Legal Opinion Letter - Florida

LEGAL OPINION LETTER - FLORIDA

Third-party legal opinion letter conforming to customary practice for Florida-law opinions, consistent with the TriBar Opinion Committee's "Third-Party 'Closing' Opinions" (1998) and the Florida Bar Business Law Section opinion standards.

[LAW FIRM LETTERHEAD]
[Firm Name, a Florida [Professional Association / Limited Liability Partnership]]
[Florida Bar registered firm]
[Street Address]
[City, Florida, ZIP]

[__/__/____]

[Addressee Name]
[Address]
[City, State, ZIP]

Re: [Transaction Description] - Opinion of Florida Counsel

Ladies and Gentlemen:

We have acted as special Florida counsel to [________________________________], a [________________________________] (the "Company"), in connection with [describe transaction] (the "Transaction") contemplated by the [Agreement/Indenture/etc.] dated as of [__/__/____] (the "Transaction Agreement"), by and among the Company and the parties listed therein. This opinion letter is delivered to you pursuant to Section [____] of the Transaction Agreement. Capitalized terms used but not defined herein have the meanings given in the Transaction Agreement.

This opinion is limited to matters of Florida law and the federal law of the United States, as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction, including without limitation New York law, Delaware corporate law (except as specifically stated below), or any tax, securities (except as expressly stated), environmental, antitrust, ERISA, HIPAA, or municipal ordinance law.

I. DOCUMENTS EXAMINED

In rendering the opinions expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the "Reviewed Documents"):

1. The Transaction Agreement;
2. The Company's Articles of Incorporation (or Articles of Organization for an LLC), as filed with the Florida Department of State, Division of Corporations, certified by the Florida Department of State on [__/__/____];
3. The Company's Bylaws (or Operating Agreement), as currently in effect;
4. A Certificate of Status for the Company issued by the Florida Department of State, Division of Corporations, dated [__/__/____], certifying the Company's active status under Fla. Stat. Ch. 607 (or Ch. 605 for an LLC);
5. Resolutions adopted by the Company's [Board of Directors / Managers / Members] on [__/__/____] authorizing the Transaction;
6. An Officer's/Manager's Certificate dated the date hereof as to factual matters (the "Officer's Certificate"), a copy of which is attached as Annex A; and
7. Such other documents, certificates, and records as we have deemed necessary or appropriate.

II. ASSUMPTIONS

With your permission and without independent verification, we have assumed:

(a) the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, and the conformity to authentic originals of all documents submitted as copies;

(b) the accuracy and completeness of all certificates of public officials and of the factual statements in the Officer's Certificate;

(c) that each party to the Transaction Agreement other than the Company is duly organized, validly existing, in good standing, and has full power and authority to enter into and perform the Transaction Agreement, and that the Transaction Agreement has been duly authorized, executed, and delivered by each such party and constitutes its valid, binding, and enforceable obligation;

(d) there has been no mutual mistake of fact, fraud, duress, or undue influence in connection with the Transaction;

(e) that the Transaction Agreement is governed by Florida law notwithstanding any choice-of-law provision to the contrary, and if another jurisdiction's law is selected, that such jurisdiction's law does not differ from Florida law in any manner that would affect our opinions;

(f) that the Company has received the consideration required by the Transaction Agreement; and

(g) that the Transaction complies with applicable usury laws, Fla. Stat. Ch. 687 (civil usury ceiling of 18% per annum for loans under $500,000; criminal usury ceiling of 25% and 45% under § 687.071).

III. OPINIONS

Based on and subject to the foregoing, and subject to the qualifications set forth below, we are of the opinion that:

1. Corporate Existence and Good Standing. The Company is a corporation [or limited liability company] duly incorporated [formed], validly existing, and active under the laws of the State of Florida, as confirmed by the Certificate of Status issued by the Florida Department of State under Fla. Stat. § 607.01423 [or § 605.0208 for an LLC]. The use of "active status" is the Florida statutory equivalent of "good standing" and reflects that the Company has filed all required annual reports under Fla. Stat. § 607.1622 [§ 605.0212] and paid all filing fees.

2. Corporate Power and Authority. The Company has all requisite corporate [or limited liability company] power and authority under the Florida Business Corporation Act (Fla. Stat. Ch. 607) [or Florida Revised Limited Liability Company Act (Fla. Stat. Ch. 605)] and its Articles of Incorporation [Articles of Organization] and Bylaws [Operating Agreement] to execute and deliver the Transaction Agreement and to perform its obligations thereunder.

3. Due Authorization. The execution, delivery, and performance of the Transaction Agreement by the Company have been duly authorized by all necessary corporate [or limited liability company] action on the part of the Company, including, where required, approval by its [Board of Directors / Managers / Members] under Fla. Stat. §§ 607.0802-607.0831 [§ 605.0407].

4. Due Execution and Delivery. The Transaction Agreement has been duly executed and delivered by the Company.

5. Enforceability. The Transaction Agreement constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms under Florida law, subject to the Enforceability Qualifications set forth in Part IV below.

6. No Conflict. The execution and delivery of the Transaction Agreement by the Company and the consummation of the Transaction do not (a) violate the Company's Articles of Incorporation [Articles of Organization] or Bylaws [Operating Agreement]; (b) violate any Florida statute or regulation applicable to the Company of which we have knowledge in the course of this engagement; or (c) require any consent, approval, filing, or notice under any Florida governmental authority or agency that has not been obtained or made, except for filings with the Florida Department of State under Fla. Stat. § 607.0120 (if applicable) and UCC-1 financing statement filings with the Florida Secured Transaction Registry under Fla. Stat. § 679.5011 (if security interests are being created).

7. No Securities Registration (If Applicable). Assuming the accuracy of the factual representations in the Officer's Certificate and the offerees' investment representations, the offer and sale of securities under the Transaction Agreement do not require registration under the Florida Securities and Investor Protection Act, Fla. Stat. Ch. 517, by reason of the exemption provided by Fla. Stat. § 517.061(11) (Florida private placement exemption) [or § 517.12(13) for federal covered securities, requiring notice filing and fee].

8. UCC Security Interest (If Applicable). Upon execution of the Security Agreement and the filing of a properly completed UCC-1 financing statement in the Florida Secured Transaction Registry under Fla. Stat. §§ 679.5011-679.5161, the Secured Party will have a perfected security interest in the collateral described therein to the extent a security interest can be perfected by such filing under Fla. Stat. Ch. 679 (Florida UCC Article 9). We express no opinion regarding collateral (i) consisting of goods covered by a certificate of title under Fla. Stat. Ch. 319 or 328 (motor vehicles and vessels); (ii) consisting of real property; (iii) as to which perfection requires possession or control; or (iv) subject to a federal preemptive filing regime.

IV. ENFORCEABILITY QUALIFICATIONS

The opinion set forth in paragraph 5 above is subject to the following qualifications:

(a) Bankruptcy Exception. Bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and similar laws of general application relating to or affecting creditors' rights generally, including Fla. Stat. Ch. 726 (Florida Uniform Fraudulent Transfer Act);

(b) Equitable Principles. General principles of equity, including concepts of materiality, reasonableness, good faith and fair dealing (implied in every Florida contract under Florida common law and Fla. Stat. § 671.203), and the discretion of the court before which any action is brought; and the availability of specific performance, injunctive relief, and other equitable remedies is subject to court discretion;

(c) Waiver Limitations. Provisions purporting to waive (i) broad, prospective, or unknown rights; (ii) the implied covenant of good faith and fair dealing; (iii) statutes of limitations; (iv) the right to receive notice of dishonor or protest; or (v) rights to a jury trial, to the extent such waivers are not knowing, voluntary, and intentional, may not be enforceable under Florida law;

(d) Indemnification Limitations. Provisions for indemnification against or exculpation from (i) liability for gross negligence or willful misconduct; (ii) violations of federal or Florida securities laws; or (iii) public-policy violations may be limited or unenforceable. Fla. Stat. § 607.0850 limits corporate indemnification of directors and officers; similar limitations apply to LLC managers under § 605.0408;

(e) Attorney's Fee Provisions. Florida courts enforce contractual attorney's fee provisions, but make them reciprocal under Fla. Stat. § 57.105(7) even if drafted unilaterally;

(f) Forum Selection and Choice of Law. Florida courts generally enforce forum-selection clauses absent a showing that enforcement would be unreasonable or unjust. Choice-of-law provisions selecting non-Florida law are enforced unless enforcement would violate a fundamental Florida public policy (Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166 (Fla. 1985)). Non-compete provisions are governed exclusively by Fla. Stat. § 542.335 regardless of choice-of-law clauses in contracts made in Florida;

(g) Liquidated Damages. Liquidated damages provisions are enforceable under Florida law only if (i) damages at the time of contracting were not readily ascertainable and (ii) the amount is not so disproportionate as to constitute a penalty (Lefemine v. Baron, 573 So. 2d 326 (Fla. 1991));

(h) Jury Trial Waivers. Pre-dispute jury waivers are enforceable in Florida only if knowingly and voluntarily made (Bombardier Capital, Inc. v. Progressive Mktg. Grp., Inc., 801 So. 2d 131 (Fla. 4th DCA 2001));

(i) Usury. Provisions for interest, late charges, or fees in excess of Florida usury limits under Fla. Stat. Ch. 687 (18% or 25% depending on loan size and nature) may be unenforceable;

(j) Consumer Protection. To the extent applicable, provisions may be limited by FDUTPA (Fla. Stat. §§ 501.201-501.213) and the Florida Consumer Collection Practices Act (Fla. Stat. § 559.55 et seq.);

(k) Hurricane/Force Majeure. Florida contracts routinely address hurricane and natural disaster force majeure. Absent explicit contractual allocation, common-law impossibility/impracticability defenses apply.

V. QUALIFICATIONS ON SCOPE

(i) We have not undertaken any independent investigation to determine the existence or absence of facts and we assume no responsibility for facts that a more extensive examination might disclose.

(ii) "Knowledge" of our firm means the actual knowledge of attorneys in our firm who have been primarily engaged in providing services to the Company in connection with this Transaction.

(iii) We are members of the Bar of the State of Florida and do not express any opinion concerning the laws of any jurisdiction other than Florida law and the federal law of the United States. With respect to matters governed by Delaware corporate law, we have relied on the opinion of [Delaware counsel name], copies of which have been provided to you.

(iv) We express no opinion on: tax consequences; compliance with ERISA; compliance with antitrust laws; environmental laws (including Fla. Stat. Ch. 376 and 403); regulatory or licensing requirements under specific Florida regulatory statutes (e.g., banking, insurance, healthcare, construction); or compliance with the Florida Digital Bill of Rights, Fla. Stat. § 501.701 et seq.

VI. RELIANCE AND USE

This opinion letter is furnished solely to the Addressees in connection with the Transaction and may be relied upon only by the Addressees and not by any other person. This opinion letter may not be quoted, circulated, or otherwise referred to for any other purpose without our prior written consent, except that this opinion may be furnished (but not relied upon) to (a) regulatory authorities having jurisdiction over an Addressee as required by law; (b) permitted assignees of an Addressee as required by the Transaction Agreement; and (c) auditors and counsel for the Addressees for informational purposes.

This opinion letter speaks only as of the date hereof, and we assume no obligation to advise you of any changes in law or facts that may occur after the date hereof.

VII. PROFESSIONAL RESPONSIBILITY

This opinion is rendered in accordance with our obligations under the Florida Rules of Professional Conduct, including Rules 4-1.1 (competence), 4-1.6 (confidentiality), and 4-2.3 (evaluation for use by third persons). The Addressees acknowledge that our representation of the Company continues and that this opinion does not create an attorney-client relationship with any Addressee.

Very truly yours,

[FIRM NAME]

By: [________________________________]
Name: [________________________________]
Title: [________________________________]
Florida Bar No. [________________]

ANNEX A - FORM OF OFFICER'S CERTIFICATE

[Company Letterhead]
[__/__/____]

OFFICER'S CERTIFICATE

I, [________________________________], the [Chief Executive Officer / Manager / President] of [________________________________] (the "Company"), a [________________________________] organized under the laws of the State of Florida, in connection with the opinion letter dated the date hereof from [Firm Name] (the "Opinion"), DO HEREBY CERTIFY that:

1. I am duly elected/appointed and acting in the office set forth above and am authorized to execute this Certificate on behalf of the Company.

2. Attached as Exhibit 1 is a true, correct, and complete copy of the Articles of Incorporation [Articles of Organization] of the Company, including all amendments, as filed with the Florida Department of State.

3. Attached as Exhibit 2 is a true, correct, and complete copy of the Bylaws [Operating Agreement] of the Company as currently in effect.

4. Attached as Exhibit 3 is a true, correct, and complete copy of the resolutions of the [Board of Directors / Managers / Members] authorizing the Transaction, which resolutions were duly adopted at a meeting [or by unanimous written consent] held on [__/__/____], and have not been amended, rescinded, or modified and remain in full force and effect.

5. The Company is not in violation of any Florida statute or regulation applicable to its business.

6. No action has been taken to dissolve the Company under Fla. Stat. § 607.1401 et seq. [§ 605.0701 et seq.].

7. All annual reports required under Fla. Stat. § 607.1622 [§ 605.0212] have been filed and all fees paid.

Signed under penalties of perjury under Fla. Stat. § 92.525.

[________________________________]
[Name], [Title]

Sources and References

• Fla. Stat. Ch. 607 - Florida Business Corporation Act
• Fla. Stat. Ch. 605 - Florida Revised Limited Liability Company Act
• Fla. Stat. Ch. 517 - Florida Securities and Investor Protection Act
• Fla. Stat. Chs. 670-680 - Florida Uniform Commercial Code
• Fla. Stat. Ch. 687 - Interest and Usury
• Fla. Stat. § 542.335 - Restrictive Covenants
• Fla. Stat. § 607.0850 - Corporate indemnification
• Florida Rules of Professional Conduct 4-1.1, 4-1.6, 4-2.3
• TriBar Opinion Committee, "Third-Party 'Closing' Opinions" (1998)
• Florida Bar Business Law Section opinion standards
• Bombardier Capital, Inc. v. Progressive Mktg. Grp., Inc., 801 So. 2d 131 (Fla. 4th DCA 2001)
• Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166 (Fla. 1985)
• Lefemine v. Baron, 573 So. 2d 326 (Fla. 1991)