Exhibit 5.7
DIRECT PHONE
(206) 447-8899
DIRECT FACSIMILE
(206) 749-1963
E-MAIL
KEEFR@FOSTER.COM
September 14, 2004
MAAX Corporation
1010 Sherbrooke Street West
Suite 1610
Montreal, Quebec, H3A 2R7
Canada
Attention: Denis Aubin
Ladies and Gentlemen:
We have acted as special counsel in the State of Washington (the "State")
to Maax-Hydro Swirl Manufacturing Corp., a Washington corporation
("Subsidiary"), a subsidiary of Maax Corporation, a Nova Scotia unlimited
company (the "Company"), in connection with the execution and delivery of and
the consummation of the transactions contemplated by: (i) Maax Corporation US
$150,000,000 Senior Subordinated Notes ("Notes") dated June 4, 2004; (ii)
Indenture for the Notes dated June 4, 2004, among U.S. Bank Trust National
Association, as trustee, the Company, Subsidiary and the guarantors named
therein; and (iii) Guaranty for the Notes dated June 4, 2004, of the Subsidiary
and the guarantors named therein; (the documents described in (i) through (iii)
are called collectively the "Transaction Documents").
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Transaction Documents.
In rendering the opinions hereinafter set forth, we have reviewed final
forms of the following documents (collectively, the "Documents"):
(i) the Transaction Documents; and
(ii) a certificate of existence/authorization for Subsidiary from the
Washington Secretary of State and copies of the corporate minutes of
Subsidiary furnished by counsel for the Company.
We have reviewed the Documents and such other instruments, documents and
agreements as we have deemed necessary or appropriate to enable us to render the
opinions hereinafter set forth. We have reviewed such certificates and other
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Page 2
information from public officials in those jurisdictions that we have deemed
appropriate and have made such review of law as we consider necessary for the
purposes of this opinion. As to certain matters of fact material to the
following opinions, we have relied upon certificates and reports of public
officials without independently verifying the accuracy of those certificates and
representations. As to certain matters of fact material to the following
opinions, we have relied upon a Secretary's certificate of the Subsidiary dated
September 14, 2004, without independently verifying the accuracy of those
representations.
We have relied as to matters of fact upon the above documents and
investigation. Where we render an opinion "known to us," our opinion is based
solely upon (a) the conscious awareness of facts or other information by the
attorneys within the firm who have had active involvement in reviewing the
Transaction Documents in preparing this opinion letter, and unless we have
specifically advised otherwise in this letter, we have not undertaken or made
any inquiry, search, investigation or legal or factual analysis or research to
verify the accuracy of any opinion which is rendered with the phrase "known to
us." No limited inquiry which we may have undertaken shall be considered an
independent investigation and the fact of our engagement to render this opinion
letter shall not be construed to imply knowledge of any matter on our part.
In rendering the opinions hereinafter set forth, we have assumed that:
(i) Each Party to the Transaction Documents (other than Subsidiary)
has all requisite power and authority, under its organizational documents,
and under the laws of its domiciliary state, province and country to enter
into the Transaction Documents and otherwise to assume and perform the
obligations on its part to be assumed and performed as contemplated by the
Transaction Documents.
(ii) The Transaction Documents have been executed by duly authorized
individual representatives on behalf of the respective Parties thereto
(other than Subsidiary) and have been delivered by each Party.
(iii) Subsidiary has received consideration adequate to render its
obligations under the Transaction Documents enforceable under Washington
law.
(iv) None of the Transaction Documents have been modified in any way
by any oral agreement, written document or course of conduct.
(v) No Party to the Transaction Documents (other than Subsidiary) is
incorporated under the laws of the State of Washington.
In addition, this opinion is qualified to the extent that enforceability
of the Transaction Documents may be limited by (i) bankruptcy, insolvency,
moratorium, reorganization or other laws relating to creditors' rights generally
and (ii) general principles of equity, whether
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considered in an action at law or in equity and the following additional
assumptions, qualifications and exceptions:
1. We express no opinion as to Subsidiary's title to any of the Property.
2. We express no opinion as to provisions of the Transaction Documents
which pertain to jurisdiction, venue, choice of law, service of process or
waiver of the right to a jury trial. We note, however, that a Washington court
may choose to follow recent cases in other jurisdictions and restrict rights to
a deficiency judgment to the least favorable of Washington or New York law.
3. We express no opinion as to federal tax consequences to any Party to
the Transaction.
4. We express no opinion as to compliance with the anti-fraud or other
disclosure provisions of applicable securities laws or any rules or regulations
promulgated thereunder.
5. Except as provided herein, we express no opinion as to any matter
whatsoever relating to: (a) the accuracy or completeness of any financial,
accounting, or statistical information furnished by the Subsidiary or the
Company; (b) the accuracy or completeness of any representations made by the
Company or the Subsidiary; or (c) the financial status of the Company or the
Subsidiary.
6. Although certain members of this firm are admitted to practice in other
jurisdictions, we have been asked to opine herein only as to matters of federal
law and the law of the State of Washington, and we express no opinion with
regard to any matter which may be governed by other than the federal law of the
United States of America and the law of the State of Washington.
Subject to the foregoing assumptions and qualifications, we are of the
opinion that:
1. Subsidiary is a validly existing corporation under the laws of
Washington and has the requisite corporate power and authority to own its
properties and conduct its business as described in the Registration Statement
and, for its part, to enter into and carry out its obligations under the
Transaction Documents.
2. Each of the Transaction Documents has been duly authorized, executed
and delivered by the Subsidiary.
3. The compliance with all of the provisions of the Transaction Documents
and the consummation of the transactions therein contemplated will not result in
any violation of the provisions of (a) any organizational document of
Subsidiary, (b) the laws of Washington or
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(c) any order, judgment or decree naming the Subsidiary of any court or
governmental agency or body of Washington known to us to be applicable to
Subsidiary.
We are admitted to practice in the State. We express no opinion as to
matters under or involving the laws of any jurisdiction other than the laws of
the United States and the State and its political subdivisions.
Our opinions set forth herein are limited to the matters expressly set
forth in this opinion letter, and no opinion is implied or may be inferred
beyond the matters expressly so stated. This opinion is provided to you as a
legal opinion only, and not as a guaranty or warranty of the matters discussed
herein. This opinion is rendered as of the date set forth, and we disclaim any
obligation to advise you of any changes in the circumstances, laws or events
that may occur after that date or to otherwise update this opinion. The opinions
rendered herein may not be used or relied upon by or published or communicated
to any person or entity other than the addressees hereof and their successors
and assigns, for any purpose whatsoever without our prior written consent in
each instance, except that Kaye Scholer LLP may rely on this opinion letter as
if it were addressed to them. We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
FOSTER PEPPER & SHEFELMAN PLLC
By: Richard E. Keefe, Member