EXECUTION COPY
2,100,000 SHARES
SHURGARD STORAGE CENTERS, INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
January 16, 1997
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Shurgard Storage Centers, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell an aggregate of 2,100,000 shares (the "Firm
Shares") of its Class A common stock, $0.001 par value per share (the "Common
Stock") , to Xxxxx Xxxxxx Inc. (the "Underwriter"). The Company also
proposes to sell to the Underwriter, upon the terms and conditions set forth
in Section 2 hereof, up to an additional 315,000 shares (the "Additional
Shares") of Common Stock. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares".
As used herein, the term "Properties" refers to the properties listed
on Schedule I hereto which represent, as of September 30, 1996, all of the
real property in which the Company, either directly or through its
Subsidiaries (as defined herein) or through ownership of interests in any
Joint Venture (as defined herein), owns an interest.
The Company wishes to confirm as follows its agreement with the
Underwriter in connection with the purchase of the Shares by the Underwriter.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations (the "Rules and Regulations") of the Commission
thereunder (collectively, the "Act"), a registration statement on Form S-3
(Registration No. 33-58693) under the Act (the "registration statement"),
including a prospectus relating to the Shares; and such amendments to such
registration statement as may have been required prior to the date hereof
have been filed with the Commission, and such amendments have been similarly
prepared. Such registration statement and any post-effective amendments
thereto have become effective under the Act. The Company also has filed, or
proposes to file, with the Commission pursuant to Rule 424(b) under the Act,
a prospectus supplement relating to the offering of the Shares pursuant to
Rule 415 of the Act.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, as supplemented or amended prior to
the execution of this Agreement. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Shares may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said post-effective
amendment. The term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement at the time it
was declared effective (the "Base Prospectus") together with the prospectus
supplement relating to the offering of the Shares under Rule 415 of the Act
dated the date hereof in the form first filed with the Commission on or after
the date hereof (the "Prospectus Supplement"). The term "Prepricing
Prospectus Supplement" as used in this Agreement means the Base Prospectus
together with any prospectus supplement subject to completion included in the
registration statement as filed with the Commission pursuant to Rule 424(b)
under the Act; and as such prospectus shall have been amended from time to
time prior to the date of the Prospectus. Any reference in this Agreement to
the registration statement, the Registration Statement, the Base Prospectus,
any Prepricing Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act, as of the date of the registration
statement, the Registration Statement, such Prepricing Prospectus Supplement
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus Supplement or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") which, upon filing, are
incorporated by reference therein, as required by paragraph (b) of Item 12 of
Form S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the registration
statement, the Registration Statement, any Prepricing Prospectus Supplement,
the Prospectus, or any amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell
to the Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, the Underwriter agrees to purchase from the
Company, at a purchase price of $27.195 per Share (the "purchase price per
share"), the Firm Shares.
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriter, and, upon the basis of the
representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, the Underwriter
shall have the right to purchase from the Company, at the purchase price per
share, pursuant to an option (the "over-allotment option") which may be
exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 30th day after the date of the Prospectus Supplement (or, if
such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day
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thereafter when the New York Stock Exchange is open for trading), up to an
aggregate of 315,000 Additional Shares. Additional Shares may be purchased
only for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you
that you propose to make a public offering of the Shares as soon after this
Agreement has become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriter of and payment for the Firm Shares shall be made at the office of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M.,
New York City time, on January 22, 1997 (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriter of and payment for any Additional Shares to
be purchased by the Underwriter shall be made at the aforementioned office of
Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor earlier than two nor later than ten business days
after the giving of the notice hereinafter referred to, as shall be specified
in a written notice from you to the Company of your determination to purchase
a number, specified in such notice, of Additional Shares. The place of
closing for any Additional Shares and the Option Closing Date for such Shares
may be varied by agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 1:00 P.M., New York City time, on
the second business day preceding the Closing Date or any Option Closing
Date, as the case may be. Such certificates shall be made available to you
in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the
Firm Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case
may be, against payment of the purchase price therefor in immediately
available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the
Underwriter as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such advice
in writing, when the Registration Statement or such post-effective amendment
has become effective.
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(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration Statement,
any Prepricing Prospectus Supplement or the Prospectus or for additional
information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction or the initiation of any proceeding for such purpose; and (iii)
within the period of time referred to in the first sentence of paragraph (f)
below, of any change in the Company's condition (financial or other),
business, prospects, properties, net worth or results of operations, or of
the happening of any event, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act to be
stated therein or necessary in order to make the statements therein not
misleading, or of the necessity to amend or supplement the Prospectus (as
then amended or supplemented) to comply with the Act or any other law. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you upon your request, without
charge (i) two signed copies of the registration statement as originally
filed with the Commission and of each amendment thereto, including financial
statements and all exhibits to the registration statement, (ii) such number
of conformed copies of the registration statement as originally filed and of
each amendment thereto, but without exhibits, as you may reasonably request,
(iii) such number of copies of the Incorporated Documents, without exhibits,
as you may reasonably request, and (iv) two copies of the exhibits to the
Incorporated Documents.
(d) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior to
the end of the period of time referred to in the first sentence in paragraph
(f) below, file any document which, upon filing becomes an Incorporated
Document, of which you shall not previously have been advised or to which,
after you shall have received a copy of the document proposed to be filed,
you shall reasonably object
(e) The Company will use its best efforts to meet the
requirements to qualify as a real estate investment trust (a "REIT") under
the Internal Revenue Code of 1986, as amended (the "Code") unless the
Company's Board of Directors determines by resolution that it is in the best
interests of the Company's stockholders not to so qualify.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriter a prospectus is required by the Act to
be delivered in connection with sales by the Underwriter or any dealer, the
Company will expeditiously deliver to the Underwriter and each dealer,
without charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may request. The Company consents to the use of
the Prospectus (and of any amendment or supplement thereto)
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in accordance with the provisions of the Act and with the securities or Blue
Sky laws of the jurisdictions in the United States in which the Shares are
offered by the Underwriter and by all dealers to whom Shares may be sold,
both in connection with the offering and sale of the Shares and for such
period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If during
such period of time any event shall occur that in the judgment of the Company
or in the opinion of counsel for the Underwriter is required to be set forth
in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus (or to file under the
Exchange Act any document which, upon filing, becomes an Incorporated
Document) in order to comply with the Act or any other law, the Company will
forthwith prepare and, subject to the provisions of paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto (or to
such document), and will expeditiously furnish to the Underwriter and any
dealers a reasonable number of copies thereof. In the event that the Company
and you agree that the Prospectus should be amended or supplemented, the
Company, if requested by you, will promptly issue a press release announcing
or disclosing the matters to be covered by the proposed amendment or
supplement.
(g) The Company will cooperate with you and your counsel in
connection with the registration or qualification of the Shares for offering
and sale by the Underwriter and by any dealers under the securities or Blue
Sky laws of such jurisdictions in the United States as you may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising out
of the offering or sale of the Shares, in any jurisdiction where it is not
now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to
time such other information concerning the Company as you may reasonably
request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than by notice
given by you terminating this Agreement pursuant to Section 10 or Section 11
hereof) or if this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Company to comply with the terms
or fulfill any of the conditions of this Agreement, the Company agrees to
reimburse you for all
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out-of-pocket expenses (including fees and expenses of your counsel) incurred
by you in connection herewith, but the Company shall not in any event be
liable to the Underwriter for damages on account of loss of anticipated
profits from the sale by it of the Shares.
(k) The Company will apply the net proceeds from the sale of
the Shares substantially in accordance with the description set forth in the
Prospectus Supplement.
(l) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus
Supplement containing information previously omitted at the time of
effectiveness of the Registration Statement and (ii) file on a timely basis
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission subsequent to the date of the
Prospectus Supplement and prior to the termination of the offering of the
Shares by the Underwriter.
(m) Except as provided in this Agreement, the Company will not
sell, contract to sell or otherwise dispose of any Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock,
or grant any options or warrants to purchase Common Stock, for a period of 90
days after the date of the Prospectus Supplement, without the prior written
consent of Xxxxx Xxxxxx Inc., except for (i) options or Common Stock issued
pursuant to stock option or stock purchase plans as described in the
Registration Statement, the Prospectus or the Incorporated Documents and (ii)
Common Stock issued upon conversion of the Company's Class B Common Stock.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of its
current officers and directors and each of its stockholders designated by you.
(o) Except as stated in this Agreement and in the Prospectus,
the Company has not taken, nor will it take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares.
(p) The Company will use its best efforts to have the shares of
Common Stock which it agrees to sell under this Agreement listed, subject to
notice of issuance, on the New York Stock Exchange on or before the Closing
Date.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Underwriter that:
(a) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
registration statement in the form in which it became or becomes effective
and also in such form as it may be when any post-effective amendment thereto
shall become effective and the Prospectus and any supplement or amendment
thereto when
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filed with the Commission under Rule 424(b) under the Act, complied or will
comply in all material respects with the provisions of the Act and will not
at any such times contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and
warranty does not apply to statements in or omissions from the registration
statement or the prospectus made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in writing
by or on behalf of the Underwriter through you expressly for use therein.
(b) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder,
any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; no such document when it was filed
(or, if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; and no such further document, when it
is filed, will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) All the outstanding shares of Common Stock of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; the Shares
have been duly authorized and, when issued and delivered to the Underwriter
against payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive or similar
rights; and the capital stock of the Company conforms to the description
thereof in the Registration Statement and the Prospectus.
(d) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and
the Subsidiaries (as hereinafter defined) taken as a whole.
(e) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed on Schedule II hereto. Each Subsidiary is a
corporation duly organized, validly existing and in good standing in the
jurisdiction of its incorporation, with full corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business and is in good standing
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in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure so to register or qualify does not have a material adverse
effect on the condition (financial or other), business, properties, net worth
or results of operations of such Subsidiary; except as set forth on Schedule
II, all the outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable. All of the interests owned or held by the Company, directly
or indirectly, in each of the Subsidiaries are free and clear of any lien,
adverse claim, security interest, equity or other encumbrance, except for
such as would not have a material adverse effect on the condition (financial
or other), business properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole.
(f) All of the joint ventures in which the Company or any
Subsidiary owns any interest (the "Joint Ventures") are listed on Schedule
III hereto. The Company's (or Subsidiary's, as the case may be) ownership
interest in such Joint Venture is as set forth on Schedule III. Each of the
Joint Ventures possesses such certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now being conducted by it, as described or
incorporated by reference in the Prospectus, and none of the Joint Ventures
has received notice of any proceedings relating to the revocation or
modification of any such certificate, authority or permit which singly or in
the aggregate, if the subject of unfavorable ruling or decision, would have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of the Company and
the Subsidiaries, taken as a whole; each of the Joint Ventures has good and
marketable fee simple title to all of its real property and marketable title
to any improvements thereon and all other assets that are used in the
operation of the Joint Venture's business, except where the failure to have
such title would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(g) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or any of
the Subsidiaries, or to which the Company or any of the Subsidiaries, or to
which any of their respective properties is subject, that are required to be
described in the Registration Statement or the Prospectus but are not
described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that are not described or
filed as required by the Act or the Exchange Act.
(h) Neither the Company nor any of the Subsidiaries is in
violation of its certificate or articles of incorporation or by-laws, or
other organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries, or in
default in any material respect in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any material agreement, indenture, lease or
other instrument to which the
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Company or any of the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound, except where such violation or
default does not have a material adverse effect on the condition (financial
or other), business, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole.
(i) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the consummation
by the Company of the transactions contemplated hereby (i) requires any
consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration
of the Shares under the Act and the Exchange Act and compliance with the
securities or Blue Sky laws of various jurisdictions, all of which have been
or will be effected in accordance with this Agreement) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, the certificate or articles of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or (ii)
conflicts or will conflict with or constitutes or will constitute a breach
of, or a default under, any agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company or any of the Subsidiaries or any of
their respective properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of the Subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be bound or to
which any of the property or assets of any of them is subject.
(j) The accountants, Deloitte & Touche LLP, who have certified
or shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any amendment
or supplement thereto) are independent public accountants as required by the
Act.
(k) The financial statements, together with related schedules
and notes, included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations and
changes in financial position of the Company and the Subsidiaries on the
basis stated in the Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data included or incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) are fairly presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company and the Subsidiaries.
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(l) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and validly
authorized by the Company, and this Agreement has been duly executed and
delivered by the Company and constitutes the valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
neither the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the
capital stock, or material increase in the short-term debt or long-term debt,
of the Company or any of the Subsidiaries other than as a result of
borrowings made by the Company under its credit facility in the ordinary
course of business, or any material adverse change, or any development
involving or which may reasonably be expected to involve, a prospective
material adverse change, in the condition (financial or other), business, net
worth or results of operations of the Company and the Subsidiaries taken as a
whole.
(n) (i) The Company has good and marketable title to all of
the properties (including the Properties listed as wholly owned by the
Company on Schedule I hereto) and assets reflected in the financial
statements (or as described in or incorporated by reference into the
Registration Statement or Prospectus) hereinabove described, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in or incorporated by
reference into the Registration Statement or Prospectus) or which are not
material in amount; (ii) the Company occupies its leased properties under
valid and binding leases conforming, to the extent such leases are described
therein, to the description thereof set forth in or incorporated by reference
into the Registration Statement or Prospectus; (iii) no tenant of any of the
Properties is in default under any of the leases pursuant to which any
property is leased (and the Company does not know of any event which, but for
the passage of time or the giving of notice, or both, would constitute a
default under any of such leases) other than such defaults that would not
have a material adverse effect on the condition, financial or otherwise, or
on the earnings, assets, business affairs or business prospects of the
Company and the Subsidiaries taken as a whole; (iv) no person has an option
to purchase all or part of any Property or any interest therein other than
rights with respect to certain Properties owned by the Joint Ventures in
favor of the partners to such Joint Ventures pursuant to the agreements
governing the Joint Ventures; (v) each of the Properties complies with all
applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access
to the properties) and with all agreements between the Company and third
parties relating to the ownership or use of any Property by the Company,
except if and to the extent disclosed in the Registration Statement or the
Prospectus and except for such failures to comply that would not have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of the
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Company and the Subsidiaries taken as a whole; (vi) there is in effect for
the assets of the Company and the Properties insurance coverages that are
commercially reasonable and that are consistent with the types and amounts of
insurance typically maintained by prudent owners of similar assets, and the
Company has not received from any insurance company notice of any material
defects or deficiencies affecting the insurability of any such assets; and
(vii) the Company does not have any knowledge of any pending or threatened
condemnation proceedings, zoning change, or other similar proceeding or
action that will in any material respect affect the size of, use of,
improvements on, construction on or access to the Properties, except for such
proceedings or actions that would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(o) The Company has title policies in effect or binding
commitments from title insurance companies for the issuance of title
insurance on each of the Properties, except where the failure to have such
title insurance would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, as a whole.
(p) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted
by the Act.
(q) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") and agreements with third parties relating to
ownership or use of any Property by the Company as are necessary to own its
respective properties and to conduct its business in the manner described in
the Prospectus, subject to such qualifications as may be set forth in the
Prospectus and except where the omission to have such permits and agreements
would not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole; the Company and each of the
Subsidiaries has fulfilled and performed all its material obligations with
respect to such permits and agreements and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the holder of any such permit or agreement, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described
in the Prospectus, none of such permits or agreements contains any
restriction that would have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's
-11-
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(s) To the Company's knowledge, neither the Company nor any of
its Subsidiaries nor any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or received or
retained any funds in violation of any law, rule or regulation, which
payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(t) The Company and each of the Subsidiaries have filed all
federal, state and foreign tax returns required to be filed, which returns
are complete and correct, and neither the Company nor any Subsidiary is in
default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto, except where such failure to
file or default in payment would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(u) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of the
Company because of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement.
(v) The Company and the Subsidiaries own or possess in the
United States all patents, trademarks, trademark registrations, service
marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as being
owned by them or any of them or necessary for the conduct of their respective
businesses and the Company is not aware of any claim to the contrary or any
challenge by any other person in the United States or in any foreign
jurisdiction to the rights of the Company and the Subsidiaries with respect
to the foregoing which claim or challenge, if determined adversely to the
Company, would have a material adverse effect on the condition (financial or
otherwise), business, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole.
(w) Except as otherwise disclosed in the Prospectus, the
Company has not authorized or conducted and does not have knowledge of the
generation, transportation, storage, presence, use, treatment, disposal,
release, or other handling of any hazardous substance, hazardous waste,
hazardous material, hazardous constituent, toxic substance, pollutant,
contaminant, asbestos, radon, polychlorinated biphenyls ("PCBs"), petroleum
product or waste (including crude oil or any fraction thereof), natural gas,
liquefied gas, synthetic gas or other material defined, regulated, controlled
or potentially subject to any remediation requirement under any environmental
law (collectively, "Hazardous Materials"), on, in, under or affecting any
real property currently leased or owned or by any means controlled by the
Company, including the Properties (the "Real Property") except as in material
compliance with applicable laws; to the knowledge of the Company, the Real
Property and the Company's operations with respect to the Real Property are
in compliance with all federal, state and local laws, ordinances, rules,
regulations and other governmental requirements relating to pollution,
control of chemicals, management of waste, discharges of materials into the
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environment, health, safety, natural resources, and the environment
(collectively, "Environmental Laws"), and the Company has, and is in
compliance with, all licenses, permits, registrations and government
authorizations necessary to operate under all applicable Environmental Laws,
except where the failure to have or comply with such license, permit,
registration or authorization would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole. Except as
otherwise disclosed in the Prospectus, the Company has not received any
written or oral notice from any governmental entity or any other person and
to the knowledge of the Company there is no pending or threatened claim,
litigation or any administrative agency proceeding that: alleges a violation
of any Environmental Laws by the Company; alleges that the Company is a
liable party or a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section
9601, ET SEQ., or any state superfund law; has resulted in or could result in
the attachment of an environmental lien on any of the Real Property; or
alleges that the Company is liable for any contamination of the environment,
contamination of the Real Property, damage to natural resources, property
damage, or personal injury based on their activities or the activities of
their predecessors or third parties (whether at the Real Property or
elsewhere) involving Hazardous Materials, whether arising under the
Environmental Laws, common law principles, or other legal standards.
(x) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under the
Code, and the Company's method of operation enables it to meet the
requirements for taxation as a real estate investment trust under the Code.
(y) None of the Company nor any Subsidiary is or will become as
a result of the transactions contemplated hereby, or will conduct its
business in a manner in which it would become, "an investment company," or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
(z) The statements set forth in the Prospectus under the
caption "Certain Federal Income Tax Considerations" and "Certain Federal
Income Tax Considerations to Holders of Common Stock", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate and complete.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each of
you and each person, if any, who controls the Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or
in any amendment or supplement thereto, or arising out of or based upon 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
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losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to the Underwriter furnished in
writing to the Company by or on behalf of the Underwriter through you
expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (a) with respect to any
Prepricing Prospectus shall not inure to the benefit of the Underwriter (or
to the benefit of any person controlling the Underwriter) on account of any
such loss, claim, damage, liability or expense arising from the sale of the
Shares by the Underwriter to any person if a copy of the Prospectus shall not
have been delivered or sent to such person within the time required by the
Act and the regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained
in such Prepricing Prospectus was corrected in the Prospectus, provided that
the Company has delivered the Prospectus to the Underwriter in requisite
quantity on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which the Company
may otherwise have.
(b) If any action, suit or proceeding shall be brought against
the Underwriter or any person controlling the Underwriter in respect of which
indemnity may be sought against the Company, the Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment
of all fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Underwriter or such
controlling person unless (i) the Company has agreed in writing to pay such
fees and expenses, (ii) the Company has failed to assume the defense and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the Underwriter or
such controlling person and the Company and the Underwriter or such
controlling person shall have been advised by its counsel that representation
of such indemnified party and the Company by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual
or potential differing interests between them (in which case the Company
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such controlling person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for the Underwriter and controlling persons not having
actual or potential differing interests with you or among themselves, which
firm shall be designated in writing by Xxxxx Xxxxxx Inc., and that all such
fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Company agrees to indemnify and hold harmless
the Underwriter, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, claim, damage, liability
or expense by reason of such settlement or judgment.
-14-
(c) The Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement, and
any person who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with respect to
information relating to the Underwriter furnished in writing by or on behalf
of the Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any Prepricing Prospectus Supplement, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, or any
such controlling person based on the Registration Statement, the Prospectus
or any Prepricing Prospectus Supplement, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against the
Underwriter pursuant to this paragraph (c), the Underwriter shall have the
rights and duties given to the Company by paragraph (b) above (except that if
the Company shall have assumed the defense thereof the Underwriter shall not
be required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the Underwriter's expense), and the Company, its directors, any such officer,
and any such controlling person shall have the rights and duties given to the
Underwriter by paragraph (b) above. The foregoing indemnity agreement shall
be in addition to any liability which the Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or expenses
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriter on the other hand
from the offering of the Shares, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriter on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriter, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriter 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
the Company on the one hand or by the Underwriter on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
-15-
(e) The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined
by a pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph
(d) above 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 any claim or defending any such
action, suit or proceeding. Notwithstanding the provisions of this Section
7, the Underwriter shall not be required to contribute any amount in excess
of the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or 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 action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution
under this Section 7 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Underwriter
or any person controlling the Underwriter, the Company, its directors or
officers, or any person controlling the Company, (ii) acceptance of any
Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to the Underwriter or any person controlling the
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for a post-effective amendment to the registration statement
to be declared effective before the offering of the Shares may commence, the
registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof,
or at such later date and time as shall be consented to in writing by you,
and all filings, if any, required by Rules 424
-16-
and 430A under the Act shall have been timely made; no stop order suspending
the effectiveness of the registration statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge
of the Company or the Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in the
registration statement or the prospectus or otherwise) shall have been
complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or
the Subsidiaries not contemplated by the Prospectus, which in your opinion
would materially, adversely affect the market for the Shares, or (ii) any
event or development relating to or involving the Company or any officer or
director of the Company which makes any statement made in the Prospectus
untrue in any material respect or which, in the opinion of the Company and
its counsel or the Underwriter and its counsel, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in
your opinion adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Xxxxxxx Coie, counsel for the Company, dated the Closing Date and addressed
to you substantially in the form of Annex A hereto. In rendering their
opinion as aforesaid, counsel may rely upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by them or the Company as
to laws of any jurisdiction other than the United States or the State of
Washington, provided that (1) each such local counsel is acceptable to you,
(2) such reliance is expressly authorized by each opinion so relied upon and
a copy of each such opinion is delivered to you and is, in form and substance
satisfactory to them and their counsel, and (3) counsel shall state in their
opinion that they believe that they and the Underwriter are justified in
relying thereon.
(d) You shall have received on the Closing Date an opinion of
King & Spalding, counsel for the Underwriter, dated the Closing Date and
addressed to you with respect to the matters referred to in clauses (vi),
(viii), (ix), (xiii) (excluding documents incorporated by reference) and
(xviii) of Annex A hereto and such other related matters as you may request.
(e) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from Deloitte & Touche LLP, independent
certified public accountants, substantially in the forms heretofore approved
by you.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other
than in the ordinary course of business)
-17-
from that set forth or contemplated in the Registration Statement or the
Prospectus (or any amendment or Supplement thereto); (iii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any material adverse
change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole; (iv) the Company and the Subsidiaries shall
not have any liabilities or obligations, direct or contingent (whether or not
in the ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all the representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the Closing Date and
signed on behalf of the Company by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable to
you), to the effect set forth in this Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(h) Prior to the Closing Date the Shares shall have been
listed, subject to notice of issuance, on the New York Stock Exchange.
(i) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form
and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to the Underwriter as to the statements made therein.
The obligations of the Underwriter to purchase Additional Shares
hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any
Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (f) shall be dated
the Option Closing Date in question and the opinions called for by paragraphs
(c) and (d) shall be revised to reflect the sale of Additional Shares.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it
of its obligations hereunder: (i) the preparation, printing or reproduction,
and filing with the Commission of the Registration Statement
-18-
(including financial statements and exhibits thereto), the Prospectus, the
Prospectus Supplement and each amendment or supplement to any of them; (ii)
the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, the Prospectus, the Incorporated Documents, and all
amendments or supplements to any of them, as may be reasonably requested for
use in connection with the offering and sale of the Shares; (iii) the
preparation, printing, authentication, issuance and delivery of certificates
for the Shares, including any stamp taxes in connection with the original
issuance and sale of the Shares; (iv) the printing (or reproduction) and
delivery of this Agreement, the Blue Sky Memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the listing of the Shares on the New York Stock
Exchange; (vi) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states as provided
in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriter relating to the preparation,
printing or reproduction, and delivery of the Blue Sky Memorandum and such
registration and qualification); (vii) the filing fees in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc.; (viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares; and (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto;
or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such
time as this Agreement shall have become effective, it may be terminated by
the Company, by notifying you, or by you by notifying the Company.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking
activities in the states of New York or Washington shall have been declared
by either federal or state authorities, or (iii) there shall have occurred
any outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions,
the effect of which on the financial markets of the United States is such as
to make it, in your judgment, impracticable or inadvisable to commence or
continue the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the
resale of the Shares by the Underwriter. Notice of such termination may be
given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
-19-
12. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set
forth in the last paragraph on the cover page, the stabilization legend on
the inside front cover, and the statements in the first and third paragraphs
under the caption "Underwriting" in the Prospectus Supplement, constitute the
only information furnished by or on behalf of the Underwriter through you as
such information is referred to in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of
the Company at 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, Attention:
Xxxxxxx X. Xxxxx, Esq., Senior Vice President, General Counsel and Secretary;
or (ii) if to you at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
Underwriter, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from the Underwriter of any of the
Shares in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New
York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriter.
Very truly yours,
SHURGARD STORAGE CENTERS, INC.
By: /s/ XXXXXXX XXXX
--------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
Confirmed as of the date first
above mentioned.
XXXXX XXXXXX INC.
By: /s/ XXXX X. XXXXXXXXX
-------------------------------
Managing Director
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