1
Exhibit 5.1
______________, 1998
(212) 351-4000 C 97812-00004
Werner Holding Co. (DE), Inc.
Werner Holding Co. (PA), Inc.
Werner Co.
Gold Medal Ladder Company
Kentucky Ladder Company
Florida Ladder Company
Werner Management Co.
Werner Financial Inc.
R.D. Arizona Ladder Corp.
WIP Technologies, Inc.
Ardee Investment Co., Inc.
Olympus Properties, Inc.
Phoenix Management Services, Inc.
1105 North Market Street
Suite 1300
Wilmington, Delaware 19899
Re: Exchange of Senior Subordinated Notes Due 2007
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Ladies and Gentlemen:
We have acted as counsel for Werner Holding Co. (DE), Inc., a Delaware
corporation (the "Company"), its parent Werner Holding Co. (PA), Inc., a
Pennsylvania corporation (the "Parent") and its wholly-owned subsidiaries Werner
Co., a Pennsylvania corporation ("Werner Co."), Gold Medal Ladder Company, a
Pennsylvania corporation ("Gold Medal Ladder"), Kentucky Ladder Company, a
Pennsylvania corporation ("Kentucky Ladder"), Werner
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Management Co., a Pennsylvania corporation ("Werner Management"), Phoenix
Management Services, Inc., a Pennsylvania corporation ("Phoenix Management"),
Werner Financial Inc., a Delaware corporation ("Werner Financial"), WIP
Technologies, Inc., a Delaware corporation ("WIP Technologies"), Ardee
Investment Co., Inc., a Delaware corporation ("Ardee Investment"), Florida
Ladder Company, a Florida corporation ("Florida Ladder"), R.D. Arizona Ladder
Corp., an Arizona corporation ("R.D. Arizona Ladder"), and Olympus Properties,
Inc., an Illinois corporation ("Olympus Properties") (the Company, the Parent,
Werner Co., Gold Medal Ladder, Kentucky Ladder, Werner Management, Phoenix
Management, Werner Financial, WIP Technologies, Ardee Investment, Florida
Ladder, R.D. Arizona Ladder and Olympus Properties are collectively referred to
herein as the "Registrants"), in connection with the proposed offer by the
Company (the "Exchange Offer") to exchange $135,000,000 aggregate principal
amount of 10% Series A Senior Subordinated Notes Due 2007 (the "New Notes") of
the Company for a like aggregate principal amount of privately placed 10% Senior
Subordinated Notes Due 2007 (the "Old Notes"). The New Notes will be guaranteed
pursuant to the terms of the Indenture (as defined below) on a senior
subordinated basis (each, a "Guarantee") by each of the Parent, Werner Co., Gold
Medal Ladder, Kentucky Ladder, Werner Management, Phoenix Management, Werner
Financial, WIP Technologies, Ardee Investment, Florida Ladder, R.D. Arizona
Ladder and Olympus Properties (each, a "Guarantor"). The New Notes will be
issued pursuant to an Indenture dated as of November 24, 1997 (the "Indenture")
by and among the Company, the Guarantors and IBJ Schroder Bank & Trust company
(the "Trustee").
As such counsel, we have examined, among other things, (i) the
Registration Statement on Form S-4 (File No. 333-46607) filed by the Registrants
with the Securities and Exchange Commission (the "Commission") to register under
the Securities Act of 1933, as amended, the issuance of the New Notes and the
Guarantees, (ii) the Indenture, and (iii) the form of the New Notes to be issued
pursuant to the Indenture. The New Notes and the Indenture, which Indenture
contains the Guarantees, are sometimes referred to herein collectively as the
"Note Documents." We have also examined the proceedings and other actions taken
by the Company and the Guarantors in connection with the authorization,
execution and delivery of the Indenture and the issuance of the New Notes and
the Guarantees thereunder. We have also made such other inquiries and examined,
among other things, originals or copies, certified or otherwise identified to
our satisfaction, of such records, agreements, certificates, instruments and
other documents as we have considered necessary or appropriate for the purposes
of this opinion.
In rendering this opinion, we have assumed:
(a) The Guarantee of each of the Parent, Werner Co., Gold
Medal Ladder, Kentucky Ladder, Werner Management, Phoenix Management
has been legally issued by the Parent, Werner Co., Gold Medal Ladder,
Kentucky Ladder, Werner
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Management, Phoenix Management, respectively, and the Indenture
constitutes the binding agreement of the Parent, Werner Co., Gold Medal
Ladder, Kentucky Ladder, Werner Management, Phoenix Management,
respectively, to the extent the binding nature of the Indenture
involves matters governed by the laws of the Commonwealth of
Pennsylvania;
(b) The Guarantee of Florida Ladder, and the Indenture
constitutes the binding agreement of the Florida Ladder, to the extent
the binding nature of the Indenture involves matters governed by the
laws of the State of Florida;
(c) The Guarantee of R.D. Arizona Ladder, and the Indenture
constitutes the binding agreement of the R.D. Arizona Ladder, to the
extent the binding nature of the Indenture involves matters governed by
the laws of the State of Arizona;
(d) The Guarantee of Olympus Properties, and the Indenture
constitutes the binding agreement of the Olympus Properties, to the
extent the binding nature of the Indenture involves matters governed by
the laws of the State of Illinois;
(e) The due and valid execution and delivery of the Indenture
by the Trustee, and that the Indenture constitutes the legal, valid and
binding agreement of the Trustee; and
(f) The genuineness of all signatures, the legal capacity of
all natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity
of the originals of such latter documents.
Based upon the foregoing, and in reliance thereon, and subject to
receipt by the Company and the Guarantors from the Commission of an order
declaring the Registration Statement effective, we are of the opinion that:
1. The New Notes, when issued and delivered in exchange for the Old
Notes in the manner described in the Registration Statement and when executed
and authenticated as specified in the Indenture, will be legally issued and will
constitute binding obligations of the Company to the extent that the legal
issuance and binding nature of the New Notes involves matters governed by the
laws of the State of New York or the General Corporation Law of the State of
Delaware.
2. The Guarantee of each of the Parent, Werner Co., Gold Medal Ladder,
Kentucky Ladder, Werner Management, Phoenix Management, Florida Ladder, R.D.
Arizona Ladder and Olympus Properties, when issued and delivered in connection
with the exchange of the Old
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Notes in the manner described in the Registration Statement and when the New
Notes and such Guarantee have been executed and, in the case of the New Notes,
authenticated, as specified in the Indenture, will constitute a binding
obligation of the Parent, Werner Co., Gold Medal Ladder, Kentucky Ladder, Werner
Management, Phoenix Management, Florida Ladder, R.D. Arizona Ladder and Olympus
Properties, respectively, to the extent the binding nature of such Guarantee
involves matters governed by the laws of the State of New York.
3. The Guarantee of each of Werner Financial, WIP Technologies and
Ardee Investment, when issued and delivered in connection with the exchange of
the Old Notes in the manner described in the Registration Statement and when the
New Notes and such Guarantee have been executed and, in the case of the New
Notes, authenticated, as specified in the Indenture, will be legally issued and
will constitute a binding obligation of Werner Financial, WIP Technologies and
Ardee Investment, respectively, to the extent that the legal issuance and
binding nature of such Guarantee involve matters governed by the laws of the
State of New York or the General Corporation Law of the State of Delaware.
The foregoing opinions are subject to the following exceptions,
qualifications and limitations:
A. We render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of New York and the United States of America
and, with respect to the opinions set forth in paragraphs 1 and 3, the General
Corporation Law of the State of Delaware. This opinion is limited to the effect
of the present state of the laws of the State of New York and the United States
of America and the facts as they presently exist. We assume no obligation to
revise or supplement this opinion in the event of changes in such laws or the
interpretations thereof or in the event of changes in such facts.
B. Our opinions set forth herein are subject to (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws
affecting the enforcement of creditors' rights generally (including, without
limitation, the effect of statutory or other laws regarding fraudulent transfers
or preferential transfers) and (ii) general principles of equity, regardless of
whether a matter is considered in a proceeding in equity or at law, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing. Without limitation, we express no opinion as to the ability to obtain
specific performance, injunctive relief or other equitable relief as a remedy
for noncompliance with any of the Note Documents.
C. We express no opinion with respect to the validity, binding nature
or enforceability of any provision of the Note Documents to the effect that
rights or remedies are not exclusive, that every right or remedy is cumulative
and may be exercised in addition to any other right or remedy, that the election
of some particular remedy does not preclude recourse to
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one or more others or that failure to exercise or delay in exercising rights or
remedies will not operate as a waiver of any such right or remedy.
D. We express no opinion as to the effect on the enforceability of the
Guarantees against any Guarantor of any facts or circumstances that would
constitute a defense to the obligation of a guarantor or surety, unless such
defense has been waived effectively by such Guarantor.
E. We express no opinion as to the validity, binding nature or
enforceability (i) of provisions in the Note Documents providing for
indemnification or contribution or (ii) of any provision of any Note Document
insofar as it provides for the payment or reimbursement of costs and expenses or
indemnification for claims, losses or liabilities in excess of a reasonable
amount determined by any court or other tribunal.
F. We express no opinion with respect to the validity, binding nature
or enforceability of (i) any waivers of unknown future rights or waivers of
rights existing, or duties owed, that are broadly or vaguely stated or do not
describe the right or duty purportedly waived with reasonable specificity, (ii)
any waivers or consents (whether or not characterized as a waiver or consent in
the Note Documents) relating to the rights of the Company or any Guarantor or
duties owing to any of them existing as a matter of law, to the extent such
waivers or consents are found to be against public policy or are ineffective
pursuant to applicable statutes or judicial decisions, (iii) any waivers or
variations of rights of a debtor, including a guarantor, (iv) provisions in the
Note Documents imposing late payment charges or an increase in interest rate,
upon delinquency in payment or the occurrence of a default, to the extent that
such provisions are found to constitute a forfeiture or impose a penalty, (vi)
covenants (other than covenants relating to the payment of money, including
payment of principal, interest, indemnities and expenses) to the extent they are
construed to be independent requirements as distinguished from conditions
precedent to the occurrence of an event of default, and (vii) any rights of
setoff (other than such rights provided by Section 151 of the New York Debtor
and creditor Law Code as interpreted by applicable judicial decisions).
G. We express no opinion as to any provisions of the Note Documents
requiring written amendments or waivers of such documents insofar as it suggests
that oral or other modifications, amendments or waivers could not be effectively
agreed upon by the parties or that the doctrine of promissory estoppel might not
apply.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and we further consent to the use of our name under the
caption "Legal Matters" in the Prospectus forming a part of said Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the
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Securities Act of 1933, as amended, or the Rules and Regulations of the
Commission promulgated thereunder.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP