EXHIBIT (5)
December 11, 2001
CMS Energy Corporation
Fairlane Plaza South
330 Town Center Drive
Suite 1100
Dearborn, MI 48126
Ladies and Gentlemen:
I am the Assistant General Counsel of CMS Energy Corporation, a
Michigan corporation (the "Company"), and have acted as such in connection with
the Registration Statement on Form S-3 (the "Registration Statement") being
filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the registration of $300,000,000 aggregate principal amount
of General Term Notes, Series G (the "Debt Securities"). 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
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 Indenture dated as of January 15, 1994, as supplemented (the
"Indenture"), between the Company and JPMorgan Chase Bank
(formerly known as "the Chase Manhattan Bank"), a New York
banking corporation, as trustee ("Trustee"), has been duly
authorized, executed and delivered, and the Company has the
corporate power and authority to execute and deliver the Seventh
Supplemental Indenture to the Indenture (the "Supplemental
Indenture") between the Company and the Trustee, to be filed as
Exhibit (4)(a)(viii) to the Registration Statement, under which
the Debt Securities are to be issued, and to authorize and sell
the Debt Securities.
3. The Debt Securities will 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 Indenture
(including any necessary post post-effective amendments), shall
have become effective under the Securities and the Indenture
(including any necessary supplemental indentures) shall have been
qualified under the Trust Indenture Act of 1939, as amended, and
duly executed and delivered by the Company and the Trustee; (ii)
and appropriate Pricing Supplement with respect to the particular
Debt Securities then being sold by the Company shall have been
filed with the Commission pursuant to Rule 424 under the
Securities Act; (iii) the Company's Board of Directors or a duly
authorized committee or delegate thereof shall have taken final
action authorizing the issuance and sale of the particular Debt
Securities then being sold by the Company as contemplated by the
Registration Statement and the Indenture; and (iv) the
Supplemental Indenture under which the Debt Securities are to be
issued shall have been duly authorized, executed and delivered
and the particular Debt Securities then being sold by the
Company shall have been duly executed and authenticated as
provided in the Indenture and such resolutions, 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 sale of the Debt Securities.
I am a member of the bar of the State of Michigan and I express no
opinion as to the laws of any jurisdiction other than the State of Michigan and
the federal laws of the United States of America.
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 Debt Securities and
to all references to me included in or made a part of this Registration
Statement.
Very truly yours,
/s/ Michael D. VanHemert
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Michael D. VanHemert