Exhibit 5.2
October 29, 2003
Newcastle Investment Corp.
1251 Avenue of the Americas
16th Floor
New York, New York 10020
Re: Newcastle Investment Corp.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special New York counsel to Newcastle Investment Corp., a
Maryland corporation (the "Company"), in connection with the registration
statement on Form S-3, Registration No. 333-109597 (the "Registration
Statement"), to be filed by the Company with the Securities and Exchange
Commission (the "Commission") on the date hereof under the Securities Act of
1933, as amended (the "Act"). The Registration Statement relates to the issuance
and sale from time to time, pursuant to Rule 415 of the rules and regulations
under the Act, of securities of the Company for aggregate proceeds of up to
$750,000,000, consisting of: shares of common stock, $0.01 par value per share
(the "Common Stock"); shares of preferred stock, $0.01 par value per share (the
"Preferred Stock"); depositary shares representing shares of Preferred Stock
(the "Depositary Shares"); senior debt securities (the "Senior Debt
Securities"); subordinated debt securities (the "Subordinated Debt Securities"
and, together with the Senior Debt Securities, the "Debt Securities"); and
warrants to purchase debt or equity securities (the "Debt Warrants" and the
"Stock Warrants", respectively, and together, the "Warrants"). The Senior Debt
Securities and the Subordinated Debt Securities are to be issued under the
Senior Indenture, proposed to be entered into between the Company and the
trustee to be named therein, and the Subordinated Indenture, proposed to be
entered into between the Company and the trustee to be named therein,
respectively, a form of each of which is each filed as an exhibit to the
Registration Statement (collectively, the "Indentures" and each trustee, a
"Trustee"). The Warrants are to be issued pursuant to a Warrant Agreement,
proposed to be entered into between the Company and a warrant agent to be named
therein (the "Warrant Agent"), a form of which is filed as an exhibit to the
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Registration Statement (the "Warrant Agreement"). The Common Stock, Preferred
Stock, Depositary Shares, Debt Securities and Warrants are collectively referred
to herein as the "Offered Securities".
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) a form of Senior Indenture; (iii) a form of Subordinated
Indenture; and (iv) a form of Warrant Agreement. We have also examined originals
or copies, certified or otherwise identified to our satisfaction, of such
records of the Company and such agreements, certificates of public officials,
certificates of officers or other representatives of the Company and others, and
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of executed documents or documents to be executed, we have assumed
that the parties thereto, including the Company, had or will have the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents and, as to
parties other than the Company, the validity and binding effect on such parties.
We have also assumed that the Company has been duly organized and is validly
existing in good standing under the laws of the state of Maryland and that the
Company has complied and will comply with all aspects of applicable laws of
jurisdictions other than the United States of America and the State of New York
in connection with the transactions contemplated by the Indentures, the Warrant
Agreement and the Registration Statement. We have also assumed that the
indentures and the warrant agreement will be executed and delivered in
substantially the forms reviewed by us. We have also assumed that the choice of
New York law to govern the Indentures and the Warrant Agreement is a valid and
legal provision. We have also assumed that the Indentures and the Warrant
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Agreement will be duly authorized, executed and delivered by the Trustees and
the Warrant Agent, respectively, and that any Debt Securities or Warrants that
may be issued will be manually signed or countersigned, as the case may be, by
duly authorized officers of the Trustees and Warrant Agent, respectively. As to
any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Our opinions set forth herein are limited to the laws of the State of New
York which are normally applicable to transactions of the type contemplated by
the Registration Statement and, to the extent that judicial or regulatory orders
or decrees or consents, approvals, licenses, authorizations, validations,
filings, recordings or registrations with governmental authorities are relevant,
to those required under such laws (all of the foregoing being referred to as
"Opined on Law"). We do not express any opinion with respect to the law of any
jurisdiction other than Opined on Law or as to the effect of any such non opined
law on the opinions herein stated. The Offered Securities may be issued from
time to time on a delayed or continuous basis, and this opinion is limited to
the laws, including the rules and regulations under the Act, as in effect on the
date hereof.
Based upon and subject to the foregoing and the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective under the
Securities Act and the applicable Indenture has been qualified under the Trust
Indenture Act of 1939, as amended; (ii) an appropriate prospectus supplement or
term sheet with respect to the Offered Debt Securities has been prepared,
delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder; (iii) if the Offered Debt Securities are to be
sold pursuant to a firm commitment underwritten offering, an underwriting
agreement with respect to the Offered Debt Securities has been duly authorized,
executed and delivered by the Company and the other parties thereto; (iv) the
Board of Directors of the Company, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance and terms of the Offered Debt
Securities and related matters; (v) the terms of the Offered Debt
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Securities and of their issuance and sale have been duly established in
conformity with the applicable Indenture so as not to violate any applicable
law, the Articles of Amendment and Restatement of the Company, the Articles or
the By-laws of the Company as currently in effect (the "By-laws"), or result in
a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company; and (vi) the
Offered Debt Securities have been duly executed and authenticated in accordance
with the provisions of the applicable Indenture and duly delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor, the
Offered Debt Securities, when issued and sold in accordance with the applicable
Indenture and the applicable underwriting agreement, if any, or any other duly
authorized, executed and delivered valid and binding purchase or agency
agreement, will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), (c) public policy considerations which may
limit the rights of the parties to obtain further remedies, and (d) the waivers
of any usury defense contained in the Indentures which may be unenforceable.
2. With respect to any series of Warrants (the "Offered Warrants"), when
(i) the Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective under the Securities Act; (ii)
an appropriate prospectus supplement or term sheet with respect to the Offered
Warrants has been prepared, delivered and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder; (iii) if the
Offered Warrants are to be sold pursuant to a firm commitment underwritten
offering, an underwriting agreement with respect to the Offered Warrants has
been duly authorized, executed and delivered by the Company and the other
parties thereto; (iv) the Board of Directors of the Company, including any
appropriate committee appointed thereby, and appropriate officers of the Company
have taken all necessary corporate action to approve the issuance of the Offered
Warrants and related matters; (v) the terms of the Offered Warrants and of their
issuance and sale have been duly established in conformity with the Warrant
Agreement so as not to violate any applicable law, the Articles or By-laws or
result in a default under or breach of any agreement or
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instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company by the Company and the Warrant Agent; and (vi) the Offered Warrants
have been duly executed, delivered and countersigned in accordance with the
provisions of the Warrant Agreement and duly issued and sold in the manner
contemplated in the Registration Statement or any prospectus supplement or term
sheet relating thereto, the Offered Warrants, when issued and sold in accordance
with the Warrant Agreement and the applicable underwriting agreement, if any, or
any other duly authorized, executed and delivered valid and binding purchase or
agency agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (c) public policy considerations which
may limit the rights of the parties to obtain further remedies.
In rendering the opinions set forth above, we have assumed that the
execution and delivery by the Company of the Senior Indenture, the Subordinated
Indenture and the Warrant Agreement and the performance by the Company of its
obligations thereunder do not and will not violate, conflict with or constitute
a default under any agreement or instrument to which the Company or its
properties is subject, except for those agreements and instruments that are
listed in Part II of the Registration Statement or the Company's Annual Report
on Form 10-K for the year ended December 31, 2002. In addition, we do not
express any opinion as to whether the execution or delivery by the company of
the Senior Indenture, the Subordinated Indenture and the Warrant Agreement or
the performance by the Company of its obligations thereunder will constitute a
violation of, or a default under, any covenant, restriction or provision
contained therein with respect to financial ratios or tests or any aspect of the
financial condition or results of operations of the company or any of its
subsidiaries.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. We also consent to the reference to our
firm under the caption "Legal Matters" in the Registration Statement. In giving
this consent, we do not thereby admit that we are included in the category of
persons
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whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission. This opinion is expressed as of the date hereof
unless otherwise expressly stated, and we disclaim any undertaking to advise you
of any subsequent changes of the facts stated or assumed herein or any
subsequent changes in applicable law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP