EXHIBIT 5
[LETTERHEAD OF MUNGER, TOLLES & OLSON LLP]
June 8, 2004
Berkshire Hathaway Finance Corporation
1440 Kiewit Plaza
Omaha, Nebraska 68131
Berkshire Hathaway Inc.
1440 Kiewit Plaza
Omaha, Nebraska 68131
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
This opinion letter is being delivered by us as special counsel to
Berkshire Hathaway Finance Corporation, a Delaware corporation ("BHFC") and
Berkshire Hathaway Inc., a Delaware corporation ("Berkshire") in connection with
the proposed registration by BHFC and Berkshire of (i) $300,000,000 in aggregate
principal amount of BHFC's 3.375% Senior Notes due 2008 (the "New 3.375%
Notes"), unconditionally guaranteed by Berkshire (the "2008 Berkshire
Guarantee") and (ii) $200,000,000 in aggregate principal amount of BHFC's 4.625%
Senior Notes due 2013 (the "New 4.625% Notes" and, together with the New 3.375%
Notes, the "Exchange Notes"), unconditionally guaranteed by Berkshire (the "2013
Berkshire Guarantee" and together with the 2008 Berkshire Guarantee, the
"Berkshire Guarantees"), pursuant to a Registration Statement on Form S-4, under
the Securities Act of 1933, as amended (the "Act") (such Registration Statement,
as amended or supplemented, is hereinafter referred to as the "Registration
Statement").
The Exchange Notes and the Berkshire Guarantees are to be issued
pursuant to an Indenture dated as of October 6, 2003 between BHFC, Berkshire and
Bank One Trust Company, N.A., as trustee (the "Indenture"). The New 3.375% Notes
and the related 2008 Berkshire Guarantee are to be issued in exchange for and in
replacement of BHFC's outstanding 3.375% Senior Notes due 2008, issued on March
16, 2004 and unconditionally guaranteed by Berkshire, of which $300,000,000 in
aggregate principal amount is subject to an exchange offer pursuant to the
Registration Statement (the "Old 3.375% Notes"). The New 4.625% Notes and the
related 2013 Berkshire Guarantee are to be issued in exchange for and in
replacement of BHFC's outstanding 4.625% Senior Notes due 2013, issued on March
16, 2004 and unconditionally guaranteed by Berkshire, of which $200,000,000 in
aggregate principal amount is subject to an exchange offer pursuant to the
Registration Statement (the "Old 4.625% Notes, and together with the Old 3.375%
Notes, the "Outstanding Notes").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary or advisable
for purposes of this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto and the due authorization, execution and delivery of all
documents by the parties thereto. 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 BHFC, Berkshire and others.
Our opinion expressed below is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies.
Based upon and subject to the assumptions, qualifications, exclusions
and other limitations contained in this letter, we are of the opinion that when
(i) the Registration Statement becomes effective and (ii) the Exchange Notes and
the related Berkshire Guarantees have been duly executed and authenticated in
accordance with the provisions of the Indenture and duly delivered to the
holders of the Outstanding Notes in exchange therefor, the Exchange Notes will
be binding obligations of BHFC and the Berkshire Guarantees will be binding
obligations of Berkshire.
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of delivery of any of the Exchange Notes and the
Berkshire Guarantees, (a) the Board of Directors of BHFC shall have duly
established the terms of such Exchange Notes and duly authorized the issuance
and exchange of such Exchange Notes, in accordance with the Indenture and
Delaware law, and such authorization shall not have been modified or rescinded;
(b) the Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded; (c) the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended; (d) the
Indenture has been duly authorized, executed and delivered by the Trustee and
constitutes the legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms; (e) the Berkshire Guarantees
shall have been duly authorized, executed and delivered by Berkshire in
accordance with the Indenture and applicable law and (f) since the date hereof
there will not have occurred any change in law affecting the validity or
enforceability of the Exchange Notes or the Berkshire Guarantees. We have also
assumed that neither the issuance and delivery of the Exchange Notes and the
Berkshire Guarantees nor the compliance by BHFC or Berkshire with the terms of
the Exchange Notes or the Berkshire Guarantees, as applicable, will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding upon BHFC or
Berkshire, as the case may be, or any restriction imposed by any court or
governmental body having jurisdiction over BHFC or Berkshire, as the case may
be.
We are members of the Bar only of the State of California. This opinion
is limited to the laws of the State of California, the General Corporation Law
of the State of Delaware, and the federal laws of the United States of America.
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 note that the law of the State of New York is stated to be the
governing law in each of the Indenture, the Exchange Notes and the Berkshire
Guarantees. We have assumed with your permission, and without verification, that
the law of the State of California governs the Indenture, the Exchange Notes and
the Berkshire Guarantees with respect to the legal, valid, and binding nature
thereof. We call your attention to California Civil Code Sections 2787 through
2855 and related California case law, which limit in certain circumstances the
enforceability of guarantees under the law of the State of California. For the
purpose of rendering the opinions set forth herein, we have assumed with your
permission that California Civil Code Sections 2787 through 2855 and any case
law related thereto have no applicability to these documents. Furthermore, we
express no opinion as to whether a court applying California choice-of-law rules
would apply the law of the State of New York to the Indenture, the Exchange
Notes and the Berkshire Guarantees.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our name in the Registration
Statement and the related Prospectuses. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933.
Very truly yours,
/s/ MUNGER, TOLLES & OLSON LLP