EXHIBIT 5.1
BAKER BOTTS L.L.P.
2001 ROSS AVENUE
DALLAS, TEXAS 75201
January 31, 2003
018635.0116
Lennox International Inc.
2140 Lake Park Boulevard
Richardson, Texas 75080
Ladies and Gentlemen:
As set forth in the Registration Statement on Form S-3 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") by Lennox International Inc., a Delaware
corporation ("Lennox"), Lennox Industries Inc., an Iowa corporation
("Industries"), Armstrong Air Conditioning Inc., an Ohio corporation
("Armstrong"), Excel Comfort Systems Inc., a Delaware corporation ("Excel"),
Service Experts Inc., a Delaware corporation ("Service Experts"), Lennox Global
Ltd., a Delaware corporation ("Global"), and Lennox Trust I and Lennox Trust II,
each a statutory Delaware trust (the "Trusts"), under the Securities Act of
1933, as amended (the "Act"), relating to securities to be issued and sold by
Lennox, Industries, Armstrong, Excel, Service Experts, Global and the Trusts
from time to time pursuant to Rule 415 under the Act for an aggregate initial
offering price not to exceed $250,000,000, certain legal matters in connection
with such securities are being passed upon for you by us. Such securities
include (a) Lennox's unsecured senior debt securities (the "Senior Debt
Securities"); (b) Lennox's unsecured subordinated debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"); (c) shares of common stock, par value $.01 per share, of
Lennox ("Common Stock"); (d) shares of preferred stock, par value $.01 per
share, of Lennox ("Preferred Stock"); (e) warrants to purchase other securities
("Warrants"); (f) depositary shares representing Preferred Stock ("Depositary
Shares"); (g) stock purchase contracts of Lennox including prepaid stock
purchase contracts ("Stock Purchase Contracts"); (h) stock purchase units of
Lennox, consisting of (1) a Stock Purchase Contract and (2) a beneficial
interest in Senior Debt Securities, Subordinated Debt Securities, Trust
Securities (as defined below) or debt obligations of third parties securing the
holder's obligation to purchase Common Stock or Preferred Stock under the Stock
Purchase Contracts ("Stock Purchase Units"); (i) preferred securities of the
Trusts (the "Trust Securities"); (j) Lennox's guarantees with respect to the
Trust Securities (the "Trust Guarantees"); and (k) guarantees of Debt Securities
by Industries, Armstrong, Excel, Service Experts and Global ("Debt Guarantees").
The Debt Securities, Common Stock, Preferred Stock, Warrants, Depositary Shares,
Stock Purchase Contracts, Stock Purchase Units, Trust Guarantees and Debt
Guarantees are collectively referred to herein as the "Securities." Industries,
Armstrong, Excel, Service Experts and Global are collectively referred to herein
as the "Lennox Parties."
Lennox International Inc. 2 January 31, 2002
Each series of Senior Debt Securities and any related Debt
Guarantees will be issued pursuant to an indenture to be entered into between
Lennox, as issuer, and The Bank of New York, as trustee (the "Senior
Indenture"), and each series of Subordinated Debt Securities and any related
Debt Guarantees will be issued pursuant to an indenture to be entered into
between Lennox, as issuer, and The Bank of New York, as trustee (the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), as each such Indenture will be supplemented, in connection with
the issuance of each such series, by a supplemental indenture, officers'
certificate or other writing thereunder establishing the form and terms of such
series. Each Trust Guarantee will be issued pursuant to a guarantee agreement to
be entered into between the Company and The Bank of New York, as guarantee
trustee thereunder (each, a "Guarantee Agreement").
In our capacity as your counsel in the connection referred to
above, we have examined Lennox's Restated Certificate of Incorporation and
Amended and Restated Bylaws, each as amended to date (the "Charter Documents"),
the forms of Senior Indenture, Subordinated Indenture and Guarantee Agreement
(each as filed as an exhibit to the Registration Statement), and originals, or
copies certified or otherwise identified, of corporate records of Lennox,
including minute books of Lennox as furnished to us by Lennox, certificates of
public officials and of representatives of Lennox, statutes and other
instruments and documents as a basis for the opinions hereinafter expressed. In
connection with this opinion, we have assumed that:
(a) the Registration Statement and any amendments thereto
(including post-effective amendments) will have become effective under
the Act;
(b) a prospectus supplement will have been prepared and filed
with the Commission describing the Securities offered thereby;
(c) all Securities will be offered, issued and sold in
compliance with applicable federal and state securities laws and in the
manner stated in the Registration Statement and the appropriate
prospectus supplement;
(d) the Board of Directors of Lennox or, to the extent
permitted by the General Corporation Law of the State of Delaware and
Lennox's Charter Documents, a duly constituted and acting committee
thereof (such Board of Directors or committee being hereinafter
referred to as the "Board") will have taken all necessary corporate
action to authorize the issuance of the Securities and any other
Securities issuable on the conversion, exchange, redemption or exercise
thereof, and to authorize the terms of the offering and sale of such
Securities and related matters;
(e) a definitive purchase, underwriting or similar agreement
with respect to any Securities offered will have been duly authorized
and validly executed and delivered by Lennox and the other parties
thereto (the "Purchase Agreement");
(f) any securities issuable upon conversion, exchange,
redemption or exercise of any Securities being offered will have been
duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange, redemption or exercise;
Lennox International Inc. 3 January 31, 2002
(g) all Securities, and any certificates or Receipts (as
defined below) in respect thereof, will be delivered in accordance with
either (a) the provisions of the applicable Purchase Agreement approved
by the Board upon payment of the consideration therefor provided for
therein or (b) upon conversion, exchange, redemption or exercise of any
other Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such conversion,
exchange, redemption or exercise as approved by the Board, for the
consideration approved by the Board;
(h) in the case of shares of Common Stock or Preferred Stock,
certificates representing such shares will have been duly executed,
countersigned, registered and delivered, or if uncertificated, valid
book-entry notations will have been made in the share register of the
Company, in each case in accordance with the provisions of the Charter
Documents; there will be sufficient shares of Common Stock or Preferred
Stock authorized under the Charter Documents and not otherwise issued
or reserved for issuance; and the purchase price therefor payable to
Lennox, or, if such shares are issuable on the conversion, exchange,
redemption or exercise of another Security, the consideration payable
to Lennox for such conversion, exchange, redemption or exercise will
not be less than the par value of such shares, in the case of shares of
Common Stock, or the lesser of such purchase price or such
consideration, as the case may be, or the amount of such purchase price
or such consideration, as the case may be, timely determined by the
Board to constitute the stated capital applicable to such shares, in
the case of shares of Preferred Stock;
(i) in the case of shares of Preferred Stock of any series,
the Board will have taken all necessary corporate action to designate
and establish the terms of such series and will have caused a
certificate of designations respecting such series to be prepared and
filed with the Secretary of State of the State of Delaware;
(j) in the case of Warrants, the Board will have taken all
necessary corporate action to authorize the creation of and the terms
of such Warrants and the issuance of the Securities to be issued
pursuant thereto and to approve the warrant agreement relating thereto;
such warrant agreement will have been duly executed and delivered by
Lennox and the warrant agent thereunder appointed by Lennox; neither
such Warrants nor such warrant agreement will include any provision
that is unenforceable; and such Warrants or certificates representing
such Warrants will have been duly executed, countersigned, registered
and delivered in accordance with the provisions of such warrant
agreement;
(k) in the case of Depositary Shares, the Board will have
taken all necessary corporate action to establish the terms of the
Depositary Shares; the action with respect to the Preferred Stock
underlying such Depositary Shares referred to in paragraph (i) above
will have been taken; a depositary agreement (the "Depositary
Agreement") relating to the Depositary Shares and the related
depositary receipts evidencing such Depositary Shares ("Receipts") will
have been duly authorized and validly executed and delivered by Lennox
and a bank or trust company to be selected by Lennox, as depositary
(the "Depositary"), and such Depositary Agreement and such Receipts
will not include any provision that is unenforceable; the shares of
Preferred Stock underlying such Depositary Shares will have been
deposited with the Depositary under the applicable Depositary
Lennox International Inc. 4 January 31, 2002
Agreement; and the Depositary Receipts will have been duly executed,
countersigned, registered and delivered in accordance with the
appropriate Depositary Agreement;
(l) in the case of Debt Securities of any series issuable
under an Indenture:
o if such Debt Securities are Senior Debt Securities,
an indenture substantially in the form of the Senior
Indenture will have been duly executed and delivered
by Lennox and the trustee thereunder, and if such
Debt Securities are Subordinated Debt Securities, an
indenture substantially in the form of the
Subordinated Indenture will have been duly executed
and delivered by Lennox and the trustee thereunder;
o in accordance with the terms of the Indenture under
which such Debt Securities will be issued, the Board
will have taken all necessary corporate action to
designate and establish the terms of such series of
Debt Securities and such Debt Securities will not
include any provision that is unenforceable;
o if such Debt Securities are to be issued with Debt
Guarantees, all necessary corporate action to approve
and establish such Debt Guarantees will have been
taken by the Lennox Party issuing such Debt
Guarantees and the supplemental indenture or other
instrument establishing such Debt Guarantees will
have been duly executed and delivered by such Lennox
Party and any other person who is a party to such
supplemental indenture or instrument, and such Debt
Guarantees will not contain any provision that is
unenforceable;
o the Indenture under which such Debt Securities will
be issued will have become qualified under the Trust
Indenture Act of 1939, as amended; and
o forms of Debt Securities, including, if applicable,
the related Debt Guarantees, complying with the terms
of the Indenture under which such Debt Securities
will be issued and evidencing such Debt Securities
and, if applicable, the related Debt Guarantees, will
have been duly executed, authenticated, issued and
delivered in accordance with the provisions of such
Indenture;
(m) in the case of Trust Guarantees, the Board will have taken
all necessary corporate action to establish the terms thereof; a
guarantee agreement substantially in the form of the Guarantee
Agreement will have been duly executed and delivered by Lennox and the
trustee thereunder; such guarantee agreement will have become qualified
under the Trust Indenture Act of 1939, as amended, and will not contain
any provision that is unenforceable; and such Trust Guarantees will
have been duly issued and delivered in accordance with the provisions
of such guarantee agreement;
(n) in the case of Stock Purchase Contracts, the Board will
have taken all necessary corporate action to establish the terms
thereof and to approve the purchase contract
Lennox International Inc. 5 January 31, 2002
agreement relating thereto; such Stock Purchase Contracts and purchase
contract agreement will have been duly executed and delivered by the
parties thereto; and neither such Stock Purchase Contracts nor such
purchase contract agreement will include any provision that is
unenforceable; and
(o) in the case of Stock Purchase Units, the Board will have
taken all necessary corporate action to establish the terms of such
Stock Purchase Units and the terms of the Securities, if any, such
Stock Purchase Units include; the action with respect to the Stock
Purchase Contracts included in such Stock Purchase Units referred to in
paragraph (n) above will have been taken; if such Stock Purchase Units
include Trust Securities, such Trust Securities will be legal, valid
and binding obligations of the applicable Trust, enforceable against
the applicable Trust in accordance with their terms; if such Stock
Purchase Units include securities other than Securities or Trust
Securities, such other securities will have been duly and validly
executed, issued and delivered by the issuer thereof and will be legal,
valid and binding obligations of such issuer, enforceable against such
issuer in accordance with their respective terms; and no agreement or
other instrument establishing such Stock Purchase Units or defining the
rights of the holders of such Stock Purchase Units will contain any
provision that is unenforceable.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The shares of Common Stock and Preferred Stock included in
the Securities will, when issued, have been duly authorized and validly
issued and will be fully paid and nonassessable.
2. The Warrants and the Depositary Shares included in the
Securities will, when issued, have been duly authorized and validly
issued.
3. The Debt Securities, Trust Guarantees, Stock Purchase
Contracts and Stock Purchase Units included in the Securities will,
when issued, constitute legal, valid and binding obligations of Lennox,
enforceable against Lennox in accordance with their respective terms,
except as that enforcement is subject to (a) any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or other laws relating to or affecting creditors' rights
generally, (b) general principles of equity (regardless of whether that
enforceability is considered in a proceeding in equity or at law) and
(c) any implied covenants of good faith and fair dealing.
4. Each Debt Guarantee of Industries, Armstrong, Excel,
Service Experts or Global relating to any Debt Securities included in
the Securities will, when issued, constitute a legal, valid and binding
obligation of Industries, Armstrong, Excel, Service Experts or Global,
as applicable, enforceable against Industries, Armstrong, Excel,
Service Experts or Global, as applicable, in accordance with its terms,
except as that enforcement is subject to (a) any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or other laws relating to or affecting creditors' rights
generally, (b) general principles of equity (regardless of whether that
enforceability is considered in a proceeding in equity or at law) and
(c) any implied covenants of good faith and fair dealing.
Lennox International Inc. 6 January 31, 2002
The opinions set forth above are limited in all respects to
matters of the contract law of the State of New York, the General Corporation
Law of the State of Delaware and applicable federal law. We hereby consent to
the filing of this opinion of counsel as Exhibit 5.1 to the Registration
Statement. We also consent to the reference to our Firm under the heading "Legal
Matters" in the prospectus forming a part of the Registration Statement. In
giving this consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Baker Botts L.L.P.