Exhibit 5.1
May 16, 2001
KeySpan Corporation
One MetroTech Center
Brooklyn, New York 11201-3850
Ladies and Gentlemen:
We have acted as counsel to KeySpan Corporation, a New York corporation
(the "Company"), in connection with the Registration Statement on Form S-3 (the
"Registration Statement") filed by the Company and by KeySpan Trust I, KeySpan
Trust II and KeySpan Trust III (the "Trusts") with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), relating to the following securities of the Company: (i) debt securities
(the "Debt Securities"); (ii) guarantees of trust preferred securities and
certain back-up obligations (the "Guarantees"); (iii) shares of preferred stock,
par value $.01 per share (the "Preferred Stock"); (iv) depositary shares (the
"Depositary Shares"), evidenced by depositary receipts (the "Depositary
Receipts"), representing fractional interests in a share of Preferred Stock; (v)
shares of common stock, par value $.01 per share (the "Common Stock"); (vi)
rights to purchase Series D Preferred Stock, par value $.01 per share (the
"Rights"); (vii) contracts for purchase and sale of Common Stock (the "Purchase
Contracts"); (viii) stock purchase units consisting of a Purchase Contract and a
Debt Security of the Company, a share of Preferred Stock or a Depositary Share
relating to Preferred Stock, a trust preferred security of a Trust or a debt
obligation of a third party, including a U.S. Treasury security (the "Stock
Purchase Units"); (ix) warrants to purchase Preferred Stock, Depositary Shares,
Common Stock or Debt Securities (the "Warrants"); (x) warrant units consisting
of a warrant to purchase Common Stock and a Debt Security, a share of Preferred
Stock or a Depositary Share relating to Preferred Stock, or a trust preferred
security of a Trust (the "Warrant Units"); and (xi) Common Stock, Debt
Securities, Preferred Stock and Depositary Shares which may be issued upon
exercise of Warrants or Purchase Contracts, whichever is applicable. The Debt
Securities, the Guarantees, the Preferred Stock, the Depositary Shares, the
Common Stock, the Rights, the Purchase Contracts, the Stock Purchase Units, the
Warrants and the Warrant Units are hereinafter referred to collectively as the
"Securities." The Securities may be issued and sold or delivered from time to
time as set forth in the Registration Statement, any amendments thereto, the
prospectus contained therein (the "Prospectus") and supplements to the
Prospectus (the "Prospectus Supplements") and pursuant to Rule 415 under the Act
for an aggregate initial offering price not to exceed $1,000,000,000 or the
equivalent thereof in one or more foreign currencies or composite currencies.
The Debt Securities will be issued under an Indenture, dated as of
November 1, 2000, between the Company and The Chase Manhattan Bank, as Trustee
(the "Indenture").
The Guarantees will be issued pursuant to a Guarantee Agreement between
the Company and The Chase Manhattan Bank, as Trustee (the "Guarantee
Agreement").
The Depositary Shares will be issued under a Deposit Agreement among
the Company, a financial institution to be determined, as Depositary (the
"Depositary"), and the holders from time to time of the depositary receipts (the
"Deposit Agreement").
The Rights will be issued pursuant to a Rights Agreement, dated as of
March 30, 1999, between the Company and The Bank of New York, as Rights Agent
(the "Rights Agreement").
The Purchase Contracts will be issued under a Purchase Contract
Agreement (the "Purchase Contract Agreement") between the Company and a
financial institution to be determined, as Purchase Contract Agent (the
"Purchase Contract Agent").
The Warrant Units will be issued under a Warrant Unit Agreement among
the Company and a financial institution to be determined as Warrant Agent,
Property Trustee and Agent.
Warrants to purchase Preferred Stock, Depositary Shares and Common
Stock are hereinafter referred to as the "Stock Warrants." Warrants to purchase
Debt Securities are hereinafter referred to as "Debt Warrants." The Stock
Warrants and the Debt Warrants are hereinafter referred to collectively as the
"Securities Warrants." The Stock Warrants will be issued under a Stock Warrant
Agreement (the "Stock Warrant Agreement") between the Company and a financial
institution to be determined, as Stock Warrant Agent (the "Stock Warrant
Agent"). The Debt Warrants will be issued under a Debt Warrant Agreement (the
"Debt Warrant Agreement") between the Company and a financial institution to be
determined, as Debt Warrant Agent (the "Debt Warrant Agent"). The Stock Warrant
Agreement, the Warrant Unit Agreement and the Debt Warrant Agreement are
hereinafter referred to collectively as the "Warrant Agreements." Each party to
a Warrant Agreement other than the Company is referred to hereinafter as a
"Warrant Agreement Counterparty."
We have examined the Registration Statement, the Indenture, the form of
Debt Securities, the form of Guarantee Agreement (which includes the Guarantees)
the form of the Certificate of Amendment relating to the Preferred Stock, the
form of the Deposit Agreement, a form of the share certificate for the Common
Stock, the Rights Agreement, the form of the Purchase Contract Agreement (which
includes the form of Purchase Contracts) and the forms of the Warrant
Agreements, which have been filed with the Commission as exhibits to the
Registration Statement. We have also examined the originals, or duplicates or
certified or conformed copies, of such records, agreements, instruments and
other documents and have made such other and further investigations as we have
deemed relevant and necessary in connection with the opinions expressed herein.
As to questions of fact material to this opinion, we have relied upon
certificates of public officials and of officers and representatives of the
Company.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. We also have assumed that: (1) the Indenture is the valid and legally
binding obligation of The Chase Manhattan Bank, as Trustee, (2) at the time of
execution an delivery of any Guarantee Agreement, that Guarantee Agreement will
be the valid and legally binding obligation of The Chase Manhattan Bank, as
Trustee, (3) at the time of execution and delivery of any Deposit Agreement,
that Deposit Agreement will be the valid and legally binding obligation of the
Depositary party thereto, (4) the Rights Agreement is the valid and legally
binding obligation of the Bank of New York, as Rights Agent, (5) at the time of
execution, issuance and delivery of any Purchase Contracts, the related Purchase
Contract Agreement will be the valid and legally binding obligation of the
Purchase Contract Agent and (6) at the time of execution and delivery of any
Warrant Agreement, that Warrant Agreement will be the valid and legally binding
obligation of the Warrant Agreement Counterparty thereto.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. With respect to the Debt Securities, assuming (a) the taking of all
necessary corporate action to approve the issuance and terms of any Debt
Securities, the terms of the offering thereof and related matters by the Board
of Directors of the Company, a duly constituted and acting committee of such
Board or duly authorized officers of the Company (such Board of Directors,
committee or authorized officers being referred to herein as the "Board") and
(b) the due execution, authentication, issuance and delivery of such Debt
Securities, upon payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board and otherwise in accordance with the provisions of the applicable
Indenture and such agreement, such Debt Securities will constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their terms.
2. With respect to the Guarantees, assuming (a) the taking of all necessary
corporate action to approve the issuance and terms of the Guarantees and related
matters by the Board, (b) the due execution, authentication, issuance and
delivery of the trust preferred securities by the relevant Trust underlying such
Guarantees, upon payment of the consideration therefor provided for such trust
preferred securities in the applicable definitive purchase, underwriting or
similar agreement approved by the Board and otherwise in accordance with the
provisions of the applicable Indenture and such agreement and (c) the due
issuance of such Guarantees, such Guarantees will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms.
3. With respect to the Preferred Stock, assuming (a) the taking of all
necessary corporate action by the Board of Directors of the Company to authorize
and approve the issuance of the Preferred Stock, the terms of the offering and
related matters, (b) due filing of the Certificate of Amendment with the
Secretary of State of the State of New York in the form filed as an exhibit to
the Registration Statement and (c) due issuance and delivery of the Preferred
Stock, upon payment therefor in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board of Directors
of the Company, the Preferred Stock will be validly issued, fully paid and
nonassessable.
4. With respect to the Depositary Shares, assuming (a) the taking of all
necessary corporate action by the Board of Directors of the Company to authorize
and approve the issuance of the Depositary Shares and the terms of the offering
and related matters (b) due execution of the Depositary Receipts by the
Depositary and the registrar therefor in accordance with the applicable
definitive Deposit Agreement in the form filed as an exhibit to the Registration
Statement, upon deposit of validly issued shares of Preferred Stock with the
Depositary in accordance with such Deposit Agreement, the Depositary Shares will
represent legal and valid interests in such Preferred Stock and the Depositary
Receipts will constitute valid evidence of such interests in such Preferred
Stock.
5. With respect to the Common Stock, assuming (a) the taking of all
necessary corporate action by the Board of Directors of the Company to authorize
and approve the issuance of the Common Stock and (b) due issuance and delivery
of the Common Stock, upon payment therefor in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board of
Directors of the Company, the Common Stock will be validly issued, fully paid
and nonassessable.
6. With respect to the Rights, assuming that the Board of Directors of the
Company, after fully informing itself with respect to the Rights Agreement and
the Rights and after giving due consideration to all relevant matters,
determined that the execution and delivery of the Rights Agreement and the
issuance of the Rights thereunder would be in the best interests of the Company
and its stockholders, when the shares of Common Stock have been duly issued and
delivered upon payment therefor in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board of Directors
of the Company, the Rights attributable to such shares of Common Stock will be
validly issued.
7. With respect to the Purchase Contracts, assuming (a) the taking of all
necessary corporate action by the Board of Directors of the Company to approve
the execution and delivery of the Purchase Contract Agreement in the form filed
as an exhibit to the Registration Statement and the terms of the offering and
related matters and (b) the due execution, issuance and delivery of the Purchase
Contracts, upon payment of the consideration for such Purchase Contracts
provided for in the applicable definitive purchase, underwriting or similar
agreement approved by the Board of Directors of the Company and otherwise in
accordance with the provisions of such Purchase Contract Agreement and such
agreement, the Purchase Contracts will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their terms.
8. With respect to the Stock Purchase Units, assuming (a) the taking of all
necessary corporate action by the Board of Directors of the Company to authorize
and approve (1) the issuance and the terms of the Stock Purchase Units, (2) the
execution and delivery of the Purchase Contract Agreement with respect to the
Purchase Contracts which are a component of the Stock Purchase Units in the form
filed as an exhibit to the Registration Statement, (3) the issuance of the
Preferred Stock, the Debt Securities or the trust preferred securities of a
Trust matters which is a component of the Stock Purchase Units, and the terms of
the offering and related matters, (b) due filing of the Certificate of Amendment
with respect to the Preferred Stock with the Secretary of State of the State of
New York and (c) the due execution, authentication, in the case of the Debt
Securities, issuance and delivery of (1) the Stock Purchase Units, (2) such
Purchase Contracts, (3) the Preferred Stock, Depositary Shares, the Debt
Securities, or such trust preferred securities, in each case upon the payment of
the consideration therefor provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board of Directors of the
Company and otherwise in accordance with the provisions of the applicable
Purchase Contract Agreement, in the case of such Purchase Contracts, the
Indenture, in the case of the Debt Securities and the applicable amended and
restated declaration of trust in the case of such trust preferred securities,
such Stock Purchase Units will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms.
9. With respect to the Securities Warrants, assuming (a) the taking of all
necessary corporate action by the Board of Directors of the Company to approve
the execution and delivery of a related Warrant Agreement in the form filed as
an exhibit to the Registration Statement and the terms of the offering and
related matters and (b) the due execution, countersignature, issuance and
delivery of such Securities Warrants, upon payment of the consideration for such
Securities Warrants provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board of Directors of the
Company and otherwise in accordance with the provisions of the applicable
Warrant Agreement and such agreement, such Securities Warrants will constitute
valid and legally binding obligations of the Company enforceable against the
Company in accordance with their terms.
10. With respect to the Warrant Units, assuming (a) the taking of all
necessary corporate action by the Board of Directors of the Company to authorize
and approve (1) the issuance and the terms of the Warrant Units, (2) the
execution and delivery of the applicable Warrant Agreement and Warrant Unit
Agreement with respect to the Warrant Units in the forms filed as exhibits to
the Registration Statement and (3) the issuance of the Preferred Stock, the Debt
Securities or the trust preferred securities of a Trust which are a component of
the Warrant Units and the terms of the offering and related matters, (b) due
filing of the Certificate of Amendment with respect to the Preferred Stock with
the Secretary of State of New York and (c) the due execution, authentication, in
the case of the Debt Securities, issuance and delivery of (1) the Warrant Units
and (2) the Preferred Stock, the Debt Securities or such trust preferred
securities in each case upon the payment of the consideration therefor provided
for in the applicable definitive purchase, underwriting or similar agreement
approved by the Board of Directors of the Company and otherwise in accordance
with the provisions of the applicable Warrant Agreement and Warrant Unit
Agreement and the applicable Indenture, in the case of the Debt Securities and
the amended and restated declaration of trust, in the case of such trust
preferred securities, such Warrant Units will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
In connection with our opinion set forth in paragraph 6 above, we note
that the questions whether the Board of Directors of the Company might be
required to redeem the Rights at some future time, or to determine that the
Rights should only be exchangeable without cash payment, will depend upon the
facts and circumstances existing at that time and, accordingly, are beyond the
scope of such opinion.
Our opinions set forth in paragraphs 1, 2, and 4 and 6 through 10 above
are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law and (iii) an implied covenant of
good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and to the use of our name under the caption
"Legal Opinions" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT