Exhibit 5.1
[LETTERHEAD OF GARY W. KYLE, ESQ.]
December 19, 2000
Sempra Energy
101 Ash Street
San Diego, CA 92101
Re: Registration Statement on Form S-3 of Sempra Energy,
Sempra Energy Global Enterprises, Sempra Energy Capital Trust
II and Sempra Energy Capital Trust III
---------
Ladies and Gentlemen:
I am the Chief Corporate Counsel of Sempra Energy, a California
corporation. In connection with the registration statement on Form S-3 filed on
December 19, 2000 (the "Registration Statement") by Sempra Energy, a California
Corporation, Sempra Energy Global Enterprises, a California corporation, Sempra
Energy Capital Trust II, a Delaware Trust, and Sempra Energy Capital Trust III,
a Delaware Trust (collectively, the "Registrants") with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), you have requested my opinion with respect to
the matters set forth below.
I have reviewed the prospectus (the "Prospectus") which is a part of
the Registration Statement. The Prospectus provides that it will be supplemented
in the future by one or more supplements to the Prospectus (each a "Prospectus
Supplement"). The Prospectus as supplemented by various Prospectus Supplements
will provide for the registration of up to $1,000,000,000 aggregate offering
price of (i) one or more series of unsecured senior or subordinated debt
securities (the "Debt Securities") which may be issued by Sempra Energy or
Sempra Energy Global Enterprises, (ii) shares of common stock, without par
value, which may be issued by Sempra Energy (the "Common Stock"), (iii) shares
of preferred stock, without par value, which may be issued by Sempra Energy (the
"Preferred Stock"), (iv) preferred securities (the "Preferred Securities") which
may be issued by each Trust pursuant to their respective Amended and Restated
Declarations of Trust (each an "Amended Declaration") and (v) guarantees of the
Preferred Securities, which may be issued by Sempra Energy (the "Preferred
Securities Guarantees"), and the Debt Securities issued by Sempra Energy Global
Enterprises (the "Debt Securities Guarantees" and, together with the Preferred
Securities Guarantees, the "Guarantees") described below pursuant to one or more
guarantee agreements (each a "Guarantee Agreement"). The Debt Securities, the
Guarantees and the Common and Preferred Stock are collectively referred to
herein as the "Securities." Any Debt Securities may be exchangeable and/or
convertible into shares of Common Stock. The Debt Securities may be issued
pursuant to one or more indentures and one or more supplements thereto
(collectively, the
"Indentures"), in each case between Sempra Energy or Sempra Energy Global
Enterprises and a trustee (each, a "Trustee").
In my capacity as Chief Corporate Counsel, I am generally familiar
with the proceedings taken and proposed to be taken by the Registrants in
connection with the authorization and issuance of the Securities. For purposes
of this opinion, I have assumed that such proceedings will be timely and
properly completed, in accordance with all requirements of applicable federal,
Delaware, California and New York laws, in the manner presently proposed.
I have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to my satisfaction, of all such documents, corporation records and
instruments of the Registrants as I have deemed necessary or appropriate for
purposes of this opinion. In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals,
and the conformity to authentic original documents of all documents submitted to
me as copies.
I have been furnished with, and with your consent have exclusively
relied upon, certificates of officers of Sempra Energy with respect to certain
factual matters. In addition, I have obtained and relied upon such certificates
and assurances from public officials as I have deemed necessary.
I am opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States, the General Corporation Law
of the State of Delaware and the State of California and with respect to opinion
paragraphs 1, 2 and 3 below, the internal laws of the State of New York, and I
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of Delaware and
California, any other laws, or as to any matters of municipal law or the laws of
any local agencies within any state.
Subject to the foregoing and the other qualifications set forth
herein, it is my opinion that, as of the date hereof:
1. When (a) the Debt Securities have been duly established in
accordance with the terms of the applicable Indentures (including, without
limitation, the adoption by the Board of Directors of Sempra Energy and/or
Sempra Energy Global Enterprises of any necessary further resolutions duly
authorizing the issuance and delivery of the Debt Securities), duly
authenticated by the Trustee and duly executed and delivered on behalf of Sempra
Energy and/or Sempra Energy Global Enterprises against payment therefor in
accordance with the terms and provisions of the applicable Indenture and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (b) when each of the Registration Statement and
any required post-effective amendment thereto have all become effective under
the Securities Act and (c) assuming that the terms of the Debt Securities as
executed and delivered are as described in the Registration Statement, the
Prospectus and the related prospectus Supplement(s), and (d) assuming that the
Debt Securities as executed and delivered do not violate any law applicable to
the issuing company or result in a default under or breach of any agreement or
instrument binding upon the issuing company, and (e) assuming that the Debt
Securities as executed and delivered comply with all requirements and
restrictions, if any, applicable to the issuing company, whether imposed by any
court or governmental or regulatory body having jurisdiction over the issuing
company, and (f) assuming that the Debt Securities are then issued and sold as
contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), the Debt Securities will constitute valid and legally
binding obligations of the issuing company enforceable against the issuing
company in accordance with the terms of the Debt Securities.
2. When (a) the Debt Securities Guarantees and the related Debt
Securities have been duly established in accordance with the terms of the
applicable Indentures (including, without limitation, the adoption by the Board
of Directors of Sempra Energy of any necessary further resolutions duly
authorizing the issuance and delivery of the Debt Securities Guarantees and the
related Debt Securities), the Debt Securities Guarantees have been duly executed
and delivered and the related Debt Securities have been authenticated by the
Trustee and duly executed and delivered on behalf of Sempra Energy against
payment therefor in accordance with the terms and provisions of the applicable
Indenture and as contemplated by the Registration Statement, the Prospectus and
the related Prospectus Supplement(s), and (b) when each of the Registration
Statement and any required post-effective amendment thereto have all become
effective under the Securities Act, and (c) assuming that the terms of the Debt
Securities Guarantees as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and (d) assuming that the Debt Securities Guarantees as executed and delivered
do not violate any law applicable to Sempra Energy or result in a default under
or breach of any agreement or instrument binding upon Sempra Energy, and (e)
assuming that the Debt Securities Guarantees as executed and delivered comply
with all requirements and restrictions, if any, applicable to Sempra Energy,
whether imposed by any court or governmental or regulatory body having
jurisdiction over Sempra Energy, and (f) assuming that the Debt Securities
Guarantees are then issued as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the Debt Securities
Guarantees will constitute valid and legally binding obligations of Sempra
Energy, enforceable against Sempra Energy in accordance with the terms of the
Debt Securities Guarantees.
3. With respect to the Preferred Securities Guarantees, when (i) the
trustees of the applicable Trust have taken all necessary action to adopt the
Amended Declaration and to fix and determine the terms of the applicable
Preferred Securities in accordance with the terms of the applicable Amendment
Declaration; (ii) the appropriate officers of Sempra Energy have taken all
necessary action to fix and determine the terms of the applicable Preferred
Securities Guarantees in accordance with the resolutions adopted by the Board of
Directors of Sempra Energy relating to the issuance and delivery of the
Preferred Securities; (iii) the terms of the applicable Preferred Securities and
the related Preferred Securities Guarantee and the issuance and sale thereof
have been duly established in conformity with the applicable amended Declaration
and applicable Guarantee Agreement, respectively, so as not to violate any
applicable law, the applicable Certificate of Trust, Declaration of Trust and
Amended Declaration, and the Articles of Incorporation and By-laws of Sempra
Energy, or result in a default under or breach of any agreement or instrument
binding upon the applicable Trust or Sempra Energy; (iv) the applicable
Guarantee Agreement has been duly executed and delivered;
(v) the applicable Preferred Securities have been duly issued and delivered by
the applicable Trust as contemplated by the Registration Statement and the
prospectus supplement relating thereto; (vi) certificates representing the
applicable Preferred Securities have been manually authenticated by an
authorized officer of the applicable Property Trustee (as defined in the
applicable Amended Declaration) for the applicable Preferred Securities and
registered by such Property Trustee and delivered to the purchasers thereof;
(vii) the applicable Trust receives the agreed-upon consideration therefor and
(viii) the applicable Guarantee Agreement shall have been qualified under the
Trust Indenture Act of 1939, as amended, the applicable Preferred Securities
Guarantee will be a valid and binding obligation of Sempra Energy enforceable in
accordance with its terms.
4. Sempra Energy has the authority pursuant to its Articles of
Incorporation to issue up to 750,000,000 shares of Common Stock and 50,000,000
shares of Preferred Stock. Upon adoption by the Board of Directors of Sempra
Energy of any necessary further resolutions in form and content as required by
applicable law and upon issuance and delivery of and payment for such shares in
the manner contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s) and by such resolution, such shares of common
Stock (including any Common Stock duly issued upon the exchange or conversion of
Debt Securities that are exchangeable or convertible into Common Stock) or
Preferred Stock will be validly issued, fully paid and nonassessable.
The opinions set forth in paragraphs 1 through 4 above are subject to
the following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor may be
brought; (iii) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of, or
contribution to, a party with respect to a liability where such indemnification
or contribution is contrary to public policy; (iv) requirements that a claim
with respect to any Guarantee denominated other than in United States dollars
(or a judgment denominated other than in United States dollars in respect of
such claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law; (v) governmental
authority to limit, delay or prohibit the making of payments outside the United
States or in a foreign currency, composite currency or current unit; (vi) I
express no opinion concerning the enforceability of any waiver of rights or
defenses with respect to stay, extension or usury laws; and (vii) I express no
opinion with respect to whether acceleration of Debt Securities may affect the
collectibility of any portion of the stated principle amount thereof which might
be determined to constitute unearned interest thereon.
I have assumed for purposes of this opinion that the applicable
Indenture constitutes the legally valid, binding and enforceable obligation of
each of Sempra Energy and Sempra Energy Global Enterprises enforceable against
each of Sempra Energy and Sempra
Energy Global Enterprises in accordance with its terms; and that Trustee for
each Indenture is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; that the Trustee is duly qualified
to engage in the activities contemplated by the applicable Indenture; that the
applicable Indenture has been duly authorized, executed and delivered by the
Trustee and constitutes a legally valid, binding and enforceable obligation of
the Trustee, enforceable against the Trustee in accordance with its terms; and
the Trustee is in compliance, generally and with respect to acting as Trustee
under the applicable Indenture, with all applicable laws and regulations; and
that the Trustee has the requisite organizational and legal power and authority
to perform its obligations under the applicable Indenture.
I consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Validity of
the Securities and the Guarantees" in the Prospectus included therein.
Very truly yours,
/s/ Gary W. Kyle
_____________________________
Gary W. Kyle, Esq.
Chief Corporate Counsel