SECURITY CAPITAL ATLANTIC INCORPORATED
$100,000,000 ___% Notes Due 2011
$50,000,000 ___% Notes Due 2017
Underwriting Agreement
August __, 1997
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
As Representatives of the
several underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Security Capital Atlantic Incorporated, a Maryland corporation (the
"Company"), proposes to issue and sell to the several Underwriters listed in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), $100,000,000 aggregate principal amount
of its ___% Notes Due 2011 (the "2011 Notes") and $50,000,000 aggregate
principal amount of its ___% Notes Due 2017 (the "2017 Notes" and, together with
the 2011 Notes, the "Securities"). The Securities will be issued pursuant to the
provisions of an Indenture to be dated as of August __, 1997 between the Company
and State Street Bank and Trust Company, as Trustee (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Securities. The registration
statement as amended at the time when it shall become effective, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement", any preliminary
prospectus filed as part
of the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act, is referred to
in this Agreement as a "Preliminary Prospectus", and the prospectus in the form
first used to confirm sales of Securities is referred to in this Agreement as
the "Prospectus". If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Underwriter's name in Schedule I hereto at a price equal to ___%
of the principal amount thereof, in the case of the 2011 Notes, and ___% of the
principal amount thereof, in the case of the 2017 Notes, in each case plus
accrued interest, if any, from August __, 1997 to the date of payment and
delivery.
2. The Company understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Securities as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of the Representatives
is advisable and (ii) initially to offer the Securities upon the terms set forth
in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), on August __, 1997, or at such other time
on the same or such other date, not later than the fifth Business Day
thereafter, as the Representatives and the Company may agree upon in writing.
The date and time of such payment are referred to herein as the "Closing Date".
As used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City.
Payment for the Securities shall be made against delivery to the nominee of
The Depository Trust Company ("DTC") for the respective accounts of the several
Underwriters of the Securities of two or more global notes (the "Global Notes")
representing the Securities, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Securities duly paid by the Company.
The Global Notes will be made available for inspection by the Representatives no
later than 1:00 P.M., New York City time, on the Business Day prior to the
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Closing Date at such place in New York City as the Representatives, DTC and the
Company shall agree.
4. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) no order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and did not contain 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, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representatives expressly
for use therein;
(b) the Registration Statement and any post-effective amendments thereto
have been declared effective by the Commission under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission; and the Registration Statement conforms and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain 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; provided, however, that this
representation and warranty shall not apply to (i) that part of the Registration
Statement that constitutes the statement of Eligibility and Qualification (Form
T-1) of the Trustee under the Trust Indenture Act, and (ii) any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representatives expressly
for use therein;
(c) neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the Prospectus
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change,
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in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus (as used herein, "subsidiaries" shall include any entities in
which the Company owns, directly or indirectly, any controlling or general
partnership interest or a majority of the economic interest);
(d) the Company and its subsidiaries have good and marketable title in fee
simple to all real property described in the Prospectus as owned by them, and
good and marketable title to all personal property (including interests in
partnerships or other entities) owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries and described in the Prospectus are
held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(e) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
and each subsidiary of the Company has been duly organized and is validly
existing, with respect to subsidiaries that are corporations or limited
partnerships, in good standing under the laws of its jurisdiction of
organization;
(f) the Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and nonassessable;
and all of the issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and, with
respect to subsidiaries that are corporations, nonassessable and (except as
otherwise set forth in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(g) this Agreement has been duly authorized, executed and delivered by the
Company;
(h) the Securities have been duly authorized by the Company, and, when
executed and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
this Agreement, will constitute valid and binding
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obligations of the Company, entitled to the benefits provided by the Indenture
and enforceable against the Company in accordance with their terms, subject as
to enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law; the Indenture has
been duly authorized and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and binding agreement,
enforceable against the Company in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law; and the
Securities and the Indenture will conform to the descriptions thereof in the
Prospectus;
(i) the issue and sale of the Securities by the Company and the
performance by the Company of all of its obligations under this Agreement, the
Securities and the Indenture and the consummation of the transactions herein and
therein contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, other
than such breaches or violations which, if determined adversely to the Company
or any of its subsidiaries, would not individually or in the aggregate have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, (ii) result in any violation of the provisions
of the Charter of the Company (the "Charter") or the Bylaws of the Company (the
"Bylaws"), or (iii) result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, other than
violations which, if determined adversely to the Company or any of its
subsidiaries would not individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except (A) the registration under the Securities Act of the Securities, (B) such
consents, approvals, authorizations, orders, registrations or qualifications as
may be required under the Securities Act, the Trust Indenture Act, state
securities or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriters and (C) such additional steps as may be
required by the National Association of Securities Dealers, Inc. (the "NASD");
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(j) neither the Company nor any of its subsidiaries is in violation of its
declaration of trust, charter, certificate or articles of incorporation,
partnership agreement or bylaws, as applicable, or in default in the performance
or observance of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or any other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject;
(k) the statements set forth in the Prospectus (A) under the caption
"Description of Notes", insofar as they purport to constitute a summary of the
terms of the Securities, and (B) under the caption "Federal Income Tax
Considerations", to the extent such statements purport to describe factual
matters or relate to matters of law or regulation or constitute summaries of
documents described therein, are accurate and complete in all material respects;
(l) other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
and there are no statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus, which are not
filed or described as required;
(m) Xxxxx & Young LLP, who have certified the financial statements filed
with the Commission as part of the Registration Statement and the Prospectus,
are independent public accountants with respect to the Company and its
subsidiaries as required by the Securities Act;
(n) the financial statements, and the related notes thereto, included in
the Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein; and the pro forma financial information, and the related notes thereto,
included in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and is based
upon good faith estimates and assumptions believed by the Company to be
reasonable;
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(o) the Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended (the "Code"), for its fiscal year ended December 31, 1996 and the
Company's present and contemplated organization, ownership, method of operation,
assets and income are such that the Company is in a position under present law
to so qualify for the fiscal year ending December 31, 1997 and in the future;
and the Company is not an open-end investment company, unit investment trust,
closed-end investment company or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act of 1940,
as amended (the "Investment Company Act");
(p) the Company has no knowledge of (a) the presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the properties owned by it in
violation of law or in excess of regulatory action levels or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or off such properties as a result of any
construction on or operation and use of such properties, which presence or
occurrence would materially adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company; and in connection with the construction on or operation and use of the
properties owned by the Company, it has no knowledge of any material failure to
comply with all applicable local, state and federal environmental laws,
regulations, agency requirements, ordinances and administrative and judicial
orders;
(q) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals necessary to own or lease, as
the case may be, and to operate its properties and to carry on its business as
conducted as of the date hereof, and neither the Company nor any such subsidiary
has received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order, approval
or other authorization, except as described in the Registration Statement and
the Prospectus and except, in each case, where such revocation or modification
would not have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole; and each of the Company and its
subsidiaries is in material compliance with all laws and regulations relating to
the conduct of its business as conducted as of the date hereof;
(r) the REIT management agreement (the "REIT Management Agreement")
described in the Prospectus has been duly authorized, executed and delivered by
the Company and Security Capital (Atlantic) Incorporated (the "REIT Manager")
and constitutes a legal, valid and binding agreement, enforceable in accordance
with its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
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applicability relating to or affecting creditors' rights and the effect of
general principles of equity, whether enforcement is considered in a proceeding
in equity or at law, and the discretion of the court before which any proceeding
therefrom may be brought and, with respect to indemnification obligations
thereunder, to federal and state securities laws; and the execution and delivery
of such agreement and the performance thereof by the Company and the REIT
Manager are within the power and authority of the Company and the REIT Manager,
do not violate any provision of or constitute a default under any agreement or
instrument to which the Company or the REIT Manager is a party or by which the
Company or the REIT Manager is bound, and do not require the consent, approval,
authorization or order of any court or governmental agency or body; and
(s) the Company has and will maintain, property and casualty insurance in
favor of the Company and its subsidiaries, as the case may be, with respect to
each of its properties, in an amount and on such terms as is reasonable and
customary for businesses of the type proposed to be conducted by the Company and
the subsidiaries; the Company has not received from any insurance company
written notice of any material defects or deficiencies affecting the
insurability of any such properties.
5. The Company covenants and agrees with each of the several Underwriters
as follows:
(a) to file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A under the Securities Act; and to
furnish copies of the Prospectus to the Underwriters in New York City as
promptly as practicable on the Business Day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to each of the
Representatives, conformed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits, and to each
other Underwriter a conformed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case without exhibits and, during the
period mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto) as
the Representatives may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, to furnish to the Representatives a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives reasonably object;
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(d) to advise the Representatives promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement has been filed or
becomes effective, (ii) when any supplement to the Prospectus or any amendment
to the Prospectus has been filed and to furnish the Representatives with copies
thereof, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the Prospectus
or the initiation or threatening of any proceeding for that purpose, (v) of the
occurrence of any event, within the period referenced in paragraph (e) below, as
a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
and (vi) of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order, or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any such qualification
of the Securities, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, 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 supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses the Representatives will furnish to the Company) to
which Securities may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary 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;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities; provided that the
Company shall not be required to file a general consent to service of process in
any jurisdiction;
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(g) to make generally available to its security holders and to the
Representatives as soon as practicable an earning statement covering a period of
at least twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to the
Representatives copies of all reports or other communications (financial or
other) furnished to holders of the Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange;
(i) during the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, not to offer, sell,
contract to sell, or otherwise dispose of any debt securities of or guaranteed
by the Company which are substantially similar to the Securities;
(j) to use the net proceeds received by the Company from the sale of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds"; and
(k) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any Preliminary Prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel for
the Underwriters and their disbursements), (iv) related to any filing with the
NASD, (v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, the Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to Underwriters and
dealers of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided, (vi) payable to rating agencies in
connection with the rating of the Securities, (vii) any expenses incurred by the
Company in connection with a "road show" presentation to potential investors and
(viii) the cost and charges of any registrar.
6. The several obligations of the Underwriters hereunder to purchase the
Securities on the Closing Date are subject to the performance by the Company of
its obligations hereunder and to the following additional conditions:
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(a) the Registration Statement (excluding the Rule 462 Registration
Statement) shall have become effective (or if a post-effective amendment is
required to be filed under the Securities Act, such post-effective amendment
shall have become effective) not later than 5:00 p.m., New York City time, on
the date hereof; if the Company has elected to rely on Rule 462(b), the Rule 462
Registration Statement shall have become effective not later than 10:00 p.m.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the satisfaction of the
Representatives;
(b) the representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date as if made on and as of the
Closing Date and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any downgrading, (ii) any intended or
potential downgrading or (iii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or guaranteed
by the Company by any "nationally recognized statistical rating organization",
as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or long-
term debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, prospects, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the Closing Date on the terms and in the manner
contemplated in the Prospectus; and neither the Company nor any of its
subsidiaries has sustained since the date of the latest audited financial
statements included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus;
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(e) the Representatives shall have received on and as of the Closing Date
a certificate of an executive officer of the Company, with specific knowledge
about the Company's financial matters, satisfactory to the Representatives to
the effect set forth in subsections (a) through (c) (with respect to the
respective representations, warranties, agreements and conditions of the
Company) of this Section and to the further effect that there has not occurred
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement;
(f) Xxxxx, Xxxxx & Xxxxx, counsel for the Company, shall have furnished to
the Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) the Company has an authorized capitalization as set forth in the
Prospectus;
(ii) the Company has been duly qualified for the transaction of
business and is in good standing under the laws of each jurisdiction other
than the State of Maryland in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of public officials or
officers of the Company, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such opinions
and certificates);
(iii) each subsidiary of the Company set forth on Exhibit A hereto
has been duly organized and is validly existing, with respect to
subsidiaries that are corporations or limited partnerships, in good
standing under the laws of its jurisdiction of organization; and all of the
issued shares of capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and, with respect to
subsidiaries that are corporations, nonassessable, and (except as otherwise
set forth in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of public officials or officers of the Company of any of
its subsidiaries, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such opinions and
certificates);
(iv) to the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the
12
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and, to
the best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(v) the REIT Manager has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has corporate power to conduct its
business as described in the Prospectus;
(vi) the REIT Management Agreement has been duly authorized, executed
and delivered by the parties thereto and constitutes a legal, valid and
binding agreement, enforceable in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at law, and
the discretion of the court before which any proceeding therefrom may be
brought and, with respect to indemnification obligations thereunder, to
federal and state securities laws;
(vii) this Agreement has been duly authorized, executed and delivered
by the Company;
(viii) the Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company, entitled to the
benefits provided by the Indenture and enforceable against the Company in
accordance with their terms, subject as to enforcement to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law; and the Securities conform
to the description thereof contained in the Prospectus;
(ix) the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and the effect of general
13
principles of equity, whether enforcement is considered in a proceeding in
equity or at law; and the Indenture has been duly qualified under the Trust
Indenture Act;
(x) the issue and sale of the Securities by the Company and the
performance by the Company of all of its obligations under this Agreement,
the Securities and the Indenture and the consummation of the transactions
herein and therein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement,
lease or other material agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, other then
such breaches or violations which, if determined adversely to the Company
or any of its subsidiaries, would not individually or in the aggregate have
a material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, (ii) result in any violation of the
provisions of the Charter or Bylaws, (iii) result in any violation of any
statute or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, other than violations
which, if determined adversely to the Company or any of its subsidiaries
would not individually or in the aggregate have a material adverse effect
on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole;
(xi) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except the registration under the Securities Act of the
Securities, such consents, approvals, authorizations, orders, registrations
or qualifications as may be required under the Securities Act, the Trust
Indenture Act, state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters and such
additional steps as may be required by the NASD;
(xii) neither the Company nor any of its subsidiaries is in violation
of its declaration of trust, charter, certificate or articles of
incorporation, partnership agreement or bylaws, as applicable, or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or any other agreement or instrument known to such
counsel to which it is a party or by which it is bound or to which any of
its property or assets is subject;
14
(xiii) the statements set forth in the Prospectus (A) under the
caption "Description of Notes", insofar as they purport to constitute a
summary of the terms of the Securities, and (B) under the caption "Federal
Income Tax Considerations", to the extent such statements purport to
describe factual matters or relate to matters of law or regulation or
constitute summaries of documents described therein, are accurate and
complete in all material respects;
(xiv) the Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for its
fiscal year ended December 31, 1996, and the Company's present and
contemplated organization, ownership, method of operation, assets and
income are such that the Company is in a position under present law to so
qualify for the fiscal year ending December 31, 1997 and in the future; and
the consummation of the Merger (as defined in the Prospectus) and related
transactions as described in the Prospectus, including the rights offering,
will not jeopardize the status of the Company as a real estate investment
trust;
(xv) the Company is not an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act; and
(xvi) the Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the
Closing Date (other than the financial statements and related schedules
therein and other than that part of the Registration Statement which
constitutes the Form T-1 of the Trustee under the Trust Indenture Act, as
to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act; they have no reason to believe that, as of its effective
date, any Registration Statement or any further amendments thereto (other
than the financial statements and related schedules therein and other than
that part of the Registration Statement which constitutes the Form T-1 of
the Trustee under the Trust Indenture Act, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus or any amendments or supplements thereto (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of the
Closing Date, any Registration Statement or the Prospectus or any further
amendments or supplements thereto (other than the financial statements and
related schedules therein and other than that part of the Registration
Statement which constitutes the Form T-1 of the Trustee under the
15
Trust Indenture Act, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading; and they do not
know of any amendment to any Registration Statement required to be filed or
of any contracts or other documents of a character required to be filed as
an exhibit to any Registration Statement or required to be described in any
Registration Statement or the Prospectus which are not filed or described
as required.
In rendering such opinion, Xxxxx, Xxxxx & Xxxxx may rely as to matters
governed by the laws of the State of Maryland on Xxxxxxx Xxxxx Xxxxxxx &
Xxxxxxxxx and as to matters governed by the laws of states other than Illinois,
Maryland, New York or Federal laws on local counsel in such jurisdictions,
provided that in each case Xxxxx, Xxxxx & Xxxxx shall state that they believe
that they and the Underwriters are reasonably justified in relying on such other
counsel. In rendering the opinions contained in paragraphs (xiii) (insofar as
such opinion refers to information in the Prospectus under the caption "Federal
Income Tax Considerations") and (xiv), such opinions may be based upon (a) the
Code and the rules and regulations promulgated thereunder and the
interpretations of the Code and such regulations by the courts and the Internal
Revenue Service, all as they are in effect and exist at the time of this
opinion, (b) Maryland and Delaware law existing and applicable to the Company,
(c) facts and other matters set forth in the Prospectus, (d) the provisions of
the Charter, the agreements relating to the properties owned by the Company and
the REIT Management Agreement, and (e) certain statements and representations as
to factual matters made by the Company to Xxxxx, Brown & Xxxxx as set forth in
an attachment thereto;
(g) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland counsel for the
Company, shall have furnished to the Representatives their written opinion,
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) the Company is a corporation duly organized and existing under
and by virtue of the laws of the State of Maryland, and is in good standing
with the Maryland State Department of Assessments and Taxation with
corporate power and authority to own its current properties and conduct its
current business as described in the Prospectus;
(ii) the Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable; and
(iii) each subsidiary of the Company identified on Exhibit A hereto
as a Maryland corporation or partnership is a corporation or partnership
duly organized and existing under and by virtue of the laws of the State of
Maryland, and is in good standing
16
with the Maryland State Department of Assessments and Taxation; and all of
the issued shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and, with respect to
subsidiaries that are corporations, nonassessable;
(h) On the effective date of the Registration Statement and the effective
date of the most recently filed post-effective amendment to the Registration
Statement and also on the Closing Date, Ernst & Young LLP shall have furnished
to you a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, containing statements and information of
the type customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(i) The Representatives shall have received on and as of the Closing Date
an opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Underwriters, with respect to the validity of the Indenture and the Securities,
the Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters; and
(j) On or prior to the Closing Date the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
the legal fees and other expenses reasonably incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, 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 by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein; provided,
that the foregoing indemnity with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of the person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities if such untrue statement or
omission or alleged untrue statement or omission
17
made in such preliminary prospectus is eliminated or remedied in the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Act and Section 20 of the Exchange Act 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 to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person 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
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person 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 Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person 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 Person agrees to
indemnify any Indemnified Person
18
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the 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 the Underwriters on the other in
connection with the statements or omissions that 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 shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the Company and the total underwriting discounts and the commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and 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 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 Section 7 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 that does not take account of the
equitable considerations referred to in the immediately
19
preceding paragraph. The amount paid or payable by an Indemnified Person 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 reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that 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 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 Section 7 are several in proportion to the
respective principal amount of Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law of in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the NASD, the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
20
9. This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any post-
effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Securities which it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of 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 Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Securities set forth
opposite their respective names in Schedule I bears to the aggregate principal
amount of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Securities that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities which it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company. In any such case either you or the
Company 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.
10. 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 or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to 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 expenses of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the offering
contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and
21
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 (telefax:______); Attention: Syndicate Department. Notices to
the Company shall be given to it at Security Capital Atlantic Incorporated, Six
Piedmont Center, Atlanta, Georgia 30305 (telefax: (000) 000-0000); Attention:
Xxxxxxx X. Xxxxx.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
22
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
SECURITY CAPITAL ATLANTIC
INCORPORATED
By:
--------------------------
Title:
Accepted: __________, 1997
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By:
--------------------------
Title:
23
SCHEDULE I
Principal Amount Principal Amount
of 2011 Notes of 2017 Notes
Underwriter to be Purchased to be Purchased
----------- ---------------- ----------------
X.X. Xxxxxx Securities, Inc... $ $
Xxxxxxx, Xxxxx & Co...........
------------ -----------
Total $100,000,000 $50,000,000
============ ===========
24
EXHIBIT A
Jurisdiction
Name of Subsidiary of Organization
------------------ ---------------
SCA Florida Holdings (1) Incorporated Florida
Atlantic - Alabama (1) Incorporated Maryland
Atlantic - Alabama (2) Incorporated Maryland
Atlantic - Alabama (3) Incorporated Delaware
Atlantic - Alabama (4) Incorporated Delaware
Atlantic - Alabama (5) Incorporated Maryland
Atlantic - Alabama (6) Incorporated Maryland
Security Capital Alabama Multifamily Trust Alabama
Atlantic Alabama Multifamily Trust Alabama
SCA - Alabama Multifamily Trust Alabama
SCA- Indiana Limited Partnership Delaware
SCA - North Carolina (1) Incorporated Maryland
SCA - North Carolina (2) Incorporated Maryland
SCA North Carolina Limited Partnership Delaware
SCA North Carolina Limited Partnership 2 Delaware
SCA - South Carolina (1) Incorporated Maryland
SCA - Tennessee Limited Partnership Delaware
SCA - Tennessee (1) Incorporated Maryland
SCA - Tennessee (2) Incorporated Maryland
SCA - Tennessee (3) Incorporated Maryland
SCA - Tennessee (4) Incorporated Maryland
Atlantic - Tennessee Limited Partnership Delaware
Security Capital Atlantic Multifamily Incorporated Delaware
Security Capital Atlantic Management Incorporated Delaware
25
