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EXHIBIT 5
[RICHARDS, LAYTON & FINGER LETTERHEAD]
January 8, 1998
CMS Energy X-TRAS Pass-Through Trust I
c/o CMS Energy Corporation
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
RE: CMS Energy X-TRAS Pass-Through Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for CMS Energy
Corporation, a Michigan corporation (the "Company"), and CMS Energy X-TRAS
Pass-Through Trust I, a Delaware business trust (the "Trust"), in connection
with the matters set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set forth,
our examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Certificate of Trust of the Trust (the
"Certificate of Trust") as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on November 21, 1997;
(b) The Declaration of Trust of the Trust, dated as of
November 21, 1997, among the Company, as Sponsor, and the trustees of the Trust
named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus and preliminary
prospectus supplement (the "Prospectus") relating to the Pass-Through
Certificates of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Pass-Through Certificate" and
collectively, the Pass-Through Certificates"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the Securities and
Exchange Commission on or about December 1, 1997;
(d) A form of Amended and Restated Declaration of Trust
of the Trust, to be entered into among the Company, as Sponsor, the trustees of
the Trust named therein, and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (including Annex A and Exhibit
A-1 and A-2 thereto) (the "Declaration"), attached as an exhibit to the
Registration Statement; and
(e) A certificate of Good Standing for the Trust, dated
November 1, 1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the
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Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set forth therein and
the additional matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as authentic
originals, (ii) the conformity with the originals of all documents submitted to
us as copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate of Trust are in full force and effect and have
not been amended, (ii) except to the extent provided in paragraph 1 below, the
due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Pass-Through Certificate is to be
issued by the Trust (collectively, the "Pass-Through Certificate Holders") of a
Pass-Through Certificate and the payment for the Pass-Through Certificate
acquired by it, in accordance with the Declaration and the Registration
Statement, and (vi) that the Pass-Through Certificates are issued and sold to
the Pass-Through Certificate Holders in accordance with the Declaration and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules, regulations
and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Business Trust
Act.
2. The Pass-Through Certificates will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Pass-Through Certificate Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Pass-Through Certificate Holders may be obligated to make payments as set forth
in the Declaration.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the use of our name under the heading
"Validity of the Certificates" in the Prospectus. In giving the foregoing
consents, we do not thereby admit that
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we come within the category of Persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder. Except as stated above,
without our prior written consent, this opinion may not be furnished or quoted
to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger