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EXHIBIT 5.1
November 17, 2000
NiSource Inc. NiSource Finance Corp.
801 East 86th Avenue 801 East 86th Avenue
Merrillville, Indiana 46410 Merrillville, Indiana 46410
Ladies and Gentlemen:
We have acted as counsel to NiSource Inc., a Delaware corporation (the
"Company"), and NiSource Finance Corp., an Indiana corporation ("NiSource
Finance"), in connection with a Registration Statement on Form S-3 (No.
333-49330) (the "Registration Statement") filed by the Company and NiSource
Finance with the Securities and Exchange Commission on November 6, 2000 under
the Securities Act of 1933, as amended (the "Securities Act"). The Registration
Statement relates to the issuance and sale from time to time, pursuant to Rule
415 of the rules and regulations promulgated under the Securities Act, of the
following securities of the Company and NiSource Finance with an aggregate
initial offering price up to $2,500,000,000 or the equivalent thereof, based on
the applicable exchange rate at the time of sale, in one or more foreign
currencies, currency units or composite currencies as shall be designated by the
Company or NiSource Finance: (i) common stock (including related preferred stock
purchase rights), par value $0.01 per share, of the Company (the "Common
Stock"); (ii) preferred stock, par value $0.01 per share, of the Company (the
"Preferred Stock"); (iii) debt securities of NiSource Finance (the "Debt
Securities") to be issued under an indenture (as supplemented from time to time,
the "Indenture") to be entered into by and among the Company, NiSource Finance
and The Chase Manhattan Bank, as trustee (the "Trustee"); and (iv) the
guarantees of the Company in connection with the Debt Securities (the
"Guarantees"). The Common Stock, Preferred Stock, Debt Securities and Guarantees
are collectively referred to herein as the "Offered Securities."
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with our opinion, we have examined the Registration
Statement, including the exhibits thereto, and such other documents, corporate
records, and instruments and have examined such laws and regulations as we have
deemed necessary for the purposes of this opinion. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to the original documents of all
documents submitted to us as copies and the authenticity of the originals of
such latter documents.
In rendering the opinions in this letter we have assumed, without
independent investigation or verification, that each party to each of the
documents executed or to be executed, other than the
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NiSource Finance Corp.
November 17, 2000
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Company and NiSource Finance, (a) is validly existing and in good standing under
the laws of its jurisdiction of organization, (b) has full power and authority
to execute such documents to which it is a party and to perform its obligations
thereunder, (c) has taken all necessary action to authorize execution of such
documents on its behalf by the persons executing same, (d) has properly executed
and delivered, or will properly execute and deliver, each of such documents to
which it is a party, and (e) has duly obtained all consents or approvals of any
nature from and made all filings with any governmental authorities necessary for
such party to execute, deliver or perform its obligations under such documents
to which it is a party. In addition, in rendering such opinions we have assumed,
without independent investigation or verification, (i) that the execution and
delivery of, and performance of their respective obligations under, the
documents executed or to be executed by each party thereto, other than the
Company and NiSource Finance, do not violate any law, rule, regulation,
agreement or instrument binding upon such party, (ii) that each of such
documents is the legal, valid and binding obligation of, and enforceable
against, each party thereto, other than the Company and NiSource Finance, and
(iii) that the execution and delivery by the Company and NiSource Finance of,
and performance by them of their obligations under, such documents do not
violate any law, rule, regulation, agreement or instrument binding upon the
Company or NiSource Finance or require any consent or approval from or filing
with any governmental authority (except that we do not make the assumption set
forth in this clause (iii) with respect to those laws, rules and regulations of
the states of Delaware, Indiana, New York and the United States of America, in
each case, that, in our experience, are normally applicable to transactions of
the type provided for by the documents executed or to be executed, but without
our having made any special investigation with respect to any other laws, rules
or regulations).
Based on the foregoing and subject to the qualifications set forth
below, we are of the opinion that, when the Registration Statement, as it may be
amended, has become effective under the Securities Act and any applicable state
securities or Blue Sky laws have been complied with:
1. With respect to any offering of Common Stock, when (i) an
appropriate prospectus supplement with respect to the Common Stock has been
prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (ii) if the Common Stock is to be
sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the Common Stock has been duly authorized, executed
and delivered by the Company and the other parties thereto; (iii) the Board of
Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate action to
approve the issuance of the Common Stock and related matters; (iv) the terms of
the issuance and sale of the Common Stock have been duly established in
conformity with the Amended and Restated Certificate of Incorporation and
Amended and Restated By-laws of the Company so as not to violate any applicable
law or the Amended and Restated Certificate of Incorporation or Amended and
Restated By-laws of the Company or result in a default under a breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction
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NiSource Finance Corp.
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imposed by any court or governmental body having jurisdiction over the Company;
and (v) certificates representing the shares of Common Stock are duly executed,
countersigned, registered and delivered upon payment of the agreed upon
consideration therefor, the shares of Common Stock, when issued and sold in
accordance with the applicable underwriting agreement with respect to the Common
Stock or any other duly authorized, executed and delivered valid and binding
purchase or agency agreement, will be duly authorized, validly issued, fully
paid and nonassessable.
2. With respect to the shares of any series of Preferred Stock (the
"Offered Preferred Stock"), when (i) an appropriate prospectus supplement with
respect to the shares of the Offered Preferred Stock has been prepared,
delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder; (ii) if the Offered Preferred Stock is to be
sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the shares of the Offered Preferred Stock has been
duly authorized, executed and delivered by the Company and the other parties
thereto; (iii) the Board of Directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the shares of
the Offered Preferred Stock and related matters, including the adoption of a
Certificate of Designations for the Offered Preferred Stock in accordance with
the applicable provisions of Delaware law (the "Certificate of Designations");
(iv) the filing of the Certificate of Designations with the Delaware Secretary
of State has duly occurred; (v) the terms of the Offered Preferred Stock and of
their issuance and sale have been duly established in conformity with the
Amended and Restated Certificate of Incorporation and the Amended and Restated
By-laws of the Company, including the Certificate of Designations, so as not to
violate any applicable law or the Amended and Restated Certificate of
Incorporation or Amended and Restated By-laws of the Company or result in a
default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; and (vi) certificates
representing the shares of the Offered Preferred Stock are duly executed,
countersigned, registered and delivered upon payment of the agreed upon
consideration therefor: (1) the shares of the Offered Preferred Stock, when
issued and sold in accordance with the applicable underwriting agreement or any
other duly authorized, executed and delivered valid and binding purchase or
agency agreement, will be duly authorized, validly issued, fully paid and
nonassessable; and (2) if the Offered Preferred Stock is convertible or
exchangeable into Common Stock, the Common Stock issuable upon conversion or
exchange of the Offered Preferred Stock will be duly authorized, validly issued,
fully paid and nonassessable, assuming the conversion or exchange of the Offered
Preferred Stock is in accordance with the terms of the Certificate of
Designations.
3. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) an appropriate prospectus supplement with respect to the
Offered Debt Securities has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations thereunder;
(ii) if the Offered Debt Securities are to be sold pursuant to a firm
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NiSource Finance Corp.
November 17, 2000
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commitment underwritten offering, the underwriting agreement with respect to the
Offered Debt Securities has been duly authorized, executed and delivered by
NiSource Finance and the other parties thereto; (iii) the Board of Directors,
including any appropriate committee appointed thereby, and appropriate officers
of NiSource Finance have taken all necessary corporate action to approve the
issuance and terms of the Offered Debt Securities and related matters; (iv) the
terms of the Offered Debt Securities and of their issuance and sale have been
duly established in conformity with the Indenture so as not to violate any
applicable law or the Articles of Incorporation or By-laws of NiSource Finance
or result in a default under or breach of any agreement or instrument binding
upon NiSource Finance and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over NiSource
Finance; and (v) the Offered Debt Securities have been duly executed and
authenticated in accordance with the provisions of the Indenture and duly
delivered to the purchasers thereof upon payment of the agreed-upon
consideration therefor: (1) the Offered Debt Securities, when issued and sold in
accordance with the applicable underwriting agreement, if any, or any other duly
authorized, executed and delivered valid and binding purchase or agency
agreement, will be legal, valid and binding obligations of NiSource Finance,
enforceable against NiSource Finance in accordance with their respective terms;
and (2) if the Offered Debt Securities are convertible or exchangeable into
Common Stock or Preferred Stock, the Common Stock or Preferred Stock issuable
upon conversion or exchange of the Offered Debt Securities will be duly
authorized, validly issued, fully paid and nonassessable, assuming the
conversion or exchange of the Offered Debt Securities is in accordance with the
terms of the Indenture or a supplemental indenture to the Indenture and
assuming, in the case of Preferred Stock, a Certificate of Designations has been
duly adopted and filed with the Delaware Secretary of State.
4. With respect to Guarantees of any Offered Debt Securities, when (i)
an appropriate prospectus supplement with respect to the Guarantees has been
prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (ii) if the Guarantees are to be
sold pursuant to a firm commitment underwritten offering, the underwriting
agreement with respect to the Guarantees has been duly authorized, executed and
delivered by the Company and the other parties thereto; (iii) the Board of
Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate action to
approve the issuance and terms of the Guarantees and related matters; (iv) the
terms of the Guarantees and of their issuance and sale have been duly
established in conformity with the Indenture so as not to violate any applicable
law or the Amended and Restated Certificate of Incorporation or Amended and
Restated By-laws of the Company or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company; and (v) the Guarantees have been duly executed
and the Offered Debt Securities have been duly executed and authenticated in
accordance with the provisions of the Indenture and duly delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor: the
Guarantees, when issued and sold in accordance and the applicable underwriting
agreement, if any,
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NiSource Finance Corp.
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or any other duly authorized, executed and delivered valid and binding purchase
or agency agreement, will be legal, valid and binding obligations of the
Company.
The opinions set forth above are subject to the following
qualifications:
A. The opinion expressed in paragraphs 3 and 4 above with respect to
the legality, validity, binding nature and enforceability of the Debt Securities
and Guarantees is subject to (i) applicable laws relating to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws affecting creditors' rights generally, whether now or hereafter in effect,
(ii) general principles of equity, including, without limitation, concepts of
materiality, laches, reasonableness, good faith and fair dealing and the
principles regarding when injunctive or other equitable remedies will be
available (regardless of whether considered in a proceeding at law or in
equity), (iii) requirements that a claim with respect to any Offered Debt
Security denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect to such claim) be
converted into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law and (iv) government authority to limit,
delay or prohibit the making of payments outside the United States or in foreign
currencies, currency units or composite currencies.
B. The opinion expressed in paragraph 4 above with respect to the
legality, validity, binding nature and enforcement of the Guarantees is subject
to the qualification that certain provisions of the Guarantees are or may be
unenforceable in whole or in part, but, subject to the other limitations as to
enforceability expressed in this opinion and any limitations contained in or
relating to the Guarantees, the inclusion of such provisions does not prevent
the practical realization of the benefits intended to be afforded by the
Company's principal rights or obligations under the Guarantees except for the
economic consequences, if any, resulting from any delay imposed by applicable
laws, rules and regulations, court decisions or procedures or constitutional
requirements.
C. The foregoing opinions are limited to the laws of the State of New
York, the State of Indiana, the General Corporation Law of Delaware, and the
federal laws of the United States of America, and we express no opinion as to
the laws of any other jurisdiction.
The opinions expressed in this opinion letter are as of the date of
this opinion letter only and as to the laws covered hereby only as they are in
effect on that date. The opinions herein are limited to the matters expressly
set forth in this opinion letter, and no opinion is given or may be inferred
beyond the matters expressly set forth in this opinion letter.
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NiSource Inc.
NiSource Finance Corp.
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We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus contained in the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Robert J. Minkus
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Robert J. Minkus
