EXHIBIT 5.1
[Arendt & Medernach Letterhead]
Converium AG
General Guisan Quai 26
CH-8002 Zurich, Switzerland
Converium Holding AG
Baarerstrasse 8
CH-6300 Zug, Switzerland
Converium Finance S.A.
Boulevard Napoleon Ier, 54
L-2210 Luxembourg
Luxembourg, December 18, 2002
GH/OP - 21411.019L
Ladies and Gentlemen,
We are lawyers admitted to practice under the laws of Luxembourg.
We have acted as counsel in Luxembourg for Converium Finance S.A. (the
"COMPANY") in connection with the Company's registration statement on Form F-1
Registration Statement (Registration Number 333-101169) filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
on November 12, 2002, on December 11, 2002 and on the date hereof (the
"REGISTRATION STATEMENT"), relating to the registration of Guaranteed
Subordinated Notes due 2032 (the "NOTES") to be issued pursuant to an indenture
(the "INDENTURE") to be entered into by and between the Company as Issuer,
Converium AG and Converium Holding AG as Guarantors and JPMorgan Chase Bank as
Trustee and Paying Agent.
The Indenture and the Notes are hereinafter collectively referred to as the
"OPINION DOCUMENTS".
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Opinion Documents.
This opinion is limited to Luxembourg law of general application at the date of
this opinion as currently applied by the Luxembourg courts, and is given on the
basis that it will be governed by and construed in accordance with Luxembourg
law. We have made no investigation of, and do not express or imply any views on
the laws of any country other than Luxembourg. Luxembourg courts have exclusive
jurisdiction with respect to this opinion.
For the purpose of this opinion, we have examined:
(i) a non-executed copy of the Indenture;
(ii) a non-executed form of the Notes as included in the Indenture;
(iii) an executed copy of the Registration Statement;
(iv) a copy of the articles of incorporation of the Company as of
October 7, 2002 (the "ARTICLES OF INCORPORATION");
(v) an executed copy of the circular resolution of the board of directors
of the Company dated December 4, 2002 (the "BOARD MINUTES").
We have assumed:
i) the genuineness of all signatures on all documents as well as the
completeness and conformity to original documents of all copies and/or
other specimen documents submitted to us;
ii) that the copies of the Articles of Incorporation and of the Board
Minutes submitted to us for examination, are true, complete and up to
date copies;
iii) that the Board Minutes and the Opinion Documents were completed and
refer to a same interest rate applicable to the Notes;
iv) that the total amount of the Notes to be issued does not exceed
201,250,000 $;
v) that the Opinion Documents have been or will be executed by each of
the parties thereto in the form examined by us;
vi) that the Opinion Documents have been or will be executed by the
persons authorized to sign such documents for and on behalf of the
Company as indicated in the Board Minutes;
vii) that all consents, approvals, authorisations, or orders required from
any governmental or other regulatory authorities outside Luxembourg
and all other requirements outside Luxembourg for the legality,
validity and enforceability of the Opinion Documents have been duly
obtained or fulfilled and are and will remain in full force and effect
and that any conditions to which the Opinion Documents are subject
have been satisfied;
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viii) that there are no provisions of the laws of any jurisdiction other
than Luxembourg which would be contravened by the execution of the
Opinion Documents and that, insofar as any obligation to be incurred
or performed under the Opinion Documents is to be performed in or is
otherwise subject to the laws of any jurisdiction other than
Luxembourg, its performance will not be illegal by virtue of the laws
of that jurisdiction;
ix) that the Opinion Documents constitute the legal, valid, binding and
enforceable obligations of the parties thereto for all purposes of the
laws of the State of New York to which it is expressly made subject
except for the subordination provisions in the Subordination
Guarantee;
x) that any agreement or document referred to in the Opinion Documents
constitutes the legal, valid, binding and enforceable obligations of
the parties thereto for all purposes of the respective law to which it
is subject;
xi) that all representations and warranties, if any, set out in the
Opinion Documents (other than representations and warranties as to
matters of Luxembourg law on which we express an opinion herein) are
and will be true and accurate when made;
xii) that any present or future collateral as referred to in the Opinion
Documents or as referred to in any agreement or document referred to
in the Opinion Documents is not and will not be located or deemed to
be located in Luxembourg;
xiii) that the above-mentioned meeting of the board of directors of the
Company was properly convened; that all directors who attended and
voted at such meeting were entitled to do so; that the resolutions
passed by the board of directors at such meeting were properly passed
and that the directors have properly performed their duties and all
provisions relating to the declaration of directors' interests or the
power of interested directors to vote were fully observed;
xiv) that the Company has complied with all legal requirements of the
Luxembourg law of May 31, 1999 regarding the domiciliation of
companies, if applicable;
xv) that the execution by the Company of the Opinion Documents and the
performance by the Company of its obligations under the Opinion
Documents is in its corporate interest;
xvi) that the issue of Notes will not be considered as a public offering
within the meaning of article 80 of the Luxembourg law on commercial
companies, as amended;
xvii) that the Notes will not be listed on the Luxembourg Stock Exchange,
unless the relevant requirements of Luxembourg law concerning such
listing have been fulfilled;
xviii) that the Notes are and remain in registered form only.
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Subject as mentioned herein, we are of the following opinion:
1. The Company has been duly incorporated as a societe anonyme and is validly
existing under the laws of the Grand-Duchy of Luxembourg. We also inquired
on the date hereof with the Greffe de la 2eme section du Tribunal
d'Arrondissement de et a Luxembourg as to whether bankruptcy proceedings
against the Company have been filed with the court. The person to whom we
spoke confirmed orally that to her knowledge no order or resolution for the
winding-up of the Company and no notice of appointment of a receiver
(curateur) has been filed or was currently pending before the court.
2. The Company has the necessary corporate power under its Articles of
Incorporation to execute the Opinion Documents and to perform its
obligations under the Opinion Documents.
3. The Company has taken all necessary corporate action to authorize the entry
into and the performance of the Opinion Documents.
4. The execution of the Opinion Documents by the Company and the Company's
performance of its obligations under the Opinion Documents do not violate
or conflict with any Luxembourg law, rule or regulation applicable to it or
any provision of its Articles of Incorporation.
This opinion is subject to the following reservations:
(i) if the Opinion Documents were produced in proceedings before a
Luxembourg court, such court may require that all or part of the
Opinion Documents, or any of the documents or agreements referred to
therein, be translated into French or German and registration of any
such documents exhibited in any court proceedings or before any
official authority (autorite constituee) in Luxembourg might be
ordered, the registration tax being a fixed rate of 12,- EUR or an ad
valorem rate depending on the nature of the registered document;
(ii) any court action brought by the Company is inadmissible until the
publication of its Articles of Incorporation in the official journal
called Memorial C, Recueil des Societes et Associations;
(iii) in case of default by the Company under any of its obligations, a
Luxembourg court may grant damages rather than order specific
performance;
(iv) a contractual provision allowing the service of process against the
Company to a service agent could be overridden by Luxembourg statutory
provisions allowing the valid securing of process against the Company
in accordance with applicable laws only at the domicile of the
Company;
(v) any enforcement against the Company would be subject to insolvency
laws affecting creditors generally;
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(vi) if proceedings were brought before a Luxembourg court, the effects of
a trust may not be recognized in respect of assets located in
Luxembourg;
(vii) whilst, in the event of proceedings being brought in a Luxembourg
court in respect of a monetary obligation expressed to be payable in a
currency other than Euro, a Luxembourg court would have power to give
judgement expressed as an order to pay a currency other than Euro,
enforcement of the judgement against the Company in Luxembourg would
be available only in Euro;
(viii) we express no opinion with respect to tax matters;
(ix) any provision in the Opinion Documents stating that any rights and
obligations shall bind successors and assigns of any party thereto may
not be enforceable in Luxembourg in the absence of any further
agreements to that effect with such successors and assigns;
(x) a Luxembourg court may determine contractually agreed evidence not to
be conclusive and binding;
(xi) a contractual provision conferring or imposing a remedy, an obligation
or penalty consequent upon default may not be fully enforceable if it
were construed under Luxembourg laws and by a Luxembourg court as
constituting an excessive pecuniary remedy;
(xii) we express no opinion on the validity or enforceability under
Luxembourg laws and before a Luxembourg court of any provisions
providing for renunciation, before litigation arises, to the right to
bring a claim in court;
(xiii) law suits in Luxembourg courts must be brought in the name of the
principal and not in the name of the agent of the principal (nul ne
plaide par procureur);
(xiv) we express no opinion as to the validity or enforceability as to any
provisions providing for interest payable on due and payable interest;
(xv) a Luxembourg court will refuse to give effect to any particular
provisions of a foreign law if its application in the circumstances of
the case would either be contrary to the mandatory rules of Luxembourg
law or incompatible with Luxembourg international public policy of
international public order;
(xvi) where any party to any of the Opinion Documents is vested with a
discretion or may determine a matter in its opinion, Luxembourg law
may require that such discretion is exercised reasonably or that such
opinion is based on reasonable grounds;
(xvii) a termination condition is implicitly included in every loan agreement
taking the form of a bond issue in the event of either of the parties
failing to satisfy its obligations. In such case, the contract shall
not be terminated ipso jure. The party against whom the obligation is
in default shall have the option either of enforcement in kind of the
agreement where this is possible or to apply for termination thereof
with damages. Such
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termination must be sought by application to the courts and the
defendant may be granted a grace period, depending on the
circumstances.
In this opinion Luxembourg legal concepts are expressed in English terms and not
in their original French terms used in Luxembourg laws. The concepts concerned
may not be identical to the concepts described by the same English terms as they
exist under the laws of other jurisdictions. This opinion may, therefore, only
be relied upon under the express condition that any issues of interpretation
arising thereunder be governed by Luxembourg law and be brought before a court
in Luxembourg.
This opinion is addressed to the addressee solely for its benefit and on whose
behalf it is acting and solely for the purpose of the Opinion Documents. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the prospectus which is part of the Registration Statement. Except as provided
in the immediately preceding sentence, it is not to be transmitted to any other
person nor is it to be relied upon by any other person (other than the legal
adviser(s) of the addressee of this opinion) verified or for any other purpose
quoted or referred to in any public document or filed with any governmental
agency or other person without our consent. This opinion is strictly limited to
the matters stated herein and does not extend to, and is not to be read as
extending by implication to, any agreement or document referred to in the
Opinion Documents or otherwise.
Yours faithfully,
/s/ Oliver Peters /s/ Guy Harles
Olivier Peters Guy Harles
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