EXHIBIT 5.2
[Letterhead of Morris, Nichols, Arsht & Tunnell]
March 25, 2002
The DRH Capital Trusts
(as defined below)
c/o D.R. Horton, Inc.
1901 Ascension Blvd., Suite 100
Arlington, Texas 76006
Re: The DRH Capital Trusts
Ladies and Gentlemen:
We have acted as special Delaware counsel to DRH Capital Trust I, a
Delaware statutory business trust ("DRH Capital Trust I"), DRH Capital Trust II,
a Delaware statutory business trust ("DRH Capital Trust II"), and DRH Capital
Trust III, a Delaware statutory business trust ("DRH Capital Trust III" and,
collectively with DRH Capital Trust I and DRH Capital Trust II, the "DRH Capital
Trusts"), in connection with certain matters of Delaware law relating to the
formation of the DRH Capital Trusts and the proposed issuance of trust preferred
securities thereof to beneficial owners pursuant to and as described in the
Registration Statement (and the prospectus forming a part thereof) on Form S-3
to be filed with the Securities and Exchange Commission by D.R. Horton, Inc.,
Delaware corporation (the "Company"), on or about the date hereof (the
"Registration Statement").
In rendering this opinion, we have examined copies of the following
documents in the forms provided to us: the Certificate of Trust of DRH Capital
Trust I as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on March 16, 2001 (the "DRH Capital Trust I
Certificate"); the Declaration of Trust of DRH Capital Trust I dated as of March
16, 2001 (the "DRH Capital Trust I Original Governing Instrument"); the
Certificate of Trust of DRH Capital Trust II as filed in the Office of the
Secretary of State of the State of Delaware (the "State Office") on March 16,
2001 (the "DRH Capital Trust II Certificate"); the Declaration of Trust of DRH
Capital Trust II dated as of March 16, 2001 (the "DRH Capital Trust II Original
Governing Instrument"); the Certificate of Trust of DRH Capital Trust III as
filed in the State Office on March 16, 2001 (collectively with the DRH Capital
Trust I Certificate and the DRH Capital Trust II Certificate, the
"Certificates"); the Declaration of Trust of DRH Capital Trust III dated as of
March 16, 2001 (collectively with the DRH Capital Trust I Original Governing
Instrument and the DRH Capital Trust II Original Governing Instrument, the
"Original Governing Instruments"); the Registration Statement; and a
certification of good standing of each DRH Capital Trust obtained as of a recent
date from the State Office. In such examinations, we have assumed the
genuineness of all signatures, the conformity to original documents of all
documents submitted to us as drafts or copies or forms of documents to be
executed and the legal capacity of natural persons to complete the execution of
documents. We have further assumed for purposes of this opinion: (i) the due
formation or organization, valid existence and good standing of each entity that
is a party to any of the documents reviewed by us under the laws of the
jurisdiction of its respective formation or organization; (ii) the due
authorization, execution and delivery by, or on behalf of, each of the parties
thereto of the above-referenced documents with respect to each DRH Capital
Trust; (iii) that the Company, the property trustee, the Delaware trustee and
each administrative trustee of each DRH Capital Trust will duly authorize,
execute and deliver an amended and restated declaration of trust of such DRH
Capital Trust (each, a "Governing Instrument") that incorporates the relevant
provisions of the Registration Statement relating to such DRH Capital Trust,
contains all provisions necessary to effectuate the issuance of the trust
preferred securities as contemplated by the Registration Statement and complies
in all respects with the provisions of the Delaware Business Trust Act, 12 Del.
C. Sections 3801 et seq. (the "Delaware Act"), and all other documents
contemplated thereby or by the Registration Statement to be executed in
connection with the formation of each DRH Capital Trust and the issuance by each
DRH Capital Trust of trust preferred securities, in each case prior to the first
issuance of trust preferred securities of such DRH Capital Trust; (iv) that the
trust preferred securities of each DRH Capital Trust will be offered and sold
pursuant to the prospectus forming a part of the Registration Statement and a
prospectus supplement thereto (collectively, the "Prospectus") that will be
consistent with, and accurately describe, the terms of the applicable Governing
Instrument and all other relevant documents; (v) that no event has occurred
subsequent to the filing of any Certificate, or will occur prior to the issuance
of all trust preferred securities by each DRH Capital Trust, that would cause a
dissolution or liquidation of any DRH Capital Trust under the applicable
Original Governing Instrument or the applicable Governing Instrument; (vi) that
the activities of each DRH Capital Trust have been and will be conducted in
accordance with its Original Governing Instrument or Governing Instrument, as
applicable, and the Delaware Act; (vii) that prior to the first issuance of
trust preferred securities by each DRH Capital Trust, payment of the required
consideration therefor will have been made in accordance with the terms and
conditions of the applicable Governing Instrument and as described in the
Prospectus, and that the
trust preferred securities of each DRH Capital Trust are otherwise issued and
sold in accordance with the terms, conditions, requirements and procedures set
forth in the Governing Instrument of such DRH Capital Trust and as described in
the Prospectus; and (viii) that the documents examined by us, or contemplated
hereby, express the entire understanding of the parties thereto with respect to
the subject matter thereof and have not been, and, prior to the issuance of all
trust preferred securities by each DRH Capital Trust, will not be, amended,
supplemented or otherwise modified, except as herein referenced. No opinion is
expressed with respect to the requirements of, or compliance with, federal or
state securities or blue sky laws. We express no opinion as to, and assume no
responsibility for, the Registration Statement or any other offering materials
relating to the trust preferred securities offered by any DRH Capital Trust. As
to any fact material to our opinion, other than those assumed, we have relied
without independent investigation on the above-referenced documents and on the
accuracy, as of the date hereof, of the matters therein contained.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that:
1. Each of the DRH Capital Trusts is a duly formed and validly existing
business trust in good standing under the laws of the State of Delaware.
2. The trust preferred securities of each DRH Capital Trust, upon
issuance, will constitute validly issued and, subject to the qualifications set
forth in paragraph 3 below, fully paid and nonassessable beneficial interests in
the assets of such DRH Capital Trust.
3. Under the Delaware Act, except to the extent otherwise provided in
the applicable Governing Instrument, the holders of trust preferred securities
of each DRH Capital Trust, in such capacity, will be entitled to the same
limitation of personal liability as that extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware; provided, however, we express no opinion with respect to the
liability of any holder of trust preferred securities who is, was or becomes a
named trustee of a DRH Capital Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name and reference to our opinion
under the heading "LEGAL MATTERS" in the prospectus forming a part thereof. In
giving this consent, 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. This opinion speaks only as of the date hereof and is
based on our understandings and assumptions as to present facts, and on our
review of the above-referenced documents and the application of Delaware law as
the same exist as of the date hereof, and we undertake no obligation to update
or supplement this opinion after the date hereof for the benefit of any person
or entity with respect to any facts or circumstances that may hereafter come to
our attention or any changes in facts or law that may hereafter occur or take
effect.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
Jonathan I. Lessner