<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1997
NO. 333-30747
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 2
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
SECURITY CAPITAL ATLANTIC INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENTS)
SIX PIEDMONT CENTER
ATLANTA, GEORGIA 30305
(404) 237-9292
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
JEFFREY A. KLOPF, SECRETARY
SECURITY CAPITAL ATLANTIC INCORPORATED
SIX PIEDMONT CENTER
ATLANTA, GEORGIA 30305
(404) 237-9292
(NAME AND ADDRESS OF AGENT FOR SERVICE)
COPIES TO:
EDWARD J. SCHNEIDMAN STACY J. KANTER
MAYER, BROWN & PLATT SKADDEN, ARPS, SLATE, MEAGHER
190 SOUTH LASALLE STREET & FLOM LLP
CHICAGO, ILLINOIS 60603 919 THIRD AVENUE
(312) 782-0600 NEW YORK, NEW YORK 10022
(212) 735-3000
--------------
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this registration statement becomes
effective.
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES BEING OFFERING PRICE OFFERING REGISTRATION
BEING REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE(2)
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<S> <C> <C> <C> <C>
Notes........................................... $150,000,000 100% $150,000,000 $45,455
</TABLE>
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(1) Estimated solely for purposes of determining the registration fee.
(2) Previously paid.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 30. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table itemizes the expenses incurred by the Registrant in
connection with the offering of the shares being registered. All the amounts
shown are estimates (other than the SEC registration fee and the NASD fee).
<TABLE>
<CAPTION>
AMOUNT
--------
<S> <C>
SEC registration fee........................................... $ 45,455
NASD fee....................................................... 15,500
Rating agency fees............................................. 200,000
Trustee fees................................................... 25,000
Printing fees.................................................. 200,000
Legal fees and expenses (other than Blue Sky).................. 50,000
Accounting fees and expenses................................... 37,500
Blue Sky fees and expenses (including fees of counsel)......... 2,000
Miscellaneous expenses......................................... 49,545
--------
Total...................................................... $625,000
========
</TABLE>
ITEM 31. SALES TO SPECIAL PARTIES.
See Item 32. In addition, on October 18, 1996, Security Capital Group
Incorporated ("Security Capital") purchased 416,666 shares of common stock in
the Registrant's initial public offering of 4,940,000 shares of common stock.
ITEM 32. RECENT SALES OF UNREGISTERED SECURITIES.
From October 26, 1993 (the date of the Registrant's inception) through June 28,
1994, Security Capital purchased an aggregate of 13,066,575 shares of the
Registrant's common stock at a price of $20.00 per share. Such purchases were
exempt from registration pursuant to Section 4(2) of the Securities Act. On May
12, 1994, Laing Properties, Inc. received 5,000,000 shares of the Registrant's
common stock in partial consideration for ATLANTIC's acquisition of a portfolio
of properties. Of the 5,000,000 shares issued to Laing Properties, Inc.,
3,750,000 shares have been repurchased by the Registrant under a put
obligation. In August 1994, the Registrant sold 500,000 shares of common stock
in a private offering at a price of $20.00 per share (including 331,713 shares
which were sold to Security Capital). From March 1995 through June 1995, the
Registrant sold 7,272,728 shares of common stock in a private offering at a
price of $22.00 per share (including 4,310,705 shares which were sold to
Security Capital). From November 1995 through May 1996, the Registrant sold
10,862,278 shares of common stock in a private offering at a price of $23.00
per share (including 919,712 shares which were sold to Security Capital at a
price of $23.00 per share and 1,250,000 shares which were sold to Security
Capital at a price of $23.136 per share). All such transactions were effected
pursuant to the exemption from registration contained in Section 4(2) of the
Securities Act and Rule 506 thereunder.
ITEM 33. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Maryland law permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit of profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action. The Registrant's
Charter contains such a provision which eliminates such liability to the
maximum extent permitted by Maryland law.
The Registrant's officers and Directors will be indemnified under the
Registrant's charter against certain liabilities. The Registrant's charter
provides that the Registrant will, to the maximum extent permitted by Maryland
law in effect from time to time, indemnify and pay or reimburse reasonable
expenses in advance
II-1
<PAGE>
of final disposition of a proceeding to (a) any individual who is a present or
former Director or officer of the Registrant or (b) any individual who, while a
Director or officer of the Registrant and at the request of the Registrant,
serves or has served another corporation, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner
or trustee of such corporation, partnership, joint venture, employee benefit
plan or other enterprise. The Registrant has the power, with the approval of
the Registrant's Board of Directors, to provide such indemnification and
advancement of expenses to a person who served a predecessor of the Registrant
in any of the capacities described in (a) or (b) above and to any employee or
agent of the Registrant or its predecessors.
Maryland law requires a corporation (unless its charter provides otherwise,
which the Registrant's charter does not) to indemnify a director or officer who
has been successful, on the merits or otherwise, in the defense of any
proceeding to which he or she is made a party by reason of his or her service
in that capacity. Maryland law permits a corporation to indemnify its present
and former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a)
the act or omission of the director or officer was material to the matter
giving rise to the proceeding and (i) was committed in bad faith or (ii) was
the result of active and deliberate dishonesty, (b) the director or officer
actually received an improper personal benefit in money, property or services
or (c) in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful. However, a
Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation. Maryland law permits the Registrant to advance
reasonable expenses to a Director or officer upon the Registrant's receipt of
(a) a written affirmation by the Director or officer of his or her good faith
belief that he or she has met the standard of conduct necessary for
indemnification by the Registrant as authorized by the Registrant's Bylaws and
(b) a written statement by or on his or her behalf to repay the amount paid or
reimbursed by the Registrant if it shall ultimately be determined that the
standard of conduct was not met.
The Registrant has entered into indemnity agreements with each of its officers
and Directors which provide for reimbursement of all expenses and liabilities
of such officer or Director, arising out of any lawsuit or claim against such
officer or Director due to the fact that he or she was or is serving as an
officer or Director, except for such liabilities and expenses (a) the payment
of which is judicially determined to be unlawful, (b) relating to claims under
Section 16(b) of the Securities Exchange Act of 1934 or (c) relating to
judicially determined criminal violations.
The form of Underwriting Agreement filed as an exhibit to this registration
statement provides for the reciprocal indemnifications by the Underwriters of
the Registrant, and its Directors, officers and controlling persons, and by the
Registrant of the Underwriters, and their respective directors, officers and
controlling persons, against certain liabilities under the Securities Act.
ITEM 34. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
Not applicable.
ITEM 35. FINANCIAL STATEMENTS AND EXHIBITS.
See Index to Financial Statements and Index to Exhibits.
ITEM 36. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
II-2
<PAGE>
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the questions of whether such indemnification is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Registrant hereby undertakes that: (1) for purposes of determining any
liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-11 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 8TH DAY OF
AUGUST, 1997.
SECURITY CAPITAL ATLANTIC INCORPORATED
/s/ Constance B. Moore
By: ___________________________________
Constance B. Moore
Co-Chairman and Chief Operating
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT TO
THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James C. Potts* Co-Chairman, Chief August 8, 1997
____________________________________ Investment Officer and
James C. Potts Director
/s/ Constance B. Moore Co-Chairman, Chief Operating August 8, 1997
____________________________________ Officer and Director
Constance B. Moore
/s/ William Kell* Vice President and August 8, 1997
____________________________________ Controller (Principal
William Kell Financial and Accounting
Officer)
/s/ M. A. Garcia III* Director August 8, 1997
____________________________________
M. A. Garcia III
/s/ Ned S. Holmes* Director August 8, 1997
____________________________________
Ned S. Holmes
/s/ John M. Richman* Director August 8, 1997
____________________________________
</TABLE> John M. Richman
/s/ Constance B. Moore
*By: _________________________
Constance B. Moore
Attorney-in-fact
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
----------- --------------------
<C> <S>
+1 Form of Underwriting Agreement, dated as of August , 1997, among
Security Capital Atlantic Incorporated ("ATLANTIC") and J.P.
Morgan Securities Inc. and Goldman, Sachs & Co., as
representatives of the underwriters named therein
2.1 Merger and Distribution Agreement, dated as of May 21, 1996, among
Security Capital Pacific Trust ("PTR"), ATLANTIC, Security Capital
Group Incorporated ("Security Capital") and Homestead Village
Properties Incorporated ("Homestead") (incorporated by reference
to Exhibit 2 to Homestead's Form S-4 Registration Statement (File
No. 333-4455; the "Homestead S-4"))
2.2 Form of Articles of Merger (incorporated by reference to Exhibit
2.1 to the Homestead S-4)
2.3 Merger and Issuance Agreement, dated as of March 24, 1997, between
Security Capital and ATLANTIC (incorporated by reference to
Exhibit 2.1 to ATLANTIC's Form 8-K dated March 24, 1997 (File No.
1-12303, the "ATLANTIC 8-K"))
2.4 First Amendment to Merger and Issuance Agreement (incorporated by
reference to Exhibit 2.7 to Security Capital's Form S-11
Registration Statement (File No. 333-26263, the "Security Capital
S-11")
2.5 Second Amendment to Merger and Issuance Agreement (incorporated by
reference to Exhibit 2.8 to the Security Capital S-11)
2.6 Third Amendment to Merger and Issuance Agreement (incorporated by
reference to Exhibit 2.13 to the Security Capital S-11)
2.7 Form of Agreement and Plan of Merger (incorporated by reference to
Exhibit 2.4 to the Security Capital S-11)
4.1 Second Amended and Restated Articles of Incorporation of ATLANTIC
(incorporated by reference to Exhibit 4.1 to ATLANTIC's Form S-11
Registration Statement (File No. 333-07071; the "ATLANTIC S-11"))
4.2 Articles of Amendment to Second Amended and Restated Articles of
Incorporation of ATLANTIC (incorporated by reference to Exhibit
4.2 to the ATLANTIC S-11)
4.3 Articles of Amendment to Second Amended and Restated Articles of
Incorporation of ATLANTIC (incorporated by reference to Exhibit
4.3 to the ATLANTIC S-11)
4.4 Articles Supplementary to Second Amended and Restated Articles of
Incorporation relating to ATLANTIC's Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 4.4 to
ATLANTIC's Form 10-K for the year ended December 31, 1996 (File
No. 1-12303, the "ATLANTIC 10-K"))
4.5 Form of Articles Supplementary to Second Amended and Restated
Articles of Incorporation relating to ATLANTIC's Series A
Cumulative Redeemable Preferred Stock (incorporated by reference
to Exhibit 4.5 to ATLANTIC's Form S-11 Registration Statement
(File No. 333-30749)).
4.6 Second Amended and Restated Bylaws of ATLANTIC (incorporated by
reference to Exhibit 4.4 to the ATLANTIC S-11)
4.7 Rights Agreement, dated as of March 12, 1996, between ATLANTIC and
The First National Bank of Boston, as Rights Agent, including form
of Rights Certificate (incorporated by reference to Exhibit 4.5 to
the ATLANTIC S-11)
+4.8 Form of Indenture, dated as of August , 1997, from ATLANTIC to
State Street Bank and Trust Company, as Trustee
4.9 Form of % Note Due 2011
4.10 Form of % Note Due 2017
5 Opinion of Mayer, Brown & Platt as to the legality of the Notes
being registered
+8 Opinion of Mayer, Brown & Platt as to certain tax matters
10.1 Transfer and Registration Rights Agreement, dated as of December
15, 1995, among ATLANTIC and the investors listed on the signature
pages thereto (incorporated by reference to Exhibit 10.1 to the
ATLANTIC S-11)
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
----------- --------------------
<C> <S>
10.2 Supplemental Registration Rights Agreement, dated as of December
15, 1995, among ATLANTIC and the investors listed on the signature
pages thereto (incorporated by reference to Exhibit 10.2 to the
ATLANTIC S-11)
10.3 Second Amended and Restated REIT Management Agreement, dated as of
June 30, 1996, between ATLANTIC and the REIT Manager (incorporated
by reference to Exhibit 10.3 to the ATLANTIC S-11)
10.4 Investor Agreement, dated as of October 28, 1993, between ATLANTIC
and Security Capital (incorporated by reference to Exhibit 10.4 to
the ATLANTIC S-11)
10.5 Revolving Credit Agreement, dated as of December 18, 1996, between
ATLANTIC and Morgan Guaranty Trust Company of New York, as agent
bank, including form of Revolving Credit Note (incorporated by
reference to Exhibit 10.5 to the ATLANTIC 10-K)
10.6 Form of Indemnification Agreement entered into between ATLANTIC
and each of its Directors (incorporated by reference to Exhibit
10.6 to the ATLANTIC S-11)
10.7 Security Capital Atlantic Incorporated Share Option Plan for
Outside Directors (incorporated by reference to Exhibit 10.7 to
the ATLANTIC S-11)
10.8 First Amendment to Security Capital Atlantic Incorporated Share
Option Plan for Outside Directors (incorporated by reference to
Exhibit 10.8 to the ATLANTIC S-11)
10.9 Consolidated Amended and Restated Promissory Note by Atlantic
Homestead Village Incorporated in favor of ATLANTIC (incorporated
by reference to Exhibit 4.6 to the Homestead S-4)
10.10 Amended and Restated Promissory Note by Atlantic Homestead Village
Limited Partnership in favor of ATLANTIC (incorporated by
reference to Exhibit 4.7 to the Homestead S-4)
10.11 Protection of Business Agreement among ATLANTIC, PTR, Security
Capital and Homestead (incorporated by reference to Exhibit 10.11
to the ATLANTIC 10-K)
10.12 Investor and Registration Rights Agreement between Homestead and
ATLANTIC (incorporated by reference to Exhibit 10.12 to the
ATLANTIC 10-K)
10.13 Funding Commitment Agreement between Homestead and ATLANTIC
(incorporated by reference to Exhibit 10.13 to the ATLANTIC 10-K)
10.14 Form of Property Management Agreement for ATLANTIC's communities
(incorporated by reference to Exhibit 10.13 to the ATLANTIC S-11)
10.15 Form of Amended and Restated Investor Agreement between ATLANTIC
and Security Capital (incorporated by reference to Exhibit 10.1 to
the ATLANTIC 8-K)
10.16 Form of Administrative Services Agreement between ATLANTIC and SC
Group Incorporated (incorporated by reference to Exhibit 10.2 to
the ATLANTIC 8-K)
10.17 Form of Protection of Business Agreement between ATLANTIC and
Security Capital (incorporated by reference to Exhibit 10.3 to the
ATLANTIC 8-K)
+12 Computation of Ratio of Earnings to Fixed Charges
+15 Letter re unaudited interim financial information
21 Subsidiaries of ATLANTIC (incorporated by reference to Exhibit 21
to the ATLANTIC 10-K)
23.1 Consent of Mayer, Brown & Platt (included in the opinions filed as
Exhibits 5 and 8)
+23.2 Consent of Ernst & Young LLP, Dallas, Texas
+24 Power of Attorney pursuant to which amendments to this
Registration Statement may be filed
+25 Statement of Eligibility on Form T-1 of State Street Bank and
Trust Company
</TABLE>
- --------
*To be filed by amendment
+Previously filed
E-2
<PAGE>
Exhibit
4.9
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.: ___________
SECURITY CAPITAL ATLANTIC INCORPORATED
______% NOTE DUE 2011
SECURITY CAPITAL ATLANTIC INCORPORATED, a corporation 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 August __,2011 (less all previously paid installments of
principal which are due and payable as set forth below, commencing on August
___, 2003) and to pay interest on the outstanding principal amount thereon from
August __, 1997, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually in arrears on February __ and
August __ in each year, commencing on February __, 1998, at the rate of ____%
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 shall, 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 ________ __ or ______ __ (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 hereof 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
<PAGE>
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and on 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 each installment of interest hereon may
at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto, to the
address of such Person as it appears on 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 August __, 1997
(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.
Installments of principal on each $1,000 original principal amount of
Securities of this series will be paid annually on each August ___, commencing
on August ____, 2003, in the following amounts: $125 in 2003 through 2009, and
$62.50 in 2010 and 2011. The principal on this Security will be payable to the
Persons in whose name this Security is registered in the Security Register on
the preceding ______ ___ (whether or not a Business Day).
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.
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<PAGE>
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 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 0.25% (one-fourth 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
-3-
<PAGE>
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 occurs and
is continuing, unless the principal of all of the Securities of this series
already has become due and payable, 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, 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 has previously given written
notice to the Trustee 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 have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee and offered to the Trustee reasonable
indemnity and the Trustee has not received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding any
direction inconsistent with such written request, and the Trustee has failed to
institute any such proceeding for 60 days after its 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.
-4-
<PAGE>
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 any office or
agency of the Company in a Place of Payment where the principal of, Make-Whole
Amount, if any, on, and interest on this Security are payable duly endorsed, 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 such
Holder's attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of authorized denominations and of a like aggregate
principal amount, will be issued in the name of 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 which may be imposed 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 is 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 director, officer, employee or shareholder 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
-5-
<PAGE>
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.
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.
-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 ATLANTIC INCORPORATED
By:_______________________
Constance B. Moore
Co-Chairman
Attest
By:_________________________
Jeffrey A. Klopf
Secretary
Dated: August __, 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
-7-
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
===========================================
===========================================
................................................................. hereby assigns
(Please Print or Type Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of SECURITY CAPITAL ATLANTIC INCORPORATED and hereby does
irrevocably constitute and appoint
....................................................................... Attorney
to transfer such 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-
<PAGE>
EXHIBIT 4.10
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 $50,000,000
CUSIP No.: ___________
SECURITY CAPITAL ATLANTIC INCORPORATED
______% NOTE DUE 2017
SECURITY CAPITAL ATLANTIC INCORPORATED, a corporation 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 FIFTY
MILLION DOLLARS on August __, 2017 (less all previously paid installments of
principal which are due and payable as set forth below, commencing on August
___, 2013) and to pay interest on the outstanding principal amount thereon from
August __, 1997, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually in arrears on February __ and
August __ in each year, commencing on February __, 1998, at the rate of ____%
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 shall, 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 ________ __ or ______ __ (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 hereof 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
<PAGE>
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and on 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 each installment of interest hereon may
at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto, to the
address of such Person as it appears on 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 August __, 1997
(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.
Installments of principal of $200 will be paid on each $1,000 original
principal amount of Securities of this series annually on each August ___,
commencing on August ____, 2013. The principal on this Security will be payable
to the Persons in whose name this Security is registered in the Security
Register on the preceding ______ ___ (whether or not a Business Day).
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:
-2-
<PAGE>
"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 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 0.25% (one-fourth 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
-3-
<PAGE>
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 occurs and
is continuing, unless the principal of all of the Securities of this series
already has become due and payable, 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, 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 has previously given written
notice to the Trustee 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 have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee and offered to the Trustee reasonable
indemnity and the Trustee has not received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding any
direction inconsistent with such written request, and the Trustee has failed to
institute any such proceeding for 60 days after its 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.
-4-
<PAGE>
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 any office or
agency of the Company in a Place of Payment where the principal of, Make-Whole
Amount, if any, on, and interest on this Security are payable duly endorsed, 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 such
Holder's attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of authorized denominations and of a like aggregate
principal amount, will be issued in the name of 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 which may be imposed 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 is 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 director, officer, employee or shareholder 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
-5-
<PAGE>
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.
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.
-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 ATLANTIC INCORPORATED
By:
------------------------------
Constance B. Moore
Co-Chairman
Attest
By:
---------------------------
Jeffrey A. Klopf
Secretary
Dated: August __, 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:
---------------------------
-7-
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- -------------------------------------------
- -------------------------------------------
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . hereby assigns
(Please Print or Type Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Security of SECURITY CAPITAL ATLANTIC INCORPORATED and hereby does
irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attorney
to transfer such 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
<PAGE>
EXHIBIT 5
August 12, 1997
Security Capital Atlantic Incorporated
Six Piedmont Center
Atlanta, Georgia 30305
Re: Registration Statement on Form S-11
Ladies and Gentlemen:
We have acted as counsel to Security Capital Atlantic Incorporated, a
Maryland corporation ("ATLANTIC"), in connection with its public offering of
$100,000,000 of Notes due 2011 and $50,000,000 of Notes due 2017 (collectively,
the "Notes"), as more fully set forth in the registration statement on Form S-11
(the "Registration Statement") relating to the Notes. The Notes are to be issued
under an Indenture between ATLANTIC and State Street Bank and Trust Company, as
Trustee ("the Indenture").
As counsel to ATLANTIC, we have examined originals or copies certified to
our satisfaction of ATLANTIC's charter, ATLANTIC's Bylaws, resolutions of
ATLANTIC's Board of Directors and such records, certificates and other documents
and such questions of law as we considered necessary or appropriate for the
purpose of this opinion. As to certain facts material to our opinion, we have
relied, to the extent we deem such reliance proper, upon certificates of public
officials and officers of ATLANTIC. In rendering such opinion, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to authentic original documents of all
documents submitted to us as copies.
Based upon and subject to the foregoing and to the assumptions,
limitations and qualifications set forth herein, it is our opinion that the
Notes have been duly authorized by ATLANTIC and, when the Indenture has been
duly executed and delivered by the parties thereto and when the Notes are duly
executed, authenticated, issued and delivered against payment therefor in the
manner described in the Registration Statement, the Notes will be duly executed
and delivered and will constitute valid and binding obligations of ATLANTIC
entitled to the benefits provided by the Indenture and enforceable against
ATLANTIC in accordance with their terms, subject as to enforcement to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and the effect of general principles of equity whether considered in a
proceeding at law or in equity.
<PAGE>
Security Capital Atlantic
Incorporated
August 12, 1997
Page 2
Insofar as the foregoing opinion involves matters governed by Maryland law,
we have relied, with your approval, upon the opinion of the law firm of Ballard
Spahr Andrews & Ingersoll, a copy of which is attached as Exhibit A, and our
opinion is subject to the assumptions, limitations and qualifications set forth
therein.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us under the caption "Validity of Notes."
We are admitted to practice law in the States of Illinois and New York and
we express no opinions as to matters under or involving any laws other than the
laws of the States of Illinois and New York and the federal laws of the United
States of America.
Very truly yours,
/s/ Mayer, Brown & Platt
MAYER, BROWN & PLATT
<PAGE>
Exhibit A
August 12, 1997
Security Capital Atlantic
Incorporated
Six Piedmont Center
Atlanta, Georgia 30303
Re: Registration Statement on Form S-11
-----------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Security Capital Atlantic
Incorporated, a Maryland corporation (the "Company"), in connection with certain
matters of Maryland law arising out of the registration of $100,000,000
principal amount of ____% Notes due 2011 (the "2011 Notes") and $50,000,000
principal amount of ____% Notes due 2017 (the "2017 Notes", and together with
the 2011 Notes, the "Securities"), covered by the above-referenced Registration
Statement (the "Registration Statement"), filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "1933 Act"). Unless otherwise defined herein,
capitalized terms used herein shall have the meanings assigned to them in the
Registration Statement.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement and the related form of prospectus included
therein in the form in which it was transmitted to the Commission under the 1933
Act;
2. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company, certified as of a recent date by its
Secretary;
4. Resolutions adopted by the Board of Directors of the Company (the
"Board") or a duly authorized committee thereof, relating to the sale, issuance
and registration of the Securities, certified as of a recent date by the
Secretary of the Company (the "Resolutions");
5. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
<PAGE>
Security Capital Atlantic
Incorporated
August 12, 1997
Page 2
6. A certificate executed by the Secretary of the Company, dated as of a
recent date; and
7. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
1. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
4. All Documents submitted to us as originals are authentic. All
Documents submitted to us as certified or photostatic copies conform to the
original documents, All signatures on all such Documents are genuine. All
public records reviewed or relied upon by us or on our behalf are true and
complete. All statements and information contained in the Documents are true
and complete. There are no modifications of or amendments to the Documents, and
there has been no waiver of any of the provisions, of the Documents, by action
or omission of the parties or otherwise.
5. The Securities will not be issued or transferred in violation of any
restriction or limitation contained in the Charter.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
<PAGE>
Security Capital Atlantic
Incorporated
August 12, 1997
Page 3
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and
by virtue of the laws of the State of Maryland and is in good standing with the
SDAT.
2. The Securities have been duly authorized by the Company and, when
properly executed, authentilated, delivered and paid for as provided in the
Indenture, will be validly executed and delivered.
The foregoing opinion is limited to the laws of the State of Maryland and
we do not express any opinion herein concerning any other law. The opinion
expressed herein is subject to the effect of judicial decisions which may permit
the introduction of parol evidence to modify the terms or the interpretation of
agreements. We note that the Indenture and the Securities are governed by the
laws of the State of New York. To the extent that any matter as to which an
opinion is expressed herein would be governed by the laws of the State of New
York, we do not express any opinion on such matter. We express no opinion as to
compliance with the securities (or "blue sky") laws of the State of Maryland.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for your submission to the
Commission as an exhibit to the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm in the section
entitled "Validity of Notes" in the Registration Statement. In giving this
consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
