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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report May 30, 1997
(Date of earliest event reported) (May 28, 1997)
SUSA PARTNERSHIP, L.P.
(Exact name of registrant as specified in its charter)
Tennessee 333-3344 62-1554135
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
10440 Little Patuxent Parkway,
Suite 1100,
Columbia, Maryland 21044
(Address and zip code of
principal executive offices)
Registrant's telephone number, including area code: (410) 730-9500
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Item 5. Other Events
Registrant has entered into an Underwriting Agreement with Goldman,
Sachs & Co. in connection with the issuance of $100 million aggregate principal
amount of 8.20% Notes due June 1, 2017 (the "Notes") pursuant to Registrant's
Prospectus Supplement dated as of May 29, 1997, to a Prospectus dated February
26, 1997, included as part the Registration Statement on Form S-3 (No.
333-21991) filed with the Commission on February 19, 1997. The Underwriting
Agreement is attached hereto as Exhibit 1.
Item 7. Financial Statements, ProForma Financial Information and Exhibits
(c) Exhibits.
The following exhibits are filed herewith:
Exhibit Description
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1 Underwriting Agreement and related Pricing Agreement,
dated May 29, 1997, between Registrant, SUSA
Partnership, L.P. and Goldman, Sachs & Co.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SUSA PARTNERSHIP, L.P.
by STORAGE USA, Inc., General Partner
Date: May 30, 1997 By: /s/ Christopher P. Marr
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Christopher P. Marr
Senior Vice President - Finance and
Accounting
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EXHIBIT INDEX
Exhibit Description
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1 Underwriting Agreement between Registrant, SUSA
Partnership, L.P. and Goldman, Sachs & Co.,
dated May 29, 1997.
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EXHIBIT 1
SUSA PARTNERSHIP, L.P.
Debt Securities
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Underwriting Agreement
May 29, 1997
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
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
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"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter who acts
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 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 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
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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 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
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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, 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,
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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") or the Company 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 or the Trust (other than short-term borrowings
under existing credit facilities, made in the ordinary course of
business, which would not have a material adverse effect) or any
material adverse change, or any development involving a prospective
material 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,
or the Company, if any, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented;
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(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 or any of their respective subsidiaries
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 or any of their respective subsidiaries, 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 condition, financial or otherwise, or
the earnings, assets or business affairs of Storage, the Company and
their respective subsidiaries, taken as a whole; 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 could not
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets or business
affairs of Storage, the Company and their respective subsidiaries,
taken as a whole; and neither the Company nor Storage has knowledge of
any
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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 and their respective
subsidiaries, 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, lease and operate its properties and conduct any business relating
thereto, and has been duly qualified as a foreign partnership for the
transaction of business and is in good standing under the laws of each
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;
(g) Storage 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
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which it 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; 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 has no subsidiaries other than the Company and the
Trust; and the Company has no subsidiaries other than (i) SUSA
Management, Inc., Storage USA Franchise Corp. and Storage USA
Construction, Inc., (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: 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., Peachtree
Development II, Inc., SUSA New Jersey, Inc., SUSA Harrison, L.P., SUSA
Secaucus, L.P., SUSA Hackensack, L.P., SUSA Orange, L.P. 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, 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 (as so amended, the "Operating Partnership Agreement"),
has been duly authorized, executed and delivered by each partner
thereto, has not been further amended or modified and is valid, legally
binding and enforceable in accordance with its terms, except to the
extent enforceability may be limited by
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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 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 as
amended or supplemented; and all of the general partnership interests
in the Company are owned by Storage free and clear of all liens,
encumbrances, equities or claims;
(k) Storage owns directly 100% of the beneficial interests in
the Trust free and clear of all liens, encumbrances, equities or
claims; Storage is the sole general partner of the Company; and Storage
owns, directly and through the Trust, the partnership interests in the
Company described in the Prospectus as amended or supplemented;
(l) The Securities have been duly authorized, and, when the
Designated Securities are issued and delivered and paid for pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Securities and authenticated in accordance with the
Indenture, 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 against the Company 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
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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 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 charter 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 (as
defined in Section 4 hereof), 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
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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
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 and each of their respective subsidiaries, 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 or the Trust is in violation
of its charter and by-laws (in the case of Storage), its certificate of
limited partnership or the Operating Partnership Agreement (in the case
of the Company), its 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;
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(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 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
hereof), 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 (directly or through any subsidiary) , 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
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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 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 condition, financial or otherwise, or
the earnings, assets or business affairs of the Company, Storage and
their respective subsidiaries, taken as a whole; and the Company,
Storage 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
condition, financial or otherwise, or the earnings, assets or business
affairs of the Company, Storage and their respective subsidiaries,
taken as a whole; and each of Storage, the Company and each of their
respective subsidiaries has been and is 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
condition, financial or otherwise, or the earnings, assets or business
affairs of the Company, Storage and their respective subsidiaries,
taken as a whole. 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
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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, to the knowledge of Storage and the Company, 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 or any of their respective subsidiaries or that alleges
that any such person is a liable party or potentially responsible party
under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss. 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 or such 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) Each subsidiary of the Company and Storage has been duly
organized and is validly existing in good standing under the laws of
the jurisdiction of its formation, has the requisite power and
authority to own its properties and conduct its business, and has been
duly qualified as a foreign corporation, partnership 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, except
where such failure to be so qualified or to be in good standing in any
such jurisdiction could not reasonably be expected to have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets or business affairs of the Company, Storage and their
respective subsidiaries, taken as a whole; and
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(w) Each of Coopers & Lybrand 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 respective 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 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
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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
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
20
<PAGE>
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 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
21
<PAGE>
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;
(g) During a period of five years from the date of the
relevant Pricing Agreement, to furnish to the Underwriters copies of
all reports or other communications (financial or other) furnished to
securityholders of the Company or Storage, 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 or Storage is listed; and (ii) such additional information
concerning the business and financial condition of the Company or
Storage 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 or Storage, 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"; and
22
<PAGE>
(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.
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 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
23
<PAGE>
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:
(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) Hunton & Williams, counsel for the Company shall have
furnished to the Representatives their written opinions, dated each
24
<PAGE>
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
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 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 Trust has been duly formed and is validly
existing as a trust in good standing under the laws of the
State 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;
(iv) 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
25
<PAGE>
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 consolidated financial position, partnership
capital, shareholders' equity or results of operations, as
applicable, of Storage, the Company and their respective
subsidiaries, taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(v) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vi) 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;
(vii) 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;
(viii) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the
26
<PAGE>
Designated Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated 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 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 known to such
counsel to which the Company, Storage or any of their
respective subsidiaries is a party or by which the Company,
Storage or any of their respective subsidiaries is bound or to
which any of the property or assets of the Company, Storage 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 charter, certificate of
incorporation or by-laws of Storage or any corporate
subsidiary of the Company or Storage or the certificate of
limited partnership, partnership agreement or other comparable
organizational document of any other subsidiary of the Company
or Storage 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 their properties;
(ix) 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;
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<PAGE>
(x) 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, deed of trust, loan agreement,
note, lease or other agreement or instrument known to such
counsel to which it is a party or by which it or any of its
properties may be bound;
(xi) 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;
(xii) 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;
(xiii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and other financial
and statistical 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;
28
<PAGE>
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 of the circumstances
under which they were made when such documents were so filed,
not misleading;
(xiv) 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
and statistical 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 (xi) 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 and other financial and statistical 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 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
29
<PAGE>
Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
and statistical 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 and statistical 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
(xv) 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
30
<PAGE>
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;
(e) (i) None of the Company or Storage nor 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, and their
respective subsidiaries, 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
31
<PAGE>
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 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; and
(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
32
<PAGE>
Time of Delivery, as to the matters set forth in subsections (a) and
(e) of this Section and as to such other matters as the Representatives
may reasonably request. In addition, the Company shall to the extent
set forth in the Pricing Agreement 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.
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
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<PAGE>
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 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
34
<PAGE>
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 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
35
<PAGE>
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 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.
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<PAGE>
(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.
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.
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<PAGE>
(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 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
38
<PAGE>
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 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
39
<PAGE>
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. 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.
40
<PAGE>
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: Thomas E. Robinson
Title: President and Chief Financial
Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: _____________________________
(Goldman, Sachs & Co.)
41
<PAGE>
ANNEX I
Pricing Agreement
Goldman, Sachs & Co., As Representatives of the several Underwriters named in
Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
May 29, 1997
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 May 29, 1997 (the "Underwriting Agreement"),
between the Company on the one hand and Goldman, Sachs & Co. 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
<PAGE>
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.
By: Storage USA, Inc.,
General Partner
By:________________________________
Name: Thomas E. Robinson
Title: President and Chief Financial
Officer
2
<PAGE>
Accepted as of the date hereof:
Goldman, Sachs & Co.
By: ________________________________
(Goldman, Sachs & Co.)
3
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
---------
Underwriter
-----------
Goldman, Sachs & Co. $100,000,000
-------------
4
<PAGE>
Total ............................................... $100,000,000
5
<PAGE>
SCHEDULE II
Title of Designated Securities:
8.20% Notes due June 1, 2017
Aggregate principal amount:
$100,000,000
Price to Public:
99.561% of the principal amount of the Designated Securities, plus
accrued interest, if any, from June 1, 1997.
Purchase Price by Underwriters:
98.686% of the principal amount of the Designated Securities, plus
accrued interest from June 1, 1997.
Form of Designated Securities:
6
<PAGE>
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
<PAGE>
Specified funds for payment of purchase price:
Federal(same day) funds by wire transfer
Time of Delivery:
9:00 a.m. (New York City time), June 3, 1997
Indenture:
Indenture dated November 1, 1996, between the Company and The
First National Bank of Chicago, as Trustee
Maturity:
June 1, 2017
Interest Rate:
8.20%
Interest Payment Dates:
June 1 and December 1, commencing December 1, 1997
Redemption Provisions:
The Designated Securities may be redeemed, in whole or in part at the
option of the Company, at 100% of their principal amount, together in
each case with accrued interest to the redemption date plus the
Make-Whole Amount (as defined in the Designated Securities).
8
<PAGE>
Sinking Fund Provisions:
No provisions
Defeasance provisions:
No provisions
9
<PAGE>
Closing location for delivery of Designated Securities:
125 Broad Street
New York, New York
10
<PAGE>
Names and addresses of Representatives:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
13
<PAGE>
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
<PAGE>
attention that caused them to believe that the unaudited condensed 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 the Company's or 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 the
Company's or 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 Company's 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
2
<PAGE>
regulations, or (ii) any material modifications should be made to the
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 the Company's or 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 the Company's or 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
3
<PAGE>
sheet included or incorporated by reference in the Prospectus) or any
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
4
<PAGE>
reference therein) as defined in the Underwriting Agreement as of the 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
