Exhibit 1.1
▇▇▇▇ ▇▇▇ CORPORATION
(a Maryland corporation)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
_____________, 200_
From time to time, ▇▇▇▇ ▇▇▇ Corporation, a Maryland corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein (the
"Underwriters"). The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined.
I. The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of the Indenture dated as
of October 2, 1990 (the "Indenture") between the Company and The Bank of New
York (as successor to Continental Bank, N.A.), as Trustee (the "Trustee"). The
Securities will have varying designations, maturities, rates and times of
payment of interest, selling prices, redemption terms and other terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with, or transmitted for filing with, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities1 pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Securities Act"). The term Registration Statement means the registration
statement as amended up to and including the date of the Underwriting Agreement.
The term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities as filed with, or transmitted
for filing with, the Commission pursuant to Rule 424(b). The term preliminary
prospectus means any preliminary form of the Prospectus used in connection with
the offering of the Offered Securities. As used herein, the terms "Registration
Statement," "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include, in each case, the material, if any, incorporated by reference therein.
----------------
/1/ Needs to be defined in the Underwriting Agreement.
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II. If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as defined in IV below), the Company will pay the Managers2 as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the Contract Securities. The Underwriters
will not have any responsibility in respect of the validity or the performance
of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Managers determine that such reduction shall be otherwise
and so advise the Company.
III. The Company is advised by the Managers that the Underwriters propose
to make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Managers'
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV. Payment for the Underwriters' Securities shall be made by wire transfer
payable in same-day funds to an account specified by the Company at the time and
place set forth in the Underwriting Agreement, upon delivery to the Managers for
the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Managers
shall request in writing not less than two full business days prior to the date
of delivery. The time and date of such payment and delivery with respect to the
Underwriters' Securities are herein referred to as the "Closing Date."
V. The several obligations of the Underwriters hereunder are subject to the
following conditions:
----------------------
/2/ Needs to be defined in the Underwriting Agreement.
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A. No stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission and there shall have been no material adverse
change in the financial condition of the Company and its subsidiaries, taken as
a whole, from that set forth in the Registration Statement and the Prospectus;
and the Managers shall have received, on the Closing Date, a certificate, dated
the Closing Date and signed by an executive officer of the Company, to the
foregoing effect. The officer signing such certificate may rely upon the best of
his knowledge as to proceedings pending or threatened.
B. The Managers shall have received on the Closing Date an opinion from an
officer of the Company who is also an attorney, dated the Closing Date, to the
effect set forth in Exhibit A.
C. The Managers shall have received on the Closing Date an opinion from
outside Maryland counsel to the Company or other counsel satisfactory to the
Managers, dated the Closing Date, to the effect set forth in Exhibit B.
D. The Managers shall have received on the Closing Date an opinion from
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLP and/or its affiliated partner, Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇, Chicago, Illinois, outside counsel to the Company, dated the
Closing Date, to the effect set forth in Exhibit C.
E. The Managers shall have received on the Closing Date an opinion of
counsel to the Underwriters, dated the Closing Date, to the effect set forth in
Exhibit D.
F. The Managers shall have received on the Closing Date a letter dated the
Closing Date, in form and substance reasonably satisfactory to the Managers,
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, containing statements
and information of the type ordinarily included in accountants "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
G. Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading in the rating
accorded the Company's debt securities by any nationally recognized statistical
rating organization, as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, or an announcement with no implication of a possible downgrading, of
such rating).
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VI. In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
A. To furnish the Managers, without charge, three signed copies of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph C below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Managers may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission subsequent to the date
of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which are deemed to be incorporated by
reference in the Prospectus.
B. Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish the Managers
a copy of each such proposed amendment or supplement.
C. If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel to the Underwriters
the Prospectus is required by law to be delivered, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or to supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
D. To qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Managers shall
reasonably request and to pay all expenses (including reasonable fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Managers may designate; provided, however, that in no event shall the
Company be required to qualify as a foreign corporation or be obligated to
file a general consent to service of process in any jurisdiction in which
it is not now so registered.
E. To make generally available to the Company's security holders as
soon as practicable an earnings statement covering a twelve-
4
month period beginning after the date of the Underwriting Agreement, which
shall satisfy the provisions of Section 11(a) of the Securities Act.
F. During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell or otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities without the prior written
consent of the Managers.
VII. The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the rules and
regulations thereunder, (ii) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act relating to the Offered Securities, when such
part became effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) each preliminary prospectus,
if any, filed pursuant to Rule 424(b) under the Securities Act complied when so
filed in all material respects with the Securities Act and the applicable rules
and regulations thereunder, (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations thereunder and (v) the Registration Statement and the Prospectus do
not contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that these representations and
warranties do not apply to (i) the part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of 1939, as amended, of the Trustee, and (ii) statements or
omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company by or on behalf of
any Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities to which that person
may become subject caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth in paragraph C
of Article VI hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused
5
by any such untrue statement or omission or alleged untrue statement or omission
based upon information furnished to the Company by or on behalf of any
Underwriter expressly for use therein.
Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating to
such Underwriter furnished by or on behalf of such Underwriter expressly for
use in the Registration Statement, any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Managers in the case
of parties indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs of this Article VII
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in
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such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same proportions as the total net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by or on
behalf of the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses (including expenses of local counsel)
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Article VII, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten and distributed to the public by such Underwriter were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VII are several, in proportion to the respective
principal amounts of Offered Securities purchased by each of such Underwriters,
and not joint.
The indemnity and contribution agreements contained in this Article
VII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i) any
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termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
VIII. This Agreement shall be subject to termination in the absolute
discretion of the Managers, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Managers, impracticable to market the Offered
Securities.
IX. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Offered Securities which it or they have agreed to
purchase hereunder, and the aggregate principal amount of Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Offered Securities to be purchased, each non-defaulting Underwriter shall be
obligated severally in the proportion which the principal amount of Offered
Securities set forth opposite its name in the Underwriting Agreement pursuant to
which the Offered Securities are being purchased bears to the aggregate
principal of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Managers may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase; provided, however, that
in no event shall the principal amount of Offered Securities which any
Underwriter has agreed to purchase pursuant to such Underwriting Agreement be
increased pursuant to this Article IX by an amount in excess of one-ninth of
such principal amount of Offered Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Offered Securities and the aggregate principal amount of
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Offered Securities to be
purchased, and arrangements satisfactory to the Managers and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case the non-defaulting
Underwriters shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
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If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York (without giving effect to the
principles of choice of law).
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SCHEDULE I
DELAYED DELIVERY CONTRACT
__________________, 200_
Dear Sirs:
The undersigned hereby agrees to purchase from ▇▇▇▇ ▇▇▇ Corporation, a
Maryland corporation (the "Company"), and the Company agrees to sell to the
undersigned
$________________
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's prospectus dated _______________, 200_ and Prospectus
Supplement dated ______________, 200_, receipt of copies of which are hereby
acknowledged, at a purchase price of ____% of the principal amount thereof plus
accrued interest thereon from the dates and on the further terms and conditions
set forth in this contract. The undersigned does not contemplate selling the
Securities prior to making payment therefor.
The undersigned will purchase from the Company the Securities in the
principal amounts and on the delivery dates set forth below:
Plus Accrued
Delivery Date Principal Amount Interest From:
_______________ $______________ _____________
_______________ $______________ _____________
_______________ $______________ _____________
Each such date on which the Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by wire
transfer payable in same-day funds to an account specified by the Company at
10:00 a.m. (New York City time), on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the Delivery
Date, in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of the Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Company shall have sold, and delivery
shall have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by copies of the opinions of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for the Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract shall be governed by and construed in accordance with
the internal laws of the State of New York (without giving effect to the
principles of choice of law).
If this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
Remainder of page intentionally left blank
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Yours very truly,
___________________________
(Purchaser)
By:________________________
___________________________
Name:
Title:
___________________________
___________________________
(Address)
Accepted:
▇▇▇▇ ▇▇▇ CORPORATION
By:_______________________________
Name:
Title:
3
PURCHASER: PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone Number
Name (Including Area Code) Department
------------------ ------------------ ------------------
------------------ ------------------ ------------------
------------------ ------------------ ------------------
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EXHIBIT A
Opinion of [name], [title] of the Company
The opinion of [name], [title], to be delivered pursuant to Article V,
paragraph B of the document entitled ▇▇▇▇ ▇▇▇ Corporation Underwriting Agreement
Standard Provisions (Debt) shall be to the effect that:
(i) the Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership or leasing of property requires such qualification, except where
the failure to obtain such qualification or be in good standing would not
reasonably be expected to have a material adverse effect on the present
consolidated financial condition of the Company and its consolidated
subsidiaries, taken as a whole;
(ii) each "significant subsidiary" (as defined in Regulation S-X of
the Securities and Exchange Commission) of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or the ownership or leasing of
property requires such qualification, except where the failure to obtain
such qualification or be in good standing would not reasonably be expected
to have a material adverse effect on the present consolidated financial
condition of the Company and its consolidated subsidiaries, taken as a
whole; and all of the issued and outstanding capital stock of each
significant subsidiary has been duly and validly issued and is fully paid
and non-assessable and the Company owns its interest in the capital stock
of each significant subsidiary free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity;
(iii) the execution, delivery and performance by the Company of the
Underwriting Agreement and the sale of the Offered Securities as provided
therein will not result in any violation or contravention of any provisions
of (1) to the best of such counsel's knowledge, applicable law or (2) any
indenture, mortgage or other agreement known to such counsel to which the
Company or any of its subsidiaries is bound, except, with respect to (2),
violations or contraventions which would not reasonably be expected to have
a material adverse effect on the present consolidated financial condition
of the Company and its consolidated subsidiaries, taken as a whole; and, to
the best of such counsel's knowledge, no consent, approval or authorization
of any governmental body is required, except such as are specified and have
been obtained; and
(iv) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Securities Exchange Act of 1934, as amended,
A-1
and incorporated by reference in the Prospectus (except for financial
statements, financial data and supporting schedules contained or
incorporated by reference therein, as to which such counsel need not
express any opinion) complied when so filed as to form in all material
respects with such Act and the rules and regulations thereunder, and (2) is
of the opinion that the Registration Statement (except for financial
statements, financial data and supporting schedules contained or
incorporated by reference therein, as to which such counsel need not
express any opinion), when it became effective, and the Prospectus (except
for financial statements, financial data and supporting schedules contained
or incorporated by reference therein, as to which such counsel need not
express any opinion), as amended or supplemented, if applicable, on the
date of the Underwriting Agreement, complied as to form in all material
respects with the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, including its independent public accountants, in the preparation of (A)
the Registration Statement and (B) the Prospectus (which representatives of the
Managers and counsel to the Managers participated in) and although such counsel
is not passing upon, and does not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus and has not made any independent check or verification
thereof, nothing has come to such counsel's attention that causes such counsel
to believe that either the Registration Statement (other than the financial
statements, financial data and supporting schedules included or incorporated by
reference therein and the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended, as to which such counsel need
not express any belief), at the time it became effective, or, if an amendment to
the Registration Statement or an Annual Report on Form 10-K has been filed with
the Securities and Exchange Commission subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or at
the time of the most recent such filing, contained an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or the Prospectus
(other than the financial statements, financial data and supporting schedules
included or incorporated by reference therein, as to which such counsel need not
express any belief), as of the date of the Prospectus and on the Closing Date,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Such counsel may limit such counsel's opinion to the federal laws of
the United States and the laws of the State of Illinois.
A-2
EXHIBIT B
Opinion of outside Maryland counsel to the Company
The opinion of outside Maryland counsel to the Company, to be
delivered pursuant to Article V, paragraph C of the document entitled ▇▇▇▇ ▇▇▇
Corporation Underwriting Agreement Standard Provisions (Debt) shall be to the
effect that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Maryland;
(ii) the Indenture has been duly authorized, executed and delivered by
the Company;
(iii) the Offered Securities have been duly authorized by the Company;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(v) the execution, delivery and performance by the Company of the
Underwriting Agreement and the sale of the Offered Securities as provided
therein will not result in any violation or contravention of any provisions
of the charter or bylaws of the Company; and
(vi) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company.
Such counsel may limit their opinion to the laws of the State of
Maryland.
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EXHIBIT C
Opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
The opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLP or Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇, Chicago, Illinois, outside counsel to the Company, to be delivered
pursuant to Article V, paragraph D of the document entitled ▇▇▇▇ ▇▇▇ Corporation
Underwriting Agreement Standard Provisions (Debt) shall be to the effect that:
(i) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming the due
authorization, execution and delivery thereof by the Company and the
Trustee, constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of
general applicability relating to or affecting the enforcement of
creditors' rights and by the effect of general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law);
(ii) assuming that the Offered Securities have been duly authorized by
the Company, when duly executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement,
the Offered Securities will constitute legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of general principles of
equity (regardless of whether enforceability is considered in a proceeding
in equity or at law);
(iii) assuming that the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and each other party
thereto, the Delayed Delivery Contracts, if any, constitute legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a proceeding in equity or at law);
(iv) the Offered Securities and the Indenture conform as to legal
matters in all material respects to the descriptions thereof contained in
the
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Prospectus; and the statements in the Prospectus under the captions
"Description of Debt Securities" (except for the statements set forth under
"--Form and Exchange of Debt Securities"), "Plan of Distribution,"
"Description of the Notes" (except for the statements set forth under
"--Book Entry System; Delivery and Form") and "Underwriting," to the extent
that such statements constitute summaries of certain provisions of the
Offered Securities, the Indenture and the Underwriting Agreement, have been
reviewed by such counsel and are correct in all material respects; and
(v) such counsel is of the opinion that the Registration Statement
(other than the financial statements, financial data, statistical data and
supporting schedules included or incorporated by reference therein and the
Statement of Eligibility and Qualification on Form T-1 (the "Form T-1")
under the Trust Indenture Act, as to which such counsel need not express
any opinion), at the time it became effective, complied as to form in all
material respects with the requirements of the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, including
its independent public accountants, in the preparation of (A) the Registration
Statement and (B) the Prospectus (which representatives of the Mangers and
counsel to the Managers participated in) and, except as set forth in (iv) above,
although such counsel are not passing upon, and do not assume responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus and have not made any independent check or
verification thereof, nothing has come to such counsel's attention that causes
them to believe that either the Registration Statement (other than the financial
statements, financial data, statistical data and supporting schedules included
or incorporated by reference therein and the Form T-1 under the Trust Indenture
Act, as to which such counsel need not express any belief), at the time it
became effective, or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed with the Securities and Exchange Commission
subsequent to the effectiveness of the Registration Statement, then at the time
such amendment became effective or at the time of the most recent such filing,
contained an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or the Prospectus (other than the financial statements,
financial data, statistical data and supporting schedules included or
incorporated by reference therein, as to which such counsel need not express any
belief), as of the date of the Prospectus and on the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
C-2
Such counsel may limit their opinion to the federal laws of the United
States and the laws of the State of New York.
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EXHIBIT D
Opinion of Counsel to the Underwriters
The opinion of counsel to the Underwriters, to be delivered pursuant
to Article V, paragraph E of the document entitled ▇▇▇▇ ▇▇▇ Corporation
Underwriting Agreement Standard Provisions (Debt) shall be to the effect that:
(i) the Indenture has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company and has
been duly qualified under the Trust Indenture Act of 1939;
(ii) the Offered Securities have been duly authorized, and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters or by
institutional investors, if any, pursuant to Delayed Delivery Contracts,
will be valid and binding obligations of the Company in accordance with
their terms;
(iii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(iv) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company;
(v) the statements in the Prospectus under "Description of Debt
Securities," "Plan of Distribution," "Description of the Notes" and
"Underwriting", insofar as such statements constitute a summary of the
documents or proceedings referred to therein, fairly present the
information called for with respect to such documents and proceedings; and
(vi) such counsel (1) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable (except
as to financial statements contained therein, as to which such counsel need
not express any opinion) comply as to form in all material respects with
the Securities Act and the rules and regulations thereunder and (2) believe
that (except for the financial statements contained therein, as to which
such counsel need not express any belief) the Registration Statement and
the Prospectus on the date of the Underwriting Agreement did not, and the
Prospectus, as amended or supplemented, if applicable, on the Closing Date
does not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that such counsel may state that their opinion and belief is based
upon their participation in the preparation of the Registration Statement
and the Prospectus and any amendments and
D-1
supplements thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof, but is without
independent check or verification except as specified.
D-2
