EXHIBIT 1.1
SECURITY CAPITAL INDUSTRIAL TRUST
SERIES C CUMULATIVE REDEEMABLE PREFERRED SHARES
OF BENEFICIAL INTEREST
(PAR VALUE $0.01 PER SHARE)
(LIQUIDATION PREFERENCE $50.00 PER SHARE)
PURCHASE AGREEMENT
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November 7, 1996
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center, North Tower
New York, New York 10281
Ladies and Gentlemen:
Security Capital Industrial Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the
"Underwriter") 2,000,000 Series C Cumulative Redeemable Preferred Shares of
Beneficial Interest, par value $0.01 per share, Liquidation Preference $50.00
Per Share (the "Firm Shares"), of the Company (the "Preferred Shares"), and, at
the election of the Underwriter, up to 300,000 additional Preferred Shares (the
"Optional Shares") (the Firm Shares and the Optional Shares which the
Underwriter elects to purchase pursuant to Section 2 hereof being collectively
called the "Shares").
1. The Company represents and warrants to, and agrees with, the
Underwriter that:
(a) Two registration statements on Form S-3 (File Nos. 33-99548 and
333-13909) in respect of the Shares have been filed with the Securities and
Exchange Commission (the "Commission"); such registration statements and
any post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Underwriter, have been declared effective by the
Commission in such form; no other document with respect to such
registration statements or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act"), each in the form heretofore delivered to the Underwriter); and
no stop order suspending the effectiveness of any such registration
statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission
(any preliminary prospectus included in such registration statements or
filed with the Commission pursuant to Rule 424(a) under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statements, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statements at the time such part of the registration statements became
effective, each as amended at the time such part of the registration
statements became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Shares, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) 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 Act and the rules and regulations of
the Commission thereunder, 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
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conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will 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 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 the
Underwriter expressly for use in the Prospectus as amended or supplemented;
(d) The Registration Statement and the Prospectus conform, and any
amendments or supplements to the Registration Statement or the Prospectus
conform or will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder 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 any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by the Underwriter expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(e) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity,
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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, in or
affecting the general affairs, management, financial position,
shareholders' equity, or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented (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);
(f) The Company and its subsidiaries have good and marketable title in
fee simple to all real property described in the Prospectus as amended or
supplemented 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 as amended or
supplemented or such as do not materially affect the value of such property
and do not interfere with the use made or 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 or proposed to be made of such property and
buildings by the Company and its subsidiaries;
(g) The Company has been duly organized and is validly existing as a
real estate investment trust of unlimited duration with transferable shares
of beneficial interest in good standing under the laws of the State of
Maryland, with power and authority to own its properties and conduct its
business as described in the Prospectus as amended or supplemented, 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 as a corporation,
partnership or trust in good standing under the laws of its jurisdiction of
organization;
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(h) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and, except as described in the Prospectus as
amended or supplemented, non-assessable and conform to the description
thereof contained in the Prospectus; and all of the issued shares of
capital stock or other equity interest 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, non-assessable and (except
for directors' qualifying shares and except as set forth in the Prospectus)
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(i) The unissued Shares have been duly and validly authorized, and,
when issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and, except as described in the
Prospectus as amended or supplemented, non-assessable and will conform to
the description of the Shares contained in the Prospectus as amended or
supplemented, and the holders of outstanding capital stock of the Company
are not entitled to preemptive or other rights afforded by the Company to
subscribe for the Shares;
(j) The issue and sale of the Shares by the Company and the compliance
by the Company with all of the provisions of this Agreement and the
consummation of the transactions contemplated herein will not 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 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, nor will such action result
in any violation of the provisions of the Amended and Restated Declaration
of Trust, as amended (the "Declaration of Trust"), or Bylaws of the Company
or 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; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or governmental body is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except (A) the registration
under the Act of the Shares and (B) such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or
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Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriter;
(k) Neither the Company nor any of its subsidiaries is in violation of
its declaration of trust, 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
or its properties may be bound;
(l) The statements set forth in the Prospectus under the captions
"Description of Series C Preferred Shares" and "Description of Preferred
Shares," insofar as they purport to constitute a summary of the terms of
the Preferred Shares, and under the captions "Federal Income Tax
Considerations" and "Certain Federal Income Tax Considerations," insofar as
they purport to describe factual matters and the provisions of the laws and
the documents referred to therein, are accurate and complete in all
material respects;
(m) Other than as set forth in the Prospectus as amended or
supplemented, 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
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;
(n) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Company has
met the requirements for qualification as a real estate investment trust
under Sections 856 through 860 of the Internal Revenue Code, as amended,
and the Company's present and contemplated operations, assets and income
will enable the Company to continue to meet such requirements; and the
Company is not an open-end investment company, unit investment trust,
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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 (i) 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 of (ii)
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. In connection with the construction on
or operation and use of the properties owned by the Company, the Company
represents that, as of the date of this Agreement, it has no knowledge of
any material failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, reuse, sale, storage,
handling, transport, and disposal of any Hazardous Materials;
(q) The REIT Management Agreement ("REIT Management Agreement")
described in the Prospectus as amended or supplemented has been duly
authorized, executed and delivered by the Company and Security Capital
Industrial 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 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 therefor may be brought; 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 bound, and do not
require the consent, approval, authorization or order of any court or
governmental agency or body; and
(r) Each of the partnership agreements (the "Partnership Agreements")
of SCI Limited Partnership-I, SCI Limited Partnership-II, SCI Limited
Partnership-III and SCI
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Limited Partnership-IV described in the Company's 1995 Annual Report on
Form 10-K incorporated by reference in the Prospectus has been duly
authorized, executed and delivered by the Company or a wholly owned
subsidiary thereof 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 therefor may be brought; and the
execution and delivery of each such agreement and the performance thereof
by the Company or such subsidiary are within the power and authority of the
Company, did not and do not violate any provision of or constitute a
default under any agreement or instrument to which the Company or such
subsidiary is a party or by which the Company or such subsidiary is bound,
and do not require the consent, approval, authorization or order of any
court or governmental agency or body.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at a purchase price per share of $48.75, the number
of Firm Shares set forth above and (b) in the event and to the extent that the
Underwriter shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to issue and sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, at the purchase price per share
set forth in clause (a) of this Section 2, the number of Optional Shares as to
which such election shall have been exercised.
The Company hereby grants to the Underwriter the right to purchase at its
election up to 300,000 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering over-allotments
in the sale of the Firm Shares. Any such election to purchase Optional Shares
may be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement, setting forth the
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by you but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless you and
the Company otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
Underwriter proposes to offer the Firm Shares
8
for sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
4. Certificates for the Firm Shares and the Optional Shares to be
purchased by the Underwriter hereunder, and in such authorized denominations and
registered in such names as the Underwriter may request upon at least forty-
eight hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Underwriter, against payment by the Underwriter of the
purchase price therefor by wire transfer or certified or official bank check or
checks, payable to the order of the Company in immediately available funds, all
at the offices of Brown & Wood llp, One World Trade Center, New York, New York
10048. The time and date of such delivery and payment shall be, with respect to
the Firm Shares, 9:00 a.m., New York time, on November 13, 1996, or at such
other time and date as you and the Company may agree upon in writing, and, with
respect to the Optional Shares, 9:00 a.m., New York time, on the date specified
by you in the written notice given by you of the Underwriter's election to
purchase such Optional Shares, or at such other time and date as you and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery," such time and date for
delivery of the Optional Shares, if not the First Time of Delivery, is herein
called the "Second Time of Delivery," and each such time and date for delivery
is herein called a "Time of Delivery." Such certificates will be made available
for checking and packaging at least twenty-four hours prior to each Time of
Delivery at the office of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
World Financial Center, North Tower, New York, New York 10281.
5. The Company agrees with the Underwriter:
(a) To prepare the Prospectus as amended or supplemented in a form
approved by you and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 424(b); to make no
further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented prior to the last Time of Delivery
which shall be reasonably disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when the Registration Statement, or any amendment thereto, has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof;
to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for
9
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Shares or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) On the business day next succeeding the date hereof and from time
to time, to furnish the Underwriter with copies of the Prospectus as
amended or supplemented in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at any
time prior to the expiration of nine months after the time of issue of the
Prospectus as amended or supplemented in connection with the offering or
sale of the Shares and if at such time any event shall have occurred 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 under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act or the Exchange Act, to
notify you and upon your request to file such document and to prepare and
furnish without charge to you and to any dealer in securities as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement
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to the Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During a period of 90 days from the last Time of Delivery, without
the prior written consent of the Underwriter, not to, directly or
indirectly, offer, sell, contract to sell or otherwise dispose of any
Preferred Shares or securities which are substantially similar to the
Preferred Shares, except for shares issued pursuant to the Company's Share
Option Plan for Outside Trustees or pursuant to the Company's Dividend
Reinvestment Plan or shares issued upon exchange of limited partnership
units or upon exercise or conversion of outstanding options or warrants and
except for the issuance of limited partnership interests (which partnership
interests may be exchangeable for common shares of beneficial interest
after such 90-day period);
(f) To cause Security Capital Group Incorporated ("SCG") and certain
officers and each trustee of the Company not to offer, sell, contract to
sell or otherwise dispose of any Preferred Shares or securities which are
substantially similar to the Preferred Shares owned or to be acquired by
SCG or such person for 90 days after the last Time of Delivery, without the
prior written consent of the Underwriter;
(g) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company
and its consolidated subsidiaries, certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(h) During a period of three years from the date of this Agreement, to
furnish to the Underwriter copies of all reports or other communications
(financial or other) furnished to shareholders, and to deliver to the
Underwriter
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(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as the Underwriter may from time to time
reasonably request (such financial statements to be on a consolidated basis
to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its shareholders generally or to the
Commission);
(i) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(j) To continue to elect to qualify as a "real estate investment
trust" under the Internal Revenue Code of 1986, as amended, and to use its
best efforts to continue to meet the requirements to qualify as a "real
estate investment trust"; and
(k) Not to be or become, at any time prior to the expiration of three
years after the last Time of Delivery, an open-end investment trust, 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.
6. The Company covenants and agrees with the Underwriter that the Company
will pay or cause to be paid the following: (a) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriter and dealers;
(b) the cost of printing or producing this Agreement, any Blue Sky Memorandum
and any other documents in connection with the offering, purchase, sale and
delivery of the Shares; (c) all expenses in connection with the qualification of
the Preferred Shares for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel
for the Underwriter in connection with such qualification and in connection with
the Blue Sky survey(s); (d) all fees and expenses, if any, in connection with
the listing of the Preferred Shares on the New York Stock Exchange and, if any,
the filing fees incident to securing any required review by the NASD of the
terms of sale of the Shares; (e) the cost of preparing certificates for the
Shares; (f) the cost and charges of any
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transfer agent or registrar or dividend disbursing agent; and (g) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 8
and 10 hereof, the Underwriter will pay all of its own costs and expenses,
including the fees of its counsel, transfer taxes on resale of any of the Shares
by them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriter hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in the discretion of the
Underwriter, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented 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
Act and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
your reasonable satisfaction;
(b) Xxxxx & Wood llp, counsel to the Underwriter, shall have furnished
to you such opinion or opinions, dated such Time of Delivery, with respect
to the validity of the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus as well as such other related
matters as you 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;
(c) Xxxxx, Xxxxx & Xxxxx shall have furnished to you their written
opinion, dated such Time of Delivery, in form and substance satisfactory to
you, to the effect that:
(i) The Company has been duly organized and is validly existing as a
real estate investment trust in good standing under the laws of the
State of Maryland, with power and authority to own its properties and
conduct its business as described in the Prospectus as amended or
supplemented;
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(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented; and all of the issued shares of
capital stock of the Company (including the Shares being delivered at
such Time of Delivery) have been duly and validly authorized and
issued and are fully paid and, except as described in the Prospectus
as amended or supplemented, non-assessable; and the Preferred Shares
conform, in all material respects, to the description thereof
contained in the Prospectus as amended or supplemented; and the
holders of outstanding capital stock of the Company are not entitled
to preemptive or other rights afforded by the Company to subscribe for
the Shares;
(iii) The Company 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 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);
(iv) Each subsidiary of the Company has been duly organized and is
validly existing in good standing under the laws of its jurisdiction
of organization; and all of the issued shares of capital stock or
other equity interest of each such subsidiary have been duly and
validly authorized and issued, are fully paid and, with respect to
subsidiaries that are corporations, non-assessable, and (except for
directors' qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company, free and
clear of all perfected 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
or 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);
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus as amended or supplemented, there are no legal
or governmental
14
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 consolidated financial
position, shareholders' equity, or results of operations of the
Company and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) 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;
(vii) The REIT Management Agreement has been duly authorized,
executed and delivered by the parties thereto and constitutes a valid
and legally binding agreement, enforceable in accordance with its
terms, subject 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;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) The issue and sale of the Shares being delivered at such Time of
Delivery by the Company and the compliance by the Company with all of
the provisions of this Agreement and the consummation of the
transactions herein contemplated will not 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 or other 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, nor will such action result in any violation of the
provisions of the Declaration of Trust or Bylaws of the Company or any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or governmental body having jurisdiction
over the Company
15
or any of its subsidiaries or any of their properties, the breach or
violation of which is of material significance in respect of the
business or financial condition of the Company;
(x) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
governmental body is required for the issue and sale of the Shares or
the consummation by the Company of the transactions contemplated by
this Agreement or the terms of the Shares, except such as have been
obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriter;
(xi) Neither the Company nor any of its subsidiaries is in violation
of its declaration of trust, 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 us to
which it is a party or by which it or its properties may be bound;
(xii) The statements set forth (i) in the Prospectus under the
caption "Description of Preferred Shares" and "Federal Income Tax
Considerations" and (ii) in the Prospectus as amended or supplemented
under the captions "Description of Series C Preferred Shares" and
"Certain Federal Income Tax Considerations," to the extent such
statements relate to matters of law or regulation or constitute
summaries of documents described therein, are true and accurate in all
material respects;
(xiii) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Internal
Revenue Code, as amended, for its taxable years ended December 31,
1993, December 31, 1994 and December 31, 1995, 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 taxable year ending December 31,
1996 and in the future; SCI Limited Partnership-I, SCI Limited
Partnership-II, SCI Limited Partnership-III and SCI Limited
Partnership-IV are properly treated (x)
16
as partnerships for federal income tax purposes and (y) not as
"publicly traded partnerships"; 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;
(xiv) The investments of the Company described in the Prospectus are
permitted investments under the Declaration of Trust of the Company;
(xv) The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein and other financial information included or
incorporated by reference therein, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed, as
the case may be, contained, in the case of a registration statement
which became effective under the Act, 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, in the case of other documents which were filed under
the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xvi) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein and other financial information included or
incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Act and the rules and regulations thereunder;
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related
17
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 not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein and other financial
information included or incorporated by reference 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 necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading or that, as of such Time of Delivery, either
the Registration Statement or the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein and other financial information included or incorporated by
reference therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to
be incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required.
In rendering such opinion, Xxxxx, Xxxxx & Xxxxx may rely as to matters
governed by the laws of states other than Illinois, 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 Underwriter are reasonably
justified in relying on such other counsel. In rendering the opinions contained
in paragraphs (xii) (insofar as said opinion refers to information in the
Prospectus under the caption "Federal Income Tax Considerations" or in the
Prospectus as amended or supplemented under the caption "Certain Federal Income
Tax Considerations") and (xiii), such opinions may be based upon (a) the
Internal Revenue Code, as amended, and the rules and regulations promulgated
thereunder, (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 Declaration of Trust of the Company and the REIT Management
18
Agreement, and (e) certain statements and representations made by the Company to
Xxxxx, Brown & Xxxxx.
(d) On the date hereof and also at each Time of Delivery, Xxxxxx Xxxxxxxx
LLP shall have furnished to you a letter or letters, dated the respective date
of delivery thereof, in form and substance satisfactory to you, to the effect
set forth in Annex I hereto;
(e) (i) Neither the Company, nor any of its subsidiaries, shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any 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
(ii) 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 change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity, or results of operations
of the Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is in your judgment so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares
on the terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(f) On or after the date hereof, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Firm
Shares or Optional Shares or both on the terms and in the manner contemplated in
the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred stock (including
the Preferred Shares) by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have
19
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
preferred stock (including the Preferred Shares);
(h) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of Prospectuses as amended or supplemented
on the business day next succeeding the date hereof; and
(i) The Company shall have furnished or caused to be furnished to you at
each Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of this Section
and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Underwriter for any legal or other expenses reasonably incurred by the
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability (or action in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use therein; and provided further, that
the foregoing indemnity with respect to any Preliminary Prospectus shall not
inure to the benefit of the Underwriter (or to the benefit of the person
controlling the Underwriter) if the person asserting any such losses, claims,
damages or liabilities purchased Shares from
20
the Underwriter and if such untrue statement or omission or alleged untrue
statement or omission 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
Shares to such person.
(b) The Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by the indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to the indemnified party
otherwise than under such subsection. In case any such action shall be brought
against the indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, assume the defense thereof, with
counsel satisfactory to the indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party
21
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by the indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. Neither the indemnifying nor the indemnified party shall,
without the written consent of the other party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the other party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the other party
from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of the other party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless the indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then the indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then the
indemnifying party shall contribute to such amount paid or payable by the
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriter on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriter on
the other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriter.
The relative fault 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 on the one hand or the Underwriter on the other and the
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
22
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by the indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by the indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the applicable Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
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.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 8 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and trustee of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Underwriter, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriter or any controlling person of the Underwriter, or the Company
or any officer or trustee or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
10. If the Shares are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriter for all out-of-
pocket expenses, including fees and disbursements of counsel, reasonably
incurred by the Underwriter in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company shall then be under no
further liability to the Underwriter except as provided in Sections 6 and 8
hereof.
11. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriter shall be
23
delivered or sent by mail, telex or facsimile transmission to Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, at World Financial
Center, North Tower, New York, New York 10281, Attention: Tjarda V.S. Xxxxxxx;
and if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriter, the Company and, to the extent provided in Sections 8 and 9
hereof, the officers and trustees of the Company and each person who controls
the Company or the Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
13. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
16. Under the terms of the Company's Declaration of Trust, all persons
dealing with the Company shall look solely to the Company property for
satisfaction of claims of any nature, and no trustee, officer, agent or
shareholder of the Company shall be held to any person liable in tort, contract
or otherwise as the result of the execution and delivery of this Agreement by
the Company.
24
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon the acceptance hereof by you,
this letter and such acceptance hereof shall constitute a binding agreement
between you and the Company.
Very truly yours,
Security Capital Industrial Trust
By: /s/ X. Xxxxxx Xxxxxx
-----------------------------
Name: X. Xxxxxx Xxxxxx
Title: Senior Vice President
Accepted as of the date hereof:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Director
25
ANNEX I
Pursuant to Section 7(d) of the Purchase Agreement, Xxxxxx Xxxxxxxx LLP
shall furnish letters to the Underwriter to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial statement
schedule audited by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations thereunder;
and they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the Underwriter;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or included
in the Company's quarterly report on Form 10-Q incorporated by reference into
the Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Underwriter; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(v)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by
1
reference in Item 6 of the Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(v) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of earnings,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it applies to
Form 10-Q and the related published rules and regulations thereunder (ii)
or any material modifications should be made to the unaudited consolidated
statements of earnings, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on
a basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in
2
Clause (A) and any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical amounts
in the compilation of those statements;
(E) as of a specified date not more than three days prior to the date
of such letter, there have been any changes in the shareholder's equity
(other than issuances of capital stock upon exercise of options which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or net assets or other items
specified by the Underwriter, or any increases in any items specified by
the Underwriter, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
income or net earnings from operations or the total or per share amounts of
consolidated net income or other items specified by the Underwriter, or any
increases in any items specified by the Underwriter, in each case as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Underwriter, except
in each case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vi) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (v) above,
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they have carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Underwriter
which are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents incorporated
by reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Underwriter or in documents incorporated
by reference in the Prospectus specified by the Underwriter, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them to be
in agreement.
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