1
EXHIBIT 5.1(b)
September 20, 1995
ATI Financing I
One California Street
San Francisco, California 94111
Re: ATI Financing I
---------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to ATI Financing I,
a Delaware statutory business trust (the "Trust"), in connection with certain
matters relating to the organization of the Trust and the proposed issuance of
Preferred Securities to beneficial owners pursuant to and as described in the
Registration Statement (and the Prospectus forming a part thereof) on
Form S-3 to be filed with the Securities and Exchange Commission on or about
the date hereof (the "Registration Statement"). Capitalized terms used herein
and not otherwise herein defined are used as defined in the Amended and
Restated Declaration of Trust of the Trust in the form attached as an exhibit
to the Registration Statement (the "Governing Instrument").
In rendering this opinion, we have examined copies of the
following documents in the forms provided to us: the Certificate of Trust of
the Trust as filed in the Office of the Secretary of State of the State of
Delaware (the "State Office") on September19, 1995 (the "Certificate"); a
Declaration of Trust of the Trust dated as of September 19, 1995 (the "Original
Governing Instrument"); the Governing Instrument; the Registration Statement;
and a certificate of good standing of the Trust obtained as of a recent date
from the State Office. In such examinations, we have assumed the genuineness
of all signatures, the conformity to original documents of all documents
submitted to us as drafts or copies or forms of documents to be executed and
the legal capacity of natural persons to complete the execution of documents.
We have further assumed for purposes of this opinion: (i) the due formation or
organization, valid existence and good standing of each entity (other than the
Trust) that is a party to any of the documents reviewed by us under the laws of
the jurisdiction of its respective formation or organization; (ii) the due
authorization, execution and delivery by, or on behalf of, each of the parties
thereto of the above-referenced documents (including, without limitation, the
due execution and delivery of the Governing Instrument and the underwriting
agreement relating
2
ATI Financing II
September 20, 1995
to the Preferred Securities (the "Underwriting Agreement") prior to the first
issuance of Preferred Securities); (iii) that no event has occurred subsequent
to the filing of the Certificate, or will occur prior to the issuance of the
Preferred Securities, that would cause a dissolution or liquidation of the
Trust under the Original Governing Instrument or the Governing Instrument, as
applicable; (iv) that the activities of the Trust have been and will be
conducted in accordance with the Original Governing Instrument or the Governing
Instrument, as applicable, and the Delaware Business Trust Act, 12 Del. C.
Section 3801 et seq. (the "Delaware Act"); (v) that each Holder of a Preferred
Security will make payment of the required consideration therefor and will
receive a Preferred Securities Certificate in consideration thereof, all in
accordance with the terms and conditions of the Governing Instrument,
Registration Statement and Underwriting Agreement; (vi) that the Preferred
Securities are issued and sold to the Preferred Securities Holders in
accordance with the terms, conditions, requirements and procedures set forth in
the Governing Instrument, Registration Statement and Underwriting Agreement;
and (vii) that the documents examined by us are in full force and effect,
express the entire understanding of the parties thereto with respect to the
subject matter thereof and have not been modified, supplemented or otherwise
amended, except as herein referenced. No opinion is expressed with respect to
the requirements of, or compliance with, federal or state securities or blue
sky laws. We have not participated in the preparation of the Registration
Statement or any other offering materials relating to the Preferred Securities
and we assume no responsibility for their contents. As to any fact material to
our opinion, other than those assumed, we have relied without independent
investigation on the above-referenced documents and on the accuracy, as of the
date hereof, of the matters therein contained.
Based on and subject to the foregoing, and limited in all
respects to matters of Delaware law, it is our opinion that:
1. The Trust is a duly organized and validly existing
business trust in good standing under the laws of the State of Delaware.
2. The Preferred Securities, upon issuance, will
constitute validly issued and, subject to the qualifications set forth in
paragraph 3 below, fully paid and nonassessable beneficial interests in the
Trust.
3. Under the Delaware Act and the terms of the Governing
Instrument, each Preferred Security Holder of the Trust, in such capacity, will
be entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the General
Corporation
3
ATI Financing II
September 20, 1995
Law of the State of Delaware; provided, however, we express no opinion with
respect to the liability of any Preferred Security Holder who is, was or may
become a named Trustee of the Trust. Notwithstanding the foregoing, we note
that pursuant to the Governing Instrument, the Trust may withhold amounts
otherwise distributable to a Holder and pay over such amounts to the applicable
jurisdictions in accordance with federal, state and local law and any amount
withheld will be deemed to have been distributed to such Holder and that,
pursuant to the Governing Instrument, Preferred Security Holders may be
obligated to make payments or provide indemnity or security under the
circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under the heading
"Legal Matters" in the Prospectus. In giving this consent, we do not thereby
admit that 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. This opinion
speaks only as of the date hereof and is based on our understandings or
assumptions as to present facts, and on our review of the above referenced
documents and the application of Delaware law as the same exist as of the date
hereof, and we undertake no obligation to update or supplement this opinion
after the date hereof for the benefit of any person or entity with respect to
any facts or circumstances that may hereafter come to our attention or any
changes in facts or law that may hereafter occur or take effect. This opinion
is intended solely for the benefit of the addressee hereof in connection with
the matters contemplated hereby and may not be relied on by any other person or
entity or for any other purpose without our prior written consent.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL