OPINION OF TROUTMAN SANDERS
Published on February 29, 2008
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TROUTMAN SANDERS
LLP
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ATTORNEYS
AT LAW
222
Central Park Avenue
Suite
2000
VIRGINIA
BEACH, VIRGINIA 23462
www.troutmansanders.com
TELEPHONE: 757-687-7500
FACSIMILE: 757-687-7510
Exhibit
5.1
February
29, 2008
Dynex
Capital, Inc.
4551 Cox
Road, Suite 300
Glen
Allen, Virginia 23060
Re: Dynex
Capital, Inc.
Registration Statement on
Form S-3
Ladies
and Gentlemen:
We have acted as counsel to Dynex
Capital, Inc., a Virginia corporation (the “Company”), in connection with the
registration statement on Form S-3 (the “Registration Statement”) filed on the
date hereof by the Company with the Securities and Exchange Commission (the
“Commission”). The Registration Statement relates to the issuance and
sale by the Company from time to time, pursuant to Rule 415 (“Rule 415”) of the
General Rules and Regulations promulgated under the Securities Act of 1933, as
amended (the “Securities Act”), of the following securities with a proposed
maximum aggregate offering price of up to
$1,000,000,000: (1) shares of common stock, $0.01 par value per
share (the “Common Stock”); (2) shares of preferred stock, $0.01 par value
per share, to be issued in one or more series (the “Preferred Stock”); (3) debt
securities, in one or more series, any series of which may be either senior debt
securities or subordinated debt securities (collectively, the “Debt
Securities”); and (4) warrants to purchase Common Stock, Preferred Stock or Debt
Securities (the “Warrants”). The Common Stock, the Preferred Stock,
the Debt Securities and the Warrants are collectively referred to herein as the
“Offered Securities.”
The
Offered Securities will be sold or delivered from time to time in amounts, at
prices and on terms to be determined at the time of the offering as set forth in
the Registration Statement, any amendments thereto, the prospectus contained
therein (the “Prospectus”) and supplements to the Prospectus (each, a
“Prospectus Supplement”). The Debt Securities will be issued under
indentures (each, an “Indenture”), applicable forms of which will be filed by
amendment or incorporated by reference in the Registration Statement in
connection with the offering of any Debt Securities, as
appropriate.
ATLANTA • HONG KONG • LONDON • NEWARK • NEW YORK • NORFOLK • RALEIGH
RICHMOND • SHANGHAI • TYSONS CORNER • VIRGINIA BEACH • WASHINGTON, D.C.
TROUTMAN SANDERS LLP
ATTORNEYS
AT LAW
Dynex
Capital, Inc.
February
29, 2008
Page
2
In
connection with this opinion, we have examined and relied upon originals or
copies, certified or otherwise identified to our satisfaction, of: (1) the
Registration Statement; (2) the Articles of Incorporation of the Company
effective February 4, 1988 and amendments thereto (collectively, the
“Articles”), as in effect on the date hereof; (3) the Bylaws of the Company as
amended and restated June 15, 2006 (the “Bylaws”) and as in effect on the date
hereof; and (4) a copy of certain resolutions of the Board of Directors of the
Company (the “Board”) (or a duly authorized committee thereof) relating to the
issuance and sale of the Offered Securities and other matters.
In our examination, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, conformed,
photostatic, electronic or facsimile copies and the authenticity of the
originals of such documents. In making our examination of executed
documents or documents to be executed, we have assumed that the parties thereto,
other than the Company, had or will have the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties, of such documents and that (except to the extent we
have opined on such matters below) such documents constitute or will constitute
valid and binding obligations of the parties thereto. As to any facts
material to the opinions expressed herein which we have not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Company and others. We have
further assumed, at and prior to the time of the sale and delivery of any
Offered Securities pursuant to the Registration Statement, (1) the Board will
have duly established the rights, powers, privileges and preferences and other
terms, if any, of any class or series, as applicable, of the Offered Securities
and that as established will not violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the Company
or any of its subsidiaries and will comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company
or any of its subsidiaries; (2) the Registration Statement, as finally amended
(including all necessary post-effective amendments thereto), will have become
effective under the Securities Act and no stop order suspending its
effectiveness will have been issued and remain in effect; (3) an appropriate
Prospectus Supplement or term sheet with respect to the Offered Securities will
have been prepared, delivered and filed in compliance with the Securities Act
and the applicable rules and regulations thereunder; and (iv) if the Offered
Securities are being sold pursuant to a firm commitment underwritten offering,
the underwriting agreement with respect to the Offered Securities will have been
duly authorized, executed and delivered by the Company and the other parties
thereto.
TROUTMAN SANDERS LLP
ATTORNEYS
AT LAW
Dynex
Capital, Inc.
February
29, 2008
Page
3
Our opinions set forth below are
limited to the laws of the Commonwealth of Virginia that, in our experience, are
normally applicable to transactions of the type contemplated by the Registration
Statement and, to the extent that judicial or regulatory orders or decrees or
consents, approvals, licenses, authorizations, validations, filings, recordings
or registrations with governmental authorities are relevant, to those required
under such laws (all of the foregoing being referred to as “Opined on
Law”). We do not express any opinion with respect to the laws of any
jurisdiction other than Opined on Law or as to the effect of any such non-Opined
on Law on the opinions herein stated. The Offered Securities may be issued
from time to time on a delayed or continuous basis, and this opinion is limited
to the laws, including the rules and regulations, as in effect on the date
hereof, which laws are subject to change with possible retroactive
effect.
The opinions expressed below, relating
to whether the Offered Securities described therein will be legal, valid and
binding obligations of the Company, are subject to the exception that
enforcement thereof may be limited by (1) applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, liquidation, receivership,
conservatorship, readjustment of debt, arrangement, moratorium or other laws
relating to or affecting the rights of creditors generally and general
principles of materiality, reasonableness, good faith and fair dealing; (2) the
possible unavailability of specific performance, injunctive relief or other
equitable remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law; (3) public policy considerations that may limit
the rights of the parties to obtain further remedies; and (iv) the waiver of any
usury defense contained in any Indenture that may be unenforceable.
This
opinion is delivered in accordance with the requirements of Item 601(b)(5) of
Regulation S-K.
Based upon and subject to the foregoing
and the limitations, qualifications, exceptions and assumptions set forth
herein, we are of the opinion that:
1. With
respect to any Common Stock (including any Common Stock issued upon the exchange
or conversion of Debt Securities or Preferred Stock that are exchangeable for or
convertible into Common Stock or upon the exercise of Warrants) to be offered
pursuant to the Registration Statement (the “Offered Common Stock”), when (1)
the Offered Common Stock has been duly authorized by the Board; (2) the Offered
Common Stock has been duly issued and delivered to the purchasers thereof
against payment of the agreed-upon consideration therefor in the manner
contemplated in the Registration Statement or any Prospectus Supplement or term
sheet relating thereto; (3) in the case of any Offered Common Stock to be issued
under any Warrants, due exercise of and payment of the exercise price specified
in such Warrants has occurred; and (4) in the case of any Offered Common Stock
to be issued upon the exchange or conversion of Debt Securities or Preferred
Stock that are exchangeable for or convertible into Common Stock, due exercise
of such exchange or conversion rights in accordance with the terms
TROUTMAN SANDERS LLP
ATTORNEYS
AT LAW
Dynex
Capital, Inc.
February
29, 2008
Page
4
of the
applicable instruments has occurred, the Offered Common Stock, when issued and
sold in accordance with the applicable underwriting agreement, if any, or any
other duly authorized, executed and delivered valid and binding purchase or
agency agreement, will be duly authorized, validly issued and will be fully paid
and non-assessable.
2. With
respect to any Preferred Stock (including any Preferred Stock issued upon the
exercise of any Warrants) to be offered pursuant to the Registration Statement
(the “Offered Preferred Stock”), when (1) the Offered Preferred Stock has been
duly authorized by the Board; (2) appropriate articles of amendment with respect
to such Preferred Stock have been filed; (3) the Offered Preferred Stock has
been duly issued and delivered to the purchasers thereof against payment of the
agreed-upon consideration therefor in the manner contemplated in the
Registration Statement or any Prospectus Supplement or term sheet relating
thereto; and (4) in the case of any Offered Preferred Stock to be issued under
any Warrants, due exercise of and payment of the exercise price specified in
such Warrants has occurred, the Offered Preferred Stock, when issued and sold in
accordance with the applicable underwriting agreement, if any, or any other duly
authorized, executed and delivered valid and binding purchase or agency
agreement, will be duly authorized, validly issued and will be fully paid and
non-assessable.
3. With
respect to any Debt Securities (including any Debt Securities issued upon the
exercise of any Warrants) to be offered pursuant to the Registration Statement
(the “Offered Debt Securities”), when (1) the Indenture relating to such Offered
Debt Securities has been filed by amendment to or incorporated by reference in
the Registration Statement and has been qualified under the Trust Indenture Act
of 1939, as amended, and such Indenture has been duly authorized, executed and
delivered by the Company and the trustee named in such Indenture; (2) the
Company’s Board has duly adopted final resolutions authorizing the issuance and
sale of such Debt Securities, as contemplated by the Registration Statement, the
Prospectus, the applicable Prospectus Supplement and the applicable Indenture;
(3) in the case of any Offered Debt Securities to be issued under any Warrants,
due exercise of and payment of the exercise price specified in such Warrants has
occurred; and (4) the Offered Debt Securities have been duly executed and
countersigned in accordance with the applicable Indenture and duly issued and
delivered to the purchasers thereof against payment of the agreed-upon
consideration therefor in the manner contemplated in the Registration Statement
or any Prospectus Supplement or term sheet relating thereto, the Offered Debt
Securities, when issued and sold in accordance with the applicable Indenture and
the applicable underwriting agreement, if any, or any other duly authorized,
executed and delivered valid and binding purchase or agency agreement, will be
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
TROUTMAN SANDERS LLP
ATTORNEYS
AT LAW
Dynex
Capital, Inc.
February
29, 2008
Page
5
4. With
respect to any Warrants to be offered pursuant to the Registration Statement
(the “Offered Warrants”), when (1) the execution and delivery of a Warrant
agreement related to the Offered Warrants (each, a “Warrant Agreement”) has been
authorized by the Board; (2) the Warrant Agreement has been duly executed and
delivered on behalf of the Company and the warrant agent named therein; and (3)
the Warrants have been duly executed, countersigned, issued and delivered
against payment of the consideration therefor specified in any applicable
underwriting agreement or purchase agreement approved by the Board and otherwise
in accordance with the Warrant Agreement and such agreement, the Warrants will
be legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
We hereby
consent to the filing of this opinion with the Commission as an exhibit to the
Registration Statement. We also consent to the reference to our firm under
the heading “Legal Matters” in the Registration Statement. In giving this
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the Rules and
Regulations of the Commission. This opinion is expressed as of the date
hereof unless otherwise expressly stated, and we disclaim any undertaking to
advise you of any subsequent changes of the facts stated or assumed herein or
any subsequent changes in applicable law.
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Very
truly yours,
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/s/
Troutman Sanders LLP
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