Exhibit 5.1
February 6, 2002
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, which may be either senior (the "Senior Debt Securities") or
subordinated (the "Subordinated Debt Securities") (collectively, 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 $1,200,000,000 or the
equivalent thereof in one or more foreign currencies or composite currencies.
The Senior Debt Securities will be issued under an Indenture (the
"Senior Indenture"), dated as of November 1, 2000, between the Company and
JPMorgan Chase Bank, as Trustee (the "Senior Trustee"). The Subordinated Debt
Securities will be issued under an Indenture (the "Subordinated Indenture")
between the Company and JPMorgan Chase Bank, as Trustee (the "Subordinated
Trustee"). The Senior Indenture and the Subordinated Indenture are hereinafter
referred to collectively as the "Indentures."
The Guarantees will be issued pursuant to a Guarantee Agreement between
the Company and JPMorgan Chase 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 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
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 Senior Indenture, the
form of Subordinated 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 Senior Indenture is the valid and
legally binding obligation of the Senior Trustee, (2) at the time of execution,
authentication, issuance and delivery of the Subordinated Debt Securities, the
Subordinated Indenture will be the valid and legally binding obligation of the
Subordinated Trustee, (3) at the time of execution and delivery of any Guarantee
Agreement, that Guarantee Agreement will be the valid and legally binding
obligation of JPMorgan Chase Bank, as Trustee, (4) 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, (5) the Rights
Agreement is the valid and legally binding obligation of the Bank of New York,
as Rights Agent, (6) 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 (7) 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 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") to approve (1) the issuance and terms of any
Debt Securities, (2) the terms of the offering thereof and related matters and
(3) in the case of Subordinated Debt Securities, the execution and delivery of
the Subordinated Indenture in the form filed as an exhibit to the Registration
Statement and (b) in the case of Subordinated Debt Securities, due execution and
delivery by the Company of the Subordinated Indenture and (c) 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 by the Board to approve the execution and delivery of the
Guarantee Agreement in the form filed as an exhibit to the Registration
Statement and the issuance and terms of the Guarantees and related matters, (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 such agreement, the
applicable Indenture and the Guarantee Agreement and (c) due execution and
delivery by the Company of such Guarantee Agreement and 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
thereof 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 execution and delivery of the Deposit Agreement in the form
filed as an exhibit to the Registration Statement and the issuance of the
Depositary Shares, the terms of the offering thereof and related matters, (b)
due execution and delivery by the Company of such Deposit Agreement and (c) 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
thereof and related matters, (b) due execution and delivery by the Company of
such Purchase Contract Agreement and (c) 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 which are a component of the Stock Purchase Units, and the terms of the
offering thereof and related matters, (b) due execution and delivery of such
Purchase Contract Agreement, (c) due filing of the Certificate of Amendment with
respect to such Preferred Stock with the Secretary of State of the State of New
York and (d) 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 thereof
and related matters, (b) due execution and delivery by the Company of such
Warrant Agreement and (c) 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 such 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 with respect to the
Warrant Units in the form filed as an exhibit to the Registration Statement, (3)
the execution and delivery of the applicable Warrant Unit Agreement with respect
to the Warrant Units, in a form established so as not to violate any applicable
law or agreement or instrument then binding upon the Company and (4) 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 thereof and related matters, (b) due execution and delivery by
the Company of such Warrant Agreement and such Warrant Unit Agreement, (c) due
filing of the Certificate of Amendment with respect to such Preferred Stock with
the Secretary of State of New York and (d) 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 such Warrant Agreement and such 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