Exhibit 5.2
26 September, 1996
To: Southern Investments UK plc
800 Park Avenue
Aztec West
Almondsbury
Bristol BS12 4SE
England
Dear Sirs:
We have acted as legal advisers as to English law to Southern
Investments UK plc, a public limited company incorporated under the laws of
England and Wales (the "Company"), in connection with the preparation of the
registration statement on Form S-1 (Registration No. 333-09033), filed by the
Company under the U.S. Securities Act of 1933, as amended, (the "Securities
Act") with the U.S. Securities and Exchange Commission (the "Commission") on
29/th/ July, 1996, and the amendments thereto filed by the Company with the
Commission on 28/th/ August, 1996 , and 26/th/ September, 1996, respectively
(the registration statement as amended being hereinafter referred to as the
"Registration Statement"), all in connection with the issue by the Company of
U.S. $235,000,000 aggregate principal amount of the Company's Senior Notes due
2006 (the "Senior Notes") to be issued under and governed by an Indenture (the
"Indenture") between the Company and the Bankers Trust Company, as trustee (the
"Trustee"). The Senior Notes will be represented by a global Note in bearer form
(the "Global Note") which will be deposited on issue with Bankers Trust Company,
as depositary (the "Book-entry Depositary"), under a deposit agreement (the
"Deposit Agreement") between (inter alia) the Company and the Book-Entry
Depositary. The Book-Entry Depositary will issue one or more certificateless
depositary interests (the "CDIs") with respect to the Senior Notes to The
Depository Trust Company ("DTC"), which will then record beneficial interests in
the Senior Notes. Beneficial interests in the Senior Notes that will be shown on
records maintained in book-entry form by DTC are referred to herein as the Book-
Entry Interests. Under certain circumstances as provided for in the Indenture,
holders of Book-Entry Interests will be entitled to receive definitive Senior
Notes in registered form (the "Definitive Registered Notes") in exchange for
their holdings of Book-Entry Interests. References herein to the Senior Notes
shall, unless the context otherwise requires, include the Global Note and the
Definitive Registered Notes.
We have examined copies of:
(a) the Memorandum and Articles of Association of the Company;
(b) a resolution of the Board of Directors of the Company passed on 26/th/
July, 1996;
(c) the Registration Statement;
(d) a draft dated 20/th/ August, 1996 of the underwriting agreement
relating to the Senior Notes (the "Underwriting Agreement") to be
entered into by the Company and others;
(e) a draft dated 24/th/ September, 1996 of the Indenture;
(f) a draft dated 24/th/ September, 1996 of the First Supplemental
Indenture (the "First Supplemental Indenture") to be made between the
Company and the Trustee including the form of the Global Note;
To: Southern Investments UK plc 26/th/ September, 1996
Page : 2
(g) a draft dated 23/rd/ September, 1996 of the Deposit Agreement; and
(h) a certificate of the Secretary to the effect that the issue of the
Senior Notes will not cause any limit on borrowings to which the
Company is subject to be exceeded.
Our opinion is confined solely to the laws of England.
The Underwriting Agreement, the Indenture, the First Supplemental
Indenture and the Deposit Agreement will be expressed to be governed by the laws
of the State of New York. We have made no investigation of such laws and do not
express or imply any opinion on such laws.
We have assumed that:
(i) each of the Underwriting Agreement, the Indenture, the First
Supplemental Indenture, the Deposit Agreement and the Global Note will
be executed and delivered in the form of the relevant draft referred
to above;
(ii) insofar as any obligation falls to be performed in any jurisdiction
outside England, its performance will not be illegal or ineffective by
virtue of the laws of that jurisdiction;
(iii) all signatures on the executed documents which, or copies of which, we
have examined are genuine;
(iv) each of the parties to the Underwriting Agreement, the Indenture, the
First Supplemental Indenture and the Deposit Agreement, other than the
Company, is able lawfully to enter into and to perform such agreement;
(v) the execution and delivery of the Underwriting Agreement, the
Indenture, the First Supplemental Indenture and the Deposit Agreement
have been duly by each of the parties thereto, other than the Company,
and that such documents will be duly executed and delivered by such
parties (other than the Company);
(vi) each of the parties to the Underwriting Agreement, the Indenture, the
First Supplemental Indenture and the Deposit Agreement who is carrying
on, or purporting to carry on, investment business in the United
Kingdom is an authorised person or an exempted person under the
Financial Services Act 1986 (the "FSA");
(vii) the copy of the Memorandum and Articles of Association of the Company
referred to above is true and up-to-date, and the resolution referred
to above was duly passed in accordance with the Articles of
Association of the Company;
(viii) the absence of any other arrangements between any of the parties to
the Underwriting Agreement, the Indenture, the First Supplemental
Indenture, the Deposit Agreement or the Senior Notes which modify or
supersede any of their terms;
(ix) the certificate referred to in paragraph (h) above is true and
accurate;
(x) all documents presented to us as originals are true and accurate and
all documents submitted to us as copies conform with the originals;
and
(xi) the terms of and documents relating to, the issue of the Senior Notes
will be duly approved by the Finance Committee of the Board of
Directors of the Company appointed pursuant to the resolution referred
to in paragraph (b) above.
To: Southern Investments UK plc 26/th/ September, 1996
Page : 3
On the basis of the foregoing, and having regard to such legal
considerations as we deem relevant and subject as set out below, we are of the
opinion that:
1. The Company is duly incorporated and validly existing as a public
company with limited liability under the laws of England, and has the
corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Registration Statement. We have on 18/th/ September, 1996 made a
search at the Companies Registry which revealed no order or resolution
for the winding up of the Company and no notice of appointment of a
receiver or administrator. However, the search would not reveal
whether or not a winding up petition has been presented. Furthermore
it is possible that notice of a winding up order made or resolution
passed or a receiver or administrator appointed may not have been
filed at the Companies Registry immediately. We have also on 19/th/
September, 1996 made an inquiry of the Companies Court which has
informed us that it has on its central index no record of the
presentation of any winding up petition in respect of the Issuer. We
are assuming that there has been no change in this position since the
date on which the searches were made.
2. The Underwriting Agreement, the Indenture, the First Supplemental
Indenture and the Deposit Agreement have been duly authorised by the
Company. There is no reason, so far as English law is concerned, why
the Underwriting Agreement, the Indenture, the First Supplemental
Indenture and the Deposit Agreement should not, upon execution and
delivery thereof, constitute legal, valid, binding and enforceable
obligations of the Company. As used in this opinion, the term
"enforceable" means that each obligation or document is of a type and
form enforced by the English courts. It is not certain, however, that
each obligation or document will be enforced in accordance with its
terms in every circumstance, enforcement being subject to, inter alia,
the nature of the remedies available in the English courts, the
acceptance by such courts of jurisdiction, the power of such courts to
stay proceedings, the provisions of the Limitation Act 1980 and other
principles of law and equity of general application and all
limitations resulting from the laws of bankruptcy, insolvency,
liquidation or other laws affecting generally the enforcement of
creditors' rights.
3. The issue of the Senior Notes has been duly authorised by the Company.
There is no reason, so far as English law is concerned, why the Global
Note (when executed, authenticated and delivered in the manner
described in the Indenture) should not constitute a legal, valid
binding and enforceable obligation of the Company or why the
Definitive Registered Notes (when executed, authenticated and
delivered in the manner described in the Indenture) should not
constitute valid evidence of enforceable obligations of the Company.
4. The statements in the Registration Statement under the heading
"Certain Income Tax Considerations - UK Income Tax Considerations"
insofar as such statements constitute summaries of certain UK tax laws
and UK Inland Revenue practice, are correct in all material respects.
This opinion is subject to the following:
(a) There could be circumstances in which an English court would not treat
as conclusive those certificates and determinations which the
Underwriting Agreement, the Indenture, the First Supplements
Indenture, the Deposit Agreement and the Senior Notes state are to be
so treated.
(b) Any provision in the Underwriting Agreement, the Indenture, the First
Supplemental Indenture or the Deposit Agreement which involves an
indemnity for the costs of litigation is subject to the discretion of
the court to decide whether and to what extent a party to litigation
should be awarded the costs incurred by it in connection with the
litigation.
To: Southern Investments UK plc 26/th/ September, 1996
Page : 4
(c) Any provision in any agreement which amounts to an undertaking to
assume the liability on account of the absence of payment of stamp
duty or an indemnity to pay stamp duty may be void.
(d) Any person who is not a party to an agreement may not be able to
enforce any provisions of that agreement which are expressed to be for
the benefit of that person.
(e) The Registration Statement has been issued by the Company who has
accepted responsibility for the information contained therein. Save to
the extent referred to in paragraph 4 above, we have not investigated
or verified the truth or accuracy of the information contained in the
Registration Statement, nor have we been responsible for ensuring that
no material information has been omitted from it.
(f) The effectiveness of terms exculpating a party from a liability or
duty otherwise owed are limited by law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the use of our name under the headings "Certain
Income Tax Considerations - UK Income Tax Considerations" and "Legal Matters" in
the Registration Statement. In giving such consent we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act.
This opinion, which shall be construed in accordance with English law,
is given to the Company in connection with the issue of the Senior Notes. You
agree, by your acceptance of this opinion, that any proceedings which may be
brought by you against us in relation to this opinion shall only be brought in
the courts of England. You are requested not to give copies of this opinion to
others without our prior written permission except as referred to above.
Yours faithfully,
ALLEN & OVERY