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EXHIBIT (5)(b)
June 7, 2001
Consumers Energy Company Financing V
Consumers Energy Company Financing VI
c/o Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Re: Consumers Energy Company Financing V
Consumers Energy Company Financing VI
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special Delaware counsel to Consumers Energy Company
Financing V and Consumers Energy Company Financing VI ( each, a "Trust" and
collectively, the "Trusts"), each a statutory business trust created under the
laws of the State of Delaware, in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement"), to be filed
by the Consumers Energy Company (the "Company") and the Trusts with the
Securities and Exchange Commission (the "Commission") on the date hereof under
the Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates, among other things, to the issuance and sale from time to time pursuant
to Rule 415 of the General Rules and Regulations promulgated under the Act, of
Trust Preferred Securities (the "Preferred Securities") of each of the Trusts.
The Preferred Securities of each of the Trusts are to be issued
pursuant to an Amended and Restated Declaration of Trust of such Trust (each, a
"Declaration" and collectively, the "Declarations"), each such Declaration
being 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,
and Alan M. Wright and Thomas A. McNish, as administrative trustees.
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Consumers Energy Company Financing V
Consumers Energy Company Financing VI
June 7, 2001
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This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act. 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 Registration
Statement, (ii) the certificates of trust of each of the Trusts as filed with
the Secretary of State of the State of Delaware (collectively, the
"Certificates of Trust") and (iii) the form of the Declarations. 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
executed documents or documents to be executed, we have assumed that the
parties thereto, other than the Trusts, have been duly organized and are
validly existing and in good standing under the laws of their respective
jurisdiction of organization and had or will have the power, corporate, trust
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. In
addition, we have assumed that the Declarations of the Trusts, will be
established so as not to violate, conflict with or constitute a default under
(i) any agreement or instrument to which the Company or any of the Trusts or
their respective property is subject, (ii) any law, rule, or regulation to
which the Company or either of the Trusts is subject, (iii) any judicial or
administrative order or decree of any governmental authority or (iv) any
consent, approval, license, authorization or validation of, or filing,
recording or registration with any governmental authority. We have also assumed
that the certificates evidencing the Preferred Securities to be issued will be
in a form that complies with, and the terms of such Preferred Securities will
be duly established in accordance with, the Delaware Business Trust Act. As to
any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon oral or written
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Consumers Energy Company Financing V
Consumers Energy Company Financing VI
June 7, 2001
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statements and representations of officers, trustees and other representatives
of the Company, the Trusts and others.
We do not express any opinion as to the laws of any jurisdiction other
than the Business Trust Act of the State of Delaware.
Based on and subject to the foregoing and to the other qualifications
and limitations set forth herein, we are of the opinion that the Preferred
Securities of each Trust to be offered pursuant to the Registration Statement
(the "Offered Preferred Securities"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments), has become
effective under the Act; (ii) an appropriate prospectus with respect to the
Offered Preferred Securities has been prepared, delivered and filed in
compliance with the Act and the applicable rules and regulations thereunder;
(iii) the Declaration of such Trust has been duly executed and delivered by the
parties thereto; (iv) the terms of the Offered Preferred Securities have been
established in accordance with the Declaration; (v) the Offered Preferred
Securities have been issued, executed and authenticated in accordance with the
Declaration and delivered and paid for in the manner contemplated in the
Registration Statement or any prospectus relating thereto; and (vi) if the
Offered Preferred Securities are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to the Offered
Preferred Securities has been duly authorized, executed and delivered by the
applicable Trust and the other parties thereto, (1) the Offered Preferred
Securities will be duly authorized for issuance and will be validly issued,
fully paid and nonassessable, representing undivided beneficial interests in
the assets of such Trust and (2) the holders of the Offered Preferred
Securities will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
Delaware General Corporation Law. We bring to your attention, however, that the
holders of the Offered Preferred Securities may be obligated, pursuant to the
Declaration of such Trust, to (i) provide indemnity and/or security in
connection with, and pay taxes or governmental charges arising from, transfers
of Offered Preferred Securities and (ii) provide security and indemnity in
connection with the requests of or directions to the Property Trustee of such
Trust to exercise its rights and powers under the Declaration of such Trust.
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Consumers Energy Company Financing V
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June 7, 2001
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We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also hereby consent to the use of
our name under the heading "Legal Matters" in the base prospectus included in
the Registration Statement. 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. This opinion is ex-pressed as of the date hereof unless otherwise
expressly stated, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or of any subsequent
changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
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