grant of security) made after the presentation of a winding up petition against such company will be void unless a court orders otherwise. |
| 6. | We do not express any opinion as to the validity or efficacy of any provisions of the Opinion Documents which may circumvent fundamental insolvency law principles including, without limitation, those of mandatory set off and pari passu distribution to creditors, pursuant to the principles of public policy relating to insolvency law. In particular, the effectiveness of contractual subordination arrangements under English law is not definitively established either in legislation or in case law. |
| 7. | We express no opinion on any provision of an Opinion Document governed by, or interpreted or construed in accordance with, any law other than English law. |
| 8. | We express no opinion on the legal validity and the enforceability of the Opinion Documents. |
| 9. | The conclusions expressed in this opinion may be affected by the laws relating to recovery and resolution including the Bank Recovery and Resolution Directive (Directive 2014/59/EU, as amended), and (with respect to UK financial institutions only) the Banking Act 2009 and Part 12A of FSMA, the Financial Services Act 2012, those made under the European Union (Withdrawal) Act 2018 and any secondary legislation, instruments, rules and orders made or which may be made under, or to give effect to, any of them. |
| 10. | We express no opinion as to the effect of any calculations (whether expressed in figures or words), formulae (whether expressed in figures or words), quantifications, diagrams, tables, technical specifications contained in the Opinion Documents, including whether or not any of the foregoing achieve the intended or desired legal and/or commercial effect of the parties to the Opinion Documents. |
| 11. | Any provisions in the Opinion Documents which amount to agreements to agree may not be enforceable, and we express no opinion on their enforceability. |
| 12. | The Company Searches are not capable of revealing conclusively whether or not: |
| a) | a winding-up order has been made or a resolution passed for the winding-up of a company; or |
| b) | an administration order has been made; |
| c) | a moratorium has commenced; or |
| d) | a receiver, administrative receiver, administrator, liquidator or monitor has been appointed, |
since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the public database or recorded on the public microfiches of the relevant company immediately.
In addition, the Company Searches are not capable of revealing, prior to the making of the relevant order, whether or not a winding-up petition or a petition for an administration order has been presented or an application for a moratorium (or an extension to an existing moratorium) has been filed.
| 13. | The Winding-up Enquiry relates only to a compulsory winding-up and is not capable of revealing conclusively whether or not a winding-up petition in respect of a compulsory winding-up has been presented, since details of the petition may not have been entered on the records of the Central Registry of Winding-up Petitions immediately or, in the case of a petition presented to a County Court, may not have been notified to the Central Registry and entered on such records at all, and the response to an enquiry only relates to the period of approximately four years prior to the date when the enquiry was made. |
| 14. | The term “performance” as used in this opinion means that obligations assumed by the Company under the Opinion Documents are of a type which may be legally performed. We do not express any opinion as to the manner in which any of the obligations in the Opinion Documents are actually performed by the Company. |
| 15. | We express no opinion as to the provisions of the Opinion Documents to the extent it purports to declare or impose a trust in respect of any payments or assets received by any person. |
| 16. | Any guarantee or security given by a subsidiary may be unenforceable if giving that guarantee or security amounts to an unlawful distribution to its shareholders or a reduction in its capital. There are no decided cases on the point but, in our opinion if the directors of a company reasonably decide that no provision should be made in the financial statements of a company for their contingent liability under that guarantee or security, the giving of that guarantee or security should not amount to an unlawful distribution or reduction in capital. |
| 17. | Any United Nations, United States, European Union or UK sanctions or other similar measures that may be applicable, directly or indirectly, to any party to the Opinion Documents, may result in the obligations of other parties to the Opinion Documents being unenforceable or void or otherwise affected. |
| 18. | We express no opinion in respect of the tax treatment of, or transactions contemplated by, the Opinion Documents or on any issues related to taxation. |
| 19. | We express no opinion as to the accuracy or truth of any representations and warranties made by any party to the Opinion Documents. |
| 20. | The effectiveness of provisions exculpating or limiting a party from liabilities or duties otherwise owed by such party or limiting the remedies available to a party is limited by law and may not be upheld by the English courts. |
| 21. | An agreement or a provision in the Opinion Documents that is deemed to lack sufficient certainty (either because such provision is too vague or because it is incomplete) may be void for uncertainty or otherwise unenforceable. |
| 22. | Any national or international economic sanctions or other similar measures that may be applicable, directly or indirectly, to any party to the Opinion Documents, may result in the obligations of that party or parties to the Opinion Documents being unenforceable or void or otherwise affected and/or such parties being subject to civil and/or criminal penalties. |