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Exhibit 5.2
[O' MELVENY LOGO]
CITIGROUP CENTER
LOS ANGELES 153 EAST 53RD STREET TYSONS CORNER
NEW YORK, NEW YORK 10022-4611
CENTURY CITY WASHINGTON, D.C.
TELEPHONE (212) 326-2000
IRVINE SPECTRUM FACSIMILE (212) 326-2061 HONG KONG
INTERNET: www.omm.com
MENLO PARK LONDON
NEWPORT BEACH SHANGHAI
SAN FRANCISCO TOKYO
August 2, 2001 OUR FILE NUMBER
285,846-055
Fresenius Medical Care AG
Fresenius Medical Care Capital Trust IV
Fresenius Medical Care Capital Trust V
Else-Kroner Str. 1
61346 Bad Homburg v.d.H.
Germany
RE: REGISTRATION STATEMENT ON FORM F-4
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
F-4 (the "Registration Statement") to be filed by Fresenius Medical Care AG, a
German stock corporation (the "Company"), FMC Trust Finance S.a.r.l
Luxembourg-III, a Luxembourg private limited company (the "Note Issuer"),
Fresenius Medical Care Capital Trust IV, a Delaware statutory business trust
("Trust IV"), Fresenius Medical Care Capital Trust V, a Delaware statutory
business trust ("Trust V") and the other Note Guarantors (as defined below),
relating to the public offer and sale of:
1. $225,000,000 aggregate liquidation amount of U.S. Dollar
denominated 7-7/8% Trust Preferred Securities (the "USD Trust
Preferred Securities") to be issued by Trust IV in exchange
for a like amount of "Old USD Trust Preferred Securities"
pursuant to the "USD Exchange Offer" (as such terms are
defined in the Registration Statement), and guaranteed by the
Company;
2. E300,000,000 aggregate liquidation amount of Euro denominated
7-3/8% Trust Preferred Securities (the "Euro Trust Preferred
Securities" and, collectively with the USD Trust Preferred
Securities, the "Trust Preferred Securities"), to be issued by
Trust V in exchange for a like amount of "Old Euro Trust
Preferred Securities" pursuant to the "Euro Exchange Offer"
(as such terms defined in the Registration Statement) and
guaranteed by the Company;
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Fresenius Medical Care AG et al, August 2, 2001 -Page 2
3. the Company's guarantees (the "Company Guarantees") of the
Trust Preferred Securities;
4. $225,000,000 aggregate principal amount of the Note Issuer's
U.S. Dollar denominated 7-7/8% Senior Subordinated Notes due
2011 (the "USD Notes") to be issued by the Note Issuer in
exchange for a like amount of "Old USD Notes" (as defined in
the Registration Statement) pursuant to the USD Exchange Offer
and guaranteed by the Note Guarantors;
5. E300,000,000 aggregate principal amount of the Note Issuer's
Euro denominated 7-3/8% Senior Subordinated Notes due 2011
(the "Euro Notes" and, collectively with the USD Notes, the
"Senior Subordinated Notes") to be issued by the Note Issuer
in exchange for a like amount of "Old Euro Notes" (as defined
in the Registration Statement) pursuant to the Euro Exchange
Offer and guaranteed by the Note Guarantors;
6. Guaranties (individually, a "Note Guaranty" and, collectively,
the "Note Guaranties") of the Senior Subordinated Notes by the
Company, Fresenius Medical Care Deutschland GmbH, a German
company ("D-GmbH") and Fresenius Medical Care Holdings, Inc.,
a New York corporation ("FMCH") (individually, a "Note
Guarantor" and, collectively, the "Note Guarantors").
The Trust Preferred Securities, the Company Guarantees, the Senior
Subordinated Notes and the Note Guaranties are hereinafter referred to
collectively as the "Registered Securities."
We have also examined (i) the Amended and Restated Declaration of Trust
dated as of June 6, 2001 among the Company, the Note Issuer, State Street Bank
and Trust Company ("State Street"), as Preferred Trustee, First Union Trust
Company, N.A. ("First Union") as Delaware Trustee and the Company Trustees named
therein under which the USD Trust Preferred Securities are to be issued, (ii)
the Amended and Restated Declaration of Trust dated as of June 15, 2001, among
the Company, the Note Issuer, State Street as Preferred Trustee, First Union as
Delaware Trustee and the Company Trustees named therein under which the Euro
Trust Preferred Securities are to be issued, (iii) the Guarantee Agreement dated
as of June 6, 2001 between the Company and State Street, as Guarantee Trustee,
under which the Company Guarantees of the USD Trust Preferred Securities are to
be issued, (iv) the Guarantee Agreement dated as of June 15, 2001 between the
Company and State Street, as Guarantee Trustee, under which the Company
Guarantees of the Euro Trust Preferred Securities are to be issued, (v) the
Trust Indenture dated as of June 6, 2001 among the Company, the Note Issuer, the
Note Guarantors and State Street, as Trustee, under which the USD Notes and the
Note Guaranties of the USD Notes will be issued, and (vi) the Trust Indenture
dated as of June 15, 2001 among the Company, the Note Issuer, the Note
Guarantors and State Street, as Trustee, under which the Euro Notes and the Note
Guaranties of the Euro Notes will be issued.
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Fresenius Medical Care AG et al, August 2, 2001 -Page 3
We have assumed that (i) all corporate proceedings taken and to be
taken by the Note Issuer in connection with the authorization, registration,
issuance and sale of the Senior Subordinated Notes have been and will be duly
taken by the Note Issuer, (ii) all corporate proceedings taken and to be taken
by the Company in connection with the authorization, registration, issuance and
sale of the Company Guarantees and the Company's Note Guaranties have been and
will be duly taken by the Company, and (iii) all corporate proceedings taken and
to be taken by D-GmbH in connection with the authorization, registration,
issuance and sale by D-GmbH of its Note Guaranties have been and will be duly
taken by D-GmbH. We are familiar with the proceedings taken and proposed to be
taken by FMCH in connection with the authorization, registration, issuance and
sale of its Note Guaranties.
It is our opinion that, subject to (i) the assumptions set forth above,
and (ii) the proceedings referred to in the last sentence of the preceding
paragraph being duly taken and completed by FMCH as now contemplated by us as
its counsel prior to issuance of the Registered Securities, upon the issuance
and sale of the Registered Securities in the manner referred to in the
Registration Statement:
(1) The Notes will be binding obligations of the Note Issuer,
enforceable in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally (including,
without limitation, fraudulent conveyance laws), and by general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(2) The Company Guarantees will be the binding obligations of the
Company, enforceable in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws), and by
general principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(3) The Note Guaranties of FMCH will be validly issued by FMCH.
(4) The Note Guaranties will be the binding obligations of the
respective Note Guarantors, enforceable in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws), and by general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law.
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O' MELVENY & MYERS LLP
Fresenius Medical Care AG et al, August 2, 2001 -Page 4
The law covered by this opinion is limited to the present federal law
of the United States and the present law of the State of New York. We express no
opinion as to the laws of any other jurisdiction and no opinion regarding the
statutes, administrative decisions, rules, regulations or requirements of any
county, municipality, subdivision or local authority of any jurisdiction.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Validity of Securities" in the Prospectus forming a part thereof.
Respectfully submitted,
/s/ O'MELVENY & MYERS LLP