Exhibit 1.1
727,080 SHARES
SHURGARD STORAGE CENTERS, INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
September 11, 1997
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Shurgard Storage Centers, Inc., a Washington corporation (the "Company"),
proposes to issue and sell an aggregate of 727,080 shares (the "Shares") of
its Class A common stock, $0.001 par value per share (the "Common Stock") ,
to Xxxxx Xxxxxx Inc. (the "Underwriter"). The Underwriter intends to deposit
the Shares with the trustee of the Equity Focus Trusts--REIT Portfolio
Series, 1997 (the "Trust"), a registered unit investment trust under the
Investment Company Act of 1940, as amended, to which Xxxxx Xxxxxx Inc. acts
as sponsor and depositor, in exchange for units in the Trust.
As used herein, the term "Properties" refers to the properties listed on
Schedule I hereto which represent, as of June 30, 1997, 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
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations (the "Rules and Regulations") of the Commission
thereunder (collectively, the "Act"), a registration statement on Form S-3
(Registration No. 33-58693) under the Act (the "registration statement"),
including a prospectus relating to the Shares; and such amendments to such
registration statement as may have been required prior to the date hereof
have been filed with the Commission, and such amendments have been similarly
prepared. Such registration statement and any post-effective amendments
thereto have become effective under the Act. The Company also has filed, or
proposes to file, with the Commission pursuant to Rule 424(b) under the Act,
a prospectus supplement relating to the offering of the Shares pursuant to
Rule 415 of the Act.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, as supplemented or amended prior to
the execution of this Agreement. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Shares may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said post-effective
amendment. The term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement at the time it
was declared effective (the "Base Prospectus") together with the prospectus
supplement relating to the offering of the Shares under Rule 415 of the Act
dated the date hereof in the form first filed with the Commission on or after
the date hereof (the "Prospectus Supplement"). The term "Prepricing
Prospectus Supplement" as used in this Agreement means the Base Prospectus
together with any prospectus supplement subject to completion included in the
registration statement as filed with the Commission pursuant to Rule 424(b)
under the Act, and as such prospectus shall have been amended from time to
time prior to the date of the Prospectus. Any reference in this Agreement to
the registration statement, the Registration Statement, the Base Prospectus,
any Prepricing Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act, as of the date of the registration
statement, the Registration Statement, such Prepricing Prospectus Supplement
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus Supplement or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") which, upon filing, are
incorporated by reference therein, as required by paragraph (b) of Item 12 of
Form S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the registration
statement, the Registration Statement, any Prepricing Prospectus Supplement,
the Prospectus, or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject
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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 $26.125 per Share (the "purchase price per
share"), the Shares.
3. Terms of Public Offering. The Company has been advised by you that
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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 deposit the Shares with the trustee of the Trust in exchange for units in
the Trust upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
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Underwriter of and payment for the Shares shall be made at the office of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M.,
New York City time, on September 16, 1997 (the "Closing Date").
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The place of closing for the Shares and the Closing Date may be varied by
agreement between you and the Company.
Certificates for the 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. 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. The certificates evidencing
the Shares to be purchased hereunder shall be delivered to you on the Closing
Date against payment of the purchase price therefor in immediately available
funds.
5. Agreements of the Company. The Company agrees with the Underwriter
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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 any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period of
time referred to in the first sentence of paragraph (f) below, of any change
in the Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening of any
event, which makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or which
requires the making of any additions to or changes in the Registration
Statement or the Prospectus (as then amended or supplemented) in order to
state a material fact required by the Act to be stated therein or necessary
in order to make the statements therein not misleading, or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented) to
comply with the Act or any other law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you upon your request, without charge
(i) two signed copies of the registration statement as originally filed with
the Commission and of each amendment thereto, including financial statements
and all exhibits to the registration statement, (ii)
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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 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 by all dealers to whom Shares may be sold, both in connection
with the offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If during such period of
time any event shall occur that in the judgment of the Company or in the
opinion of counsel for the Underwriter is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary to
supplement or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) in order to
comply with the Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriter and any dealers a reasonable number
of copies thereof. In the event that the Company and you agree that the
Prospectus should be amended or supplemented, the Company, if requested by
you, will promptly issue a press release announcing or disclosing the matters
to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and your counsel in connection
with the registration or qualification of the Shares for offering and sale by
the Underwriter and by any dealers under the securities or Blue Sky laws of
such jurisdictions in the United States as you may designate and will file
such consents to service of process or other documents necessary or
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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 (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 (otherwise than by notice given
by you terminating this Agreement pursuant to Section 10 or Section 11
hereof) or if this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Company to comply with the terms
or fulfill any of the conditions of this Agreement, the Company agrees to
reimburse you for all out-of-pocket expenses (including fees and expenses of
your counsel) incurred by you in connection herewith, but the Company shall
not in any event be liable to the Underwriter for damages on account of loss
of anticipated profits from the sale by it of the Shares.
(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.
(k) The Company will (i) prepare and timely file with the Commission
under Rule 424(b) of the Rules and Regulations a Prospectus Supplement
containing information previously omitted at the time of effectiveness of the
Registration Statement and (ii) file on a timely basis all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission subsequent to the date of the Prospectus
Supplement and prior to the termination of the offering of the Shares by the
Underwriter.
(l) 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.
(m) 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
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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
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thereto shall become effective and the Prospectus 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 through you expressly
for use therein.
(b) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder,
any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; no such document when it was filed
(or, if an amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; and no such further document, when it
is filed, will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Shares have been duly
authorized and, when issued and delivered to the Underwriter against payment
therefor in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable and free of any preemptive or similar rights; and the
capital stock of the Company conforms to the description thereof in the
Registration Statement and the Prospectus.
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of 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, properties, net worth or
results of operations of the Company and the Subsidiaries (as hereinafter
defined) taken as a whole.
(e) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed on Schedule II hereto. Each Subsidiary is a
corporation duly organized, validly existing and in good
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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 qualify does not have a material
adverse effect on the condition (financial or other), business, properties,
net worth or results of operations of such Subsidiary; except as set forth on
Schedule II, all the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable. All of the interests owned or held by the Company, directly
or indirectly, in each of the Subsidiaries are free and clear of any lien,
adverse claim, security interest, equity or other encumbrance, except for
such as would not have a material adverse effect on the condition (financial
or other), business properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole.
(f) All of the joint ventures in which the Company or any Subsidiary
owns any interest (the "Joint Ventures") are listed on Schedule III hereto.
The Company's (or Subsidiary's, as the case may be) ownership interest in
such Joint Venture is as set forth on Schedule III. Each of the Joint
Ventures possesses such certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary
to conduct the business now being conducted by it, as described or
incorporated by reference in the Prospectus, and none of the Joint Ventures
has received notice of any proceedings relating to the revocation or
modification of any such certificate, authority or permit which singly or in
the aggregate, if the subject of unfavorable ruling or decision, would have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of the Company and
the Subsidiaries, taken as a whole; each of the Joint Ventures has good and
marketable fee simple title to all of its real property and marketable title
to any improvements thereon and all other assets that are used in the
operation of the Joint Venture's business, except where the failure to have
such title would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(g) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or to which
any of their respective properties is subject, that are required to be
described in the Registration Statement or the Prospectus but are not
described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that are not described or
filed as required by the Act or the Exchange Act.
(h) Neither the Company nor any of the Subsidiaries is in violation
of its certificate or articles of incorporation or by-laws, or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over
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the Company or any of the Subsidiaries, or in default in any material respect
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, except where such violation or default
does not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole.
(i) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the consummation
by the Company of the transactions contemplated hereby (i) requires any
consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration
of the Shares under the Act and the Exchange Act and compliance with the
securities or Blue Sky laws of various jurisdictions, all of which have been
or will be effected in accordance with this Agreement) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, the certificate or articles of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or (ii)
conflicts or will conflict with or constitutes or will constitute a breach
of, or a default under, any agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company or any of the Subsidiaries or any of
their respective properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of the Subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be bound or to
which any of the property or assets of any of them is subject.
(j) The accountants, Deloitte & Touche LLP, who have certified or
shall certify the financial statements included or incorporated by reference
in the Registration Statement and the Prospectus (or any amendment or
supplement thereto) are independent public accountants as required by the Act.
(k) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company and the 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, in the condition (financial or other), business, net
worth or results of operations of the Company and the Subsidiaries taken as a
whole.
(n) (i) The Company has good and marketable title to all of the
properties (including the Properties listed as wholly owned by the Company on
Schedule I hereto) and assets reflected in the financial statements (or as
described in or incorporated by reference into the Registration Statement or
Prospectus) hereinabove described, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those reflected in such financial
statements (or as described in or incorporated by reference into the
Registration Statement or Prospectus) or which are not material in amount;
(ii) the Company occupies its leased properties under valid and binding
leases conforming, to the extent such leases are described therein, to the
description thereof set forth in or incorporated by reference into the
Registration Statement or Prospectus; (iii) no tenant of any of the
Properties is in default under any of the leases pursuant to which any
property is leased (and the Company does not know of any event which, but for
the passage of time or the giving of notice, or both, would constitute a
default under any of such leases) other than such defaults that would not
have a material adverse effect on the condition, financial or otherwise, or
on the earnings, assets, business affairs or business prospects of the
Company and the Subsidiaries taken as a whole; (iv) no person has an option
to purchase all or part of any Property or any interest therein other than
rights with respect to certain Properties owned by the Joint Ventures in
favor of the partners to such Joint Ventures pursuant to the agreements
governing the Joint Ventures; (v) each of the Properties complies with all
applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access
to the properties) and with all agreements between the Company and third
parties relating to the ownership or use of any Property by the Company,
except if and to the extent disclosed in the Registration Statement or the
Prospectus and except for such failures to comply that would not have a
material adverse effect on the condition,
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financial or otherwise, or on the earnings, assets, business affairs or
business prospects of the Company and the Subsidiaries taken as a whole; (vi)
there is in effect for the assets of the Company and the Properties insurance
coverages that are commercially reasonable and that are consistent with the
types and amounts of insurance typically maintained by prudent owners of
similar assets, and the Company has not received from any insurance company
notice of any material defects or deficiencies affecting the insurability of
any such assets; and (vii) the Company does not have any knowledge of any
pending or threatened condemnation proceedings, zoning change, or other
similar proceeding or action that will in any material respect affect the
size of, use of, improvements on, construction on or access to the
Properties, except for such proceedings or actions that would not have a
material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(o) The Company has title policies in effect or binding commitments
from title insurance companies for the issuance of title insurance on each of
the Properties, except where the failure to have such title insurance would
not have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and
the Subsidiaries, as a whole.
(p) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted
by the Act.
(q) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") and agreements with third parties relating to
ownership or use of any Property by the Company as are necessary to own its
respective properties and to conduct its business in the manner described in
the Prospectus, subject to such qualifications as may be set forth in the
Prospectus and except where the omission to have such permits and agreements
would not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole; the Company and each of the
Subsidiaries has fulfilled and performed all its material obligations with
respect to such permits and agreements and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the holder of any such permit or agreement, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described
in the Prospectus, none of such permits or agreements contains any
restriction that would have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(r) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain
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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, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(u) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of the
Company because of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement.
(v) The Company and the Subsidiaries own or possess in the United
States all patents, trademarks, trademark registrations, service marks,
service xxxx registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Prospectus as being owned by them
or any of them or necessary for the conduct of their respective businesses
and the Company is not aware of any claim to the contrary or any challenge by
any other person in the United States or in any foreign jurisdiction to the
rights of the Company and the Subsidiaries with respect to the foregoing
which claim or challenge, if determined adversely to the Company, would have
a material adverse effect on the condition (financial or otherwise),
business, properties, net worth or results of operations of the Company and
the Subsidiaries, taken as a whole.
(w) Except as otherwise disclosed in the Prospectus, the Company has
not authorized or conducted and does not have knowledge of the generation,
transportation, storage, presence, use, treatment, disposal, release, or
other handling of any hazardous substance, hazardous waste, hazardous
material, hazardous constituent, toxic substance, pollutant, contaminant,
asbestos, radon, polychlorinated biphenyls ("PCBs"), petroleum product or
waste (including crude oil or any fraction thereof), natural gas, liquefied
gas, synthetic gas or other material defined, regulated, controlled or
potentially subject to any remediation requirement under any environmental
law (collectively, "Hazardous Materials"), on, in, under or affecting any
real property currently leased or owned or by any means controlled by the
Company, including the Properties (the "Real Property") except as in material
compliance with applicable laws; to the knowledge of the Company, the Real
Property and the Company's operations with respect to the Real Property are
in compliance with all federal, state and local laws, ordinances, rules,
regulations and other governmental requirements
-11-
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, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole. Except as
otherwise disclosed in the Prospectus, the Company has not received any
written or oral notice from any governmental entity or any other person and
to the knowledge of the Company there is no pending or threatened claim,
litigation or any administrative agency proceeding that: alleges a violation
of any Environmental Laws by the Company; alleges that the Company is a
liable party or a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section
9601, et seq., or any state superfund law; has resulted in or could result in
the attachment of an environmental lien on any of the Real Property; or
alleges that the Company is liable for any contamination of the environment,
contamination of the Real Property, damage to natural resources, property
damage, or personal injury based on their activities or the activities of
their predecessors or third parties (whether at the Real Property or
elsewhere) involving Hazardous Materials, whether arising under the
Environmental Laws, common law principles, or other legal standards.
(x) The Company is organized in conformity with the requirements for
qualification as a real estate investment trust under the Code, and the
Company's method of operation enables it to meet the requirements for
taxation as a real estate investment trust under the Code.
(y) None of the Company nor any Subsidiary is or will become as a
result of the transactions contemplated hereby, or will conduct its business
in a manner in which it would become, "an investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
(z) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Considerations" and "Certain Federal Income Tax
Considerations to Holders of Common Stock", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate and complete.
7. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each of you and
each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or
in any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
-12-
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 shall not inure to the benefit of the
Underwriter (or to the benefit of any person controlling the Underwriter) on
account of any such loss, claim, damage, liability or expense arising from
the sale of the Shares by the Underwriter to any person if a copy of the
Prospectus shall not have been delivered or sent to such person within the
time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
Underwriter in requisite quantity on a timely basis to permit such delivery
or sending. The foregoing indemnity agreement shall be in addition to any
liability which the Company may otherwise have.
(b) if any action, suit or proceeding shall be brought against the
Underwriter or any person controlling the Underwriter in respect of which
indemnity may be sought against the Company, the Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment
of all fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Underwriter or such
controlling person unless (i) the Company has agreed in writing to pay such
fees and expenses, (ii) the Company has failed to assume the defense and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the Underwriter or
such controlling person and the Company and the Underwriter or such
controlling person shall have been advised by its counsel that representation
of such indemnified party and the Company by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual
or potential differing interests between them (in which case the Company
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Underwriter or such controlling person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for the Underwriter and controlling persons not having
actual or potential differing interests with you or among themselves, which
firm shall be designated in writing by Xxxxx Xxxxxx Inc., and that all such
fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Company agrees to indemnify and hold harmless
the Underwriter, to the extent
-13-
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 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.
-14-
(e) The Company and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter, the Company, its directors or officers, or any
person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor
to the Underwriter or any person controlling the Underwriter, or to the
Company, its directors or officers, or any person controlling the Company,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
8. Conditions of Underwriter's Obligations. The obligations of the
---------------------------------------
Underwriter to purchase the 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
-15-
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,
properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your opinion would
materially, adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Company or any officer or director
of the Company which makes any statement made in the Prospectus untrue in any
material respect or which, in the opinion of the Company and its counsel or
the Underwriter and its counsel, requires the making of any addition to or
change in the Prospectus in order to state a material fact required by the
Act or any other law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion
adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Xxxxxxx Coie, counsel for the Company, dated the Closing Date and addressed
to you substantially in the form of Annex A hereto. In rendering their
opinion as aforesaid, counsel may rely upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by them or the Company as
to laws of any jurisdiction other than the United States or the State of
Washington, provided that (1) each such local counsel is acceptable to you,
(2) such reliance is expressly authorized by each opinion so relied upon and
a copy of each such opinion is delivered to you and is, in form and substance
satisfactory to them and their counsel, and (3) counsel shall state in their
opinion that they believe that they and the Underwriter are justified in
relying thereon.
(d) You shall have received on the Closing Date an opinion of King &
Spalding, counsel for the Underwriter, dated the Closing Date and addressed
to you with respect to the matters referred to in clauses (vi), (viii), (ix),
(xiii) (excluding documents incorporated by reference) and (xviii) of Annex A
hereto and such other related matters as you may request.
(e) You shall have received letters addressed to you and dated the
date hereof and the Closing Date from Deloitte & Touche LLP, independent
certified public accountants, substantially in the forms heretofore approved
by you.
(f) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated by
the Commission at or prior to the Closing Date; (ii) there shall not have
been any change in the capital stock of the Company nor any material increase
-16-
in the short-term or long-term debt 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 as if
made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed on behalf of the Company by
the chief executive officer and the chief financial officer of the Company
(or such other officers as are acceptable to you), to the effect set forth in
this Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(h) Prior to the Closing Date the Shares shall have been listed,
subject to notice of issuance, on the New York Stock Exchange.
(i) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form
and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to the Underwriter as to the statements made therein.
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
-17-
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.; and (viii) the fees and expenses of the Company's accountants
and the fees and expenses of counsel (including local and special counsel)
for the Company.
10. Effective Date of Agreement. This Agreement shall become
---------------------------
effective: (i) upon the execution and delivery hereof by the parties hereto;
or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Company, by notifying you, or by you by notifying the Company.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of the
Underwriter to the Company by notice to the Company, if prior to the Closing
Date, (i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (ii) a general moratorium on commercial
banking activities in the states of New York or Washington shall have been
declared by either federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States
is such as to make it, in your judgment, impracticable or inadvisable (x) to
commence or continue the offering of the units of the Trust to the public or
(y) to enforce contracts for the resale of the units of the Trust by the
Trust. 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 on the cover page and the statements in the first
and third paragraphs under the caption "Underwriting" in the Prospectus
Supplement, constitute the only information furnished by or on behalf of the
Underwriter through you as such information is referred to in Sections 6(b)
and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
-------------
11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i)
-18-
if to the Company, at the office of the Company at 0000 Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxxxx, Attention: Xxxxxxx X. Xxxxx, Esq., Senior Vice
President, General Counsel and Secretary; or (ii) if to you at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the
Underwriter, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from the Underwriter of any of the
Shares in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
----------------------------
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-19-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriter.
Very truly yours,
SHURGARD STORAGE CENTERS, INC.
By: _______________________________
Name:
Title:
Confirmed as of the date first
above mentioned.
XXXXX XXXXXX INC.
By: _________________________
Managing Director
