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EXHIBIT 1.1
2,500,000 SHARES
SHURGARD STORAGE CENTERS, INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
September 5, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Shurgard Storage Centers, Inc., a Washington corporation (the
"Company"), proposes to issue and sell an aggregate of 2,500,000 shares (the
"Firm Shares") of its Class A common stock, $0.001 par value per share ("Common
Stock"), to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney 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 375,000 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 June 30, 2001, 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. 333-54392) 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
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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 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, 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 $28.263 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 contained in this
Agreement and subject to all the terms and conditions set forth in this
Agreement, 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 thereafter when the New York Stock Exchange (the "NYSE")
is open for trading), up to an aggregate of 375,000 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.
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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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00
A.M., New York City time, on September 11, 2001 (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 office of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. mentioned above at such time and 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
Additional 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 any 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.
(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
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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 copies of the signed 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) Prior to the end of the period of time referred to in
the first sentence in paragraph (f) below, the Company will not file any
amendment to the Registration Statement or make any amendment or
supplement to the Prospectus or 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
reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) 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
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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 the Underwriter or any 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) During the period of five years hereafter, the Company
will furnish to you upon request (i) as soon as available, a copy of
each report of the Company mailed to shareholders or filed with the
Commission, and (ii) from time to time such other information concerning
the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (other 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 out-of-pocket
expenses (including reasonable 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.
(j) 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.
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(k) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Act 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.
(l) 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 30 days after the date of the Prospectus Supplement,
without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
(m) 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.
(n) 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.
(o) The Company will use its best efforts to have the Shares
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, the
Prepricing Prospectus Supplement and any supplement or amendment thereto
when 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 expressly for use therein.
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(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) The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully
paid and nonassessable; none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other
similar rights of any security holder of the Company. 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 under the laws of the State of Washington, 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 (or has made
application to become registered and qualified and knows of no reason
why such application should be denied) 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, prospects, 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. The Company's
ownership interest in such Subsidiary is as set forth on Schedule II.
Each Subsidiary is a corporation duly organized, validly existing and,
where applicable, 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 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
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qualify does not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a
whole; 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 and 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, prospects, 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 other), business,
prospects, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole; each of the Joint Ventures has
good and marketable title to all of its real property and 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, prospects, 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
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or in any material 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, except where
such violation or default does not have a material adverse effect on the
condition (financial or other), business, prospects, 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 consolidated 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, on the condition (financial or other), business, prospects,
properties, 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 or any of the Subsidiaries 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 on Schedule I hereto) 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 descriptions 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 other), business,
prospects, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole; (iv) no person has an option to
purchase all or any part of any Property or any interest therein other
than the Company and as disclosed in Schedule I hereto; (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
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effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole; (vi) there are 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, prospects, 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, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries,
taken 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 Supplement, the Prospectus or other
materials, if any, permitted by the Act.
(q) Each of the Company and 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 or any
Subsidiary, as the case may be, as are necessary to own its 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 failure to have such permits and agreements would not
have a material adverse effect on the condition (financial or other),
business, prospects, 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,
prospects, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole.
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(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 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,
prospects, 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 capital 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 ▇▇▇▇ 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 other), business, prospects,
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,
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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 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, prospects, 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 was organized and has operated in conformity
with the requirements for qualification as a real estate investment
trust under Sections 856 through 858 of the Code for each of its taxable
years ended December 31, 1994 through December 31, 2000, and the
Company's current organization and method of operation should enable it
to continue to qualify as a real estate investment trust under the Code.
(y) Neither 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 "Federal Income Tax Considerations" fairly and accurately state
the federal income tax considerations that would be material to a holder
of Common Stock.
7. Indemnification and Contribution.
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(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 Supplement 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 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 Supplement 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
Supplement 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,
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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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney 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.
(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
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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.
(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
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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 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 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, prospects, properties, net worth, or results of
operations of the Company or the Subsidiaries, taken as a whole, 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 or Option
Closing Date, as the case may be, an opinion of ▇▇▇▇▇▇▇ Coie LLP,
counsel for the Company, dated the Closing Date or Option Closing Date,
as the case may be 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 is
justified in relying thereon.
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(d) You shall have received on the Closing Date or Option
Closing Date, as the case may be, an opinion of King & Spalding, counsel
for the Underwriter, dated the Closing Date or Option Closing Date, as
the case may be, and addressed to you with respect to the matters
referred to in clauses (vi), (viii), (ix) (second clause only), (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 or Option Closing Date, as
the case may be, 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 material change in the capital stock
of the Company nor any material increase in the consolidated total debt
(defined as lines of credit plus notes payable) of the Company (other
than in the ordinary course of business) 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 or Option Closing Date, as the case
may be as if made on and as of the Closing Date or Option Closing Date,
as the case may be, and you shall have received a certificate, dated the
Closing Date or Option Closing Date, as the case may be 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
accepted for listing, subject to notice of issuance, on the New York
Stock Exchange.
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(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 obligation of the Underwriter to purchase Additional Shares
hereunder is 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 (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
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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.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed within 24 hours by letter.
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
of the Company or 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 (x) to
commence or continue the offering of the Shares at the offering price set forth
on the cover page of the Prospectus to the public or (y) 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.
12. Information Furnished by the Underwriter. The statements set
forth in the last paragraph of the cover page and the table immediately
preceding such paragraph and the statements contained in the third paragraph
under the caption "Underwriting" in the Prospectus Supplement, constitute the
only information furnished by or on behalf of the Underwriter as such
information is referred to in Sections 6(a) 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President, General Counsel and Secretary;
or (ii) if to you at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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.
20
21
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.
21
22
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/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and
Treasurer
Confirmed as of the date first
above mentioned.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
22
23
SCHEDULE I
LIST OF PROPERTIES
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
1 Ahwatukee Phoenix AZ 1998 1998 70,000 4.1
2 Airpark Scottsdale AZ 1997 1997 49,000 1.3
3 Arrowhead Phoenix AZ 1997 1997 67,000 3.2
4 Chandler Chandler AZ 1986 1986 71,000 4.0
5 Colonnade Phoenix AZ 1998 1997 30,000 2.7
6 ▇▇▇▇▇▇ Ranch Mesa AZ 1996 1978 58,000 4.2
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 2000 68,000 3.9
8 Mesa Mesa AZ 1987 1985 99,000 4.8
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1998 30,000 0.6
10 Phoenix Phoenix AZ 1985 1984 78,000 2.7
11 Phoenix East Phoenix AZ 1987 1984 66,000 2.0
12 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1976/85 47,000 3.0
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ 1985/87 1985 112,000 4.1
14 ▇▇▇▇ Scottsdale AZ 1997 1996 43,000 1.3
15 Speedway Tucson AZ 1998 1998 71,000 3.0
16 Tempe Tempe AZ 1984 1976 54,000 3.0
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1998 65,000 3.8
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 52,000 5.5
19 Warner Mesa AZ 1995 1985 61,000 3.1
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1991 100,000 4.5
21 Aliso Viejo Aliso Viejo CA 1996 1996 86,000 3.5
22 Antioch Antioch CA 1999 1999 57,000 1.8
23 Bloomington Bloomington CA 1997 1983 50,000 2.8
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 64,000 1.4
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 66,000 1.7
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1975 50,000 2.3
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1984 73,000 3.8
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ 1999 1998 40,000 1.5
29 ▇▇▇▇▇▇ City Los Angeles CA 1988 1989 77,000 1.4
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 96,000 5.2
S-1
24
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
31 El Cajon El Cajon CA 1986 1977 129,000 6.0
▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1987 62,000 1.5
33 Fontana Sierra Fontana CA 1987 1980/85 85,000 3.6
34 Hayward Hayward CA 1985 1983 48,000 2.8
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1986 99,000 3.3
36 ▇▇▇▇▇▇▇-▇▇▇▇▇▇ San Diego CA 1986 1984 90,000 2.3
▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ 1986 1979/91 95,000 7.1
38 Martinez Martinez CA 1995 1987 56,000 3.0
39 Mountain View Mountain View CA 1987 1986 28,000 0.7
40 Newark Newark CA 1996 1991 61,000 3.1
41 Ontario Ontario CA 1996 1984 57,000 2.1
42 Orange Orange CA 1996 1985 89,000 2.8
43 Palo Alto Palo Alto CA 1986 1987 48,000 1.4
44 Pinole Pinole CA 1995 1988 37,000 2.5
45 S. San Francisco San Francisco CA 1987 1985 56,000 2.1
46 Sacramento Sacramento CA 1996 1991 53,000 2.6
47 San Leandro San Leandro CA 1996 1991 59,000 2.7
▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 54,000 1.9
49 Santa ▇▇▇ Santa Ana CA 1986 1975/86 167,000 8.1
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 87,000 4.5
51 Sunnyvale Sunnyvale CA 1986 1974/75 101,000 6.5
52 Tracy Tracy CA 1996 1986 70,000 3.0
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1985 41,251 2.9
54 Van Ness San Francisco CA 1999 1999/1934 84,000 1.6
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 111,000 5.0
56 Walnut Walnut CA 1996 1986 97,000 3.6
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ 1999 1987 108,000 (1)
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 2000 1999 110,000 5.6
59 Westwood Santa Monica CA 1986 1988 64,000 0.3
60 Lakewood Golden CO 1986 1985 67,000 2.7
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1979 75,000 5.5
62 Tamarac Denver CO 1984 1977 25,000 1.9
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1984 41,000 2.4
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1977/79 80,000 5.3
S-2
25
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
65 Blue Heron West Palm Beach FL 1987 1975 167,000 11.8
66 ▇▇▇▇▇▇▇ Brandon FL 1999 1999 69,000 9.5
67 Carrollwood Tampa FL 1999 1999 62,000 2.1
68 Colonial Town Orlando FL 2000 2001 56,000 1.5
69 ▇▇▇▇▇ ▇▇▇▇▇ FL 1996 1990 76,000 5.5
70 Daytona Beach Daytona Beach FL 1999 1999 74,000 7.2
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1986 77,000 4.5
72 Eau Galllie Melbourne FL 1999 1999 59,000 3.7
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 62,000 2.5
74 Lauderhill Lauderhill FL 1997 1986 62,000 4.0
75 Maitland Orlando FL 1997 1997 78,000 8.7
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1984 75,000 4.0
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ 1987 1981 124,000 9.4
78 Oakland Park Ft. Lauderdale FL 1985 1974/78 290,000 13.4
79 Oldsmar Tampa FL 2000 2000 53,000 2.9
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 60,000 6.8
81 Oviedo Orlando FL 1997 1997 65,000 9.0
82 Red Bug Seminole County FL 1997 1997 75,000 4.3
83 S. Semoran Orlando FL 1997 1997 68,000 5.2
84 Seminole Seminole FL 1986 1984/85 61,000 2.7
85 South Orange Orlando FL 1997 1997 71,000 5.0
86 Vineland Orlando FL 1999 1998 48,000 3.3
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1998 50,000 2.8
88 West Waters Tampa FL 2000 2000 71,000 14.4
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1991 69,000 1.4
90 Brookhaven Atlanta GA 1995 1992 66,000 2.0
91 Clairemont Atlanta GA 1996 1990 41,000 1.1
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1995 1992 65,000 2.5
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ 1980 65,000 7.9
94 Gwinnett Lawrenceville GA 1996 1996 71,000 4.4
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 2000 57,000 3.8
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1997 1997 75,000 5.3
97 Lawrenceville Lawrenceville GA 1997 1997 74,000 3.4
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ 1996 1990 76,000 3.7
S-3
26
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
99 Norcross Norcross GA 1996 1984 62,000 9.3
100 Peachtree Duluth GA 1997 1996 100,000 6.2
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1996 1996 72,000 3.3
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1986 57,000 3.8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ 1998 1998 68,000 6.9
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1994 75,000 5.2
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ 1996 1985 61,000 10.1
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1996 1987 60,000 4.6
107 Alsip Alsip IL 1982 1980 79,000 4.6
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1997 68,000 1.5
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1983 75,000 4.1
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 74,000 4.9
111 Dolton Calumet City IL 1982 1979 79,000 3.0
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1998 1998 71,000 4.6
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1988 66,000 5.3
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1976/86 53,000 3.4
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1980 53,000 3.1
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ 1991 87,000 3.9
117 Palatine Palatine IL 2000 2000 52,000 3.9
118 Rolling ▇▇▇▇▇▇▇ Rolling Meadows IL 1982 1980 71,000 4.5
119 Schaumburg Schaumburg IL 1982 1980 71,000 4.3
120 Schaumburg South Schaumburg IL 1999 1999 72,000 5.2
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ 1986 1979/82 44,000 3.3
122 Allisonville Indianapolis IN 1997 1987 90,000 7.4
123 Carmel Carmel IN 1996 1996 61,000 4.3
124 Castleton Indianapolis IN 1998 1988 48,000 3.6
125 College Park Indianapolis IN 1986 1984 68,000 6.0
126 County Line SouthPort IN 1998 1998 72,000 4.5
127 Downtown Indy Indianapolis IN 1999 1999 61,000 1.2
128 Eaglecreek Indianapolis IN 1998 1998 73,000 5.1
129 East Washington Indianapolis IN 1999 1999 69,000 4.7
130 Georgetown Indianapolis IN 1996 1996 72,000 4.2
131 Glendale Indianapolis IN 1986 1985 60,000 5.6
132 Annapolis Annapolis MD 1998 1998 69,000 3.2
S-4
27
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
133 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Silver Spring MD 1994 1987 28,000 2.0
134 Clinton Clinton MD 1986 1985 30,000 2.0
135 Crofton Gambrills MD 1988 1985 40,000 2.1
136 Frederick Frederick MD 1994 1987 32,000 1.7
137 Gaithersburg Gaithersburg MD 1994 1986 77,000 5.4
138 Germantown Germantown MD 1994 1988 45,000 1.9
139 Laurel Laurel MD 1988 1984 30,000 2.0
▇▇▇ ▇▇▇▇ ▇▇▇▇ Ft. Washington MD 1994 1987 28,000 1.3
141 Suitland Suitland MD 1987 1985 45,000 2.7
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ 1988 1977 62,000 3.9
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1986 56,000 3.3
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ 2000 2000 68,000 4.1
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ 1999 1999 70,000 5.0
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ 1997 1977 45,000 2.7
147 Fraser Fraser MI 1988 1985 73,000 5.2
148 Grand Rapids Grand Rapids MI 1983 1978 45,000 3.2
149 ▇▇▇▇▇▇▇ Jackson MI 1997 1978 49,000 3.1
150 Kalamazoo Kalamazoo MI 1980 1980 41,000 3.0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1983 1978/79 40,000 2.5
152 Livonia LIvonia MI 1988 1985 67,000 4.8
153 Madison Heights Detroit MI 1995 1977 66,000 4.1
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1979 62,000 5.3
155 Rochester Utica MI 1996 1989 57,000 4.8
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ MI 1983 1976 76,000 4.3
157 Sterling Heights Sterling Heights MI 1996 1986 105,000 8.9
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1995 1980 83,000 4.2
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ 1981 1975/77 81,000 4.8
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ 1983 1979 88,000 5.2
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ 1985/89 1984 69,000 4.3
162 ▇▇▇▇▇▇ Warren MI 1988 1985 68,000 4.6
163 SouthHaven Memphis MS 1998 1998 43,000 7.7
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 34,000 2.1
165 Cary Cary NC 1994 1984 58,000 4.7
166 Creedmoor Raleigh NC 1997 1997 72,000 5.1
S-5
28
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1994 1987 28,000 3.1
168 Glenwood Raleigh NC 1994 1983 31,000 1.9
169 Morrisville Morrisville NC 1994 1988 40,000 3.3
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 2000 71,000 4.6
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1987 77,000 6.1
172 ▇▇▇▇ Page Long Island NY 2000 2000 81,000 3.5
173 Commack Huntington NY 1999 1999 80,000 5.2
174 Gold Brooklyn NY 1986 1940 102,000 0.4
175 Great Neck Long Island NY 1999 1929 20,000 0.4
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 70,000 2.3
177 Melville Long Island NY 1998 1998 74,000 7.4
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 2000 50,000 3.1
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 76,000 1.9
180 Utica Brooklyn NY 1986 1964 75,000 1.1
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 56,000 0.5
182 Yonkers Yonkers NY 1986 1928 100,000 1.6
183 Riverside Tulsa OK 2001 2001 54,000 1.9
184 16th and ▇▇▇▇▇ Portland OR 1995 1973 26,000 0.5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1973 42,000 2.6
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1993 67,000 2.8
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1974 25,000 2.0
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1988 65,000 6.2
189 Division Portland OR 1996 1992 47,000 2.0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1996 64,000 4.4
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1996 65,000 8.9
192 King City Tigard OR 1987 1986 83,000 4.9
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1993 54,000 4.4
194 Milwaukie Milwaukie OR 1996 1990 62,000 3.3
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1992 57,000 3.2
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1988 49,000 2.1
197 Salem Salem OR 1983 1979/81 67,000 3.8
198 Airport Philadelphia PA 1986 1985 96,000 6.7
199 Edgemont Philadelphia PA 1995 1992 64,000 5.5
200 Painter's Crossing Philadelphia PA 1998 1998 49,000 3.3
S-6
29
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1986 1980 84,000 7.0
202 Franklin Nashville TN 1995 1995 55,000 3.3
203 Hermitage Nashville TN 1995 1995 65,000 2.8
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 46,000 2.5
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 60,000 2.3
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1996 46,000 4.7
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 21,000 1.6
208 Stones River Murfeesboro TN 1998 1998 39,000 3.3
209 Sycamore Memphis TN 1998 1984/88 45,000 3.1
210 Winchester Memphis TN 1998 1988 65,000 8.9
211 Wolfchase Memphis TN 1997 1997 39,000 1.8
212 Arlington/Forum 303 Arlington TX 1986 1984 57,000 2.7
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1981 75,000 3.6
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1984 69,000 2.7
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 68,000 11.0
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1985/86 68,000 6.3
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1989/91 66,000 3.6
218 Champions Houston TX 1998 1998 65,000 3.7
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1999 1998 57,000 3.0
220 Cityplace Dallas TX 1999 1999 60,000 2.8
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TX 1996 1996 43,000 3.0
222 Federal Houston TX 1988 1988 55,000 3.4
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 42,000 2.8
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1987 1978/82 82,000 4.5
225 Georgetown Austin TX 1997 1996 58,000 4.1
226 Greenville Dallas TX 1998 1998 61,000 2.8
227 Helotes San Antonio TX 2000 2000 56,000 3.4
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ San Antonio TX 1998 1995 46,000 2.5
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 66,000 0.9
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1997 55,000 4.4
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1982 79,000 4.0
232 Hillcroft Houston TX 1991 1988 59,000 3.4
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1974 67,000 4.7
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TX 1988 1987 54,000 3.1
S-7
30
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
235 Irving Irving TX 1985 1975/84 141,000 11.4
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Irving TX 1986 1984 63,000 7.2
237 Kingwood Kingwood TX 1988 1988 54,000 3.3
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 2000 2001 68,000 3.5
239 Las Colinas Irving TX 2000 2000 54,000 1.9
240 Lewisville Dallas TX 1997 1997 62,000 4.0
241 ▇▇▇▇▇▇▇▇ Crossing Irving TX 1996 1996 65,000 4.1
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1989 1989 57,000 2.6
243 Medical Center SA San Antonio TX 1998 1999 58,000 3.0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1995 1995 69,000 4.1
245 Nacodoches San Antonio TX 1998 1996 39,000 2.5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1986 1982 67,000 5.9
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 65,000 3.6
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1996 48,000 3.6
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ TX 1999 1999 65,000 1.8
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 65,000 2.9
251 Olympia Missouri City TX 1998 1999 66,000 4.0
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1995 1995 68,000 4.3
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1995 65,000 3.5
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1997 62,000 3.2
255 Quarry San Antonio TX 1999 1999 66,000 1.4
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ TX 1996 1989 67,000 2.4
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1997 1995 55,000 3.6
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 74,000 3.6
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1994 76,000 4.6
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TX 1996 1996 66,000 3.7
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ TX 2000 1999 25,000 3.6
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1998 1998 66,000 4.6
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 2000 1996 27,000 2.0
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ 1988 1987 55,000 3.0
265 ▇.▇. ▇▇▇▇▇▇ Houston TX 1996 1990 64,000 2.8
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1987 53,000 2.9
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1985 82,000 5.1
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1997 1995 94,000 5.1
S-8
31
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
269 West U Houston TX 1989 1988 60,000 1.8
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TX 2000 1998 52,000 2.3
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TX 1986 1977 73,000 3.7
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 1996 1975 87,000 6.3
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TX 1996 1996 54,000 6.2
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TX 1988 1988 64,000 3.8
275 Bayside Virginia Beach VA 1988 1984 28,000 1.7
276 Burke Fairfax VA 1996 1984 32,000 1.7
277 Cascades Sterling VA 1998 1998 63,000 7.7
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 36,000 2.1
279 Charlottesville Charlottesville VA 1994 1984 32,000 2.1
280 Chesapeake Chesapeake VA 1996 1986 58,000 5.2
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 36,000 3.8
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ 1986 31,000 1.6
283 Fairfax Fairfax VA 1986 1980 62,000 5.6
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 1987 1988 93,000 1.5
285 Gainesville Gainesville VA 1994 1988 31,000 2.0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1985 39,000 3.0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1985 34,000 3.9
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 35,000 5.2
289 Kempsville Virginia Beach VA 1989 1985 33,000 2.0
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 39,000 2.5
291 Leesburg Leesburg VA 1996 1986 28,000 1.6
▇▇▇ ▇▇▇▇▇▇▇▇ ▇. & ▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 69,000 3.5
293 McLean McLean VA 1997 1997 38,000 4.2
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VA 1999 1999 73,000 4.7
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1984 44,000 2.9
296 Newport News North Newport News VA 1996 1986 59,000 3.8
297 Newport News. S Newport News VA 1985/92 1985 59,000 3.9
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ VA 1988 1984 37,000 2.6
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 77,000 0.9
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ 1997 1997 69,000 3.8
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ 1985 40,000 2.2
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ 1996 1984 48,000 2.7
S-9
32
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
303 Temple Avenue Petersburg VA 1994 1989 34,000 4.0
304 Virginia Beach Virginia Beach VA 1989 1985 65,000 2.3
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1996 62,000 7.3
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1978 65,000 2.9
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1975 165,000 10.8
West
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1981 74,000 5.7
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1976 41,000 2.5
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1974 92,000 5.3
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1979 60,000 3.0
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1990 58,000 4.4
▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1986 28,000 1.7
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1988 71,000 0.7
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1985 66,000 3.1
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1978 80,000 3.8
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1974/75 121,000 6.5
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1978 63,000 4.2
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1984 57,000 3.8
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1989 70,000 1.9
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ 1975 134,000 5.7
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1977 63,000 3.9
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1980 35,000 2.7
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1989 56,000 3.4
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1982 60,000 3.9
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1988 84,000 0.4
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1986 56,000 4.7
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1999 65,000 2.0
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1991 57,000 2.8
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ 1977 44,000 2.5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1977 25,000 1.4
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1987 51,000 1.1
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1998 68,000 2.1
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ 87/88/91 1979/81 130,000 12.2
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1979 54,000 4.0
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1998 68,000 3.1
S-10
33
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1976 78,000 4.1
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1980 52,000 4.2
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1912 59,000 0.3
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1991 46,000 3.0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1998 52,000 3.0
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1979/89 80,000 4.5
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1997 68,000 2.6
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1998 76,000 5.0
▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1978 136,000 6.1
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1984/87 35,000 2.2
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1979 68,000 4.1
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1980 45,000 2.8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1975 46,000 3.1
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1976 49,000 2.6
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1950/89 52,000 2.8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1978 61,000 2.6
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1982 46,000 3.3
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1978 30,000 2.2
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1997 66,000 3.4
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1981 48,000 3.4
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ 1982/84 70,000 3.5
358 Aartselaar (2) Brussels Belgium 1997 1997 76,000 1.7
359 Antwerpen Bredabann Brussels Belgium 2000 2000 67,000 1.5
(2)
360 Brugge (2) Brussels Belgium 1999 1999 74,000 1.7
361 Forest (2) Brussels Belgium 1995 1995 49,000 0.4
362 Ghent (2) Brussels Belgium 1998 1998 72,000 1.7
363 Jette (2) Brussels Belgium 2000 2000 67,000 1.6
▇▇▇ ▇▇▇▇▇▇▇▇ (2) Brussels Belgium 1999 1999 63,000 1.5
▇▇▇ ▇▇▇▇▇▇ (2) Brussels Belgium 1998 1998 63,000 1.7
366 Liege (2) Liege Belgium 2000 2000 52,000 1.2
367 Machalen (2) Brussels Belgium 1997 1997 65,000 1.5
▇▇▇ ▇▇▇▇▇▇▇▇▇ (2) Brussels Belgium 1995 1995 34,000 0.5
369 Overijse (2) Brussels Belgium 1998 1998 49,000 1.4
S-11
34
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
▇▇▇ ▇▇▇▇▇▇▇▇ (2) Brussels Belgium 1995 1995 86,000 3.5
371 Zaventem (2) Brussels Belgium 1996 1996 75,000 3.0
372 Ballainvilliers (2) Paris France 2000 2000 58,000 1.3
373 Fresnes (2) Paris France 2000 2000 56,000 1.3
374 Montrouge (2) Paris France 1997 1996 59,000 1.4
375 Nantere (2) Paris France 2000 2000 68,000 1.6
376 Nice (2) Nice France 1997 1991 42,000 1.0
377 Osny (2) Paris France 2000 2000 54,000 1.2
378 Pontault-Combault Paris France 1999 1999 54,000 1.2
(2)
379 Port Marly (2) Paris France 2000 2000 46,000 1.1
380 Rosny (2) Paris France 2000 2000 64,000 1.5
381 Varlin (2) Paris France 1997 1997 23,000 0.5
382 Villejuste (2) Paris France 2000 2000 61,000 1.4
383 Amersfoot (2) Amersfoot Netherlands 2000 2000 66,000 1.5
▇▇▇ ▇▇▇▇▇▇▇▇▇ (2) Amsterdam Netherlands 2000 2000 54,000 1.2
▇▇▇ ▇▇▇ ▇▇▇▇ (▇) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 61,000 1.4
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (2) Maastricht Netherlands 2000 2000 51,000 1.2
▇▇▇ ▇▇▇▇▇▇▇▇▇ (2) Rotterdam Netherlands 2000 2000 52,000 1.2
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 61,000 1.4
(2)
389 Handen (2) Stockholm Sweden 1999 1999 65,000 1.5
390 Jacobsberg (2) Stolkholm Sweden 1998 1998 60,000 2.6
391 Kungens Kurva (2) Stockholm Sweden 1998 1998 72,000 6.8
392 Lundavagen (2) Malmo Sweden 2000 2000 70,000 1.6
393 Molndal (2) Gothenburg Sweden 1999 1999 65,000 1.5
▇▇▇ ▇▇▇▇▇▇ (2) Stockholm Sweden 1998 1998 67,000 2.3
395 Sodertalje (2) Stockholm Sweden 2000 2000 53,000 1.2
396 Sodermalm (2) Stockholm Sweden 1999 1999 26,000 0.6
397 Solna (2) Stockholm Sweden 1999 1999 69,000 1.6
398 Taby (2) Stockholm Sweden 1998 1998 60,000 2.5
399 Uppsala (2) Stockholm Sweden 1999 1999 63,000 1.5
▇▇▇ ▇▇▇▇▇▇▇ (2) London United 1999 1999 67,000 1.5
Kingdom
▇▇▇ ▇▇▇▇▇▇▇ (2) London United 1999 1999 45,000 1.0
Kingdom
S-12
35
APPROX
PROPERTY NET
STATE/ OWNED YEAR RENTABLE
PROPERTY NAME PROPERTY LOCATION COUNTRY SINCE BUILT SF ACREAGE
402 ▇▇▇▇▇ (2) London United 1999 1999 67,000 1.5
Kingdom
403 Hanworth (2) London United 2000 2000 44,000 1.0
Kingdom
404 Reading (2) London United 2000 2000 51,000 1.2
Kingdom
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 2000 2001 65,000
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 64,000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 2000 2001 57,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 2001 49,000
Kingdom
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 2001 45,000
410 Upplands Vasby Stockholm Sweden 2000 2001 51,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 2001 2001 54,000
412 Wheaton (3) Wheaton IL 2001 2001 52,000
Sub-TOTAL (owned 25,987,251 1,421
properties)
(1) We are leasing a portion of the building and do not own land.
(2) European properties.
(3) We are leasing these properties under a tax retention operating lease.
S-13
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SCHEDULE II
SUBSIDIARIES OF THE COMPANY
AND OWNERSHIP OF CAPITAL STOCK
Subsidiaries Ownership
------------ ---------
SSC Evergreen, Inc., a Delaware corporation 100%
SSC Property Holdings, Inc., a Delaware corporation 100%
Shurgard Development I, Inc., a Washington corporation 100%
Shurgard Development II, Inc., a Washington corporation 100%
Shurgard Development III, Inc., a Washington corporation 100%
Shurgard Development IV, Inc., a Washington corporation 100%
Shurgard Holdings, Inc., a Washington corporation 100%
Shurgard Storage To Go, Inc., a Washington corporation 100%
SSC Benelux, Inc., a Delaware corporation 100%
Shurgard TRS, Inc., a Washington corporation 100%
Storage Line Management, LLC, a Washington limited liability company 100%
Shurgard Preferred Partners, LLC, a Washington limited liability company 100%
S-14
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SCHEDULE III
JOINT VENTURES AND
OWNERSHIP INTERESTS THEREIN
Partnerships/Joint Ventures Ownership
--------------------------- ---------
SSC Benelux, SCA, a Belgium SCA 7.57%
Shurgard/Canyon Park Self-Storage LP 74.48%
Capital Hill Partners, a limited partnership 90%
Shurgard Evergreen Limited Partnership 100%
Shurgard/Fremont Partners I, a WA general partnership 100%
Shurgard/Fremont Partners II, a WA general partnership 10%
Shurgard Institutional Partners 99.59%
Shurgard Institutional Fund L.P., a WA limited partnership 87.72%
Shurgard Institutional Fund ▇.▇. ▇▇, a WA limited partnership 99%
Shurgard Partners LP, a WA limited partnership 83.33%
Shurgard Partners ▇▇ ▇▇, a WA limited partnership 50%
Shurgard-RESCO, L.L.C. 77.3%
Shurgard Texas Limited Partnership 100%
CCP/Shurgard Venture LLC (Chase) 20%
Shurgard-▇▇▇▇▇▇▇ Affiliation Joint Ventures and LLCs 50-86%(1)
Shurgard-▇▇▇▇▇▇▇ 100 Oaks, L.L.C.
Shurgard-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Joint Venture
Shurgard-▇▇▇▇▇▇▇ Hermitage Joint Venture
Shurgard-▇▇▇▇▇▇▇ Hickory Hollow Joint Venture
Shurgard-▇▇▇▇▇▇▇ Medical Center Joint Venture
Shurgard-▇▇▇▇▇▇▇ Memphis Properties, L.L.C.
Shurgard-▇▇▇▇▇▇▇ South Main Joint Venture
Shurgard-▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ River L.L.C.
Shurgard-▇▇▇▇▇▇▇▇▇ Affiliation Joint Ventures 85-90%(2)
Shurgard-▇▇▇▇▇▇▇ Joint Venture
Shurgard-Carrollwood Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ Colonial Town Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ Daytona Beach Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ Eau Gallie Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Park Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ Maitland Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ Oldsmar Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Beach Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ Red Bug Joint Venture
S-15
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Partnerships/Joint Ventures Ownership
--------------------------- ---------
Shurgard-▇▇▇▇▇▇▇▇▇ South Orange Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ South Semoran Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ Vineland Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ West Town Joint Venture
Shurgard-▇▇▇▇▇▇▇▇▇ West ▇▇▇▇▇▇ Joint Venture
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, L.P. 50%
(1) See Schedule II for % ownership by entity
(2) all ▇▇▇▇▇▇▇▇▇ agreements provide for option to acquire the assets under
certain circumstances in the event of a change of control.
S-16
39
ANNEX A
(i) The Company is a corporation duly incorporated and validly existing
under the laws of the State of Washington 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 any amendment or supplement thereto), and is duly registered and
qualified (or has made application to become 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, taken as a
whole;
(ii) Each of the Subsidiaries that is organized in the United States is a
corporation duly organized and validly existing and, where applicable,
in good standing under the laws of the jurisdiction of its organization,
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 any amendment or supplement thereto);
except as described in Schedule II, all the outstanding shares of
capital stock of each of the Subsidiaries that is organized in the
United States have been duly authorized and validly issued, are fully
paid and nonassessable, and the Company owns of record the percentage of
outstanding shares of each such Subsidiary set forth in Schedule II and
to such counsel's knowledge, is 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;
(iii) Each of the general partnership or joint venture agreements pursuant to
which the Joint Ventures were formed has been duly authorized, executed
and delivered by the Company or its Subsidiaries, as applicable and the
Company's interest in such Joint Venture as described in Schedule III is
reflected in the agreement applicable to such Joint Venture;
(iv) The authorized capital stock of the Company is as set forth under the
captions "Description of the Common Stock", "Description of the
Preferred Stock" and "Restrictions on Transfers of Capital Stock; Excess
Stock" in the Prospectus; the authorized capital stock of the Company
conforms in all material respects as to legal matters to the description
thereof contained in such sections in the Prospectus; as of the date of
such counsel's opinion, prior to the issuance of the Shares, there are
[29,919,006] shares of Class A Common Stock, 154,604 shares of Class B
A-1
40
Common Stock, 2,000,000 shares of 8.8% Series B Cumulative Redeemable
Preferred Stock, 2,000,000 shares of 8.70% Series C Cumulative
Redeemable Preferred Stock and 3,000,000 Shares of 8.75% Series D
Cumulative Redeemable Preferred Stock outstanding;
(v) All the shares of capital stock of the Company outstanding prior to the
issuance of the Shares have been duly authorized and validly issued, and
are fully paid and nonassessable;
(vi) 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 to the best knowledge of such counsel, similar rights
that entitle or will entitle any person to acquire any Shares upon the
issuance thereof by the Company;
(vii) The form of certificates for the Shares conforms to the requirements of
the Washington Business Corporation Act;
(viii) The Registration Statement and all post-effective amendments, if any,
have become effective under the Act and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose are
pending before or contemplated by the Commission; and any required
filing of the Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b);
(ix) The Company has corporate power and authority to enter into this
Agreement and to issue, sell and deliver the Shares to the Underwriter
as provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company;
(x) To the knowledge of such counsel, neither the Company nor any of the
Subsidiaries is in violation of its respective certificate or articles
of incorporation or its respective bylaws or other organizational
documents, and, to the best knowledge of such counsel, is not in default
in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of indebtedness
that is listed as an exhibit to the Registration Statement or to any
Incorporated Document, where such violation or default, individually or
in the aggregate, has had or is likely to 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 may be disclosed in the Prospectus;
A-2
41
(xi) Neither the offer, sale or delivery of the Shares, the execution,
delivery or performance of this Agreement, compliance by the Company
with the provisions hereof nor consummation by the Company of the
transactions contemplated hereby 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
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 is bound that is an exhibit to the
Registration Statement or to any Incorporated Document, 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, nor
will any such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel, applicable to the Company, the Subsidiaries or
any of their respective properties, except for such breaches or defaults
that have not had and would not reasonably be expected to 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;
(xii) No 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 is required on the part of
the Company (except as has been obtained under the Act and the Exchange
Act or such as may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Shares) for the valid
issuance and sale of the Shares to the Underwriter as contemplated by
this Agreement;
(xiii) The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and the notes
thereto and the schedules and other financial and statistical data
included therein, as to which such counsel need not express any opinion)
comply as to form in all material respects with the requirements of the
Act; and each of the Incorporated Documents (except for the financial
statements and the notes thereto and the schedules and other financial
and statistical data included therein, as to which counsel need not
express any opinion) complies as to form in all material respects with
the Exchange Act and the rules and regulations of the Commission
thereunder;
(xiv) To the knowledge of such counsel, (A) other than as described or
contemplated in the Prospectus (or any supplement thereto), the
Registration Statement or any Incorporated Document, there are no legal
or governmental proceedings pending or threatened against the Company
A-3
42
or any of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or any of their property, is subject, which are required
to be described in the Registration Statement or Prospectus (or any
amendment or supplement thereto) and (B) there are no agreements,
contracts, indentures, leases or other instruments, that are required to
be described in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that are not
described or filed as required, as the case may be;
(xv) The statements in the Registration Statement and Base Prospectus under
the subheadings "Real Estate Investment Risks" and "Risks Relating to
Qualification as a REIT" under the caption "Risk Factors" and under the
captions "General Description of Securities," "Description of the Common
Stock," "Description of the Preferred Stock," "Description of the Debt
Securities, " Restrictions on Transfers of Capital Stock, Excess Stock,"
and "ERISA Considerations", insofar as they are descriptions of
contracts, agreements or other legal documents, or refer to statements
of law or legal conclusions, are accurate and present fairly the
information required to be shown;
(xvi) Based on certain customary assumptions and representations (acceptable
to ▇▇▇▇▇▇▇ Coie and to counsel for the Underwriter in their reasonable
discretion) relating to applicable asset composition, source of income,
stockholder diversification distribution, record keeping tests and other
requirements of the Code necessary for the Company to qualify as a REIT,
the Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT under Sections 856
through 860 of the Code for each of the taxable years ended December 31,
1994, December 31, 1995, December 31, 1996, December 31, 1997, December
31, 1998, December 31, 1999 and December 31, 2000; the Company's current
organization and method of operations should permit the Company to
continue to qualify as a REIT under the Code. The discussion in the
Prospectus under the caption "Federal Income Tax Considerations" fairly
summarizes the federal income tax considerations that are likely to be
material to a holder of Shares;
(xvii) None of the Company nor any Subsidiary is, or solely as a result of the
consummation of the transactions contemplated hereby, will become, an
"investment company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended;
(xviii) Although such counsel has not undertaken to determine independently, and
does not assume any responsibility for, the accuracy or completeness of
the statements in the Registration Statement, such counsel has
A-4
43
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof
(including review and discussion of the contents of all Incorporated
Documents), and nothing has come to the attention of such counsel that
has caused them to believe that the Registration Statement (including
the Incorporated Documents) at the time the Registration Statement
became effective, or the Prospectus, as of its date and as of the
Closing Date or the Option Closing Date contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that any amendment or supplement to the Prospectus, as of
its respective date, and as of the Closing Date or the Option Closing
Date, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and the notes thereto
and the schedules and other financial and statistical data included in
the Registration Statement or the Prospectus or any Incorporated
Document.) Nothing in this opinion (xviii) modifies or affects the
opinions set forth in opinions (xv) and (xvi);
(xix) To such counsel's knowledge, except as described in the Prospectus,
there are no outstanding options, warrants or other rights calling for
the issuance of any shares of capital stock of the Company or any
security convertible into or exchangeable or exercisable for capital
stock of the Company;
(xx) To such counsel's knowledge, 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.
A-5
