December 10, 2004
Mercer International Inc.
14900 Interurban Avenue South, Suite 282
Seattle, Washington 98168
Ladies and Gentlemen:
We have acted as counsel to Mercer International Inc., a Massachusetts trust formed under the laws of the State of Washington (the "Company"), in connection with the filing by the Company with the Securities and Exchange Commission (the "Commission") of a Registration Statement on Form S-3 (the "Registration Statement"), as may be amended pursuant to Rule 462(b) of the Securities Act of 1933, as amended (the "Securities Act"), relating to the proposed offer and sale from time to time pursuant to Rule 415 under the Securities Act of $500,000,000 aggregate principal amount of (i) the Company's debt securities (the "Debt Securities"), (ii) preferred shares of beneficial interest of the Company (the "Preferred Shares") and (iii) shares of beneficial interest of the Company (the "Shares of Beneficial Interest"). The Debt Securities, Preferred Shares and Shares of Beneficial Interest are hereinafter referred to as the "Securities."
I.
We have assumed the authenticity of all records, documents and instruments submitted to us as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to the originals of all records, documents and instruments submitted to us as copies. We have based our opinion upon our review of the following records, documents, instruments and certificates and such additional certificates relating to factual matters as we have deemed necessary or appropriate for our opinion:
We have also assumed (i) the Registration Statement, and any amendments thereto, will have become effective; (ii) a prospectus supplement will have been prepared and filed with the Commission describing the Securities offered thereby; (iii) all Securities will be issued and sold in compliance with the applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as amended, and the securities or blue sky laws of various states and in the manner stated in the Registration Statement and the applicable prospectus supplement; (iv) the Company will have taken all necessary corporate action to approve the issuance and terms of the Securities; (v) at the time of any offering of Shares of Beneficial Interest or Preferred Shares, that the Company will have such number of shares of Shares of Beneficial Interest or Preferred Shares, as set forth in such offering or sale, authorized and available for issuance; (vi) all Securities issuable upon conversion, exchange, settlement or exercise of any Securities being offered will have been duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, settlement or exercise; (viii) definitive indentures or agreements with respect to the Securities as described in the Registration Statement and the applicable prospectus supplement, and as filed as an exhibit to or incorporated by reference in the Registration Statement, will have been duly authorized, executed and delivered by the parties thereto; and (vii) as appropriate, the Securities will have been duly executed and authenticated in accordance with the applicable agreement or indenture.
II.
This opinion is limited to the federal laws of the United States of America, and the laws of the State of New York and State of Washington, and we disclaim any opinion as to the laws of any other jurisdiction. We express no opinion as to the applicable choice of law rules that may affect the interpretation or enforcement of the Securities. We further disclaim any opinion as to any statute, rule, regulation, ordinance, order or other promulgation of any regional or local governmental body or as to any related judicial or administrative opinion.
III.
Based upon the foregoing and our examination of such questions of law as we have deemed necessary or appropriate for the purpose of our opinion, and subject to the limitations and qualifications expressed herein, it is our opinion that (a) the Debt Securities, when sold and after receipt of payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement, (i) to bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws of general applicability relating to or affecting creditors' rights, and (ii) to general principles of equity (including without limitation standards of materiality, good faith, fair dealing and reasonableness), whether such enforceability is considered in a proceeding in equity or at law, and (b) the Preferred Shares and Shares of Beneficial Interest, when sold and after receipt of payment therefor, and the Shares of Beneficial Interest, when
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issued upon conversion of any of the Preferred Shares or Debt Securities, will be validly issued, fully paid and non-assessable.
IV.
We further advise you that:
V.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the heading "Legal Matters" in the prospectus or any supplement thereto constituting a part of the Registration Statement.
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This opinion is rendered to you in connection with the filing of the Registration Statement and is solely for your benefit and the benefit of the purchasers of the Securities. This opinion may not be relied upon by any other person, firm, corporation or other entity without our prior written consent. We disclaim any obligation to advise you of any change of law that occurs, or any facts of which we become aware, after the date of this opinion.
Very truly yours, | ||
/s/ HELLER EHRMAN WHITE & MCAULIFFE LLP |
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