EXHIBIT 5.2
XXXXXX, XXXX & XXXXXXXX LLP
[LETTERHEAD]
February 10, 1998
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: FLEETWOOD ENTERPRISES, INC.
Ladies and Gentlemen:
These opinions are being furnished to you pursuant to Section 7(e) of the
Purchase Agreement, dated as of February 4, 1998 (the "Purchase Agreement"), by
and among Fleetwood Capital Trust, a Delaware statutory business trust (the
"Trust"), Fleetwood Enterprises, Inc., a Delaware corporation (the "Company"),
and PaineWebber Incorporated (the "Initial Purchaser") in connection with the
issuance and sale by the Trust of 5,750,000 shares of 6% Convertible Trust
Preferred Securities (the "Preferred Securities") and the issuance and sale by
the Company of $296,400,000 in aggregate principal amount of 6% Convertible
Subordinated Debentures (the "Convertible Subordinated Debentures"). We have
acted as special counsel to the Company and the Trust in connection with the
execution of the Purchase Agreement and the consummation of the transactions
contemplated therein and in the Final Memorandum (as defined below).
In rendering the opinions set forth herein, we have examined the originals,
or copies identified to our satisfaction as being true and complete copies of
the originals, of the following documents:
(i) the Purchase Agreement;
(ii) the Amended and Restated Declaration of Trust of the Trust,
dated as of February 10, 1998 (the "Declaration");
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(iii) the Indenture, dated as of February 10, 1998 (the "Indenture"),
by and between the Company and The Bank of New York, not in its individual
capacity, but solely as Trustee (the "Trustee");
(iv) the Registration Rights Agreement, dated as of February 10,
1998 (the "Registration Rights Agreement"), by and among the Trust, the Company
and the Initial Purchaser;
(v) the Guarantee Agreement for the benefit of holders of the
Preferred Securities, dated as of February 10, 1998 (the "Guarantee Agreement"),
by and between the Company and the Trustee;
(vi) the Offering Memorandum, dated February 4, 1998 (the "Final
Memorandum"); and
(vii) such other documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable to
enable us to render the opinions set forth herein.
The Purchase Agreement, the Declaration, the Indenture, the Convertible
Subordinated Debentures, the Registration Rights Agreement and the Guarantee
Agreement are sometimes hereinafter referred to as the "Transaction Documents."
In our examination, we have assumed the genuineness of all signatures on,
and the authenticity of, all documents submitted to us as originals and the
conformity to the original documents of all documents submitted to us as copies.
With respect to agreements and instruments executed by natural persons, we have
assumed the legal competency and authority of such persons. As to facts
material to the opinions expressed herein which were not independently
established or verified by us, we have relied upon oral or written statements
and representations of the Company and others. All capitalized terms used but
not otherwise defined herein have the meanings accorded to such terms in the
Purchase Agreement.
In connection with our examination, we have assumed with your permission
that:
(a) the Preferred Securities and the Convertible Subordinated
Debentures conform to the specimens thereof certified by the Company and
examined by us;
(b) the Initial Purchaser has all requisite power and authority to
execute, deliver and perform its obligations under the Purchase Agreement, and
the execution and delivery of the Purchase Agreement and the performance of such
obligations have been duly authorized by all necessary action by the Initial
Purchaser;
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(c) the Purchase Agreement has been duly executed and delivered by
the Initial Purchaser;
(d) the Trustee is a banking corporation with trust powers duly
organized, validly existing and in good standing under the laws of New York and
the Trustee is authorized to do business as a trustee in New York;
(e) the Trustee has all requisite power and authority to accept
appointment as trustee under the Declaration and the Indenture and to execute,
deliver and perform its obligations under each of the Declaration and the
Indenture, and the execution and delivery of the Declaration and the Indenture
and the performance by the Trustee of its obligations thereunder have been duly
authorized by all necessary action by the Trustee, and do not and will not
violate any provision of any law, rule or regulation of the State of New York
or of the federal law of the United States of America applicable to the Trustee;
(f) the Indenture constitutes a legal, valid and binding obligation
of the Trustee, enforceable against it in accordance with its terms; and
(g) the Trust has duly authorized, executed and delivered the
Registration Rights Agreement.
Based upon the foregoing and in reliance thereon, and subject to the
qualifications, exceptions, assumptions and limitations herein contained, we are
of the opinion that:
1. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation.
2. The Company has corporate power to own its properties and
conduct its business as described in the Final Memorandum, and the Company has
corporate power to issue the Convertible Subordinated Debentures, to enter into
the Purchase Agreement, the Guarantee Agreement, the Indenture, the Declaration
and the Registration Rights Agreement and to perform its obligations thereunder.
3. The execution and delivery of the Indenture have been duly
authorized by all necessary corporate action of the Company, the Indenture has
been duly executed and delivered by the Company and the Indenture is a legal,
valid, binding and enforceable agreement of the Company.
4. The execution and delivery of the Convertible Subordinated
Debentures have been duly authorized by all necessary corporate action of the
Company, and the Convertible Subordinated Debentures have been duly executed and
delivered by the Company and, when executed and authenticated by the Trustee in
accordance with the terms of the Indenture and paid
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for by the Trust pursuant to the Purchase Agreement, will be the legal, valid,
binding and enforceable obligations of the Company, entitled to the benefits of
the Indenture.
5. The execution and delivery of the Declaration have been duly
authorized by all necessary corporate action of the Company, and the Declaration
has been duly executed and delivered by the Company.
6. The execution and delivery of the Guarantee Agreement have been
duly authorized by all necessary corporate action of the Company, and the
Guarantee Agreement has been duly executed and delivered by the Company, and is
a legal, valid, binding and enforceable agreement of the Company.
7. The holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights under the Certificate of
Incorporation or By-Laws of the Company or the law of Delaware to subscribe for
the Preferred Securities, the Convertible Subordinated Debentures or the
Fleetwood Common Stock; and the Fleetwood Common Stock into which the
Convertible Subordinated Debentures are convertible at the initial conversion
price have been duly authorized by all necessary corporate action of the Company
and reserved for issuance upon conversion and, upon issuance thereof on
conversion of the Convertible Subordinated Debentures in accordance with the
Indenture and the terms of the Convertible Subordinated Debentures at conversion
prices at or in excess of the par value of such Fleetwood Common Stock, will be
validly issued, fully paid and nonassessable.
8. The statements set forth under the headings "Description of the
Preferred Securities," "Description of the Guarantee," "Description of the
Convertible Subordinated Debentures," "Effect of Obligations under the
Convertible Subordinated Debentures and the Guarantee" and "Description of
Fleetwood Capital Stock" in the Final Memorandum, insofar as such statements
purport to summarize certain provisions of the Trust Securities, the Convertible
Subordinated Debentures, the Guarantees, the Indenture, the Declaration and the
Certificate of Incorporation of the Company, provide a fair summary of such
provisions.
9. The execution and delivery of the Purchase Agreement by the
Company have been duly authorized by all necessary corporate action of the
Company, and the Purchase Agreement has been duly executed and delivered by the
Company.
10. The execution and delivery of the Registration Rights Agreement
by the Company have been duly authorized by all necessary corporate action of
the Company, and the Registration Rights Agreement has been duly executed and
delivered by the Company and is a legal, valid, binding and enforceable
agreement of the Company.
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11. The Registration Rights Agreement is a legal, valid, binding
and enforceable agreement of the Trust.
12. The issuance and sale of the Preferred Securities by the Trust
to the Initial Purchasers pursuant to the Purchase Agreement, the performance by
the Trust and the Company of their respective obligations in the Purchase
Agreement, the Indenture, the Convertible Subordinated Debentures, the
Guarantee, the Declaration, the Trust Securities and the Registration Rights
Agreement and the application of the net proceeds of the Convertible
Subordinated Debentures by the Company in the manner described in the Final
Memorandum do not require any consent, approval, authorization, registration or
qualification of or with any governmental authority of the United States or the
State of New York, except such as may be required pursuant to the Registration
Rights Agreement.
13. When the Preferred Securities, the Guarantee Agreement and the
Convertible Subordinated Debentures are issued and delivered pursuant to the
Purchase Agreement, such securities will not be of the same class (within the
meaning of Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) as securities of the Company listed on a national securities
exchange registered under Section 6 of the Securities Exchange Act of 1934, as
amended, or quoted in a United States automated inter-dealer quotation system.
14. Assuming the accuracy of the representations and warranties and
compliance with the agreements contained in the Purchase Agreement, and except
as may be required pursuant to the Registration Rights Agreement, no
registration of the Preferred Securities, the Guarantee Agreement, the
Convertible Subordinated Debentures or the Fleetwood Common Stock under the
Securities Act, and no qualification of the Declaration, the Guarantee
Agreement or the Indenture under the Trust Indenture Act of 1939, as amended,
are required for the offer and sale of the Preferred Securities to the Initial
Purchaser and the subsequent resale by the Initial Purchaser in the manner
contemplated in the Final Memorandum.
15. Neither the Company nor the Trust is an "investment company"
and the Company is not "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
We have participated in the preparation of the Final Memorandum and in
conferences with officers and other representatives of the Company,
representatives of the independent auditors of the Company and the Initial
Purchaser at which the contents of the Final Memorandum and related matters were
discussed. Because the purpose of our professional engagement was not to
establish or confirm factual matters and because the scope of our examination of
the affairs of the Company did not permit us to verify the accuracy,
completeness or fairness of the statements set forth in the Final Memorandum, we
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements set forth in the Final Memorandum
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(except as set forth above in paragraph 8). However, on the basis of the
foregoing, except for the financial statements and schedules and other financial
data included therein, as to which we express no opinion or belief, we are of
the opinion that the Final Memorandum, as of the date thereof and on the date
hereof, did not and does not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
The foregoing opinions are also subject to the following additional
qualifications, exceptions, assumptions and limitations:
A. We render no opinion herein as to matters involving the laws
of any jurisdiction other than (i) the federal laws of the United States of
America, (ii) the laws of the State of New York and (iii) to the limited
extent set forth below, the Delaware General Corporation Law. We are not
admitted to practice law in the State of Delaware, although we are generally
familiar with the Delaware General Corporation Law as presently in effect and
have made such inquiries as we consider necessary to render our opinions
herein. The opinion set forth above in paragraph 1 with respect to the good
standing of the Company under the laws of the State of Delaware is rendered
solely in reliance upon the Certificate dated February 5, 1998 of the
Secretary of State of the State of Delaware, a copy of which is attached
hereto as EXHIBIT A. No opinion is expressed by us as to matters of conflict
or choice of law. The opinions herein are limited to take effect of the
foregoing laws as they presently exist. We assume no obligation to revise or
supplement these opinions in the event of future changes in such laws or the
interpretations thereof or such facts.
B. Except as expressly stated otherwise herein, whenever our
opinions herein with respect to the existence or absence of facts are stated to
be to our knowledge or known by us, such statement is intended to signify that,
during the course of our representation of the Company, as herein described, no
information has come to the attention of the lawyers presently in our firm
working on the transactions contemplated by the Final Memorandum that would give
us actual knowledge of facts contrary to the existence or absence of the facts
indicated. However, we have not undertaken any independent investigation to
determine the existence or absence of such facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of the Company.
C. Our opinions set forth above in paragraphs 3, 4, 6, 10 and 11
are subject to (i) the effect of applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws and court decisions of
general application, including without limitation, statutory or other laws
regarding fraudulent or preferential transfers relating to, limiting or
affecting the enforcement of creditors' rights generally and laws affecting
distribution by corporations to stockholders, (ii) the application of general
principles of equity, including without limitation concepts of
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materiality, reasonableness, good faith and fair dealing, regardless of whether
such enforceability is considered in a proceeding at law or in equity.
D. We express no opinion as to any consent, approval,
authorization, registration or qualification that may be required under any
state securities or Blue Sky laws.
E. We express no opinion as to the legality, validity, binding
effect or enforceability of any provision in any agreement regarding rights of
indemnity or contribution, which may be limited by applicable federal or state
laws or by the policies underlying such laws.
F. We express no opinion (i) with respect to the ability to obtain
specific performance, injunctive relief or other equitable relief, whether
sought in a proceeding in equity or at law, as a remedy for noncompliance with
the Transaction Documents and (ii) regarding the rights or remedies available to
any party insofar as such party may take discretionary action that is arbitrary,
unreasonable or capricious, or is not taken in good faith or in a commercially
reasonable manner, whether or not such action is permitted under the Transaction
Documents.
G. We express no opinion with respect to the legality, validity,
binding nature or enforceability of any provision of the Transaction Documents
to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to any other right or
remedy, that the election of some particular remedy does not preclude recourse
to one or more others or that failure to exercise or delay in exercising rights
or remedies will not operate as a waiver of any such right or remedy.
H. We express no opinion with respect to the legality, validity,
binding nature or enforceability of (i) any waiver by the Company under the
Transaction Documents or any consents by the Company thereunder relating to the
rights of the Company or duties owing to it as a matter of law, except to the
extent that the Company may so waive or consent under applicable law, (ii)
provisions in the Transaction Documents imposing an increase in interest rate
upon failure to pay principal or interest when due or other occurrence of a
default or (iii) any rights of setoff, other than as provided by Section 151 of
the Debtor and Creditor Law of the State of New York, as interpreted by
applicable judicial decisions.
I. We express no opinion as to any provision of the Transaction
Documents requiring written amendments or waivers of such documents insofar
as it suggests that oral or other modifications, amendments or waivers could
not be effectively agreed upon by parties or that the doctrine of promissory
estoppel might not apply.
These opinions are furnished by us as special counsel for the Company and
the Trust to you pursuant to the terms of the Purchase Agreement and is solely
for your benefit. Without our prior written consent, these opinions may not be
relied upon by you in any other context or by any
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other person. These opinions may not be quoted, in whole or in part, or copies
thereof furnished, to any other person without our prior written consent, except
that you may furnish copies hereof: (a) to your independent auditors and
attorneys; (b) to any federal or state authority having regulatory jurisdiction
over you or the Company; (c) pursuant to order or legal process of any court or
governmental agency; and (d) in connection with any legal or governmental
action, proceeding or investigation to which you are a party arising out of the
transactions contemplated by the Purchase Agreement.
Very truly yours,
/s/ Xxxxxx, Xxxx & Xxxxxxxx LLP
XXXXXX, XXXX & XXXXXXXX LLP
RED/JLV/JES/AM/GCT