In connection with this opinion, we have examined and relied upon the accuracy of original, certified copies or photocopies of such records, agreements, certificates and other documents as we have deemed necessary or appropriate to enable us to render the opinions set out below, including (i) the Restated Articles of Incorporation and Second Amended and Restated Bylaws of the Company and the Restated Articles of Organization of the Guarantor and the First Amendment to the Restated Articles of Organization, (ii) the Indenture, (iii) the Registration Statement and the Base Prospectus, (iv) the Preliminary Prospectus Supplement and the Final Prospectus Supplement; (v) copies of resolutions of Swift’s board of directors authorizing the filing of the Preliminary Prospectus Supplement and the Final Prospectus Supplement, and the issuance of the Notes, and (iii) copies of resolutions of the Guarantor authorizing the Guarantee. In addition, we have examined such other documents and certificates and reviewed such questions of law as we have considered appropriate.
In all such examinations, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified copies or photocopies and the authenticity of the originals of such latter documents. In addition, we have assumed, and without independent investigation have relied upon, the factual accuracy of the representations, warranties and other information contained in the items we examined.
Based upon the foregoing, we are of the opinion that the Notes will, when they have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and duly purchased and paid for in accordance with the terms of the Underwriting Agreement, constitute valid and legally biding obligations of the Company, enforceable against the Company in accordance with their terms.
The opinion set forth above are subject to the applicable effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) (iii) public policy considerations which may limit the rights of the parties to obtain remedies, (iv) the waivers of any usury defense contained in the Indenture or any supplement thereto which may be unenforceable, and (v) the exercise of the discretionary power of any court or other authority before which may be brought any proceeding seeking equitable or other remedies. We express no opinion as to the sufficiency of the waivers of defenses by the Guarantor contained in the Indenture or any supplemental indenture governing the Securities.
The opinion expressed herein is limited to the Texas Business Corporation Act and the applicable provisions of the Texas Constitution, the laws of the State of New York, the New York Constitution, the federal laws of the United States of America, and applicable reported judicial decisions, rules and regulations interpreting and implementing those laws, and we express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5 to the Prospectus and to the use of our name under the caption “Legal matters” in the Prospectus forming a part of the Registration Statement. In giving this consent, this firm does not admit that
