[CMS ENERGY ENTERPRISES LOGO]
ROBERT C. SHROSBREE
Assistant General Counsel
EXHIBIT (5)(a)
November 18, 2004
Consumers Energy Company
Consumers Energy Company Financing V
Consumers Energy Company Financing VI
One Energy Plaza
Jackson, Michigan 49201
RE: Registration Statement on Form S-3
Ladies and Gentlemen:
I am Assistant General Counsel of CMS Energy Corporation and have acted as
special counsel to Consumers Energy Company (the "Company") in connection with
the Registration Statement on Form S-3 (the "Registration Statement") being
filed by 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
$1,500,000,000 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"); (iv) First Mortgage Bonds of the
Company ("First Mortgage Bonds") and (v) 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 JPMorgan Chase Bank, as trustee (the "Senior Note
Trustee") that may include one or more supplemental indentures thereto
(collectively the "Senior Note Indenture"). The First Mortgage Bonds are to be
issued under the mortgage indenture between the Company and JPMorgan Chase Bank,
as mortgage
Consumers Energy Company
November 18, 2004
Page 2
trustee (the "First Mortgage Bond Trustee") that may include one or
more supplemental indentures thereto (collectively the "First Mortgage Bond
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 of,
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 Company has the corporate power and authority (i) to execute and
deliver the Preferred Securities Guarantee Agreement, the Debenture
Indenture, the Senior Note Indenture and the First Mortgage Bond
Indenture, (ii) to authorize and sell the Debentures pursuant to the
Debenture Indenture, (iii) to authorize and sell the Senior Notes
pursuant to the Senior Note Indenture and (iv) to authorize and sell
the First Mortgage Bonds pursuant to the First Mortgage Bond
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.
Consumers Energy Company
November 18, 2004
Page 3
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 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.
6. The First Mortgage Bonds 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
Consumers Energy Company
November 18, 2004
Page 4
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 First Mortgage Bond Indenture shall have
been qualified under the Trust Indenture Act, and duly executed and
delivered by the Company and the First Mortgage Bond 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 First Mortgage Bonds, as contemplated by
the Registration Statement and the First Mortgage Bond Indenture;
and (iii) the First Mortgage Bond Indenture under which such First
Mortgage Bonds are to be issued shall have been duly executed as
provided in such resolutions and the First Mortgage Bonds shall have
been duly executed and authenticated as provided in the First
Mortgage Bond 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.
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/ Robert C. Shrosbree
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Robert C. Shrosbree