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EXHIBIT (5)(a)
June 7, 2001
Consumers Energy Company
Consumers Energy Company Financing V
Consumers Energy Company Financing VI
212 West Michigan Avenue
Jackson, Michigan 49201
RE: Registration Statement on Form S-3
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by Consumers Energy Company (the "Company"), and
Consumers Energy Company Financing V and Consumers Energy Company Financing VI
(each a "Trust" and collectively, the "Trusts") with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the registration of $400,000,000 of (i) trust
preferred securities of the Trusts ("Preferred Securities"); (ii) Subordinated
Debentures of the Company ("Debentures"); (iii) Senior Notes of the Company
("Senior Notes"); and (iv) the guarantee of the Preferred Securities by the
Company ("Preferred Securities Guarantee"). (The foregoing offered securities,
collectively, the "Securities".) The Preferred Securities Guarantee is to be
issued pursuant to the Preferred Securities Guarantee Agreement (the "Preferred
Securities Guarantee Agreement") to be entered into between the Company and the
Bank of New York, as trustee (the "Guarantee Trustee"). The Debentures are to be
issued under an Indenture between the Company and the Bank of New York, as
trustee (the "Indenture Trustee"), and one or more supplemental indentures
thereto (collectively, the "Debenture Indenture"). The Senior Notes are to be
issued under a Senior Note Indenture between the Company and The Chase Manhattan
Bank, as trustee (the "Senior Note Trustee") that may include one or more
supplemental indentures thereto according to the terms of the Senior Note
Indenture. Capitalized terms not otherwise defined herein have the respective
meanings specified in the Registration Statement.
In rendering this opinion, I have examined and relied upon a
copy of the Registration Statement. I have also examined, or have arranged for
the examination by an attorney or attorneys under my general supervision,
originals, or copies of originals certified to my satisfaction, of such
agreements, documents, certificates and other statements of governmental
officials and other instruments, and have examined such questions of law and
have satisfied myself as to such matters of fact as I have considered relevant
and necessary as a basis for this opinion. I have assumed the authenticity of
all documents submitted to me as originals, the genuineness of all signatures,
the legal
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capacity of all natural persons and the conformity with the original documents
of any copies thereof submitted to me for examination.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Michigan.
2. The Company has corporate power and authority (i) to execute
and deliver the Preferred Securities Guarantee Agreement, the
Debenture Indenture, and the Senior Note Indenture, (ii) to
authorize and sell the Debentures pursuant to the Debenture
Indenture, and (iii) to authorize and sell the Senior Notes
pursuant to the Senior Note Indenture.
3. The Preferred Securities Guarantee will be a legally issued
and binding obligation of the Company (except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting the enforcement of creditors'
rights generally and by the effect of general principals of
equity, regardless of whether enforceability is considered in
a proceeding in equity or at law) when (i) the Registration
Statement, as finally amended (including any necessary
post-effective amendment) shall have become effective under
the Securities Act; (ii) the Preferred Securities Guarantee
shall have been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and duly
executed and delivered by the Company and the Guarantee
Trustee; (iii) the Preferred Securities shall have been
legally issued; and (iv) the Preferred Securities Guarantee
shall have been duly executed and delivered as provided in the
Preferred Securities Guarantee Agreement.
4. The Debentures will be legally issued and binding obligations
of the Company (except to the extent enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws
affecting the enforcement of creditors' rights generally and
by the effect of general principles of equity, regardless of
whether enforceability is considered in a proceeding in equity
or at law) when (i) the Registration Statement, as finally
amended (including any necessary post-effective amendments)
shall have become effective under the Securities Act, and the
Debenture Indenture shall have been qualified under the Trust
Indenture Act, and duly executed and delivered by the Company
and the Indenture Trustee; (ii) the Company's Board of
Directors or duly authorized committee thereof shall have duly
adopted final resolutions authorizing the issuance and sale of
the Debentures, as contemplated by the Registration Statement
and the Debenture Indenture; and (iii) the Debenture Indenture
under which such Debentures are to be issued shall have been
duly executed as provided in such resolutions and
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the Debentures shall have been duly executed and authenticated
as provided in the Indenture, and shall have been duly
delivered to the purchasers thereof against payment of the
agreed consideration therefor.
5. The Senior Notes will be legally issued and binding
obligations of the Company (except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting the enforcement of creditors'
rights generally and by the effect of general principles of
equity, regardless of whether enforceability is considered in
a proceeding in equity or at law) when (i) the Registration
Statement, as finally amended (including any necessary
post-effective amendments) shall have become effective under
the Securities Act, and the Senior Note Indenture shall have
been qualified under the Trust Indenture Act, and duly
executed and delivered by the Company and the Senior Note
Trustee; (ii) the Company's Board of Directors or duly
authorized committee thereof shall have duly adopted final
resolutions authorizing the issuance and sale of the Senior
Notes, as contemplated by the Registration Statement and the
Senior Note Indenture; and (iii) the Senior Note Indenture
under which such Senior Notes are to be issued shall have been
duly executed as provided in such resolutions and the Senior
Notes shall have been duly executed and authenticated as
provided in the Senior Note Indenture, and shall have been
duly delivered to the purchasers thereof against payment of
the agreed consideration therefor.
For purposes of this opinion, I have assumed that there will be no
changes in the laws currently applicable to the Company and that such laws will
be the only laws applicable to the Company.
I do not find it necessary for the purposes of this opinion to cover,
and accordingly I express no opinion as to, the application of the securities or
blue sky laws of the various states to the execution and delivery of the
Preferred Securities Guarantee or the sale of the Securities.
The opinions expressed herein are limited to the laws of the State of
Michigan and the Federal laws of the United States of America.
I note that each indenture and the debt securities will be governed
by, and construed in accordance with, the laws of the State of Michigan unless
the laws of another jurisdiction shall mandatorily apply. The rights, duties and
obligations of the subordinate note trustee are governed by and construed in
accordance with the laws of the state of New York.
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I hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-3 relating to the Securities and to
all references to me included in or made a part of the Registration Statement.
Very truly yours,
/s/Michael D. VanHemert
Michael D. VanHemert