EXHIBIT 5.1
[Letterhead of Richards, Layton & Finger, P.A.]
December 22, 1999
Everest Re Capital Trust
477 Martinsville Road
P.O. Box 830
Liberty Corner, New Jersey 07938
Re: Everest Re Capital Trust
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Ladies and Gentlemen:
We have acted as special Delaware counsel for Everest Reinsurance
Holdings, Inc., a Delaware corporation (the "Company"), and Everest Re Capital
Trust, a Delaware business trust (the "Trust"), in connection with the matters
set forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated September 17, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on September 17, 1999;
(b) The Trust Agreement of the Trust, dated as of September 17, 1999,
by and among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust,
(including Exhibits A, C and D thereto) (the "Trust Agreement"), among the
Company, the trustees of the Trust named therein, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust;
(d) Amendment No. 2 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a preliminary prospectus (the
"Prospectus"), relating to the Preferred Securities of the Trust, representing
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as proposed to be filed
by the Company and the Trust with the Securities and Exchange Commission on or
about December 22, 1999; and
(e) A Certificate of Good Standing for the Trust, dated December 22,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each of
the parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly
Everest Re Capital Trust
December 22, 1999
Page 3
authorized, executed and delivered such documents, (vi) the receipt by each
Person to whom a Preferred Security is to be issued by the Trust (collectively,
the "Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, (vii) that
the Preferred Securities are issued and sold to the Preferred Security Holders
in accordance with the Trust Agreement and the Registration Statement, and
(viii) that, in the State of Delaware, the Trust (A) has not advertised or
offered, is not advertising or offering, and will not advertise or offer for
sale any securities or (B) has not solicited or received, is not soliciting or
receiving, and will not solicit or receive any funds or subscriptions for any
securities. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
To the extent that Section 10.5 of the Trust Agreement provides that
the Trust Agreement is governed by laws other than the laws of the State of
Delaware, we express no opinion concerning the effect of Section 10.5 of the
Trust Agreement on the opinions set forth herein.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
Everest Re Capital Trust
December 22, 1999
Page 4
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of the
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
RICHARDS, LAYTON & FINGER, P.A.
BJK/MKS