EXHIBIT 5.3
[Morris, Nichols, Arsht & Tunnell Letterhead]
August 29, 1996
CalEnergy Capital Trust
c/o CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, NE 68131
Re: CalEnergy Capital Trust
-----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to CalEnergy Capital Trust,
a Delaware statutory business trust (the "Trust"), in connection with certain
matters of Delaware law relating to (i) the issuance of the 6 1/4% Convertible
Preferred Securities Term Income Deferrable Equity Securities (the "Preferred
Securities") to the several initial purchasers named on Schedule A (the
"Initial Purchasers") to the Purchase Agreement dated April 4, 1996 (the
"Purchase Agreement") among CS First Boston Corporation, as representative of
the Initial Purchasers, the Trust and CalEnergy Company, Inc., a Delaware
corporation (the "Company") and (ii) the registration of 2,078,600 Preferred
Securities pursuant to Registration Statement No. 333-08315 on Form S-3 as
filed by the Trust and the Company with the Securities and Exchange Commission
on July 17, 1996 and Amendment No. 1 thereto as filed on the date hereof (as
so amended, the "Registration Statement").
The Preferred Securities have been issued pursuant to the Purchase
Agreement and the Amended and Restated Declaration of Trust of the Trust dated
as of April 4, 1996 (the "Governing Instrument"). Capitalized terms used
herein and not otherwise herein defined are used as defined in the Governing
Instrument.
In rendering this opinion, we have examined and relied upon copies of
the following documents in the forms provided to us: the Certificate of Trust
of the Trust as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on April 3, 1996 (the
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August 29, 1996
Page 2
"Certificate"); a Declaration of Trust dated as of April 3, 1996 (the
"Original Governing Instrument"); the Governing Instrument; the form of
Indenture dated as of April 1, 1996 between the Company and The Bank of New
York, as Trustee; the Purchase Agreement; the Trust's Confidential Offering
Circular dated April 4, 1996 relating to the Preferred Securities (the
"Prospectus"); the Registration Rights Agreement dated April 10, 1996 among
the Trust, the Company, CS First Boston Corporation and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Registration Rights Agreement"); and a
certificate of good standing of the Trust obtained as of a recent date from
the State Office. In such examinations, we have assumed the genuineness of all
signatures, the conformity to original documents of all documents submitted to
us as drafts or copies or forms of documents to be executed and the legal
capacity of natural persons to complete the execution of documents. We have
further assumed for purposes of this opinion: (i) the due formation or
organization, valid existence and good standing of each entity (other than the
Trust) that is a party to any of the documents reviewed by us under the laws
of the jurisdiction of its respective formation or organization; (ii) the due
authorization, execution and delivery by, or on behalf of, each of the parties
thereto of the above-referenced documents (including, without limitation, the
due authorization, execution and delivery of the Governing Instrument and the
Purchase Agreement by the parties thereto); (iii) that no event has occurred
subsequent to the filing of the Certificate that would cause a dissolution or
liquidation of the Trust under the Original Governing Instrument or the
Governing Instrument, as applicable; (iv) that the activities of the Trust
have been and will be conducted in accordance with the Original Governing
Instrument or the Governing Instrument, as applicable, and the Delaware
Business Trust Act, 12 Del. C. ss.ss. 3801 et seq. (the "Delaware Act"); (v)
that each Holder OF Preferred Securities has made payment of the required
consideration therefor and received a Preferred Securities Certificate in
consideration thereof in accordance with the terms and conditions of the
Governing Instrument, the Prospectus and the Purchase Agreement; (vi) that the
Preferred Securities have been issued and sold to, and held or transferred by,
the Preferred Securities Holders (and any subsequent transferee), and all
transfers have been made, in accordance with the terms, conditions,
requirements and procedures set forth in the Governing Instrument, the
Prospectus and the Purchase Agreement; (vii) that none of the Preferred
Securities has been called for redemption,
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August 29, 1996
Page 3
redeemed, converted or canceled (except in connection with a permitted
transfer) and all of the Preferred Securities remain outstanding; (viii) that
the Sponsor has directed the Regular Trustees to take the actions contemplated
by Section 3.6(b) of the Governing Instrument; and (ix) that the documents
examined by us are in full force and effect, express the entire understanding
of the parties thereto with respect to the subject matter thereof and have not
been modified, supplemented or otherwise amended, except as herein referenced.
No opinion is expressed with respect to the requirements of, or compliance
with, federal or state securities or blue sky laws. We have not participated
in the preparation of the Prospectus, the Registration Statement or any other
offering materials relating to the Securities and we assume no responsibility
for their contents. As to any fact material to our opinion, other than those
assumed, we have relied without independent investigation on the
above-referenced documents and on the accuracy, as of the date hereof, of the
matters therein contained.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that the Preferred Securities
constitute validly issued and, subject to the qualifications set forth below,
fully paid and nonassessable beneficial interests in the assets of the Trust.
We note that pursuant to Section 11.04 of the Governing Instrument, the Trust
may withhold amounts otherwise distributable to a Holder and pay over such
amounts to the applicable jurisdictions in accordance with federal, state and
local law and any amount withheld will be deemed to have been distributed to
such Holder and that, pursuant to the Governing Instrument, Preferred Security
Holders may be obligated to make payments or provide indemnity or security
under the circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "LEGAL
MATTERS" in the Prospectus. In giving this consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. This opinion
speaks only as of the date hereof and is based on our understandings and
assumptions as to present facts, and on our review of the above-referenced
documents and the application of Delaware law as the same exist as of the
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August 29, 1996
Page 4
date hereof, and we undertake no obligation to update or supplement this
opinion after the date hereof for the benefit of any person or entity with
respect to any facts or circumstances that may hereafter come to our attention
or any changes in facts or law that may hereafter occur or take effect. This
opinion is intended solely for the benefit of the addressee hereof in
connection with the matters contemplated hereby and may not be relied on by
any other person or entity or for any other purpose without our prior written
consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL