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EXHIBIT 5.2
[FASKEN CAMPBELL GODFREY LETTERHEAD]
April 5, 1999
Oxford Automotive, Inc.
1250 Stephenson Highway
Troy, Michigan 48083
U.S.A.
Attention: The President
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Dear Sirs:
10 1/8% SENIOR SUBORDINATED NOTES DUE 2007
ISSUED AND SOLD BY OXFORD AUTOMOTIVE, INC., AND
GUARANTEED BY BMG NORTH AMERICA LIMITED AND OTHERS
We have acted as special Ontario counsel for BMG Holdings Inc. ("HOLDINGS") BMG
North America Limited ("BMG") and Oxford Suspension Ltd. ("SUSPENSION")
(collectively, the "GUARANTORS" and each, a "GUARANTOR") in connection with the
execution and delivery by them of certain documents relating to the issue and
sale by Oxford Automotive, Inc. ("OXFORD AUTOMOTIVE") of U.S. $125,000,000 10
1/8% Senior Subordinated Notes due 2007, Series A (the "SERIES A NOTES"), U.S.
$35,000,000 10 1/8% Senior Subordinated Notes due 2007, Series B (the "SERIES B
NOTES"), and U.S. $40,000,000 10 1/8% Senior Subordinated Notes due 2007, Series
C (the "SERIES C NOTES", and together with the Series A Notes and the Series B
Notes, the "OLD NOTES"), and in connection with the offer by Oxford Automotive
(the "EXCHANGE OFFER") to exchange U.S. $200,000,000 of its 10 1/8% Senior
Subordinated Notes due 2007, Series D (the "EXCHANGE NOTES", and together with
the Old Notes, the "NOTES") for any and all of the outstanding Old Notes.
You have informed us that the Series C Notes have been, and the Exchange Notes
will be, issued pursuant to (i) an Indenture (the "INDENTURE") dated as of
December 1, 1998 between Oxford Automotive, certain of its subsidiaries
(including the Guarantors) as guarantors and U.S. Bank Trust National
Association as trustee for the holders of the Notes (the "TRUSTEE"), (ii) a
Purchase Agreement (the "PURCHASE AGREEMENT") dated December 1, 1998 among
Oxford Automotive, certain of its subsidiaries (including the Guarantors) as
guarantors, and Bear, Stearns & Co. Inc., BT Alex Brown Incorporated and Morgan
Stanley & Co. Incorporated, as the purchasers of the Series C Notes (the
"INITIAL PURCHASERS"), and (iii) a Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT") dated December 8, 1998, among Oxford
Automotive, the guarantors of the Notes and the Initial Purchasers. The
Guarantees, the Indenture, the Purchase Agreement and the Registration Rights
Agreement are hereinafter collectively referred to as the "DOCUMENTS", and each
a "DOCUMENT").
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The opinions given in this letter are limited to the law applicable in the
Province of Ontario, and the statutes and regulations of the Province of Ontario
and of Canada applicable in Ontario (collectively, "ONTARIO LAW"). Accordingly,
we do not express any opinion with respect to the laws of any jurisdiction other
than Ontario Law in force as at the date of this opinion letter.
We have made the following assumptions specific to this transaction:
(A) under New York Law, the chosen governing law of each of the Documents,
(i) none of the Documents imposes any obligation, liability
or indebtedness, whether actual or contingent, present
or future, primary or secondary (collectively,
"LIABILITIES") on any of the Guarantors in relation to
any Liabilities of any other person, other than
Liabilities of Oxford Automotive in respect of the
Notes, and
(ii) none of the Documents creates any mortgage, charge,
lien, encumbrance, security interest or other right in
the way of security in or on any real or personal
property of either Guarantor, except in relation to its
Guarantee;
(B) each party to the Documents is a body corporate duly organized and
incorporated and validly existing under the laws of its jurisdiction of
incorporation, has all requisite capacity, power and authority to
execute, deliver and perform each of the Documents to which it is a
party, has taken all necessary corporate, statutory, regulatory and other
action to authorize the execution, delivery and performance by it of each
such Document and duly authorized signing officers of each such party
have executed and delivered each such Document (other than the Exchange
Notes) on each such party's behalf in accordance with all applicable
laws;
(C) the Trustee and each of the Initial Purchasers is resident in a
jurisdiction outside of Canada and does not have a permanent
establishment or tangible assets in Canada, a representative office in
Canada, or employees ordinarily resident in Canada, and, while the
Trustee and some of the Initial Purchasers or their representatives may
have discussed financing proposals in Canada or may have discussed the
financing contemplated by the Documents in general terms in Canada with
Oxford Automotive and the Guarantors (or any of them), none of the
Trustee and the Initial Purchasers conducted negotiations in Canada with
Oxford Automotive and the Guarantors (or any of them) with respect to the
Documents or the transactions contemplated thereby and the decision of
the Trustee and each of the Initial Purchasers to participate in such
transactions was not made in Canada;
(D) the foregoing assumptions in this letter, are true accurate and complete
with respect to the matters addressed in them as of the time and date of
execution of the Exchange Notes by the issuers thereof, and there has
been no change in Ontario Law or any other applicable law, or the facts
assumed by or known to us at the date thereof; and
(E) the Exchange Notes will be duly executed and delivered by Oxford
Automotive in accordance with all applicable laws and in the form or
substantially in the form of the Note set out in a Schedule or Exhibit to
the Indenture, and on each date of execution and delivery of an
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Exchange Note, each Guarantor will be a wholly-owned subsidiary (for the
purposes of section 20 of the Ontario Business Corporations Act) of
Oxford Automotive.
Based upon and relying on the foregoing and subject to the assumptions and
qualifications set out herein, we are of the opinion that:
1. An action to enforce each Guarantee could be commenced by the Trustee in
a court of competent jurisdiction in the Province of Ontario (an "ONTARIO
COURT"), in which event an Ontario Court would recognize the choice of
the laws of the State of New York ("NEW YORK LAW") as a valid choice of
law to govern the Guarantee and would apply New York Law to all issues
that an Ontario Court characterized as substantive under the conflict of
laws' rules of Ontario Law, assuming that:
(a) such choice of law is legal under New York Law;
(b) such choice of law was made bona fide, and, without limiting the
foregoing, such choice of law was not made for the purpose of
avoiding the mandatory laws of any other jurisdiction;
(c) there is no reason for avoiding such choice of law on the
grounds of public policy in the Province of Ontario as
determined by an Ontario Court;
(d) New York Law is not an assertion of sovereign power of a
political nature by the State of New York or the United States
of America; and
(e) New York Law was specifically pleaded and proved as a question
of fact before the Ontario Court.
An Ontario Court will, however, apply Ontario Law to those issues that the
Ontario Court characterizes as procedural or administrative under the conflict
of laws' rules of Ontario Law. In addition, no opinion is expressed as to
whether remedies available under New York Law would be available from an Ontario
Court.
2. Any judgment (a "NEW YORK JUDGMENT") obtained by the Trustee against any
of the Guarantors in any action taken in the courts of the State of New
York (the "NEW YORK COURT") to enforce a payment obligation of that
Guarantor under its Guarantee would be recognized and enforced by an
Ontario Court in a separate Ontario action without re-examination of the
merits of the New York action, if each of the following criteria is
satisfied:
(a) the New York Judgment is for a debt or fixed sum of money other
than a judgment in proceedings of a revenue, expropriatory,
penal, criminal or similar nature;
(b) the New York Judgment is final, conclusive and enforceable where
rendered;
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(c) the New York Court that renders the New York Judgment has
jurisdiction over the Guarantor and the subject matter of its
Guarantee;
(d) the New York Judgment does not conflict with another final and
conclusive judgment in the same cause of action;
(e) the New York Judgment is not obtained by fraud or trick;
(f) the claim for relief on which the New York Judgment is based and
enforcement of the New York Judgment in Ontario are not
repugnant to public policy under Ontario Law;
(g) the New York Court rendering the New York Judgment is impartial
and provides procedures compatible with the due process
standards of an Ontario Court, and without limiting the
foregoing:
(i) the proceedings leading to the New York Judgment
are not contrary to the rules of natural justice, and
(ii) the relevant Guarantor received sufficient notice of
the proceedings in the New York Court to enable it to
defend the action in which the New York Judgment is
rendered;
(h) if the New York Judgment is obtained by default, there has been
no manifest error in the granting of such judgment;
(i) the proceedings in the New York Court are not contrary to an
agreement between the parties under which the dispute in
question is to be settled otherwise than by proceedings in the
New York Court;
(j) if the jurisdiction in the New York Court is based on personal
service alone, the New York Court is not a seriously
inconvenient forum for the trial of the action;
(k) the procedural rules for commencement and maintenance of the
enforcement proceedings in Ontario are observed;
(l) no new, admissible evidence relevant to the New York Judgment is
discovered before the Ontario Court renders judgment;
(m) no order restricting enforcement of the New York Judgment has
been made by the Attorney General of Canada under the Foreign
Extraterritorial Measures Act (Canada);
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(n) no order has been made by the Competition Tribunal established
under the Competition Act (Canada) restricting implementation of
the New York Judgment as adversely affecting competition in
Canada or domestic or foreign trade and commerce in Canada; and
(o) the action to enforce the New York Judgment in an Ontario Court
is commenced within six years of the date of such judgment.
3. The express submission by each Guarantor to the non-exclusive
jurisdiction of a New York Court in respect of its Guarantee would be
regarded by an Ontario Court as sufficient under Ontario Law to grant
personal jurisdiction over the Guarantor to a New York Court. Under
Ontario Law, an Ontario Court would recognize that a New York Court has
jurisdiction over the subject matter of the relevant Guarantee.
4. None of the Guarantors is entitled to any sovereign immunity under
Ontario Law.
5. No stamp duty, value added tax, document duty or other similar charge is
payable under Ontario Law on any New York Judgment in order to introduce
it into evidence before an Ontario Court, or to enforce a New York
Judgment, in an action of the nature referred to in paragraph 2. above
The opinions expressed above are subject to the following qualifications:
(a) the enforceability of each Guarantee or any judgment (including,
without limitation, any New York Judgment) arising out of or in
connection with each Guarantee may be limited by applicable
bankruptcy, insolvency, winding-up, reorganization, arrangement,
moratorium or other laws affecting creditors' rights generally.
Without limiting the generality of the foregoing,
(i) the ability to recover or claim for certain costs or
expenses may be subject to judicial discretion,
(ii) section 347 of the Criminal Code (Canada) prohibits the
payment of "interest" at a "criminal rate" (as such
terms are defined therein),
(iii) any action on any Guarantee may be proscribed by the
Limitations Act (Ontario) after the applicable
limitation period has expired, and
(iv) a money judgment by an Ontario Court may be awarded
only in Canadian currency and may be based on a rate of
exchange in existence on a date other than the date of
payment;
(b) the enforceability of each Guarantee may be limited by general
principles of equity, and no opinion is given as to any specific
remedy that may be granted, imposed or rendered (including
equitable remedies such as specific performance and injunction);
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(c) an Ontario Court reserves the right to decline jurisdiction
in any action relating to a Guarantee on the basis that Ontario
is an inconvenient forum or if concurrent proceedings are being
brought elsewhere, notwithstanding any waiver of the right to
raise such objection or defence in the Documents;
(d) provisions in any Document permitting service of legal process
by posting or transmission of copies thereof in accordance with
the notice clause of such document may not be recognized as good
service by an Ontario court;
(e) section 4 of the Interest Act (Canada) may restrict the amount
of interest payable by the Guarantors to the rate or percentage
of five per cent per annum; and
(f) no opinion is expressed in this letter on the effect of the
securities laws of the Province of Ontario on any of the
Documents or on the Exchange Offer.
We hereby consent to the use of this opinion as an Exhibit to the Registration
Statement on Form S-4 (the "REGISTRATION Statement") relating to the Exchange
Offer, and to the reference to our firm under the heading "Legal Matters" in the
Prospectus constituting a part of the Registration Statement. In giving such
consent, we do not concede that we are experts within the meaning of the
Securities Act of 1933 or the rules or regulations thereunder, or that this
consent is required by Section 7 of that Act.
Yours truly,
FASKEN CAMPBELL GODFREY