SUSA PARTNERSHIP, L.P.
Debt Securities
Underwriting Agreement
November 4, 1996
Xxxxxxx, Xxxxx & Co.,
First Chicago Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
From time to time SUSA Partnership, L.P., a Tennessee limited
partnership (the "Company"), proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of
Annex I hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain of its
debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement,
the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement
relating thereto and in or pursuant to the indenture (the
"Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made
from time to time to the Underwriters of such Securities, for
whom the firms designated as representatives of the Underwriters
of such Securities in the Pricing Agreement relating thereto will
act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or
their representatives. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase any of the Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall
specify the aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such
Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated
Securities to be purchased by each Underwriter and the
commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters
under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-
03344) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
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statement, but including all documents incorporated by reference
in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by
the Commission in such form; no other document with respect to
such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with
the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus"); the various parts of such
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained
in the registration statement at the time such part of the
registration statement became effective but excluding Form T-1,
each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called
the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual
report of the Company
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filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not 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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to
such Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the
Trust Indenture Act of 1939,
4
as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, 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;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such
Securities;
(d) None of Storage USA, Inc., a Tennessee corporation
and the sole general partner of the Company ("Storage"),
Storage USA Trust, a Maryland business trust and a limited
partner of the Company (the "Trust"), the Company or SUSA
Management, Inc., a Tennessee corporation and wholly-owned
subsidiary of the Company (the "Subsidiary Corporation") or
any of their respective subsidiaries has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the
Prospectus (for purposes of this Underwriting Agreement, the
terms "subsidiary" and "subsidiaries" refer to any corporation,
partnership, limited liability company, trust or other
organization or association in which an entity owns a direct
or indirect interest); and, since the respective dates as of
which information is given in the Registration Statement and
the Prospectus, there has not been any material change in the
capital stock, partnership interests or beneficial interests,
as applicable, long-term debt, obligations under capital
leases or short-term borrowings of Storage, the Company, the
Trust or the Subsidiary Corporation or any material adverse
change, or any development involving a prospective material
5
adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity, partnership capital
or results of operations, as applicable, of Storage, the
Trust, the Company or the Subsidiary Corporation, if any,
otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented;
(e) The Company and its subsidiaries have good and
marketable title in fee simple to all real property,
including the self-storage facilities described in the
Prospectus as amended or supplemented or as otherwise
described in the applicable Pricing Agreement as being owned
by such entities (each a "Facility" and together the
"Facilities"), and good and marketable title to all personal
property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in
the Prospectus as amended or supplemented or such as do not
materially affect the value of such property and do not
materially interfere with the use made or proposed to be made
of such property by the Company; and any real property and
buildings held under lease by Storage, the Company and the
Subsidiary Corporation are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material
and do not interfere with the use made or proposed to be made
of such property and buildings by the Company, Storage and
the Subsidiary Corporation, as the case may be; the
improvements at the Facilities, if any, are, or upon
completion of scheduled improvements and repairs will be, in
good condition and repair and, to the knowledge of the Company
and Storage, there are no material latent or patent defects in
the condition of any of the Facilities, the structural
elements thereof, or the mechanical systems therein, except
for any such defect, damage, or condition that has been
corrected or will be corrected in the ordinary course of
business as part of scheduled maintenance and improvement
programs or that, if not so corrected, could not reasonably
be expected to have a material adverse effect on the Facility
to which such defect, damage or condition relates; and each
of the Facilities 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 Facilities), except where noncompliance with such codes,
laws or regulations
6
could not reasonably be expected to have a material adverse
effect on such Facility; and neither the Company nor Storage has
knowledge of any pending or threatened condemnation proceedings,
zoning changes or other proceedings or actions that will in any
manner affect the size of, use of, improvements or construction
on or access to the Facilities, except such proceedings or
actions that would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets or
business affairs of Storage, the Company, the Trust or Subsidiary
Corporation, in each case taken as a whole;
(f) The Company has been duly formed and is validly
existing as a limited partnership under the Tennessee Revised
Uniform Limited Partnership Act with power and authority
(partnership and other) to own its properties and to conduct any
business relating thereto;
(g) Each of Storage and the Subsidiary Corporation has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Tennessee, with power and authority (corporate and other) to
own, lease, license and operate its properties and conduct
its business as described in the Prospectus as amended or
supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as
to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(h) The Trust has been duly formed and is validly
existing as a business trust in good standing under the laws
of the State of Maryland, with power and authority (trust and
other) to own its limited partnership interest in the Company
and to conduct any business appropriate in connection
therewith, and has been duly qualified as a foreign trust for
the transaction of such business and is in good standing
under the laws of each other jurisdiction in which it
conducts any business so as to require such qualification,
7
or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction; the
only activity of the Trust is the ownership of its limited
partnership interest in the Company and taking such activity,
if any, as may be appropriate in connection therewith;
(i) Storage and the Trust have no subsidiaries other than
the Company; and the Company has no subsidiaries other than
(i) the Subsidiary Corporation, (ii) Clarendon Storage
Associates L.P., in which it owns a 50% general partnership
interest, (iii) SUSA/38th Avenue, Capitola, L.P., in which
it owns an 86% general partnership interest and (iv) the
following entities, each of which is directly or indirectly
wholly-owned by the Company: Storage USA Franchise Corp.,
Tamiami Mini-Storage Partners, Ltd., 441 Mini-Storage
Partners, Ltd., Sunset Mini-Storage Partners, Ltd., Dade
County Mini-Storage Associates Ltd., Southeast Mini-Storage
Limited Partners, Buzzman Partners I Ltd. Partnership, Buzzman
Partners II Ltd. Partnership, Storage USA of Palm Beach County,
L.P., Storage USA Construction, Inc., Peachtree Development II,
Inc. and Preston Self Storage Limited;
(j) The Second Amended and Restated Agreement of
Limited Partnership of SUSA Partnership, L.P., dated as of
September 21, 1994 as amended by the First Amendment to
Second Amended and Restated Agreement of Limited Partnership
of SUSA Partnership, L.P., dated as of March 19, 1996, and the
Second Amendment to Second Amended and Restated Agreement of
Limited Partnership of SUSA Partnership, L.P., dated as of June
14, 1996, and the Third Amendment to Second Amended and
Restated Agreement of Limited Partnership of SUSA Partnership,
L.P., dated as of August 14, 1996 (the "Operating Partnership
Agreement"), has been duly authorized, executed and delivered by
each partner thereto and is valid, legally binding and
enforceable in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy,
insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights or by
general equity principles, whether considered at law or in
equity; the Company has a capitalization as set forth in the
Prospectus as
8
amended or supplemented, and all of the partnership interests of
the Company have been duly and validly authorized and issued and
are fully paid and conform to the description thereof contained
in the Prospectus; all of the issued shares of capital stock of
the Subsidiary Corporation have been duly and validly authorized
and issued, are fully paid and non-assessable; and all of the
general partnership interests in the Company are owned directly
by Storage and all of the issued shares of capital stock of the
Subsidiary Corporation are owned directly by the Company
(except for such shares as are owned by Xxxx Xxxxxxxx), in
each case free and clear of all liens, encumbrances, equities
or claims;
(k) Storage is the sole general partner of the Company
and owns, directly and through the Trust, approximately 95%
of the partnership interests in the Company;
(l) The Securities have been duly authorized, and, when
the Designated Securities are issued and delivered pursuant
to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of
the Company, subject, as to enforcement, to the effects of
bankruptcy, insolvency, reorganization or other similar laws
of general applicability relating to or affecting creditors'
rights or of general equity principles, whether considered at
law or in equity, and will be entitled to the benefits
provided by the Indenture, which will be substantially in the
form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles, whether
considered at law or in equity; and the Indenture conforms,
and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus
9
as amended or supplemented with respect to such Designated
Securities;
(m) No person or entity holds the rights to require or
participate in the registration under the Act of the Securities
pursuant to the Registration Statement;
(n) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
which Storage, the Company or any of their respective
subsidiaries is a party or by which Storage, the Company or
any of their respective subsidiaries is bound or to which any of
the property or assets of Storage, the Company or any of their
respective subsidiaries is subject, nor will such action result
in any violation of the provisions of the certificate of
incorporation or by-laws of Storage, the certificate of
limited partnership of the Company or the Operating
Partnership Agreement or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Storage, the Company or any of their
respective subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental
agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will
have been prior to each Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters;
(o) The statements set forth (i) in the Prospectus under
the caption "Description of Debt Securities" and in the
Prospectus as
10
amended or supplemented under the caption "Description of Notes",
insofar as they purport to constitute a summary of the terms of
the Securities, and (ii) in the Prospectus under the caption
"Plan of Distribution" and in the Prospectus as amended or
supplemented under the caption "Underwriting", insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all
material respects;
(p) Other than as set forth in the Prospectus as amended
or supplemented, there are no legal or governmental
proceedings pending to which Storage, the Company or any of
their respective subsidiaries is a party or of which any
property of Storage, the Company or any of their respective
subsidiaries is the subject which, if determined adversely to
Storage, the Company or any of their respective subsidiaries,
would individually or in the aggregate have a material
adverse effect on the current or future consolidated
financial position, shareholder's equity or partnership capital,
as applicable, or results of operations of Storage, the
Company or any of their respective subsidiaries, in each case
taken as a whole; and, to the best of Storage's and the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(q) None of Storage, the Company, the Trust or the
Subsidiary Corporation is in violation of its charter and by-
laws (in the case of Storage and the Subsidiary Corporation),
its certificate of limited partnership or the Operating
Partnership Agreement (in the case of the Company), the
Declaration of Trust (in the case of the Trust) or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(r) None of Storage, the Trust or the Company is and,
after giving effect to the offering and sale of the
Securities, none of them will be an "investment company" or
an entity "controlled" by a "registered investment company",
as such terms are defined or
11
used, as the case may be, in the Investment Company Act of 1940,
as amended (the "Investment Company Act");
(s) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes;
(t) The Company and its subsidiaries maintain, or will
have in full force and effect at each Time of Delivery (as
defined in Section 4 herein), insurance on all of the
Facilities, and their respective other assets and operations
(issued by issuers of recognized financial responsibility) of
the types and in the amounts generally deemed adequate for
their respective businesses and, to the best knowledge of the
Company, consistent with insurance coverage maintained by
similar companies in similar businesses, including, but not
limited to, insurance covering real and personal property
owned or managed by the Company and its subsidiaries against
theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in
full force and effect;
(u) Except as otherwise disclosed in the Prospectus as
amended or supplemented, neither Storage nor the Company (with
respect to the Facilities) or, to the knowledge of the Company or
Storage, any owner of, or any party to any of the acquisition
agreements relating to, any facility that the Company expects
to purchase, has authorized or conducted, or has knowledge of
the generation, transportation, storage, presence, use,
treatment, disposal, release or other handling of any
hazardous substance, asbestos, radon, polychlorinated
byphenyls ("PCBs"), petroleum product or waste (including
crude oil or any fraction thereof), natural gas, liquified
gas, synthetic gas or other material defined, regulated,
controlled or potentially subject to any remediation requirement
under an environmental law (collectively, "Hazardous
Materials") on, in, under or affecting any real property
comprising any part of such Facilities owned or by any means
controlled by, or facilities to be acquired by, the Company,
except in full compliance with and as
12
would not result in any liability under any 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"), other than such
instances of noncompliance as could not reasonably be expected to
have a material adverse effect on the Company or any of the
Facilities; and Storage, the Company and their respective
subsidiaries are, and, to the knowledge of Storage and the
Company, the entities from which any of the Facilities were
acquired with respect to the real property comprising any part of
the Facilities owned or by any means controlled by the Company or
Storage were, at the time of acquisition, in compliance with all
Environmental Laws, except for such instances of noncompliance as
could not reasonably be expected to have a material adverse
effect on the Company or any of the Facilities; and Storage, the
Company and each of their respective subsidiaries have been and
are in compliance with and, to the knowledge of Storage and the
Company, the entities from which any Facility was acquired
were, at the time of acquisition, in compliance with, all
licenses, permits, registrations and government authorizations
necessary to operate under all applicable Environmental Laws,
except for such instances of noncompliance as could not
reasonably be expected to have a material adverse effect on the
Company or any of the Facilities. Except as otherwise disclosed
in the Prospectus, none of Storage, the Company or any of their
respective subsidiaries with respect to any Facility, nor, to
the knowledge of Storage and the Company, any owner of any
facility proposed to be purchased directly or indirectly by the
Company, has received any written or oral notice from any
governmental entity or any other person of any claim and there
is no pending or threatened claim, litigation, or any
administrative agency proceeding that (with respect to any such
facility proposed to be purchased by the Company, or any owner of
such facility, to the knowledge of Storage and the Company) (a)
alleges a violation of any Environmental Laws by Storage, the
Company, any of their respective subsidiaries or that alleges
that any such person is a liable party or potentially responsible
party under the Comprehensive
13
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, et seq., or any state superfund law; (b) has
resulted in or could result in the attachment of an environmental
lien on any of the Facilities or such facilities; or (c) alleges
contamination of any of the Facilities, 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 Facilities, such facilities or elsewhere)
involving Hazardous Materials, whether arising under the
Environmental Laws, common law principles, or other legal
standards;
(v) The Subsidiary Corporation has the power and
authority to own its properties and conduct its business, and
has been duly qualified as a foreign corporation or otherwise
for the transaction of business, in each case as described in
the Prospectus as amended or supplemented and is in good
standing under the laws of each other jurisdiction in which
it owns or leases property or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified or to be in good standing in any such jurisdiction; and
(w) Each of Coopers & Xxxxxxx L.L.P. and such other
accountants acceptable to the Representatives, if any, who have
certified certain financial statements of Storage, the Company
and their subsidiaries, respectively, are independent public
accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the
Representatives of the release of such Designated Securities, the
several Underwriters propose to offer such Designated Securities
for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives
may request upon at
14
least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives
for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks or wire transfer,
payable to the order of the Company in the funds specified in
such Pricing Agreement, all in the manner and at the place and
time and date specified in such Pricing Agreement or at such
other place and time and date as the Representatives and the
Company may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second (or, in the case of
a filing pursuant to Rule 424(b)(3), the fifth) business day
following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating
to such Securities and prior to the Time of Delivery for such
Securities which shall be disapproved by the Representatives for
such Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and to furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and
during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been
15
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of
such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the
issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to
the Securities or suspending any such qualification, promptly
to use its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such
Securities for offering and sale under the securities laws of
such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign partnership or
to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as
the Representatives may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Securities and
if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with
16
the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to holders of outstanding
Securities as soon as practicable, but in any event not later
than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and
continuing to and including the later of (i) the termination
of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or Storage which mature more
than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f) To furnish to holders of outstanding Securities as
soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of
income, return of capital, partners' equity and cash flows,
as applicable, of the Company and its consolidated
subsidiaries, certified by independent public accountants)
and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the date hereof), consolidated
summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
17
(g) During a period of five years from the date hereof,
to furnish to the Underwriters copies of all reports or other
communications (financial or other) furnished to securityholders
of the Company, and to deliver to the Underwriters (i) as soon as
they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of
the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as
the Underwriters may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent
the accounts of the Company, and its subsidiaries are
consolidated in reports furnished to its securityholders
generally or to the Commission);
(h) To use the net proceeds received by the Company from
the sale of the Securities pursuant to this Agreement in the
manner specified in the Prospectus as amended or supplemented
under the caption "Use of Proceeds";
(i) Not to invest, reinvest, or otherwise use the
proceeds received by the Company from the sale of Designated
Securities pursuant to this Agreement in such a manner, or
take any action, or omit to take any action, that would cause
Storage, the Company or any of their respective subsidiaries
to become an "investment company" as that term is defined in
the Investment Company Act; and
(j) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange (the
"Exchange").
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
18
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing
documents and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii)
all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees
and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and
Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees
incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, any required review by
the National Association of Securities Dealers, Inc. of the terms
of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any trustee and any
agent of any trustee and the fees and disbursements of counsel
for any Trustee in connection with any Indenture and the
Securities; (viii) all fees and expenses in connection with the
listing of the Securities on any national exchange; and (ix) all
other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such
Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated
by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the
Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
19
(a) The Prospectus as amended or supplemented in relation
to such Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to
the Representatives such opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to
the organization of the Company, the validity of the
Designated Securities being delivered at such Time of
Delivery, the Registration Statement and the Prospectus as
amended or supplemented as well as such other related matters
as the Representatives may reasonably request, and such
counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such
matters;
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives
their written opinions, dated each Time of Delivery for such
Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly formed and is validly
existing as a limited partnership under the laws of the State
of Tennessee, with all requisite partnership power and
authority to own, lease, license and operate its properties and
conduct its business as described in the Prospectus as amended or
supplemented and the Operating Partnership Agreement has been
duly authorized, executed and delivered by Storage as general
partner and the Trust as limited partner and, assuming due
authorization, execution and delivery by
20
each other signatory thereto, is legally binding and enforceable
in accordance with its terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, reorganization or other
laws of general applicability relating to or affecting creditors'
rights or by general equity principles, whether considered at law
or in equity;
(ii) Storage has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the of the State of Tennessee, with power and authority
(corporate and other) to own, lease, license and operate its
properties and conduct its business as described in the
Prospectus as amended or supplemented;
(iii) The Subsidiary Corporation has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Tennessee;
(iv) The Trust has been duly formed and is validly
existing as a trust in good standing under the laws of
Maryland, with power and authority (trust and other) to
own its interest in the Company and conduct any business
necessary or appropriate in connection therewith;
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or supplemented,
there are no legal or governmental proceedings pending to which
Storage, the Company or any of their respective subsidiaries is a
party or of which any property of Storage, the Company or any of
their respective subsidiaries is the subject which, if determined
adversely to Storage, the Company or any of their subsidiaries,
would individually or in the aggregate have a material adverse
effect on the consolidated financial position, return of capital,
shareholders' equity or results of operations, as applicable, of
the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
21
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, issued and delivered and, assuming that the
Designated Securities have been duly authenticated by the
Trustee in the manner described in the Trustee's Certificate
delivered to you at the Time of Delivery, the Designated
Securities constitute valid and legally binding obligations of
the Company entitled to the benefits provided by their terms
and by the Indenture; and the Designated Securities and
the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented;
(viii) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid
and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors'
rights and to general equity principles, whether
considered at law or in equity; and the Indenture has
been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, this Agreement and
the Pricing Agreement with respect to theDesignated Securities
and the consummation of the transactions herein and therein
contemplated and the application of the proceeds from the sale of
the Designated Securities as described in the Prospectus as
amended or supplemented will not will not result in a
breach or violation of any of the terms or provisions
22
of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument known to such counsel to which Storage, the
Company or any of their respective subsidiaries is a party or
by which Storage, the Company or any of their respective
subsidiaries is bound or to which any of the property or assets
of Storage, the Company or any of their respective
subsidiaries is subject, nor will such actions result in
any violation of the provisions of the certificate of
limited partnership of the Company or Operating Partnership
Agreement or the certificate of incorporation or by-laws of
Storage or any corporate subsidiary of Storage or the Company or
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over Storage, the Company or any of their respective
subsidiaries or any of its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the issue
and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture,
except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of
the Designated Securities by the Underwriters;
(xi) To such counsel's knowledge, none of Storage, the
Company or any of their respective subsidiaries is in
violation of, in the case of Storage and any corporate
subsidiary, its certificate of incorporation or by-laws,
in the case of the Company or any partnership subsidiary,
its certificate of limited partnership or partnership
agreement, or in default in the performance or observance
of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other
23
instrument known to such counsel to which it is a party or by
which it or any of its properties may be bound;
(xii) The statements set forth in the Prospectus under
the captions "Description of Debt Securities" and in the
Prospectus as supplemented or amended under the caption
"Description of Notes" insofar as they purport to constitute a
summary of the terms of the Securities and in the Prospectus
under the caption "Plan of Distribution" and in the
Prospectus as amended or supplemented under the caption
"Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(xiii) Neither the Company nor Storage is an "investment
company" or an entity "controlled" by a "registered
investment company", as such terms are defined or used, as
the case may be, in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and other financial
information therein, as to which such counsel need express no
opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such
documents, when they became effective or were so filed,
as the case may be, contained, in the case of a
registration statement which became effective under the
Act, 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, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light
24
of the circumstances under which they were made
when such documents were so filed, not misleading;
(xv) The Registration Statement and the Prospectus as
amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time
of Delivery for the Designated Securities (other than the
financial statements and related schedules and other financial
information therein, as to which such counsel need express no
opinion), comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; although they
do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for
those referred to in the opinion in subsection (xii) of
this Section 7(c), they have no reason to believe that,
as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior
to such Time of Delivery (other than the financial
statements and related schedules therein, as to which
such counsel need express no opinion) 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, as of its
date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
25
information therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement
or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules and other
financial information therein, as to which such counsel
need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any
contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated
by reference or described as required; and
(xvi) The Company and each of its partnership
subsidiaries will be treated for Federal income tax purposes as a
partnership and not as an association taxable as a corporation
and will not be treated as a "publicly traded partnership"
as defined in the Code;
(d) On the date of the Pricing Agreement for such
Designated Securities at a time prior to the execution of the
Pricing Agreement with respect to such Designated Securities
and at the Time of Delivery for such Designated Securities,
the independent accountants of the Company who have certified
the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with
the Commission containing financial statements and
incorporated by reference in the Registration Statement, if the
date of such report is later than such effective date, and a
letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such
letter dated such Time of Delivery, as to such other matters
as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
26
(e) (i) None of Storage, the Company, the Trust, the
Subsidiary Corporation or any of their respective subsidiaries or
the Facilities shall have sustained since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated
Securities any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the
capital stock or partnership interests, as applicable, long-
term debt, obligations under capital leases or short-term
borrowings of Storage, the Company or any of their respective
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or
partnership capital, as applicable or results of operations
of Storage, the Company, the Trust or the Subsidiary
Corporation, in each case taken as a whole, otherwise than as
set forth or contemplated in the Prospectus as amended prior
to the date of the Pricing Agreement relating to the
Designated Securities, the effect of which, in any such case
described in Clause (i) or (ii) above, is in the judgment of the
Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as
first amended or supplemented relating to the Designated
Securities;
(f) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading
shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced
27
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's or Storage's securities on the New
York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the judgment
of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers
of Storage satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the
Representatives may reasonably request. In addition, the Company
shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated
Securities certificates of good standing or valid existence
issued by an appropriate official of each of the several
states in which Storage or the Company has been duly
qualified as a foreign corporation or foreign partnership,
respectively, for the transaction of business or in which
either Storage or the Company owns or leases, or, at such
Time of Delivery, proposes to own or lease, properties; and
28
(i) The Securities at the Time of Delivery shall have
been duly listed, subject to notice of issuance, on the New
York Stock Exchange.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented
and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented
and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to
such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities, joint
or several, to which the Company may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration
29
Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities,
or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified
30
party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include any statement
as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by
such Underwriters. The relative fault 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
31
relates to information supplied by the Company on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each partner of the Company and
to each person, if any, who controls the Company within the
meaning of the Act.
32
9. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities which it has agreed to
purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange
for themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure
another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such
terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for
the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus
as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount
of such Designated Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the
Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Designated Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount
33
of Designated Securities which such Underwriter
agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount
of Designated Securities which remains unpurchased exceeds one-
eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter,
or the Company or any officer or director or controlling person
of the Company, and shall survive delivery of and payment for the
Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall then be under no liability to
any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Sections 6 and 8
hereof; but, if for any other reason Designated Securities are
not delivered by or on behalf of the Company as provided herein,
the Company will reimburse
34
the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements
of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such
Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each
of such Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Representatives as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent
by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing
Agreement.
35
No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement.
As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
36
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any
number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
Very truly yours,
SUSA Partnership, L.P.
By: Storage USA, Inc.,
General Partner
By:_________________________
_________
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief
Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
First Chicago Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
By: _____________________________
(Xxxxxxx, Sachs & Co.)
37
ANNEX I
Pricing Agreement
Xxxxxxx, Xxxxx & Co.,
First Chicago Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
[Date]
Ladies and Gentlemen:
SUSA Partnership, L.P., a Tennessee limited partnership (the
"Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated November 4, 1996
(the "Underwriting Agreement"), between the Company on the one
hand and Xxxxxxx, Xxxxx & Co. and First Chicago Capital Markets,
Inc. and X.X. Xxxxxx Securities Inc. on the other hand, to issue
and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto
(the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation
to the Prospectus (as therein defined), and also a representation
and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of
the Underwriters of the Designated Securities pursuant to Section
12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement
to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return counterparts hereof to us one for the
Company and one for each of the Representatives plus one for each
counsel, and upon acceptance hereof by you, on behalf of each of
the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company. It
is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives
as to the authority of the signers thereof.
Very truly yours,
SUSA Partnership, L.P.
2
By: Storage USA, Inc.,
General Partner
By:______________________
_________
Name: Xxxxxx X. Xxxxxxxx
Title: President and
Chief Financial
Officer
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
First Chicago Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
By: ________________________________
(Xxxxxxx, Sachs & Co.)
3
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
Underwriter
Xxxxxxx, Xxxxx & Co. $
First Chicago Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
[Names of other Underwriters]
4
Total . . . . . . . . . . . . . . . $________________
5
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities,
plus accrued interest[, if any,] from to
[and accrued amortization[, if any,] from
to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities,
plus accrued interest from to [and
accrued amortization[, if any,] from
to ]
Form of Designated Securities:
[Definitive form to be made available for checking and
packaging at least twenty-four hours prior to the Time of
Delivery at the office of [The Depository Trust Company or its
designated custodian] [the Representatives]]
6
[Book-entry only form represented by one or more global
securities deposited with The Depository Trust Company ("DTC")
or its designated custodian, to be made available for checking
by the Representatives at least twenty-four hours prior to the
Time of Delivery at the office of DTC.]
7
Specified funds for payment of purchase price:
[New York] Clearing House (next day) funds
Time of Delivery:
a.m. (New York City time), , 19
Indenture:
Indenture dated November 1, 1996, between the Company and
The First National Bank of Chicago, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 19..]
Redemption Provisions:
[No provisions for redemption]
8
[The Designated Securities may be redeemed, otherwise than
through the sinking fund, in whole or in part at the option of
the Company, in the amount of [$ ] or an integral
multiple thereof,
9
[on or after , at the following
redemption prices (expressed in percentages of principal
amount). If [redeemed on or before , %, and if]
redeemed during the 12-month period beginning ,
Redemption
Year Price
and thereafter at 100% of their principal amount, together
in each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest
to the date of redemption.]]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire [$ ] principal amount of
Designated Securities on in each of the years
through at 100% of their principal amount plus accrued
interest[, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an
additional [$ ] principal amount of Designated
Securities in the years through at 100%
of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert-
10
-Extendable provisions:
Designated Securities are repayable on ,
[insert date and years], at the option of the holder, at their
principal amount with accrued interest. The initial annual
interest rate will be %, and thereafter the annual
interest rate will be adjusted on , and
to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year
maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities,
insert--
Floating rate provisions:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
, and ] [to an annual rate of %
above the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest
rate [thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of
Interest Differential (the excess, if any, of (i) the then
current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) the then current
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from
and thereafter the rate will be the then current interest
yield equivalent plus % of Interest Differential].]
Defeasance provisions:
11
Closing location for delivery of Designated Securities:
12
Additional Closing Conditions:
Paragraph 7(g) of the Underwriting Agreement should be modified
in the event that the Securities are denominated in, indexed
to, or principal or interest are paid in, a currency other than
the U.S. dollar, more than one currency or in a composite
currency. The country or countries issuing such currency
should be added to the banking moratorium and hostilities
clauses and the following additional clause should be added to
the paragraph (the entire paragraph should be restated, as
amended):
"; ( ) the imposition of the proposal of exchange controls
by any governmental authority in [insert the country or
countries issuing such currency, currencies or composite
currency]".
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
_________________________
* A description of particular tax, accounting or other unusual
features (such as the addition of event risk provisions) of the
Designated Securities should be set forth, or referenced to an
attached and accompanying description, if necessary, to ensure
agreement as to the terms of the Designated Securities to be
purchased and sold. Such a description might appropriately be in
the form in which such features will be described in the
Prospectus Supplement for the offering.
13
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the
effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) in their opinion, the financial statements and any
supplementary financial information and schedules audited (and,
if applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma
financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of
the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
separately furnished to the representative or representatives of
the Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being
designated as its or their representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included in the
Company's and Storage's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention
that caused them to believe that the unaudited condensed
1
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of
the Company for the fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of Storage's
Annual Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for
such fiscal years which were included or incorporated by
reference in Storage's Annual Reports on Form 10-K for such
fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such
letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the Company,
Storage and their subsidiaries, inspection of the minute books of
Storage and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company, Storage and
their subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that
caused them to believe that:
(A)(i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Companys and
Storage's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to
the
2
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's and Storage's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
Storage's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in Storage's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
3
increase in the consolidated long-term debt of the Company and
Storage, as applicable, and their subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives,
except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of the Company,
Storage and their subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Company, Storage
and their subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as defined in the Underwriting
Agreement as of the
4
date of the letter delivered on the date of the Pricing Agreement
for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference
therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
5
