Exhibit 5.1
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
Telephone: (212) 821-8000
Facsimile: (212) 821-8111
July 24, 1997
CalEnergy Capital Trust II
c/o CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, Nebraska 68131
CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, Nebraska 68131
Re: CalEnergy Company, Inc.;
CalEnergy Capital Trust II;
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to CalEnergy Company, Inc., a Delaware
corporation (the "Company"), and CalEnergy Capital Trust II, a statutory
business trust formed under the laws of the State of Delaware (the "Trust"), in
connection with the preparation of a Registration Statement on Form S-3, as
filed by the Company and the Trust with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"), on
July 1, 1997, and Amendment No. 1 thereto, as filed with the Commission on the
date hereof (such registration statement, as so amended, being hereinafter
referred to as the "Registration Statement"), relating to the registration
under the Act of (i) 3,600,000 6-1/4% Trust Convertible Preferred Securities
(liquidation preference $50 per Trust Convertible Preferred Security) (the
"Convertible Preferred Securities") representing undivided beneficial ownership
interests in the assets of the Trust; (ii) the 6-1/4% Convertible Junior
Subordinated Debentures due 2012 (the "Convertible Junior Subordinated
Debentures") of the Company, which may be distributed under certain
circumstances to the holders of the Convertible Preferred Securities; (iii) the
shares of common stock, par value
CalEnergy Capital Trust II
CalEnergy Company, Inc.
July 24, 1997
Page 2
$.0675 per share (the "Common Stock"), of the Company, issuable upon conversion
of the Convertible Preferred Securities and the Convertible Junior Subordinated
Debentures; and (iv) the Preferred Securities Guarantee of the Company (as
defined below).
The Convertible Preferred Securities were issued pursuant to an Amended and
Restated Declaration of Trust (the "Declaration"), dated as of February 26,
1997, among the Company, as sponsor, The Bank of New York, as property trustee
(the "Property Trustee"), The Bank of New York (Delaware), as Delaware trustee
(the "Delaware Trustee"), and Steven A. McArthur, John G. Sylvia and Gregory E.
Abel, as the initial regular trustees (together, the "Regular Trustees").
Capitalized terms used but not otherwise defined herein have the meanings
ascribed to them in the Registration Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the certificate
of trust (the "Certificate of Trust") filed by the Delaware Trustee and the
Regular Trustees with the Secretary of State of the State of Delaware on
February 13, 1997; (ii) a Declaration of Trust, dated as of February 13, 1997
(the "Original Declaration"); (iii) the Declaration (including the form of the
terms of the Convertible Preferred Securities annexed thereto); (iv) specimen
form of Convertible Preferred Security; (v) the preferred securities guarantee
agreement, dated as of February 26, 1997 (the "Preferred Securities
Guarantee"), between the Company and The Bank of New York, as trustee; (vi)
specimens of the Convertible Junior Subordinated Debentures, which were issued
pursuant to an indenture dated as of February 26, 1997 (the "Indenture"),
between the Company and The Bank of New York, as trustee; (vii) the Indenture;
and (viii) certain resolutions of the Board of Directors of the Company
relating to the issuance of the Convertible Junior Subordinated Debentures
and the shares of Common Stock issuable upon conversion thereof. We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents, certificates and records as we have
deemed necessary or appropriate as a basis for the opinions set forth herein.
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 or photostatic copies and the authenticity of the
originals of such copies. In making our examination of documents executed by
parties other than
CalEnergy Capital Trust II
CalEnergy Company, Inc.
July 24, 1997
Page 3
the Trust and the Company, we have assumed that such parties had 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
such documents constitute valid and binding obligations of such parties. As to
any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon oral or written
statements and representations of officers, trustees and other representatives
of the Company, the Trust and others. 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 Company that is a party to any of the
documents reviewed by us under the laws of the jurisdiction of its respective
formation or orginization, (ii) that no event has occured subsequent to the
filing of the Certificate of Trust that would cause a dissolution or
liquidation of the Trust under the Original Declaration or the Declaration,
as applicable and (iii) that activities of the Trust have been and will be
conducted in accordance with the Original Declaration or the Declaration, as
applicable, and the Delaware Business Trust Act, 12 Del. C. Sections 3801 et
seq.
The opinions expressed herein are limited to the laws of the State of New York,
the General Corporation Law of the State of Delaware and the federal laws of
the United States of America, and we express no opinion with respect to the
laws of any other country, state or jurisdiction.
Based on and subject to the foregoing and to the other qualifications and
limitations set forth herein, we are of the opinion that:
1. The Preferred Securities Guarantee is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
2. The Convertible Junior Subordinated Debentures are valid
and binding obligations of the Company, entitled to the benefits of
the Indenture and enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and except to the
extent that the waiver of stay or extension laws contained in Section
515 of the Indenture may be unenforceable.
CalEnergy Capital Trust II
CalEnergy Company, Inc.
July 24, 1997
Page 4
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the use of our name under the
heading "Legal Matters" in the Registration Statement and in the related
Prospectus. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Willkie Farr & Gallagher