<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) July 8, 1997
--------------------------
SECURITY CAPITAL INDUSTRIAL TRUST
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Maryland
- --------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation)
<TABLE>
<S> <C>
1-12846 74-2604728
- -------------------------- ------------------------------------
(Commission File Number) (I.R.S. Employer Identification No.)
</TABLE>
14100 East 35th Place, Aurora, Colorado 80011
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(303) 375-9292
- --------------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
Not Applicable
- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
================================================================================
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Document Description
----------- --------------------
<S> <C>
1 Form of Underwriting Agreement dated July 8, 1997
among Goldman, Sachs & Co., J.P. Morgan Securities
Inc. and Security Capital Industrial Trust.
3.1 Third Articles of Amendment of Amended and
Restated Declaration of Trust of Security Capital
Industrial Trust.
4 Form of 7.625% Note due 2017 of Security
Capital Industrial Trust.
</TABLE>
-2-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SECURITY CAPITAL INDUSTRIAL TRUST
Dated: July 10, 1997 By: /s/ JEFFREY A. KLOPF
-----------------------------------
Jeffrey A. Klopf
Secretary
-3-
<PAGE>
EXHIBIT 1
$100,000,000
7.625% NOTES DUE 2017
SECURITY CAPITAL INDUSTRIAL TRUST
UNDERWRITING AGREEMENT
July 8, 1997
<PAGE>
July 8, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Dear Sirs:
Security Capital Industrial Trust, a Maryland real estate investment trust
("SCI"), proposes to issue and sell to Goldman, Sachs & Co. and J.P. Morgan
Securities Inc. (collectively, the "Underwriters") $100,000,000 principal
amount of its 7.625% Notes due 2017 (the "Securities"), to be issued pursuant
to the provisions of an Indenture dated as of March 1, 1995 (the "Indenture")
between SCI and State Street Bank and Trust Company, as Trustee (the "Trustee").
SCI 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 (File Number
333-13909) on Form S-3, including a form of prospectus, relating to certain debt
and equity securities (the "Shelf Securities") to be issued from time to time by
SCI. SCI proposes to file with the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the Securities.
The registration statement as amended to the date of this Agreement is
hereinafter referred to as the "Registration Statement" and the related
prospectus covering the Shelf Securities in the form first used
<PAGE>
to confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Prospectus". Any
reference in this Agreement to the Registration Statement, the Basic Prospectus,
any preliminary form of Prospectus (a "preliminary prospectus") previously filed
with the Commission pursuant to Rule 424 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 Securities Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
I.
SCI represents and warrants to the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of SCI,
threatened by the Commission.
(b)(i) Each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will not, as of the effective date of such amendment or as of the
date of such supplement, as the case may be, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
2
<PAGE>
(ii) the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not, as of the date of such amendment or
supplement, as the case may be, and at the Closing Date, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to the
Underwriters furnished to SCI in writing by Goldman, Sachs & Co. expressly for
use therein or (B) to that part of the Registration Statement that constitutes
the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustee.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, complied in all material respects with the
Exchange Act and the applicable 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 necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the Commission
will comply in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, as applicable, and will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) SCI has been duly organized, is validly existing as a real estate
investment trust of unlimited duration in good standing under the laws of the
State of Maryland, has the trust power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and
3
<PAGE>
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on SCI and its Subsidiaries, taken as a whole.
(e) Each subsidiary of SCI (within the meaning of the Securities Act) is
listed in Annex A hereto (the "subsidiaries") and has been duly incorporated or
organized, as the case may be, is validly existing as a corporation, trust or
partnership in good standing under the laws of the jurisdiction of its
organization, has the power (corporate or other) and authority to own its
property and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on SCI
and its Subsidiaries, taken as a whole.
(f) Each joint venture of SCI is listed in Annex B hereto (the "Joint
Ventures" and, together with the subsidiaries, the "Subsidiaries") and has been
duly organized, is validly existing as a joint venture in good standing under
the laws of the jurisdiction of its organization, has the power (corporate or
other) and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on SCI and its Subsidiaries, taken as a whole.
4
<PAGE>
(g) SCI has an authorized capitalization as set forth in the Prospectus
(except as contemplated by the amendment to the declaration of trust of SCI
adopted by the shareholders at the annual meeting of SCI held on June 24, 1997),
and all of the issued shares of beneficial interest of SCI have been duly and
validly authorized and issued, are fully paid and, except as described in the
Prospectus, non-assessable; and all of the issued shares of capital stock or
other equity interest of each Subsidiary of SCI 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
SCI, free and clear of all liens, encumbrances, equities or claims.
(h) The financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of SCI 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 period specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference 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 or incorporated
by reference in the Registration Statement and the Prospectus has been prepared
in accordance with the applicable requirements of the Securities Act and the
Exchange Act.
(i) This Agreement has been duly authorized, executed and delivered by
SCI.
(j) The Indenture has been duly authorized, executed and delivered and
duly qualified under the Trust Indenture Act and is a valid and binding
agreement of SCI, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability; and the
5
<PAGE>
Indenture and the Securities conform in all material respects to the
descriptions thereof in the Prospectus.
(k) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture, and will be valid
and binding obligations of SCI, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(l) The execution and delivery by SCI of, and the performance by SCI of
its obligations under, this Agreement, the Indenture and the Securities will not
contravene any provision of applicable law or the declaration of trust or by-
laws of SCI or any agreement or other instrument binding upon SCI or any of its
Subsidiaries that is material to SCI and its Subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over SCI or any Subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is required
for the performance by SCI of its obligations under this Agreement, the
Indenture or the Securities, except such as have been obtained under the
Securities Act and the Trust Indenture Act and such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Securities or such consents, approvals, authorizations, orders
or qualifications, the failure of which to obtain would not have a material
adverse effect on SCI and its Subsidiaries taken as a whole or on the
consummation of the transactions contemplated by this Agreement or the
Indenture or on the validity and enforceability of the Securities and the
Indenture.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of SCI and
its Subsidiaries, taken as a whole, from that set
6
<PAGE>
forth in the Prospectus, except as set forth or contemplated in the Prospectus;
and except as set forth or contemplated in the Prospectus neither SCI nor any of
its Subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to SCI and its Subsidiaries taken
as a whole.
(n) There are no legal or governmental proceedings pending or, to the
knowledge of SCI, threatened to which SCI or any of its Subsidiaries is a party
or to which any of the properties of SCI or any of its Subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement or
the documents incorporated by reference therein that are not described or
filed as required.
(o) Each preliminary prospectus, if any, 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, complied when so filed
in all material respects with the Securities Act and the rules and regulations
of the Commission thereunder.
(p) SCI is not an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended.
(q) SCI and its Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses, (iii) are
in compliance with all terms and conditions of any such permit, license or
approval and (iv) have no knowledge of the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the properties owned by
7
<PAGE>
them, or of any unlawful spills, releases, discharges or disposal of such
Hazardous Materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of such
properties, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals or unlawful
presence of Hazardous Materials or occurrence would not, singly or in the
aggregate, have a material adverse effect on SCI and its Subsidiaries, taken as
a whole.
(r) Neither SCI nor any of its Subsidiaries is, or with the giving of
notice or lapse of time or both would be, in violation of or in default under,
its declaration of trust or by-laws or joint venture agreement or other
governing instruments or any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which SCI or any of its Subsidiaries is a
party or by which it or any of them or any of their respective properties is
bound, except for violations and defaults which individually and in the
aggregate are not material to SCI and its Subsidiaries taken as a whole.
(s) SCI and its Subsidiaries taken as a whole carry, or are covered
by, insurance in such amounts and covering such risks as is adequate for the
conduct of their business and the value of their properties.
(t) SCI and each of its Subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus and such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by SCI and its
Subsidiaries; and all real property and buildings held under lease by SCI and
its Subsidiaries 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 SCI and its
Subsidiaries.
8
<PAGE>
(u) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, SCI has met the
requirements for qualification as a real estate investment trust pursuant to
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Internal Revenue Code"), and SCI's present and contemplated organization,
ownership, method of operation, assets and income continue to meet such
requirements; SCI Limited Partnership-I, SCI Limited Partnership-II, SCI Limited
Partnership-III and SCI Limited Partnership-IV are properly treated (x) as
partnerships for federal income tax purposes and (y) not as "publicly traded
partnerships".
(v) Arthur Andersen LLP, who have certified certain financial
statements of SCI and its subsidiaries are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder.
(w) The REIT management agreement (the "REIT Management Agreement")
described in the Prospectus as amended or supplemented has been duly authorized,
executed and delivered by SCI and Security Capital Industrial Incorporated (the
"REIT Manager") and constitutes a legal, valid and binding agreement enforceable
in accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability; and
the execution and delivery of such agreement and the performance thereof by SCI
and the REIT Manager are within the power and authority of SCI and the REIT
Manger, do not violate any provision of or constitute a default under any
agreement or instrument to which SCI or the REIT Manager is a party or by which
SCI or the REIT Manager is bound, and do not require the consent, approval,
authorization or order of any court or governmental agency or body.
(x) Each of the partnership agreements (the "Partnership Agreements")
of SCI Limited Partnership-I, SCI Limited Partnership-II, SCI Limited
Partnership-III and SCI Limited Partnership-IV described in SCI's 1996 Annual
Report on Form 10-K incorporated by reference in the Prospectus has been duly
authorized, executed and
9
<PAGE>
delivered by SCI or a wholly owned subsidiary thereof and constitutes a legal,
valid and binding agreement enforceable in accordance with its terms, except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability; and the execution and delivery of each such agreement and the
performance thereof by SCI or such subsidiary are within the power and authority
of SCI or such subsidiary, did not and do not violate any provision of or
constitute a default under any agreement or instrument to which SCI or such
subsidiary is a party or by which SCI or such subsidiary is bound, and do not
require the consent, approval, authorization or order of any court or
governmental agency or body.
(y) The mortgages and deeds of trust encumbering the properties and
assets described in the Prospectus are not convertible and neither SCI, the REIT
Manager or any of their respective subsidiaries holds a participation interest
therein and such mortgages and deeds of trust are not cross-defaulted or cross-
collateralized to any property not owned by SCI or any of its Subsidiaries.
II.
SCI hereby agrees to sell to the Underwriters, and each Underwriter,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees, severally and not jointly,
to purchase from SCI the respective principal amount of the Securities set forth
opposite the name of such Underwriter on Schedule A at 98.897% of their
principal amount -- the purchase price -- plus accrued interest from July 1,
1997 to the date of payment and delivery.
III.
SCI is advised by the Underwriters that the Underwriters propose to
make a public offering of the Securities as soon after this Agreement has become
effective as in judgment of the Underwriters is advisable. SCI is further
advised by the Underwriters that the Secu-
10
<PAGE>
rities are to be offered to the public initially at 99.772% of their principal
amount -- the public offering price -- plus accrued interest and to certain
dealers selected by the Underwriters at a price that represents a concession not
in excess of .500% of their principal amount under the public offering price,
and that the Underwriters may allow, and such dealers may reallow, a concession,
not in excess of .250% of their principal amount, to the Underwriters or to
certain other dealers.
IV.
Payment for the Securities shall be made by certified or official bank
check or checks payable to the order of, or by wire transfer to, SCI of same day
funds at the office of Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third
Avenue, New York, New York, at 10:00 A.M., local time, on July 11, 1997, or at
such other time on the same or such other date, not later than July 16, 1997, as
shall be designated in writing by Goldman, Sachs & Co. The time and date of
such payment are hereinafter referred to as the Closing Date.
Payment for the Securities shall be made against delivery to the
Underwriters of the Securities registered in such names and in such
denominations as the Underwriters shall request in writing not later than two
full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Securities to the Underwriters
duly paid.
V.
The obligations of the Underwriters hereunder are subject to the
following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review or a possible change that does not indicate the direction
of the possible change, in the rating accorded any of SCI's
11
<PAGE>
securities by any nationally recognized statistical rating
organization, as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations, of
SCI and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement, that, in the judgment of the Underwriters, is
material and adverse and that makes it, in the judgment of the
Underwriters, impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer and
Secretary of SCI, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of SCI contained in this
Agreement are true and correct as of the Closing Date and that SCI has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of
Mayer, Brown & Platt, counsel for SCI, dated the Closing Date, to the effect
that
(i) SCI has been duly organized, is validly existing as a real estate
investment trust in good standing under the laws of the State of Maryland,
has the trust power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
12
<PAGE>
qualified or be in good standing would not have a material adverse effect
on SCI and its Subsidiaries, taken as a whole;
(ii) each of the subsidiaries of SCI has been duly organized, is
validly existing as a corporation, partnership or trust, as the case may
be, in good standing under the laws of the jurisdiction of its
organization, has the power and authority (corporate or other) to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on SCI and its Subsidiaries, taken as a whole;
(iii) SCI has an authorized capitalization as set forth in the
Prospectus and all of the issued shares of beneficial interest of SCI have
been duly and validly authorized and issued and are fully paid and, except
as described in the Prospectus, non-assessable; and all of the issued
shares of capital stock or other equity interest of each subsidiary of SCI
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 SCI, free and clear of all
perfected liens, encumbrances, equities or claims;
(iv) this Agreement has been duly authorized, executed and delivered
by SCI;
(v) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by SCI and is a
valid and binding agreement of SCI, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the
13
<PAGE>
availability of equitable remedies may be limited by equitable principles
of general applicability;
(vi) the Securities have been duly authorized, executed and
delivered by SCI and, when authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of SCI,
enforceable in accordance with their terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(vii) neither SCI nor any of its Subsidiaries is, or with the giving
of notice or lapse of time or both would be, in violation of or in default
under, its declaration of trust, by-laws or joint venture agreement or
other governing instruments or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
SCI or any of its Subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to SCI
and its Subsidiaries taken as a whole; the issue and sale of the Securities
and the performance by SCI of its obligations under the Securities, the
Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which SCI or any of its
Subsidiaries is a party or by which SCI or any of its Subsidiaries is bound
or to which any of the property or assets of SCI or any of its Subsidiaries
is subject, nor will any such action result in any violation of the
provisions of the declaration of trust or the by-laws of SCI or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or
14
<PAGE>
body having jurisdiction over SCI, its Subsidiaries or any of their
respective properties, the violation of which would have a material adverse
effect on SCI and its Subsidiaries taken as a whole or on the consummation
of the transactions contemplated by this Agreement or the Indenture or on
the validity and enforceability of the Securities and the Indenture;
(viii) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation of
the other transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and the Trust
Indenture Act and as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities by
the Underwriters or consents, approvals, authorizations, registrations or
qualifications the failure of which to obtain would not have a material
adverse effect on SCI and its Subsidiaries taken as a whole or on the
consummation of the transactions contemplated by this Agreement or the
Indenture or on the validity and enforceability of the Securities and the
Indenture;
(ix) the statements (1) in the Basic Prospectus under the captions
"Federal Income Tax Considerations," "Plan of Distribution" and
"Description of Debt Securities", (2) in the Prospectus Supplement under
the caption "Description of Notes" and (3) incorporated by reference in the
Prospectus from Item 3 of Part I of SCI's Annual Report on Form 10-K most
recently filed with the Commission, incorporated by reference in the
Prospectus from Item 1 of Part II of SCI's Quarterly Report on Form 10-Q,
if any, filed with the Commission since such Annual Report, incorporated by
reference in the Prospectus from Item 5 of SCI's Current Reports on Form 8-
K, if any, filed with the Commission since such Annual Report and in the
Registration Statement under Item 15, in each case insofar as such
statements constitute summaries of the legal matters, documents and
proceedings referred to therein, fairly present the information called for
with respect to such legal
15
<PAGE>
matters, documents and proceedings in all material respects and are true
and correct in all material respects;
(x) other than as set forth or contemplated in the Prospectus, to
such counsel's knowledge, there are no legal or governmental proceedings
pending or threatened to which SCI or any of its Subsidiaries is or may be
a party or to which any property of SCI or its Subsidiaries is or may be
the subject which, if determined adversely to SCI or such Subsidiaries,
could individually or in the aggregate reasonably be expected to have a
material adverse effect on SCI and its Subsidiaries taken as a whole; to
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and such
counsel does 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 described in the Registration Statement or the Prospectus
which are not filed or incorporated by reference or described as required;
(xi) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and the
Prospectus;
(xii) SCI is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended;
(xiii) 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 and authority to
conduct its business as described in the Prospectus;
(xiv) 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,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws
16
<PAGE>
affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability; and the execution and delivery of such
agreement and the performance thereof by SCI and the REIT Manager are
within the power and authority of SCI and the REIT Manager, do not violate
any provision of or constitute a default under any material agreement or
instrument known to such counsel to which SCI or the REIT Manager is a
party or by which SCI or the REIT Manager is bound, and do not require the
consent, approval, authorization or order of any court or governmental
agency or body;
(xv) SCI has qualified to be taxed as a real estate investment trust
pursuant to the Internal Revenue Code, for its taxable years ended December
31, 1993, 1994, 1995 and 1996, and SCI's present and contemplated
organization, ownership, method of operation, assets and income are such
that SCI is in a position under present law to so qualify for the fiscal
year ending December 31, 1997 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) as partnerships for federal income
tax purposes and (y) not as "publicly traded partnerships";
(xvi) The investments of SCI described in the Prospectus are
permitted investments under the declaration of trust of SCI;
(xvii) the Registration Statement is effective under the Securities
Act and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has been
issued under the Securities Act or proceeding therefor initiated or
threatened by the Commission; and
(xviii) such counsel (1) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and schedules
included or incorporated by reference therein as to which such counsel need
not express any opinion) comply as to form in all material respects with
the
17
<PAGE>
Securities Act, the Trust Indenture Act and the rules and regulations of
the Commission thereunder, (2) is of the opinion that each document
incorporated by reference in the Registration Statement and Prospectus
(except for financial statements and schedules as to which such counsel
need not express any opinion) complies as to form in all material respects
with the Securities Act and the Exchange Act and the rules and regulations
of the Commission thereunder, (3) believes that (except for financial
statements and schedules as to which such counsel need not express any
belief and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) the Registration Statement
and the prospectus included therein at the time the Registration Statement
became effective did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (4) believes that (except
for financial statements and schedules as to which such counsel need not
express any belief) the Prospectus as of its date and as of the Closing
Date does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
In rendering such opinion, Mayer, Brown & Platt 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
Mayer, Brown & Platt 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 (ix) (insofar as said
opinion refers to information in the Prospectus under the caption "Federal
Income Tax Considerations") and (xv), such opinions may be based upon (a)
the Internal Revenue Code, as amended, and the rules and regulations
promulgated thereunder and the interpretations of the Internal Revenue 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
18
<PAGE>
applicable to SCI and its Subsidiaries, (c) facts and other matters set
forth in the Prospectus, (d) the provisions of the declaration of trust of
SCI, the agreements relating to the properties owned by SCI and the REIT
Management Agreement, and (e) certain statements and representations as to
factual matters made by SCI to Mayer, Brown & Platt as set forth in an
attachment thereto.
(d) The Underwriters shall have received on the Closing Date an opinion of
Jeffrey A. Klopf, Senior Vice President and Secretary of SCI, to the effect that
(i) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the best of his
knowledge, threatened to which SCI or any of its Subsidiaries is or may
be a party or to which any property of SCI or its Subsidiaries is or may be
the subject which, if determined adversely to SCI or such Subsidiaries,
could individually or in the aggregate reasonably be expected to have a
material adverse effect on SCI and its Subsidiaries taken as a whole; to
the best of his knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; he does
not know of any amendment to the Registration Statement required to be
filed; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or the
documents incorporated by reference therein or required to be described in
the Registration Statement or the Prospectus which are not filed or incor-
porated by reference or described as required; and
(ii) Each of the Joint Ventures has been duly organized is validly
existing as a joint venture in good standing under the laws of the
jurisdiction of its organization, has the power (corporate or other) and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on
19
<PAGE>
SCI and its Subsidiaries, taken as a whole; SCI owns the outstanding joint
venture interests of each Joint Venture in the percentage amounts specified
in Annex B hereto, directly or indirectly, free and clear of all perfected
liens, encumbrances, equities or claims, except with respect to the terms
of the provisions of the respective joint venture agreements;
(e) The Underwriters shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the Underwriters,
dated the Closing Date, covering the matters referred to in subparagraphs (v),
(vi), (xvii) and (xviii) of paragraph (c) above.
With respect to subparagraph (xviii) of paragraph (c), Mayer, Brown &
Platt and Skadden, Arps, Slate, Meagher & Flom LLP may state that their opinion
and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(f) The Underwriters shall have received, on the Closing Date, a letter
dated the Closing Date, in form and substance satisfactory to the Underwriters,
from Arthur Andersen LLP, independent public accountants for SCI, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters herein
contained, SCI covenants as follows:
(a) To furnish to the Underwriters, without charge, three signed
copies of the Registration Statement (including exhibits and documents
incorporated by reference therein and any amendments there-
20
<PAGE>
to) and, during the period mentioned in paragraph (c) below, as many copies
of the Prospectus and any supplements and amendments thereto or to the
Registration Statement as the Underwriters may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to the Underwriters a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which the Underwriters reasonably object.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel to the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by the Underwriters or a dealer, any event shall occur or condition exist
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, in
the opinion of counsel to the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses the Underwriters will furnish
to SCI) to which Securities may have been sold by the Underwriters, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To file the Prospectus in a form approved by the Underwriters
pursuant to Rule 424 under the Securities Act not later than the
Commission's close of business on the second Business Day following the
date hereof.
(e) To file promptly all reports and any definitive proxy or
information statements required to be filed by SCI with the Commission
pursuant to
21
<PAGE>
0
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period, to advise the
Underwriters promptly, and to confirm such advice in writing, (i) when any
amendment to the Registration Statement shall have become effective, (ii)
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 with respect thereto or with respect to any
documents filed under the Exchange Act, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding
for that purpose, and (iv) of the receipt by SCI 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 notification and, if issued, to obtain
as soon as possible the withdrawal thereof.
(f) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters
shall reasonably request and to pay all expenses (including reasonable
fees and disbursements of counsel) in connection with such qualification
and in connection with the determination of the eligibility of the
Securities for investment under the laws of such jurisdictions as the
Underwriters may designate.
(g) To make generally available to SCI's security holders and to the
Underwriters as soon as practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell contract to sell or
otherwise dispose of any debt securities of SCI or warrants to purchase
debt securities of SCI substan-
22
<PAGE>
tially similar to the Securities (other than (i) the Securities and (ii)
commercial paper issued in the ordinary course of business), without the
prior written consent of Goldman, Sachs & Co.
(i) To pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation and filing
of the Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Securities, including any transfer taxes payable in connection with the
transfer of the Securities to the Underwriters, (iii) the fees and
disbursements of SCI's counsel and accountants, (iv) the qualification of
the Securities under state securities or Blue Sky laws in accordance with
the provisions of paragraph (f), including filing fees and the fees and
disbursements of counsel to the Underwriters in connection therewith and
in connection with the preparation of any Blue Sky Memoranda, (v) the
printing and delivery to the Underwriters, in quantities as hereinabove
stated, copies of the Registration Statement and all amendments thereto, of
each preliminary prospectus and the Prospectus and any amendments or
supplements thereto, and documents incorporated by reference and all
amendments thereto, and (vi) the printing and delivery to the Underwriters
of copies of any Blue Sky Memoranda.
VII.
SCI agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by such Underwriter
or any such controlling person in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if SCI shall have furnished any amendments or supplements thereto),
or
23
<PAGE>
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 such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Underwriters furnished to SCI
by Goldman, Sachs & Co. in writing expressly for use therein.
The Underwriters agree, severally and not jointly, to indemnify and
hold harmless SCI, its Trustees, its officers who sign the Registration
Statement and each person, if any, who controls SCI within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from SCI to the Underwriters, but only with
reference to information relating to the Underwriters furnished to SCI in
writing by Goldman, Sachs & Co. expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall
24
<PAGE>
not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings 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 such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Goldman, Sachs & Co., in the case of parties indemnified pursuant
to the second preceding paragraph, and by SCI, in the case of parties
indemnified pursuant to the first preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party 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 party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph
of this Article VII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion
25
<PAGE>
as is appropriate to reflect the relative benefits received by SCI 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
SCI on the one hand and of the Underwriters on the other hand 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 SCI on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities shall be deemed to
be in the same respective proportions as the net proceeds from the offering of
the Securities (before deducting expenses) received by SCI and the total
underwriting discounts and 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 SCI on
the one hand and of the Underwriters on the other hand 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 SCI, or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
SCI and the Underwriters agree that it would not be just or equitable
if contribution pursuant to this Article VII were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the
26
<PAGE>
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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Article VII are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article
VII and the representations and warranties of SCI contained 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 controlling person or by or on behalf of SCI, its
officers or trustees or any person controlling SCI and (iii) acceptance of and
payment for any of the Securities. The Underwriters' respective obligations to
contribute pursuant to this Article VII are several in proportion to their
respective purchase obligations and not joint.
VIII.
This Agreement shall be subject to termination by notice given by the
Underwriters to SCI, if (a) 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, the New York Stock Exchange,
(ii) trading of any securities of SCI 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 Underwriters, is material and adverse and
(b) in the case of any of the events specified in clauses (a)(i) through (iv),
such event singly or together with any other such event makes it, in the
judgment of the Underwriters, impracticable to market the Securities on
27
<PAGE>
the terms and in the manner contemplated in the Prospectus.
IX.
This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of SCI to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason SCI shall be
unable to perform its obligations under this Agreement, SCI will reimburse the
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel to the Underwriters) reasonably incurred by the
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
X.
If either of the Underwriters shall fail to purchase the Securities
which it is obligated to purchase on the Closing Date under this Agreement and
arrangements satisfactory to the non-defaulting Underwriter and SCI are not made
within thirty-six (36) hours after such default, this Agreement shall terminate
without liability on the part of the non-defaulting Underwriter.
No action taken pursuant to this Article shall relieve the defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriter or SCI
shall have the right to postpone the Closing Date for a period not exceeding
seven (7) days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person not identified in this
Agreement who purchases Securities which a defaulting Underwriter is obligated,
but fails, to purchase.
28
<PAGE>
XI.
This Agreement shall inure to the benefit of and be binding upon SCI,
the Underwriters, any controlling persons referred to herein and their
respective successors and 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.
XII.
Under the terms of SCI's declaration of trust, all persons dealing
with SCI shall look solely to SCI's property for satisfaction of claims of any
nature, and no trustee, officer, agent or shareholder of SCI shall be held to
any person liable in tort, contract or otherwise as the result of the execution
and delivery of this Agreement by SCI.
XIII.
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
Goldman, Sachs & Co. at 85 Broad Street, New York, New York 10004 (facsimile
number: (212) 902-3000); Attention: Registration Department. Notices to SCI
shall be given to it c/o SC Group Incorporated Administrative Center, at 7777
Market Center Avenue, El Paso, Texas 79912 (facsimile number: (505) 988-8920);
Attention: Jeffrey A. Klopf, Senior Vice President.
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
29
<PAGE>
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
SECURITY CAPITAL INDUSTRIAL TRUST
By________________________________
Name:
Title:
Accepted, July 8, 1997
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
By_________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
<PAGE>
Schedule A
<TABLE>
<CAPTION>
Name of Underwriter Principal Amount
- ------------------- of Notes
----------------
<S> <C>
Goldman, Sachs & Co..................................... $ 60,000,000
J.P. Morgan Securities, Inc............................. 40,000,000
Total................................................... $100,000,000
</TABLE>
Sch A-1
<PAGE>
Annex A
Name of Subsidiary
- ------------------
SCI Limited Partnership - I
SCI Limited Partnership - II
SCI Limited Partnership - III
SCI Limited Partnership - IV
SCI-Alabama (1) Incorporated
SCI-Alabama (2) Incorporated
Security Capital Alabama Industrial Trust
SCI-North Carolina (1) Incorporated
SCI-North Carolina (2) Incorporated
SCI-North Carolina Limited Partnership
SCI Houston Holdings, Inc.
SCI IV, Inc.
Security Capital Industrial Management Incorporated
SCI Mexico Industrial Trust
International Industrial Investments Incorporated
Security Capital Logistar International Incorporated
Security Capital Logistar Management Services Incorporated
<PAGE>
Annex B
Percentage Interest
Name of Joint Venture Owned by SCI
- --------------------- -------------------
1440 Goodyear Partners 73%
Red Mountain Joint Venture 70%
<PAGE>
EXHIBIT 3.1
THIRD ARTICLES OF AMENDMENT
OF
AMENDED AND RESTATED DECLARATION OF TRUST
OF
SECURITY CAPITAL INDUSTRIAL TRUST
The undersigned, being an officer duly authorized by a majority of the
Trustees of Security Capital Industrial Trust, a Maryland real estate investment
trust (the "Trust"), does hereby certify pursuant to the provisions of Article
7, Section 1 of the Trust's Amended and Restated Declaration of Trust, dated as
of December 15, 1993, as amended and supplemented (the "Declaration of Trust"),
and Section 8-501 of the Corporations and Associations Article of the Annotated
Code of Maryland, that the Board of Trustees of the Trust has adopted a
resolution declaring this amendment to the Declaration of Trust as hereinafter
set forth to be advisable and that the shareholders of the Trust have approved
such amendment by the affirmative vote of at least a majority of all the votes
entitled to be cast on the matter.
Therefore, Article 2, Section 1 of the Trust's Declaration of Trust is
amended by deleting the number "150,000,000 Shares, $0.01 par value" and
inserting the number "180,000,000 Shares, $0.01 par value" in its place.
The undersigned officer acknowledges these Third Articles of Amendment to
be the act of the Trust and, as to all other matters or facts required to be
verified under oath, that, to the best of his knowledge, information and belief,
these matters and facts are true in all material respects, and that this
statement is made under the penalties for perjury.
<PAGE>
IN WITNESS WHEREOF, the undersigned officer, duly authorized by a majority
of the Trustees, has executed these Third Articles of Amendment as of this 2nd
day of July, 1997.
/s/ Jeffrey A. Klopf
-----------------------------------
Jeffrey A. Klopf
Senior Vice President
ATTEST:
/s/ Lucinda Marker
- -------------------------
Lucinda Marker
Assistant Secretary
S-1
<PAGE>
Exhibit 4
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
REGISTERED PRINCIPAL AMOUNT
No.: 1 $100,000,000
CUSIP No.: 814138 AK 9
SECURITY CAPITAL INDUSTRIAL TRUST
7.625% NOTE DUE 2017
SECURITY CAPITAL INDUSTRIAL TRUST, a real estate investment trust organized
and existing under the laws of the State of Maryland (hereinafter called the
"Company," which term shall include any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of ONE HUNDRED
MILLION DOLLARS on July 1, 2017 and to pay interest on the outstanding principal
amount thereon from July 1, 1997 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on January 1 and July 1 in each year, commencing on January 1, 1998, at the rate
of 7.625% per annum, until the entire principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for
on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
which shall be the June 15 or December 15 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not more than 15 days and not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful
<PAGE>
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. Payment of the
principal of, Make-Whole Amount, if any, on, and interest on this Security will
be made at the office or agency of the Company maintained for that purpose in
the City of Boston, Commonwealth of Massachusetts, or elsewhere as provided in
the Indenture, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by (i) check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) transfer to an account of
the Person entitled thereto located inside the United States.
Each Security of this series is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of March 1, 1995
(herein called the "Indenture"), between the Company and State Street Bank and
Trust Company (herein called the "Trustee," which term includes any successor
trustee under the Indenture with respect to the series of which this Security is
a part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the first page hereof, limited in aggregate principal amount to $100,000,000.
Securities of this series may be redeemed at any time at the option of the
Company, in whole or in part, at a redemption price equal to the sum of (i) the
principal amount of the Securities being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Securities.
The following definitions apply with respect to any redemption of the
Securities of this series at the option of the Company:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not
-2-
<PAGE>
been made, determined by discounting, on a semiannual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given or declaration of
acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment had
not been made, over (ii) the aggregate principal amount of the Securities being
redeemed or paid.
"Reinvestment Rate" means .20% (one-fifth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated or extrapolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the most
recent Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Securities of this series may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, unless the
principal of all of the Securities of this series at the time Outstanding shall
already have become due and
-3-
<PAGE>
payable, the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or
trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities of this series, the Holders of not less than 25%
in principal amount of the Securities of this series at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and the Trustee shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal
hereof or any interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, Make-Whole Amount, if any,
on, and interest on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of
-4-
<PAGE>
the Company in any Place of Payment where the principal of, Make-Whole Amount,
if any, on, and interest on this Security are payable duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Security, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future shareholder, officer or trustee, as such, of the Company or of
any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Security
by the Holder thereof and as part of the consideration for the issue of the
Securities of this series.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
-5-
<PAGE>
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
[This space intentionally left blank.]
-6-
<PAGE>
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the undersigned officer.
SECURITY CAPITAL INDUSTRIAL TRUST
By:
---------------------------------
Name: Jeffrey A. Klopf
Title: Secretary
Attest
By:
-----------------------------
Name: Lucinda G. Marker
Title: Assistant Secretary
Dated: July ___, 1997
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
BY:
-----------------------------
Authorized Officer
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- -----------------------------------
- -----------------------------------
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Security of Security Capital Industrial Trust and hereby does
irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . Attorney
to transfer said Security on the books of the within named Company with full
power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
-8-
