Exhibit 5.2
June 30, 2003
American Financial Capital Trusts II, III and IV
c/o American Financial Group, Inc.
One East Fourth Street
Cincinnati, OH 45202
Re: American Financial Capital Trusts II, III and IV
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Ladies and Gentlemen:
We have acted as special Delaware counsel to American
Financial Capital Trust II, a Delaware statutory trust ("AFC Trust II"),
American Financial Capital Trust III, a Delaware statutory trust ("AFC Trust
III"), and American Financial Capital Trust IV, a Delaware statutory trust ("AFC
Trust IV" and, collectively with AFC Trust II and AFC Trust III, the "Trusts"
and each a "Trust") in connection with certain matters of Delaware law relating
to the formation of the Trusts and the proposed issuance of preferred securities
in the Trusts to beneficial owners pursuant to and as described in the
Registration Statement (and the prospectus forming a part thereof) on Form S-3
filed with the Securities and Exchange Commission (the "Commission") by American
Financial Group, Inc., an Ohio corporation (the "Company"), and the Trusts 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 AFC
Trust II as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on February 4, 1997 (the "AFC Trust II
Certificate"); the Certificate of Trust of AFC Trust III as filed in the State
Office on June 25, 2003 (the "AFC Trust III Certificate"); the Certificate of
Trust of AFC Trust IV as filed in the State Office on June 25, 2003 (the "AFC
Trust IV Certificate" and collectively with the AFC Trust II Certificate and
the AFC Trust III Certificate, the "Certificates" and each a "Certificate"); a
Declaration of Trust of AFC Trust II dated as of February 3, 1997 (the "AFC
Trust II Original Governing Instrument"); a Declaration of Trust of AFC Trust
III dated as of June 20, 2003 (the "AFC Trust III Original Governing
Instrument"); a Declaration of Trust of AFC Trust IV dated as of June 20, 2003
(the "AFC Trust IV Original Governing Instrument" and collectively with the AFC
Trust II Original Governing Instrument and the AFC Trust III Original Governing
Instrument, the "Original Governing Instruments"); the Registration Statement;
the amended and restated declaration of trust
American Financial Capital Trusts II, III & IV
c/o American Financial Group, Inc.
June 30, 2003
Page 2
of American Financial Capital Trust I attached as an exhibit to Registration
Statement No. 333-12537 on Form S-3 filed with the Commission on September 24,
1996, as amended by Pre-Effective Amendment Nos. 1 and 2 thereto (the "AFC Trust
I Governing Instrument"); and a certification of good standing of the Trusts
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 (other than the Trusts) 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; (iii) that the Company, as sponsor, and each trustee of each of the
Trusts will duly authorize, execute and deliver an amended and restated
declaration of such Trust in the form of the AFC Trust I Governing Instrument
(with appropriate changes of names and completion as necessary) (each, a
"Governing Instrument") and all other documents contemplated thereby or by the
Registration Statement to be executed in connection with the issuance by each
Trust of "Preferred Securities" (as defined in the Governing Instrument of such
Trust and as used herein, "Preferred Securities") prior to the first issuance of
Preferred Securities of such Trust; (iv) that the Preferred Securities of each
Trust will be offered and sold pursuant to the prospectus forming a part of the
Registration Statement and a prospectus supplement thereto that sets forth the
specific terms of the Preferred Securities of each Trust (collectively, the
"Prospectus") that will be consistent with, and accurately describe, the terms
of each 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 Preferred Securities by each Trust, that would cause a
dissolution or liquidation of any Trust under the applicable Original
Governing Instrument or the applicable Governing Instrument; (vi) that the
activities of each Trust have been and will be conducted in accordance with its
Original Governing Instrument or its Governing Instrument, as applicable, and
the Delaware Statutory Trust Act, 12 Del. C. ss. 3801 et seq. (the "Delaware
Act"); (vii) that prior to the first issuance of Preferred Securities by each
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 Preferred Securities of each
Trust are otherwise issued and sold in accordance with the terms, conditions,
requirements and procedures set forth in the Governing Instrument of such Trust
and as described in the Prospectus; and (viii) that the documents examined by us
are in full force and effect, express the entire understanding of the parties
thereto with respect to the subject matter thereof and have not been amended,
supplemented or otherwise modified, except as herein referenced. We have not
reviewed any documents other than those identified above in connection with this
opinion, and we have assumed that there are no other documents contrary to or
inconsistent with the opinions expressed herein. No opinion is expressed with
respect to the requirements of, or compliance with, federal or state securities
or blue sky laws. We have not
American Financial Capital Trusts II, III & IV
c/o American Financial Group, Inc.
June 30, 2003
Page 3
participated in the preparation of the Registration Statement or any other
offering materials relating to the Preferred Securities offered by each Trust
and we assume no responsibility for their contents. 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 Trusts is a duly formed and validly existing
statutory trust in good standing under the laws of the State of Delaware.
2. Upon issuance, the Preferred Securities of each Trust will
constitute validly issued and, subject to the qualifications set forth below,
fully paid and nonassessable beneficial interests in the assets of the Trust. We
note that pursuant to Section 11.04 of the Governing Instrument of each Trust,
each Trust may withhold amounts otherwise distributable to a holder of Preferred
Securities of the Trust and pay over such amounts to the applicable
jurisdictions in accordance with federal, state and local law and any amount
withheld will be deemed to have been distributed to such holder of Preferred
Securities of the Trust and that, pursuant to the Governing Instrument, the
holder of Preferred Securities of the Trust may be obligated to make payments
or provide indemnity or security under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name 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 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. This opinion is
intended solely for the benefit of the addressee hereof in connection with the
matters contemplated hereby and may not be relied on by any other person or
entity or for any other purpose without our prior written consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL