Exhibit 5
[COMPANY LOGO HERE]
October ___, 2002 Moore & Van Allen PLLC
Attorneys at Law
Suite 4700
The Bank of New York 100 NOrth Tryon Street
101 Barclay Street Charlotte, NC 28202-4003
New York, New York 10286
T 704 331 1000
F 704 331 1159
www.mvalaw.com
Re: The Thaxton Group, Inc./One Month, Six Month, 12 Month, 36 Month and
60 Month Subordinated Term Notes and Subordinated Daily Notes
Gentlemen:
We have acted as counsel to The Thaxton Group, Inc. (the "Company") in
connection with the registration under the Securities Act of 1933, as amended
(the "Act") of the above-referenced securities (the "Securities"). We have
examined and are familiar with originals or copies, certified or otherwise,
identified to our satisfaction, of such corporate records of the Company,
agreements, opinions and other instruments, certificates of officers of the
Company and other documents as we have deemed necessary as a basis for the
opinions hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures, the authenticity and completeness of all
documents submitted to us as originals and the conformity to original documents
of all documents submitted to us as certified, conformed or photostatic copies
and, as to certificates of public officials, we have assumed the same to have
been properly given and to be accurate. We have also relied, as to various
matters of fact material to this opinion, on certificates of public officials
and officers of the Company, and we have no reason to believe that you and we
are not justified in relying on such certificates.
We have examined the Registration Statement on Form S-1 of the Company (File No.
333-______) as filed with the Securities and Exchange Commission (the
"Commission") on __________ __, 2002 (the "Registration Statement") and the
Prospectus dated __________, _____ (the "Prospectus") filed with the Commission
pursuant to Rule 424(b) under the Act.
We have also examined the Indenture (the "Indenture") dated as of February 17,
1998, between the Company and The Bank of New York, as Trustee, under which each
of the Securities (as described in paragraph (3) below) will be issued. In
connection with the opinions set forth in paragraph (4) hereof regarding the due
execution and authentication of each series of the Securities, we have examined
the certificates for the Series D2 Securities, Series M2 Securities and Series
T2 Securities to be issued under the Indenture.
Based on the foregoing, and subject to the limitations expressed below, we are
of the opinion that:
October __, 2002
Page 2
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of South Carolina, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus.
(2) Pursuant to Board Resolutions, the Company has duly authorized the
issuance of up to $125,000,000 in aggregate principal amount of the Securities
which may consist of any of six series of the Securities entitled Subordinated
Daily Note - Series D2 (the "Series D Securities"), Subordinated One Month Term
Note - Series M2 (the "Series M Securities"), Subordinated Term Note - Series
T2-6, Subordinated Term Note - Series T2-12, Subordinated Term Note - Series
T2-36 and Subordinated Term Note - Series T2-60 (collectively, the "Series T
Securities") in conformity with the provisions of the Indenture; the terms of
the Series D2 Securities, Series M2 Securities and Series T2 Securities have
been established by Board Resolutions as permitted by Section 301 of the
Indenture and such terms have been established in conformity with the provisions
of the Indenture; and the forms of each of the Series D2 Securities, Series M2
Securities and Series T2 Securities has been established by Board Resolutions as
permitted by Section 201 of the Indenture and each such form has been
established in conformity with the provisions of the Indenture.
(3) All conditions precedent to the authentication and delivery of the
Series D2 Securities, Series M2 Securities and Series T2 Securities have been
met and, upon payment for each such security and when each such security is
issued, executed and delivered by the Company to the Trustee, together with a
Company Order for authentication and delivery, and authenticated and delivered
by the Trustee pursuant thereto, each such security will constitute the valid
and legally binding obligation of the Company entitled to the benefits provided
by the Indenture and will be enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(4) The Indenture, assuming the Indenture is a valid and legally
binding instrument, enforceable in accordance with its terms against The Bank of
New York, as Trustee, constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
(5) The execution and delivery of the Indenture do not, and if the
Company were now to issue and sell $125,000,000 in aggregate principal amount of
any series of the Securities and perform its obligations under the Indenture,
such issuance, sale and performance would not, result in any: (i) violation of
the Articles of Incorporation or By-Laws of the Company; (ii) violation of any
existing federal or state constitution, statute, regulation, rule, order or law
to which the Company is subject; (iii) creation or imposition of a contractual
lien or security interest in, on or against any assets or properties of the
Company; (iv) violation or default under any agreements to which the Company, to
our knowledge, is a party or to which the Company is subject, or (v) violation
of any judicial or administrative decree, writ, judgment or order to which, to
our knowledge, the Company is subject.
(6) The Registration Statement (other than the financial statements and
financial data and related schedules therein, as to which we express no
opinion), when it was filed with the Commission, complied as to
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Page 3
form in all material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder; and we have no reason to believe that
the Registration Statement, when it became effective, or the Prospectus, when it
was so filed, as the case may be, contained, in the case of the Registration
Statement, an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or, in the case of the Prospectus, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
The limitations inherent in the independent verification of factual matters by
us in our role as an advisor to the Company and the character of determinations
involved in the registration process are such that we have not verified and are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, except as otherwise expressly specified in this
opinion. As used herein, the phrase "to our knowledge" or "we have no reason to
believe" refers to the actual knowledge or belief of the lawyers in this firm
actively involved in our representation of the Company.
Unless otherwise defined herein, the capitalized terms in this opinion have the
meanings given to such terms in the Indenture.
This opinion is furnished by us solely for the benefit of you and may not be
relied upon by anyone other than you.
Yours truly,
MOORE & VAN ALLEN PLLC