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 (Date of earliest event reported) May 22, 1995
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Storage Equities, Inc.
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(Exact name of registrant as specified in its charter)
California 1-8389 95-3551121
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(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification No.)
600 North Brand Boulevard, Glendale, California 91203-1241
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code (818) 244-8080
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N/A
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(Former name or former address, if changed since last report)
Item 5. Other Events
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On August 4, 1994, the Securities and Exchange Commission
declared effective the Registration Statement on Form S-3 (No. 33-54755)
of Storage Equities, Inc. (the "Company"), which together with the
securities previously registered pursuant to the Company's Registration
Statement on Form S-3 (No. 33-71336), permits the Company to issue an
aggregate of $300,000,000 of preferred stock, common stock and warrants.
Item 7. Financial Statements and Exhibits
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<PAGE>
(c) Exhibits.
Exhibit 1.1 - Form of U.S. Underwriting Agreement.
Exhibit 1.2 - Form of International Underwriting Agreement.
SIGNATURES
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 hereunto duly authorized.
STORAGE EQUITIES, INC.
By: /S/ OBREN B. GERICH
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Obren B. Gerich
Vice President
Date: May 22, 1995
EXHIBIT 1.1
Storage Equities, Inc.
2,800,000 Shares
Common Stock
UNDERWRITING AGREEMENT
(U.S. Version)
May __, 1995
New York, New York
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
as Representatives of the
Several U.S. Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
Storage Equities, Inc., a real estate investment trust ("REIT")
and a California corporation (the "Company"), proposes to sell an
aggregate of 2,800,000 shares (the "U.S. Firm Shares") of the Company's
common stock, par value $.10 per share (the "Common Stock"), to you and
the several other U.S. underwriters named in Schedule I hereto
(collectively, the "U.S. Underwriters"), for whom you are acting as
representatives (the "Representatives"), in connection with the offering
and sale of such shares of Common Stock in the United States and Canada to
United States and Canadian Persons (as hereinafter defined). The Company
has also agreed to grant to you and the other U.S. Underwriters an option
(the "U.S. Option") to purchase up to an additional 525,000 shares of
Common Stock (the "U.S. Option Shares") on the terms and for the purposes
set forth in Section 1(b). The U.S. Firm Shares and the U.S. Option
Shares are referred to collectively herein as the "U.S. Shares" and the
International Shares (as hereinafter defined) and the U.S. Shares are
referred to collectively herein as the "Shares". It is understood that
the Company is concurrently entering into an agreement (the "International
Underwriting Agreement") providing for the sale by the Company of an
aggregate of 700,000 shares of Common Stock (the "International Shares"),
through arrangements with certain underwriters outside the United States
(the "International Underwriters"), for whom PaineWebber International
(U.K.) Limited, Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities
Corporation, Raymond James & Associates, Inc. and The Robinson-Humphrey
Company, Inc. are acting as lead managers (the "Managers"), in connection
with the offering and the sale of such shares of Common Stock outside the
United States and Canada to persons other than United States and Canadian
Persons. As used herein, "United States or Canadian Person" shall mean
any individual who is resident in the United States or Canada or any
corporation, pension, profit-sharing or other trust or other entity
organized under or governed by the laws of the United States or Canada or
of any political subdivision thereof (other than the foreign branch of any
United States or Canadian Person), and shall include any United States or
Canadian branch of a person other than a United States or Canadian Person;
and "United States" shall mean the United States of America, its
territories, possessions and all areas subject to its jurisdiction.
The U.S. Underwriters have entered into an agreement with the
International Underwriters (the "Agreement Between U.S. Underwriters and
International Underwriters") contemplating the coordination of certain
transactions between the U.S. Underwriters and the International
Underwriters and any such transactions between the U.S. Underwriters and
the International Underwriters shall be governed by the Agreement Between
U.S. Underwriters and International Underwriters and shall not be governed
by the terms of this Agreement.
The initial public offering price per share for the U.S. Shares
and the purchase price per share for the U.S. Shares to be paid by the
several U.S. Underwriters shall be agreed upon by the Company and the
Representatives, acting on behalf of the several U.S. Underwriters, and
such agreement shall be set forth in a separate written instrument
substantially in the form of Exhibit A hereto (the "U.S. Price
Determination Agreement"). The U.S. Price Determination Agreement may
take the form of an exchange of any standard form of written
telecommunication between the Company and the Representatives, and shall
specify such applicable information as is indicated in Exhibit A hereto.
The offering of the U.S. Shares will be governed by this Agreement, as
supplemented by the U.S. Price Determination Agreement. From and after
the date of the execution and delivery of the U.S. Price Determination
Agreement, this Agreement shall be deemed to incorporate, and, unless the
context otherwise indicates, all references contained herein to "this
Agreement" and to the phrase "herein" shall be deemed to include the U.S.
Price Determination Agreement.
The initial public offering price per share and the purchase
price per share for the International Shares to be paid by the several
International Underwriters pursuant to the International Underwriting
Agreement shall be set forth in a separate agreement (the "International
Price Determination Agreement"), the form of which is attached to the
International Underwriting Agreement. From and after the date of the
execution and delivery of the International Price Determination Agreement,
unless the context otherwise indicates, all references contained herein to
the "International Underwriting Agreement" shall be deemed to include the
International Price Determination Agreement. The purchase price per share
for the International Shares to be paid by the several International
Underwriters shall be identical to the purchase price per share for the
U.S. Shares to be paid by the several U.S. Underwriters hereunder.
The Company confirms as follows its agreements with the
Representatives and the several other U.S. Underwriters:
1. Agreement to Sell and Purchase.
A. On the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms
and conditions of this Agreement, (i) the Company agrees to sell to the
several U.S. Underwriters and (ii) each of the U.S. Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase
price per share for the U.S. Firm Shares to be agreed upon by the
Representatives and the Company in accordance with Section 1(c) or 1(d)
and set forth in the U.S. Price Determination Agreement, the number of
U.S. Firm Shares set forth opposite the name of such U.S. Underwriter in
Schedule I, plus such additional number of U.S. Firm Shares which such
U.S. Underwriter may become obligated to purchase pursuant to Section 8
hereof.
B. Subject to all the terms and conditions of this
Agreement, the Company grants the U.S. Option to the several U.S.
Underwriters to purchase, severally and not jointly, up to 525,000 U.S.
Option Shares from the Company at the same price per share as the U.S.
Underwriters shall pay for the U.S. Firm Shares. The U.S. Option may be
exercised only to cover over-allotments in the sale of the U.S. Firm
Shares by the U.S. Underwriters and may be exercised in whole or in part
at any time (but not more than once) on or before the 45th day after the
date of this Agreement, upon written or telegraphic notice (the "U.S.
Option Shares Notice") by the Representatives to the Company no later than
12:00 noon, New York City time, at least two and no more than five
business days before the date specified for closing in the U.S. Option
Shares Notice (the "U.S. Option Closing Date") setting forth the aggregate
number of U.S. Option Shares to be purchased and the time and date for
such purchase. On the U.S. Option Closing Date, the Company will issue
and sell to the U.S. Underwriters the number of U.S. Option Shares set
forth in the U.S. Option Shares Notice, and each U.S. Underwriter will
purchase such percentage of the U.S. Option Shares as is equal to the
percentage of U.S. Firm Shares that such U.S. Underwriter is purchasing,
as adjusted by the Representatives in such manner as they deem advisable
to avoid fractional shares.
C. The initial public offering price per share for the
U.S. Firm Shares and the purchase price per share for the U.S. Firm Shares
to be paid by the several U.S. Underwriters shall be agreed upon and set
forth in the U.S. Price Determination Agreement, which shall be dated the
date hereof.
D. Except for (i) offers and sales of Common Stock to the
shareholders of Public Storage Properties VII, Inc. ("Properties 7") in
connection with a potential merger of Properties 7 into the Company,
(ii) the conversion of the Company's Convertible Preferred Stock into
Common Stock, (iii) the grant of options under the Company's existing
stock option plans and the issuance of Common Stock in connection with the
exercise of outstanding Company stock options issued under such plans,
(iv) the issuance of stock or the grant of options in exchange for the
acquisition of properties and partnership interests, (v) offers to issue,
or issuances of, shares of Common Stock to affiliates of the Company that
enter into agreements substantially in the form of this paragraph (D)
(other than offers or issuances as part of the consideration for
acquisitions of mini-warehouse facilities or mortgages secured by mini-
warehouse facilities) and (vi) offers and sales of Common Stock in
connection with the proposed restructuring of the Company described in the
Prospectus Supplement (as defined in Section 3(a) hereof), the Company
will not sell, contract to sell or otherwise dispose of any Common Stock
or any securities convertible into or exercisable or exchangeable for
Common Stock, or grant any options or warrants to purchase Common Stock,
for a period of 90 days after the date of the Prospectus, without the
prior written consent of PaineWebber Incorporated.
2. Delivery and Payment. Delivery of the U.S. Firm Shares
shall be made to the Representatives for the accounts of the U.S.
Underwriters against payment of the purchase price by certified or
official bank checks payable in New York Clearing House (next-day) funds
to the order of the Company at the office of PaineWebber Incorporated,
1285 Avenue of the Americas, New York, New York 10019 or such other place
as may be agreed upon by the Company and the Representatives. Such
payment shall be made at 10:00 a.m., New York City time, on the fifth
business day following the date of this Agreement or at such time on such
other date, not later than seven business days after the date of this
Agreement, as may be agreed upon by the Company and the Representatives
(such date is hereinafter referred to as the "Closing Date").
To the extent the U.S. Option is exercised, delivery of the U.S.
Option Shares against payment by the U.S. Underwriters (in the manner
specified above) will take place at the offices specified above for the
Closing Date at the time and date (which may be the Closing Date)
specified in the U.S. Option Shares Notice.
Certificates evidencing the U.S. Shares shall be in definitive
form and shall be registered in such names and in such denominations as
the Representatives shall request at least two business days prior to the
Closing Date or the U.S. Option Closing Date, as the case may be, by
written notice to the Company. For the purpose of expediting the checking
and packaging of certificates for the U.S. Shares, the Company agrees to
make such certificates available for inspection at least 24 hours prior to
the Closing Date or the U.S. Option Closing Date, as the case may be.
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the U.S. Firm Shares and U.S. Option
Shares by the Company to the respective U.S. Underwriters shall be borne
by the Company. The Company will pay and save each U.S. Underwriter and
any subsequent holder of the U.S. Shares harmless from any and all
liabilities with respect to or resulting from any failure or delay in
paying Federal and state stamp and other transfer taxes, if any, which may
be payable or determined to be payable in connection with the original
issuance or sale to such U.S. Underwriter of the U.S. Firm Shares and U.S.
Option Shares.
3. Representations and Warranties of the Company. The Company
represents, warrants and covenants to each Underwriter as set forth below.
Certain terms used in this Section 3 are defined in paragraph (w) hereof.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (file number
33-54755) on Form S-3, including a related prospectus, for the
registration under the Act of the offering and sale of the Shares. The
Company may have filed one or more amendments thereto, including the
related prospectus, each of which has previously been furnished to the
Representatives and the Managers. Such registration statement has been
declared effective under the Securities Act of 1933, as amended (the
"Act"). The Company has filed with the Commission a U.S. preliminary
prospectus supplement and an international preliminary prospectus
supplement specifically relating to the Shares pursuant to Rule 424 under
the Act and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
U.S. prospectus supplement (the "U.S. Prospectus Supplement") and an
international prospectus supplement (the "International Prospectus
Supplement" and, together with the U.S. Prospectus Supplement, the
"Prospectus Supplement") specifically relating to the Shares pursuant to
Rule 424 under the Act. The Company has included or will include in such
Registration Statement, as amended at the Effective Date, and in the U.S.
Prospectus Supplement and the International Prospectus Supplement all
information required by the Act and the rules thereunder to be included
therein with respect to the Shares and the offering thereof. As filed,
such amendment and form of final prospectus and prospectus supplement, or
such final prospectus and prospectus supplement, contains or will contain
all required information with respect to the Shares and the offering
thereof and, except to the extent the Representatives and the Managers
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to the U.S. Underwriters and the
International Underwriters prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest U.S. Preliminary Prospectus and International Preliminary
Prospectus) as the Company has advised the Representatives and the
Managers, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did
or will, and when the prospectus and the U.S. Prospectus Supplement and
the International Prospectus Supplement is first filed in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any supplements
thereto) will, comply in all material respects with the requirements of
the Act and the rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, on
the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any U.S. Underwriter through the Representatives or any International
Underwriter through the Managers specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto). The
Company acknowledges that the statements set forth under the heading
"Underwriting" in any Preliminary Prospectus and the Prospectus constitute
the only such information so furnished.
(c) No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such purpose
are, to the knowledge of the Company, pending before or threatened by the
Commission.
(d) Each of the Incorporated Documents, when it was last
filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules thereunder.
(e) Each of the Company, SEI Arlington Acquisition
Corporation ("SEI Arlington"), SEI Hypoluxo Acquisition Corporation
("Hypoluxo"), Arlington Acquisition Co. ("Arlington"), Hargrove Road
Development Corporation ("Hargrove"), SEI-Firestone Acquisition
Corporation ("SEI Firestone"), SEI-Sandy Acquisition Corporation ("SEI
Sandy") and Roswell Road Development Corporation ("Roswell" and, together
with SEI Arlington, Hypoluxo, Arlington, Hargrove and SEI Firestone, the
"Subsidiaries") and PS Partners, Ltd. ("PSPI"), PS Partners II, Ltd.
("PSPII"), PS Partners III, Ltd. ("PSPIII"), PS Partners IV, Ltd.
("PSPIV"), PS Partners V, Ltd. ("PSPV"), PS Partners VI, Ltd. ("PSPVI"),
PS Partners VII, Ltd. ("PSPVII") and PS Partners VIII, Ltd. ("PSPVIII"
and, collectively, the "Partnerships") has been duly organized and is
validly existing (in the case of the Company and each of the Subsidiaries,
as a corporation) in good standing under the laws of the jurisdiction in
which it is organized, with full power and authority to own or lease and
occupy its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business, and is in good standing,
in each jurisdiction which requires such qualification, except where the
failure to so qualify would not, individually or in the aggregate, have a
material adverse effect on the business, operations, earnings, assets or
financial condition of the Company (a "Material Adverse Effect"). All of
the outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable,
and are owned by the Company directly, or indirectly, through another
Subsidiary, free and clear of any lien, adverse claim, security interest,
equity, or other encumbrance. The Company owns as of March 31, 1995
approximately 51%, 66%, 49%, 33%, 43%, 34%, 51% and 39% of the limited
partnership units of PSPI, PSPII, PSPIII, PSPIV, PSPV, PSPVI, PSPVII and
PSPVIII, respectively.
(f) The Company, each of the Subsidiaries and each
Partnership have all requisite power and authority, and all necessary
material authorizations, approvals, orders, licenses, certificates and
permits of and from all regulatory or governmental officials, bodies and
tribunals, to own or lease their respective properties and to conduct
their respective businesses as now being conducted and as described in the
Prospectus; and all such authorizations, approvals, licenses, certificates
and permits are in full force and effect, except where the failure to be
in full force and effect would not have a Material Adverse Effect on the
Company, such Subsidiary or such Partnership; and the Company, each of the
Subsidiaries and each Partnership are complying with all applicable laws,
the violation of which could have a Material Adverse Effect on the
Company, such Subsidiary or such Partnership, as the case may be.
(g) The Company, each Subsidiary and each Partnership have
good and marketable title to their properties, free and clear of all
material liens, charges and encumbrances and equities of record, except as
set forth or reflected in the Prospectus.
(h) The Company, each Subsidiary and each Partnership
maintain adequate insurance for the conduct of their respective business
as described in the Prospectus.
(i) The Company, either directly or through the
Subsidiaries or Partnerships, owns or licenses or otherwise has the right
to use all patents, trademarks, trade names and trade secrets material to
the Company's business as described in the Prospectus; other than routine
proceedings which if adversely determined would not materially affect the
business of the Company, the Subsidiaries and the Partnerships taken as a
whole as described in the Prospectus, no claims have been asserted by any
person with respect to the use of any such patents, trademarks, trade
names or trade secrets or challenging or questioning the validity or
effectiveness of any such patents, trademarks, trade names or trade
secrets; to the best knowledge of the Company, the use, in connection with
the business and operations of the Company, the Subsidiaries and the
Partnerships, of such patents, trademarks and trade names does not
infringe on the rights of any person.
(j) The Company's authorized capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus;
the outstanding shares of common stock, par value $.10 per share, of the
Company (the "Common Stock"), Series A Preferred Stock, par value $.01 per
share, of the Company (the "Series A Preferred Stock"), Series B Preferred
Stock, par value $.01 per share, of the Company (the "Series B Preferred
Stock"), Adjustable Rate Cumulative Preferred Stock, Series C, stated
value $25.00 per share, of the Company (the "Series C Preferred Stock"),
9.50% Cumulative Preferred Stock, Series D, stated value $25.00 per share,
of the Company (the "Series D Preferred Stock"), 10% Cumulative Preferred
Stock, Series E, stated value $25.00 per share, of the Company (the
"Series E Preferred Stock"), 9.75% Cumulative Preferred Stock, Series F,
stated value $25.00 per share, of the Company (the "Series F Preferred
Stock") and 8.25% Convertible Preferred Stock, stated value $25.00 per
share, of the Company (the "Convertible Preferred Stock") have each been
duly and validly authorized and issued and are fully paid and
nonassessable; the Shares have been duly and validly authorized and, when
issued and delivered pursuant to this Agreement and the International
Underwriting Agreement, will be fully paid and nonassessable; the Shares
have been duly authorized for listing on the New York Stock Exchange,
subject to official notice of issuance on the New York Stock Exchange;
prior to the Closing Date, the form of certificate for the Shares will be
in valid and sufficient form in compliance with New York Stock Exchange
requirements; and the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to subscribe
for the Shares.
(k) There is no pending or, to the best knowledge of the
Company, after due inquiry, threatened, action, suit, proceeding or
investigation before any court, governmental agency, authority or body or
arbitrator involving the Company, any of the Subsidiaries or any of the
Partnerships of a character required to be disclosed in the Registration
Statement or Prospectus which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or filed
as required.
(l) The Company has full corporate power and authority to
enter into and perform its obligations under this Agreement and the
International Underwriting Agreement and to issue, sell and deliver the
Shares; and this Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company.
(m) No consent, approval, authorization or order of any
court or governmental agency, authority or body is required (and has not
been received) for the execution by the Company of this Agreement and the
International Underwriting Agreement, the performance by the Company of
its obligations hereunder or the consummation by the Company of the
transactions contemplated herein, except such as are required under the
state securities or the Blue Sky laws of any jurisdiction in connection
with the purchase and distribution of the U.S. Shares by the U.S.
Underwriters. Neither the Company nor any of its affiliates is presently
doing any business with the government of Cuba or with any person or
affiliate located in Cuba.
(n) Neither the Company nor any of the Subsidiaries is in
violation of, in conflict with, in breach of or in default (and none of
them know of an event which with the giving of notice or the lapse of time
or both would be reasonably likely to constitute a default) of its charter
or by-laws, and neither the Company, any Subsidiary nor any Partnership is
in default in the performance of any obligation, agreement or condition
contained in any loan, note or other evidence of indebtedness or in any
indenture, mortgage, deed of trust or any other material agreement by
which it or they or its or their properties are bound, except for such
defaults as could not, individually or in the aggregate, have a Material
Adverse Effect on the Company, such Subsidiary or such Partnership, as the
case may be.
(o) Neither the Company, any of the Subsidiaries nor any
of the Partnerships has violated any environmental, safety or similar law
or regulation applicable to its business relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants, nor has the Company, any of the
Subsidiaries nor any of the Partnerships violated any Federal, state or
local law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable wage or hour laws, nor has the Company, any
of the Subsidiaries nor any of the Partnerships engaged in any unfair
labor practice, which in each case could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect on the
Company, such Subsidiary or such Partnership, as the case may be.
(p) Neither the sale of the Shares nor the consummation of
any of the other transactions herein contemplated or in the International
Underwriting Agreement nor the fulfillment of the terms hereof or in the
International Underwriting Agreement will conflict with, result in a
breach or violation of, or constitute a default under any law or the
charter or by-laws of the Company or any of the Subsidiaries or the terms
of any indenture or other agreement or instrument to which the Company,
any of the Subsidiaries or any of the Partnerships is a party or is bound
or any judgement, order or decree applicable to the Company, any of the
Subsidiaries or any of the Partnerships of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Company, any of the Subsidiaries or any of the Partnerships.
(q) The Company has fulfilled its obligations, if any,
under the minimum funding standards of Section 302 of the United States
Employee Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published interpretations thereunder with respect to each
"pension plan" (as defined in ERISA and such regulations and published
interpretations) in which employees of the Company are eligible to
participate and each such plan is in compliance in all material respects
with the presently applicable provisions of ERISA and such regulations and
published interpretations (except for such failure to so comply that would
not have, singularly or in the aggregate with all other such failures to
comply, a Material Adverse Effect), and has not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such plan under
Title IV of ERISA.
(r) Other than as described in the Prospectus (including
the Incorporated Documents), there are no outstanding warrants or options
to purchase any shares of capital stock of the Company (other than options
to purchase 212,500 shares of Common Stock issued on May 9, 1995) and
there are no restrictions upon the voting or transfer of, or the
declaration or payment of any dividend or distribution on, any shares of
capital stock of the Company pursuant to the articles of incorporation or
by-laws of the Company, any agreement or other instrument to which the
Company is a party or by which the Company is bound, or any order, law,
rule, regulation or determination of any court, governmental agency or
body (including, without limitation, any banking or insurance regulatory
agency or body), or arbitrator having jurisdiction over the Company. No
holders of securities of the Company have rights to the registration of
such securities under the Registration Statement.
(s) The Company is qualified, has been qualified since
January 1, 1981, and intends to operate so as to continue to be qualified,
(i) as a REIT under Section 856 et seq. of the Internal Revenue Code of
1986, as amended (the "Code"), and (ii) to be taxed on its "real estate
investment trust income" pursuant to Section 857 of the Code.
(t) No statement, representation, warranty or covenant
made by the Company in this Agreement or in the International Underwriting
Agreement or made in any certificate or document required by this
Agreement or the International Underwriting Agreement to be delivered to
the Representatives or the Managers was or will be, when made, inaccurate,
untrue or incorrect in any material respect.
(u) Neither the Company nor any of its officers,
directors, or controlling persons has taken, directly or indirectly, any
action intended, or which might reasonably be expected, to cause or
result, under the Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares in violation of the Act.
(v) To the best of the Company's knowledge, the firm of
accountants that have certified or shall certify the applicable
consolidated financial statements and supporting schedules of the Company
filed or to be filed with the Commission as part of the Registration
Statement and the Prospectus are independent public accountants with
respect to the Company, as required by the Act. The consolidated
financial statements, together with related schedules and notes,
incorporated by reference in the Prospectus and the Registration Statement
comply as to form in all material respects with the requirements of the
Act. Such financial statements fairly present the consolidated financial
position of the Company, the Subsidiaries and the Partnerships at the
respective dates indicated and the results of their operations and their
cash flows for the respective periods indicated, in accordance with
generally accepted accounting principles, except as otherwise, as
consistently applied throughout such periods. The other financial and
statistical information and data included in the Prospectus and in the
Registration Statement are, in all material respects, accurately presented
and prepared on a basis consistent with applicable financial statements
and the books and records of the Company, the Subsidiaries and the
Partnerships or, with respect to information and data relating to persons
other than the Company, the Subsidiaries and the Partnerships, other
information available to the Company.
(w) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date" shall
mean each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective. "Execution
Time" shall mean the date and time that this Agreement and the
International Underwriting Agreement are executed and delivered by the
parties hereto and thereto. "Preliminary Prospectus" shall mean any U.S.
preliminary prospectus supplement ("U.S. Preliminary Prospectus
Supplement") or international preliminary prospectus supplement
("International Preliminary Prospectus Supplement"), in each case referred
to in paragraph (a) above. "Prospectus" shall mean the prospectus and, as
applicable, the U.S. Prospectus Supplement (collectively with the
prospectus, the "U.S. Prospectus") or the International Prospectus
Supplement (collectively with the prospectus, the "International
Prospectus"), in each case relating to the Shares that is first filed
pursuant to Rule 424(b) after the Execution Time. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including exhibits and financial statements, as amended at the
Execution Time and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended. "Rule 424" refers to such rule
under the Act. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of such
Preliminary Prospectus or the Prospectus, as the case may be
(collectively, the "Incorporated Documents"); and any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or
the issue date of any Preliminary Prospectus or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
4. Agreements of the Company. The Company agrees with the
several U.S. Underwriters as follows:
A. The Company will not, either prior to the Effective
Date or thereafter during such period as the Prospectus is required by law
to be delivered in connection with sales of the Shares by any U.S.
Underwriter, International Underwriter or any dealer, file any amendment
or supplement to the Registration Statement or the Prospectus, unless a
copy thereof shall first have been submitted to the Representatives and
the Managers within a reasonable period of time prior to the filing
thereof and the Representatives and the Managers shall not have objected
thereto in good faith.
B. The Company will use its best efforts to cause any
post-effective amendment to the Registration Statement to become
effective, and will notify the Representatives and the Managers promptly,
and will confirm such advice in writing, (1) when any post-effective
amendment to the Registration Statement becomes effective, (2) of any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information,
(3) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose or the threat thereof, (4) of the happening
of any event during the period mentioned in the second sentence of
Section 4(e) that in the judgment of the Company makes any statement made
in the Registration Statement or the Prospectus untrue or that requires
the making of any changes in the Registration Statement or the Prospectus
in order to make the statements therein, in light of the circumstances in
which they are made, not misleading, and (5) of receipt by the Company or
any representative or attorney of the Company of any other communication
from the Commission relating to the Company, the Registration Statement,
any preliminary prospectus or the Prospectus. If at any time the
Commission shall issue any order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible moment.
C. The Company will furnish to the Representatives and
the Managers, without charge, four signed copies of the Registration
Statement and of any post-effective amendment thereto, including financial
statements and schedules, and all exhibits thereto (including any document
filed under the Exchange Act and deemed to be incorporated by reference
into the Prospectus) and will furnish to the Representatives and the
Managers, without charge, for transmittal to each of the other U.S.
Underwriters and International Underwriters, a copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules but without exhibits.
D. The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
E. The Company will deliver (i) to each of the U.S.
Underwriters, without charge, as many copies of the Prospectus (including
the U.S. Prospectus Supplement) or any amendment or supplement thereto as
the Representatives may reasonably request and (ii) to each of the
International Underwriters, without charge, as many copies of the
Prospectus (including the International Prospectus Supplement) or any
amendment or supplement thereto as the Managers may reasonably request.
The Company consents to the use of the Prospectus or any amendment or
supplement thereto by the several U.S. Underwriters and International
Underwriters and by all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for any period of
time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any
event shall occur which in the judgment of the Company or counsel to the
U.S. Underwriters or counsel to the International Underwriters should be
set forth in the Prospectus in order to make any statement therein, in the
light of the circumstances under which it was made, not misleading, or if
it is necessary to supplement or amend the Prospectus to comply with law,
the Company will forthwith prepare and duly file with the Commission an
appropriate supplement or amendment thereto, and will deliver to each of
the U.S. Underwriters, without charge, such number of copies of such
supplement or amendment to the Prospectus as the Representatives may
reasonably request and will deliver to each of the Managers, without
charge, such number of copies of such supplement or amendment to the
Prospectus as the Managers may reasonably request. The Company shall not
file any document under the Exchange Act before the termination of the
offering of the Shares by the U.S. Underwriters and the Managers if such
document would be deemed to be incorporated by reference into the
Prospectus which is not approved by the Representatives and the Managers
after reasonable notice thereof.
F. Prior to any public offering of the Shares, the
Company will cooperate with the Representatives and the Managers and
counsel to the Underwriters and the Managers in connection with the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
and the Managers may reasonably request, including, without limitation,
the provinces and territories of Canada and other jurisdictions outside of
the United States; provided, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
The Company will inform the Florida Department of Banking and Finance if,
at any time prior to the completion of the distribution of the Shares by
the U.S. Underwriters and the Managers, it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba. Such information will be provided within 90 days after the
commencement thereof or after a change occurs with respect to previously
reported information.
G. During the period of five years commencing on the
Effective Date, the Company will furnish to each of the Representatives,
each of the Managers and each other U.S. Underwriter or International
Underwriter who may so request copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock, and
will furnish to each of the Representatives, each of the Managers and each
other U.S. Underwriter or International Underwriter who may so request a
copy of each annual or other report it shall be required to file with the
Commission.
H. The Company will make generally available to holders
of its securities as soon as may be practicable but in no event later than
the last day of the fifteenth full calendar month following the calendar
quarter in which the Effective Date falls, an earnings statement (which
need not be audited but shall be in reasonable detail), with respect to
the Company, the Subsidiaries and the Partnerships, for a period of
12 months ended commencing after the Effective Date, and satisfying the
provisions of Section 11(a) of the Act (including Rule 158 thereunder) and
will file such earnings statement as an exhibit to the next periodic
report required by Section 13 or 15(d) of the Exchange Act covering the
period when the earnings statement is released.
I. Whether or not the transactions contemplated by this
Agreement or the International Underwriting Agreement are consummated or
this Agreement or the International Underwriting Agreement is terminated,
the Company will pay, or reimburse if paid by the Representatives or the
Managers, all costs and expenses incident to the performance of the
obligations of the Company under this Agreement and the International
Underwriting Agreement, including but not limited to costs and expenses of
or relating to (1) the preparation, printing and filing of the
Registration Statement and exhibits to it, each Preliminary Prospectus,
the Prospectus and any amendment or supplement to the Registration
Statement or Prospectus, (2) the preparation and delivery of certificates
representing the Shares, (3) the printing of this Agreement, the Agreement
Between U.S. Underwriters and International Underwriters, the
International Underwriting Agreement, the Agreement Among Underwriters,
the Agreement among International Underwriters, any Dealer Agreements and
any Underwriters' Questionnaire, (4) furnishing (including costs of
shipping and mailing) such copies of the Registration Statement, the
Prospectus and any Preliminary Prospectus, and all amendments and
supplements thereto, as may be requested for use in connection with the
offering and sale of the Shares by the U.S. Underwriters, the
International Underwriters or by dealers to whom Shares may be sold,
(5) the listing of the Shares on the New York Stock Exchange, (6) any
filings required to be made by the U.S. Underwriters and the International
Underwriters with the NASD, and the fees, disbursements and other charges
of counsel for the U.S. Underwriters and International Underwriters in
connection therewith, (7) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 4(f), including the fees,
disbursements and other charges of counsel (including counsel in Canadian
provinces and territories, if any) to the U.S. Underwriters and
International Underwriters in connection therewith, and the preparation
and printing of preliminary, supplemental and final Blue Sky memoranda,
(8) counsel to the Company and (9) the transfer agent for the Shares.
J. If this Agreement or the International Underwriting
Agreement shall be terminated by the Company pursuant to any of the
provisions hereof or thereof (otherwise than pursuant to Section 7 hereof
and Section 7 thereof) or if for any reason the Company shall be unable to
perform its obligations hereunder or thereunder, the Company will
reimburse the several U.S. Underwriters and International Underwriters for
all out-of-pocket expenses (including the fees, disbursements and other
charges of counsel to the U.S. Underwriters and International
Underwriters) reasonably incurred by them in connection herewith.
K. The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected to cause or result in, or which will constitute, stabilization of
the price of the Shares to facilitate the sale or resale of any of the
Shares in violation of the Act.
L. The Company will apply the net proceeds from the
offering and sale of the Shares to be sold by the Company in the manner
set forth in the Prospectus under "Use of Proceeds."
M. The Company will use its best efforts to ensure that
the Shares remain listed on the New York Stock Exchange.
N. During the period of nine months from the Closing
Date, the Company will file such amendments to the Registration Statement
or amendments or supplements to the Prospectus as the Representatives may
reasonably request in connection with the distribution and sale of the
Shares, and will furnish to the Underwriters, at the Company's expense, as
many copies of the Registration Statement or the Prospectus, as so amended
or supplemented, as the Representatives may reasonably request.
5. Conditions of the Obligations of the U.S. Underwriters. In
addition to the execution and delivery of the U.S. Price Determination
Agreement, the obligations of each U.S. Underwriter hereunder are subject
to the following conditions:
A. All filings required by Rule 424 shall have been made.
B. (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the
qualification or registration of the Shares under the securities or Blue
Sky laws of any jurisdiction shall be in effect and no proceeding for such
purpose shall be pending before or threatened or contemplated by the
Commission or the authorities of any such jurisdiction, (iii) any request
for additional information on the part of the staff of the Commission or
any such authorities shall have been complied with to the satisfaction of
the staff of the Commission or such authorities and (iv) after the date
hereof no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted
to the Representatives and the Managers and the Representatives and the
Managers did not object thereto in good faith, and the Representatives and
the Managers shall have received certificates, dated the Closing Date and
the U.S. Option Closing Date and signed by the President of the Company
and the Chief Financial Officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the
effect of clauses (i), (ii) and (iii).
C. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall
not have been a material adverse change in the general affairs, business,
business prospects, properties, management, condition (financial or
otherwise) or results of operations of the Company, the Subsidiaries and
the Partnerships, whether or not arising from transactions in the ordinary
course of business, in each case other than as set forth in or
contemplated by the Registration Statement and the Prospectus and
(ii) neither the Company, any of the Subsidiaries nor any of the
Partnerships shall have sustained any material loss or interference with
its business or properties from fire, explosion, flood or other casualty,
whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree, which
is not set forth in the Registration Statement and the Prospectus, if in
the judgment of the Representatives any such development makes it
impracticable or inadvisable to consummate the sale and delivery of the
Shares by the several U.S. Underwriters and the International Underwriters
at the initial public offering price.
D. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have
been no litigation or other proceeding instituted against the Company, any
Subsidiary or any Partnership or any of their respective officers,
directors or general partners in their capacities as such, before or by
any Federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in
which litigation or proceeding an unfavorable ruling, decision or finding
would materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company, the Subsidiaries and the Partnerships taken as a whole.
E. Each of the representations and warranties of the
Company contained herein shall be true and correct in all material
respects at the Closing Date and, with respect to the U.S. Option Shares,
at the U.S. Option Closing Date, as if made at the Closing Date, and with
respect to the U.S. Option Shares, at the U.S. Option Closing Date, and
all covenants and agreements contained herein and in the International
Underwriting Agreement to be performed on the part of the Company and all
conditions contained herein and in the International Underwriting
Agreement to be fulfilled or complied with by the Company at or prior to
the Closing Date and, with respect to the U.S. Option Shares, at or prior
to the U.S. Option Closing Date, shall have been duly performed, fulfilled
or complied with.
F. The Representatives and the Managers shall have
received opinions, each dated the Closing Date and, with respect to the
U.S. Option Shares, the U.S. Option Closing Date, addressed to the
Representatives and the Managers and satisfactory in form and substance to
counsel for the U.S. Underwriters and International Underwriters, from
David Goldberg, counsel for the Company, to the effect set forth in
Exhibit B, and from Hogan & Hartson, counsel for the Company, to the
effect set forth in Exhibit C.
G. The Representatives and the Managers shall have
received an opinion, dated the Closing Date and, with respect to the U.S.
Option Shares, the U.S. Option Closing Date, from Skadden, Arps, Slate,
Meagher & Flom, counsel to the U.S. Underwriters, addressed to the
Representatives and the Managers, with respect to the Registration
Statement, the Prospectus and this Agreement, which opinion shall be
satisfactory in all respects to the Representatives and the Managers, and
such counsel shall have been provided by the Company with such documents
and information as they may reasonably request to enable them to pass on
such matters.
H. Concurrently with the execution and delivery of this
Agreement and the International Underwriting Agreement, Ernst & Young
shall have furnished to the Representatives and the Managers a letter,
dated the date of its delivery, addressed to the Representatives and the
Managers and in form and substance satisfactory to the Representatives and
the Managers, confirming that they are independent accountants with
respect to the Company as required by the Act and the rules and
regulations thereto and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement or incorporated by reference therein. At the Closing Date and,
as to the U.S. Option Shares, the U.S. Option Closing Date, Ernst & Young
shall have furnished to the Representatives and the Managers a letter,
dated the date of its delivery, which shall confirm, on the basis of a
review in accordance with the procedures set forth in the letter from
Ernst & Young, that nothing has come to their attention during the period
from the date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than five days prior to the Closing
Date and the U.S. Option Closing Date, which would require any change in
their letter dated the date hereof (or the date of the Prospectus, as the
case may be) if it were required to be dated and delivered at the Closing
Date and the U.S. Option Closing Date.
I. Concurrently with the execution and delivery of this
Agreement and the International Underwriting Agreement and at the Closing
Date and, as to the U.S. Option Shares, the U.S. Option Closing Date,
there shall be furnished to the Representatives and the Managers an
accurate certificate, dated the date of its delivery, signed by each of
the President and the Chief Financial Officer of the Company, in form and
substance satisfactory to the Representatives and the Managers, to the
effect that:
1. Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus (including any
documents filed under the Exchange Act and deemed to be incorporated
by reference into the Prospectus) and (A) as of the date of such
certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not untrue or misleading and (B) in the case of the certificate
delivered at the Closing Date and the U.S. Option Closing Date, since
the Effective Date no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein not untrue or misleading in any material respect
and there has been no document required to be filed under the
Exchange Act and the rules and regulations thereunder that upon such
filing would be deemed to be incorporated by reference into the
Prospectus that has not been so filed.
2. Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and
are, at the time such certificate is delivered, true and correct in
all material respects.
3. Each of the covenants required to be performed by
the Company herein and in the International Underwriting Agreement on
or prior to the date of such certificate has been duly, timely and
fully performed and each condition herein required to be complied
with by the Company on or prior to the delivery of such certificate
has been duly, timely and fully complied with.
J. The Shares shall be qualified for sale in such states
as the Representatives and the Managers may reasonably request, each such
qualification shall be in effect and not subject to any stop order or
other proceeding on the Closing Date and the U.S. Option Closing Date.
K. Prior to the Closing Date, the Shares shall have been
duly authorized for listing by the New York Stock Exchange upon official
notice of issuance.
L. The Company shall have furnished to the
Representatives and the Managers such certificates, in addition to those
specifically mentioned herein, as the Representatives or the Managers may
have reasonably requested as to the accuracy and completeness at the
Closing Date and the U.S. Option Closing Date of any statement in the
Registration Statement or the Prospectus or any documents filed under the
Exchange Act and deemed to be incorporated by reference into the
Prospectus, as to the accuracy at the Closing Date and the U.S. Option
Closing Date of the representations and warranties of the Company herein
and in the International Underwriting Agreement, as to the performance by
the Company of its obligations hereunder and under the International
Underwriting Agreement, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder and under the
International Underwriting Agreement of the Representatives and the
Managers.
M. The closing of the purchase and sale of the
International Shares pursuant to the International Underwriting Agreement
shall occur concurrently with the closing of the purchase and sale of the
U.S. Shares hereunder.
6. Indemnification.
A. The Company will indemnify and hold harmless each U.S.
Underwriter, the directors, officers, employees and agents of each U.S.
Underwriter and each person, if any, who controls each U.S. Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act from and against any and all losses, claims, liabilities, expenses and
damages (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which they,
or any of them, may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment
or supplement to the Registration Statement or the Prospectus, or in any
documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus, or the omission or alleged omission to
state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading; provided that the
Company will not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the U.S. Shares in the public
offering to any person by any U.S. Underwriter and is based on an untrue
statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to any U.S.
Underwriter furnished in writing to the Company by the Representatives on
behalf of any U.S. Underwriter expressly for inclusion in the Registration
Statement, any U.S. Preliminary Prospectus or the U.S. Prospectus; and
provided, further, that the Company will not be liable to any U.S.
Underwriter, the directors, officers, employees or agents of any U.S.
Underwriter or any person controlling any U.S. Underwriter with respect to
any loss, claim, liability, expense, charge or damage arising out of or
based on any untrue statement or alleged untrue statement or omission or
alleged omission to state a material fact in any U.S. Preliminary
Prospectus which is completely corrected in the U.S. Prospectus if the
person asserting any such loss, claim, liability, charge or damage
purchased U.S. Shares from such U.S. Underwriter but was not sent or given
a copy of the U.S. Prospectus at or prior to the written confirmation of
the sale of such U.S. Shares to such person. This indemnity agreement
will be in addition to any liability that the Company might otherwise
have.
B. Each U.S. Underwriter will indemnify and hold harmless
the Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity from
the Company to each U.S. Underwriter, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to any U.S.
Underwriter furnished in writing to the Company by the Representatives on
behalf of such U.S. Underwriter expressly for use in the Registration
Statement, any U.S. Preliminary Prospectus or the U.S. Prospectus. The
Company acknowledges that the statements set forth under the heading
"Underwriting" in any U.S. Preliminary Prospectus and the U.S. Prospectus
constitute the only information furnished in writing by or on behalf of
the several U.S. Underwriters for inclusion in the registration statement
for the Shares as originally filed or in any amendment thereof, any U.S.
Preliminary Prospectus or the U.S. Prospectus. This indemnity will be in
addition to any liability that each U.S. Underwriter might otherwise have.
C. Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this
Section 6, notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party will not relieve it from any liability that
it may have to any indemnified party under the foregoing provisions of
this Section 6 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to
assume the defense of the action, with counsel satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other
expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection
with the defense. The indemnified party will have the right to employ its
own counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to
direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of
the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of
the indemnifying party or parties. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified
party or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or
claim effected without its written consent (which consent will not be
unreasonably withheld).
D. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
the foregoing paragraphs of this Section 6 is applicable in accordance
with its terms but for any reason is held to be unavailable from the
Company or the U.S. Underwriters, the Company and the U.S. Underwriters
will contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company from persons other than the U.S.
Underwriters, such as persons who control the Company within the meaning
of the Act, officers of the Company who signed the Registration Statement
and directors of the Company, who also may be liable for contribution) to
which the Company and any one or more of the U.S. Underwriters may be
subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the U.S.
Underwriters on the other. The relative benefits received by the Company
on the one hand and the U.S. Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the U.S. Underwriters,
in each case as set forth in the table on the cover page of the U.S.
Prospectus. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect
not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and the U.S.
Underwriters, on the other, with respect to the statements or omissions
which resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall
be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Representatives on behalf of the U.S. Underwriters, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the U.S. Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro
rata allocation (even if the U.S. Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to
above in this Section 6(d) shall be deemed to include, for purpose of this
Section 6(d), 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 Section 6(d), no
U.S. Underwriter shall be required to contribute any amount in excess of
the underwriting discounts received by it and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) will be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The U.S. Underwriters' obligations
to contribute as provided in this Section 6(d) are several in proportion
to their respective underwriting obligations and not joint. For purposes
of this Section 6(d), any person who controls a party to this Agreement
within the meaning of the Act will have the same rights to contribution as
that party, and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may
be made under this Section 6(d), will notify any such party or parties
from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have under this Section 6(d). No
party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be
unreasonably withheld).
E. The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of the
U.S. Underwriters, (ii) acceptance of any of the U.S. Shares and payment
therefor or (iii) any termination of this Agreement.
7. Termination. The obligations of the several U.S.
Underwriters under this Agreement may be terminated at any time on or
prior to the Closing Date (or, with respect to the U.S. Option Shares, on
or prior to the U.S. Option Closing Date), by notice to the Company from
the Representatives without liability on the part of any U.S. Underwriter
to the Company, if, prior to delivery and payment for the U.S. Shares (or
the U.S. Option Shares, as the case may be), in the sole judgment of the
Representatives, (i) trading in any of the equity securities of the
Company shall have been suspended by the Commission, by an exchange that
lists such securities or by the National Association of Securities Dealers
Automated Quotation Market System, (ii) trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force
on the date of this Agreement, shall have been imposed upon trading in
securities generally by such exchange or by order of the Commission or any
court or other governmental authority, (iii) a general banking moratorium
shall have been declared by either Federal or New York State authorities
or (iv) any material adverse change in the financial or securities markets
in the United States or in political, financial or economic conditions in
the United States or any outbreak or material escalation of hostilities or
declaration by the United States of a national emergency or war or other
calamity or crisis shall have occurred, the effect of any of which is such
as to make it, in the sole judgment of the Representatives, impracticable
or inadvisable to market the Shares on the terms and in the manner
contemplated by the Prospectus.
8. Substitution of Underwriters. If any one or more of the
U.S. Underwriters shall fail or refuse to purchase any of the U.S. Firm
Shares which it or they have agreed to purchase hereunder, and the
aggregate number of U.S. Firm Shares which such defaulting
U.S. Underwriter or U.S. Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of U.S. Firm
Shares, the other U.S. Underwriters shall be obligated, severally, to
purchase the U.S. Firm Shares which such defaulting U.S. Underwriter or
U.S. Underwriters agreed but failed or refused to purchase, in the
proportions which the number of U.S. Firm Shares which they have
respectively agreed to purchase pursuant to Section 1 bears to the
aggregate number of U.S. Firm Shares which all such non-defaulting
U.S. Underwriters have so agreed to purchase, or in such other proportions
as the Representatives may specify; provided that in no event shall the
maximum number of U.S. Firm Shares which any U.S. Underwriter has become
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of the number of U.S. Firm Shares agreed
to be purchased by such U.S. Underwriter without the prior written consent
of such U.S. Underwriter. If any U.S. Underwriter or U.S. Underwriters
shall fail or refuse to purchase any U.S. Firm Shares and the aggregate
number of U.S. Firm Shares which such defaulting U.S. Underwriter or U.S.
Underwriters agreed but failed or refused to purchase exceeds one-tenth of
the aggregate number of the U.S. Firm Shares and arrangements satisfactory
to the Representatives and the Company for the purchase of such U.S. Firm
Shares are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting U.S.
Underwriter or the Company for the purchase or sale of any U.S. Shares
under this Agreement. In any such case either the Representatives or the
Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the United States Prospectus or in any
other documents or arrangements may be effected. Any action taken
pursuant to this Section 8 shall not relieve any defaulting
U.S. Underwriter from liability in respect of any default of such
U.S. Underwriter under this Agreement.
9. U.S. Distribution. Each U.S. Underwriter represents and
agrees that, except for (x) sales between the U.S. Underwriters and the
International Underwriters pursuant to Section 1 of the Agreement Between
U.S. and International Underwriters and (y) stabilization transactions
contemplated in Section 3 thereof conducted as part of the distribution of
the Shares, (a) it is not purchasing any of the U.S. Shares for the
account of anyone other than a United States or Canadian Person and (b) it
has not offered or sold, and will not offer or sell, directly or
indirectly, any of the U.S. Shares or distribute any prospectus relating
to the U.S. Shares outside the United States or Canada to anyone other
than a United States or Canadian Person, and any dealer to whom it may
sell any of the U.S. Shares will represent that it is not purchasing any
of the U.S. Shares for the account of anyone other than a United States or
Canadian Person and will agree that it will not offer or resell such U.S.
Shares directly or indirectly outside the United States or Canada or to
anyone other than a United States or Canadian Person or to any other
dealer who does not so represent and agree.
The U.S. Underwriters further confirm that in determining their
net commitment for short account pursuant to Section 7 of the Amended and
Restated Master Agreement Among Underwriters dated as of June 11, 1984,
there shall be subtracted any Shares purchased for such U.S. Underwriter's
account pursuant to Section 1 of the Agreement Between U.S. and
International Underwriters.
10. Miscellaneous. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and, unless otherwise
specified, shall be mailed or delivered (a) if to the Company, at the
office of the Company, Storage Equities, Inc., 600 North Brand Boulevard,
Glendale, California 91203, Attention: Legal Department or (b) if to the
U.S. Underwriters, to the Representatives, c/o the offices of PaineWebber
Incorporated, 1285 Avenue of the Americas, New York, New York 10019,
Attention: Corporate Finance Department. Any such notice shall be
effective only upon receipt. Any notice under Section 7 or 8 may be made
by telex or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of
the U.S. Underwriters and the Company and of the controlling persons,
directors and officers referred to in Section 6, and their respective
successors and assigns, and, except as set forth in the International
Underwriting Agreement, no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns"
as used in this Agreement shall not include a purchaser, as such
purchaser, of U.S. Shares from any of the several U.S. Underwriters.
Any action required or permitted to be taken by the
Representatives under this Agreement may be taken by them jointly or by
PaineWebber Incorporated.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
The Company and the U.S. Underwriters each hereby irrevocably
waive any right they may have to a trial by jury in respect of any claim
based upon or arising out of this Agreement or the transactions
contemplated hereby.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several U.S. Underwriters.
Very truly yours,
STORAGE EQUITIES, INC.
By: ________________________
Name:
Title:
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
Acting on behalf of themselves
and as the Representatives
of the several U.S. Underwriters
named in Schedule I hereof.
By: PAINEWEBBER INCORPORATED
By: ________________________
Name:
Title:
SCHEDULE I
U.S. UNDERWRITERS
Number of
Name of U.S. Firm Shares
U.S. Underwriters to be Purchased
----------------- ----------------
PaineWebber Incorporated
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Raymond James & Associates, Inc.
The Robinson-Humphrey Company, Inc.
Total . . . . . . . . . . . . . . . . . . . . . . _________________
_________________
EXHIBIT A
STORAGE EQUITIES, INC.
_____________________
U.S. PRICE DETERMINATION AGREEMENT
May __, 1995
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
as Representatives of the Several U.S. Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Dear Ladies and Gentlemen:
Reference is made to the U.S. Underwriting Agreement, dated May
__, 1995 (the "U.S. Underwriting Agreement"), among Storage Equities,
Inc., a real estate investment trust and a California corporation (the
"Company"), and the several U.S. underwriters named in Schedule I thereto
or hereto (the "U.S. Underwriters"), for whom PaineWebber Incorporated,
Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation,
Raymond James & Associates, Inc. and The Robinson-Humphrey Company, Inc.
are acting as representatives (the "U.S. Representatives"). The U.S.
Underwriting Agreement provides for the purchase by the U.S. Underwriters
from the Company, subject to the terms and conditions set forth therein,
of an aggregate of 3,500,000 shares (the "U.S. Firm Shares") of the
Company's common stock, par value $.10 per share. This Agreement is the
U.S. Price Determination Agreement referred to in the U.S. Underwriting
Agreement.
Pursuant to Section 1 of the U.S. Underwriting Agreement, the
undersigned agrees with the U.S. Representatives as follows:
1. The initial public offering price per share for the
U.S. Shares shall be $_______.
2. The purchase price per share for the U.S. Firm Shares
to be paid by the several U.S. Underwriters shall be $_______ representing
an amount equal to the initial public offering price set forth above, less
$______ per share.
The Company represents and warrants to each of the U.S.
Underwriters that the representations and warranties of the Company set
forth in Section 3 of the U.S. Underwriting Agreement are accurate as
though expressly made at and as of the date hereof.
As contemplated by the U.S. Underwriting Agreement, attached as
Schedule I is a complete list of the several U.S. Underwriters, which
shall be a part of this Agreement and the U.S. Underwriting Agreement.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
If the foregoing is in accordance with your understanding of the
agreement among the U.S. Underwriters and the Company, please sign and
return to the Company a counterpart hereof, whereupon this instrument
along with all counterparts and together with the U.S. Underwriting
Agreement shall be a binding agreement among the U.S. Underwriters and the
Company in accordance with its terms and the terms of the U.S.
Underwriting Agreement.
Very truly yours,
STORAGE EQUITIES, INC.
By:_________________________
Name:
Title:
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
Acting on behalf of themselves
and as the Representatives
of the several U.S. Underwriters
named in Schedule I hereof.
By: PAINEWEBBER INCORPORATED
By: ________________________
Name:
Title:
Exhibit B
Form of Opinion of
Counsel to the Company
1. Each of the Company, the Subsidiaries and the Partnerships
has been duly organized and is validly existing (in the case of the
Company and each of the Subsidiaries, as a corporation) in good standing
under the laws of the jurisdiction in which it is organized, with full
power and authority to own or lease and occupy its properties and conduct
its business as described in the Prospectus, and is duly qualified to do
business, and is in good standing, in each jurisdiction which requires
such qualification, except where the failure to so qualify would not,
individually or in the aggregate, have a Material Adverse Effect.
2. All of the Company's ownership interests in the
Partnerships are owned free and clear of any perfected security interest
and, to my knowledge, after due inquiry, any other security interests,
claims, liens or encumbrances.
3. The Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms to the
description thereof contained in the Prospectus; the outstanding shares of
Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock and Convertible Preferred Stock have been duly
and validly authorized and issued and are fully paid and nonassessable;
the Shares have been duly and validly authorized, and, when issued and
delivered to and paid for by the U.S. Underwriters and the International
Underwriters pursuant to the U.S. Underwriting Agreement and the
International Underwriting Agreement, will be fully paid and
nonassessable; the Shares have been duly authorized for listing, subject
to official notice of issuance, on the New York Stock Exchange; the form
of certificate for the Shares is in valid and sufficient form in
compliance with New York Stock Exchange requirements; and the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Shares.
4. To the best of my knowledge, after due inquiry, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or arbitrator involving the
Company, any of the Subsidiaries or any of the Partnerships of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and, to the best of my knowledge,
after due inquiry, the statements in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1994, under Part II, Item 7 -
"Management's Discussion and Analysis of Financial Condition and Results
of Operations - REIT Distribution Requirement" and Part III, Item 13 -
"Certain Relationships and Related Party Transactions" (other than the
financial statements and other financial and statistical information
contained therein, as to which I express no opinion) fairly summarize the
matters therein described in all material respects.
5. The Registration Statement and the Prospectus and any
amendment or supplement thereto comply as to form in all material respects
with the requirements for the use of Form S-3 and the rules and
regulations thereunder, and (i) the Registration Statement and the
Prospectus and any amendment or supplement thereto (other than the
financial statements and other financial information contained 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 rules
thereunder and (ii) each of the Incorporated Documents, when it was last
filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the rules thereunder (other
than the financial statements and other financial information contained
therein, as to which such counsel need express no opinion).
6. The Company has full corporate power and authority to enter
into and perform its obligations under the U.S. Underwriting Agreement and
the International Underwriting Agreement and to issue, sell and deliver
the Shares; and the U.S. Underwriting Agreement and the International
Underwriting Agreement have been duly authorized, executed and delivered
by the Company.
7. No consent, approval, authorization or order of any court
or governmental agency, authority or body is required for the execution by
the Company of the U.S. Underwriting Agreement and the International
Underwriting Agreement, the performance by the Company of its obligations
thereunder or the consummation of the transactions contemplated therein,
except such as have been obtained under the Act and such as may be
required under the Blue Sky laws of any jurisdiction in connection with
the purchase and distribution by the U.S. Underwriters of the U.S. Shares.
8. The Company, each Subsidiary and each Partnership have all
requisite power and authority, and, to the best knowledge of such counsel,
after due inquiry, all necessary material authorizations, approvals,
orders, licenses, certificates and permits of and from all regulatory or
governmental officials, bodies and tribunals, to own or lease their
respective properties and to conduct their respective businesses as now
being conducted and as described in the Prospectus; and, to the best of my
knowledge, after due inquiry, all such authorizations, approvals,
licenses, certificates and permits are in full force and effect, except
where the failure to be in full force and effect would not have a Material
Adverse Effect on the Company, such Subsidiary or such Partnership, and
the Company, each Subsidiary and each Partnership are complying with all
applicable laws, the violation of which could have a Material Adverse
Effect on the Company, such Subsidiary or such Partnership, as the case
may be.
9. The Company and each of the Subsidiaries are not in
violation of its articles of incorporation or by-laws, and to the best of
my knowledge, after due inquiry, neither the Company, the Subsidiaries nor
any Partnership is in default in the performance of any obligation,
agreement or condition contained in any loan, note or other evidence of
indebtedness or in any indenture, mortgage, deed of trust or any other
material agreement by which it or they or its or their properties are
bound, except for such defaults as could not, individually or the
aggregate, have a Material Adverse Effect on the Company, such Subsidiary
or such Partnership, as the case may be.
10. Neither the issue and sale of the Shares nor the
consummation of any other of the transactions contemplated by the U.S.
Underwriting Agreement and the International Underwriting Agreement nor
the fulfillment of the terms of the U.S. Underwriting Agreement or the
International Underwriting Agreement will conflict with, result in a
breach or violation of, or constitute a default under any law or the
articles of incorporation or by-laws of the Company or the Subsidiaries or
the terms of any indenture or other agreement or instrument known to me
and to which the Company, any of the Subsidiaries or any of the
Partnerships is a party or is bound or any judgment, order or decree known
to me to be applicable to the Company, any of the Subsidiaries or any of
the Partnerships of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company, any
of the Subsidiaries or any of the Partnerships.
11. No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
12. Any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and to the best of my knowledge,
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted
or threatened.
I have participated in conferences with representatives of the
U.S. Underwriters and managers of the International Underwriters, and with
officers and other representatives of the Company and representatives of
the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
and related matters were discussed and, although I do not pass upon and do
not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and the
Prospectus, on the basis of the foregoing (relying as to certain factual
matters on the information provided to me by the Company and not on an
independent investigation, but in the absence of information to the
contrary), no facts have come to my attention which lead me to believe
that the Registration Statement, as of its effective date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of its date and as of the date
hereof, 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;
provided that I do not express any comment with respect to the financial
statements and other financial data included in the Registration Statement
or Prospectus.
I have relied as to matters of fact, to the extent I deemed
proper, on certificates of responsible officers of the Company and public
officials.
Exhibit C
Form of Opinion of
Tax Counsel to the Company
1. The statements in the Prospectus under the heading "Certain
Federal Income Tax Considerations" fairly summarize the federal income tax
considerations likely to be material to a holder of the Shares.
2. Based upon current law, including relevant statutes, regulations
and judicial and administrative precedent (which law is subject to change
on a retroactive basis), and subject to the limitations and qualifications
set forth in our tax opinion filed as Exhibit 8.1 to the Registration
Statement, the Company has operated in a manner that qualified it as a
REIT under the Code, for its taxable years ended December 31, 1990,
December 31, 1991, December 31, 1992, December 31, 1993 and December 31,
1994, and if it operates subsequent to December 31, 1994 in the same
manner as it has prior to that date, it will continue to so qualify. You
may rely upon our tax opinion filed as Exhibit 8.1 to the Registration
Statement to the same extent as if it were set forth in full herein.
We have relied as to matters of fact, to the extent we deemed
proper, on certificates of responsible officers of the Company and public
officials, and, as to matters of California law, on the opinion of David
Goldberg.
EXHIBIT 1.2
700,000 Shares
STORAGE EQUITIES, INC.
Common Stock
UNDERWRITING AGREEMENT
(International Version)
May __, 1995
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
as Managers of the Several
International Underwriters
c/o PaineWebber International (U.K.) LTD.
1 Finsbury Avenue
London EC2M 2PA England
Ladies and Gentlemen:
Storage Equities, Inc., a real estate investment trust ("REIT")
and a California corporation (the "Company"), proposes to sell an
aggregate of 700,000 shares (the "International Shares") of the Company's
common stock, par value $.10 per share (the "Common Stock"), to you and
the several other International Underwriters named in Schedule I hereto
(collectively, the "International Underwriters"), for whom you are acting
as managers (the "Managers"), in connection with the offering and sale of
such shares of Common Stock outside the United States and Canada to
persons other than United States and Canadian Persons (as hereinafter
defined).
It is understood that the Company is concurrently entering into
an agreement (the "U.S. Underwriting Agreement") providing for the sale by
the Company of an aggregate of 2,800,000 shares of Common Stock, including
the over-allotment option described therein (the "U.S. Shares"), through
arrangements with certain underwriters in the United States (the "U.S.
Underwriters"), for whom PaineWebber Incorporated, Smith Barney Inc.,
Donaldson, Lufkin & Jenrette Securities Corporation, Raymond James &
Associates, Inc. and The Robinson-Humphrey Company, Inc. are acting as
representatives, in connection with the offering and the sale of such
shares of Common Stock in the United States and Canada to United States
and Canadian Persons. As used herein, "United States or Canadian Person"
shall mean any individual who is resident in the United States or Canada
or any corporation, pension, profit-sharing or other trust or other entity
organized under or governed by the laws of the United States or Canada or
of any political subdivision thereof (other than the foreign branch of any
United States or Canadian Person), and shall include any United States or
Canadian branch of a person other than a United States or Canadian Person;
and "United States" shall mean the United States of America, its
territories, possessions and all areas subject to its jurisdiction. This
Agreement incorporates by reference certain provisions from the U.S.
Underwriting Agreement (including the definitions of terms used therein
which are also used herein) and, in general, all such provisions (and
defined terms) shall be applied mutatis mutandis as if the incorporated
provisions were set forth in full herein having regard to their context in
this Agreement as opposed to the U.S. Underwriting Agreement.
The U.S. Underwriters have entered into an agreement with the
International Underwriters (the "Agreement Between U.S. Underwriters and
International Underwriters") contemplating the coordination of certain
transactions between the U.S. Underwriters and the International
Underwriters and any such transactions between the U.S. Underwriters and
the International Underwriters shall be governed by the Agreement Between
U.S. Underwriters and International Underwriters and shall not be governed
by the terms of this Agreement.
The initial public offering price per share for the
International Shares and the purchase price per share for the
International Shares to be paid by the several International Underwriters
shall be agreed upon by the Company and the Managers, acting on behalf of
the several International Underwriters, and such agreement shall be set
forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "International Price Determination Agreement.") The
International Price Determination Agreement may take the form of an
exchange of any standard form of written telecommunication among the
Company and the Managers and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the International
Shares will be governed by this Agreement, as supplemented by the
International Price Determination Agreement. From and after the date of
the execution and delivery of the International Price Determination
Agreement, this Agreement shall be deemed to incorporate, and, unless the
context otherwise indicates, all references contained herein to "this
Agreement" and to the phrase "herein" shall be deemed to include the
International Price Determination Agreement. The initial public offering
price per share and the purchase price per share for the U.S. Shares to be
paid by the several U.S. Underwriters pursuant to the U.S. Underwriting
Agreement shall be set forth in a separate agreement (the "U.S. Price
Determination Agreement"), the form of which is attached to the U.S.
Underwriting Agreement. From and after the date of the execution and
delivery of the U.S. Price Determination Agreement, unless the context
otherwise indicates, all references contained herein to the "U.S.
Underwriting Agreement" shall be deemed to include the U.S. Price
Determination Agreement. The purchase price per share for the U.S. Shares
to be paid by the several U.S. Underwriters shall be identical to the
purchase price per share for the International Shares to be paid by the
several International Underwriters hereunder.
The Company confirms as follows its agreements with the Managers
and the several other International Underwriters.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms
and conditions of this Agreement, (i) the Company agrees to sell to the
several International Underwriters and (ii) each of the International
Underwriters agrees, severally and not jointly, to purchase from the
Company at the purchase price per share for the International Shares to be
agreed upon by the Managers and the Company in accordance with Section
1(c) or 1(d) and set forth in the International Price Determination
Agreement, the number of International Shares set forth opposite the name
of such International Underwriter in Schedule I, plus such additional
number of International Shares which such International Underwriter may
become obligated to purchase pursuant to Section 8 hereof.
(b) The initial public offering price per share for the
International Firm Shares and the purchase price per share for the
International Firm Shares to be paid by the several International
Underwriters shall be agreed upon and set forth in the International Price
Determination Agreement, which shall be dated the date hereof.
(c) Except for (i) offers and sales of Common Stock to the
shareholders of Public Storage Properties VII, Inc. ("Properties 7") in
connection with a potential merger of Properties 7 into the Company,
(ii) the conversion of the Company's Convertible Preferred Stock into
Common Stock, (iii) the grant of options under the Company's existing
stock option plans and the issuance of Common Stock in connection with the
exercise of outstanding Company stock options issued under such plans,
(iv) the issuance of stock or the grant of options in exchange for the
acquisition of properties and partnership interests, (v) offers to issue,
or issuances of, shares of Common Stock to affiliates of the Company that
enter into agreements substantially in the form of this paragraph (c)
(other than offers or issuances as part of the consideration for
acquisitions of mini-warehouse facilities or mortgages secured by mini-
warehouse facilities) and (vi) offers and sales of Common Stock in
connection with the proposed restructuring of the Company described in the
Prospectus Supplement, the Company will not sell, contract to sell or
otherwise dispose of any Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock, or grant any options or
warrants to purchase Common Stock, for a period of 90 days after the date
of the Prospectus, without the prior written consent of PaineWebber
Incorporated.
2. Delivery and Payment. Delivery of the International Firm
Shares shall be made to the Managers for the accounts of the International
Underwriters against payment of the purchase price by certified or
official bank checks payable in New York Clearing House (next-day) funds
to the order of the Company at the office of PaineWebber Incorporated,
1285 Avenue of the Americas, New York, New York 10019 or such other place
as may be agreed upon by the Company and the Managers. Such payment shall
be made at 10:00 a.m., New York City time, on the fifth business day
following the date of this Agreement or at such time on such other date,
not later than seven business days after the date of this Agreement, as
may be agreed upon by the Company and the Managers (such date is
hereinafter referred to as the "Closing Date").
Certificates evidencing the International Shares shall be in
definitive form and shall be registered in such names and in such
denominations as the Managers shall request at least two business days
prior to the Closing Date by written notice to the Company. For the
purpose of expediting the checking and packaging of certificates for the
International Shares, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing Date.
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the International Shares by the Company
to the respective International Underwriters shall be borne by the
Company. The Company will pay and save each International Underwriter and
any subsequent holder of the International Shares harmless from any and
all liabilities with respect to or resulting from any failure or delay in
paying Federal and state stamp and other transfer taxes, if any, which may
be payable or determined to be payable in connection with the original
issuance or sale to such International Underwriter of the International
Shares.
3. Representations and Warranties of the Company. The Company
hereby makes to each International Underwriter the same representations
and warranties as are set forth in Section 3 of the U.S. Underwriting
Agreement, which Section is hereby incorporated herein by reference.
4. Agreements of the Company. The Company hereby makes the
same agreements with the several International Underwriters as the Company
made in Section 4 of the U.S. Underwriting Agreement, which Section is
hereby incorporated herein by reference.
5. Conditions of the Obligations of the International
Underwriters. The obligations of each International Underwriter hereunder
are subject to each of the conditions set forth in Section 5 of the U.S.
Underwriting Agreement, which Section is hereby incorporated herein by
reference, and the additional condition that the closing of the purchase
and sale of the U.S. Shares pursuant to the U.S. Underwriting Agreement
shall occur concurrently with the closing of the purchase and sale of the
International Shares hereunder.
6. Indemnification.
(a) The Company will indemnify and hold harmless each
International Underwriter, the directors, officers, employees and agents
of each International Underwriter and each person, if any, who controls
each International Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses,
claims, liabilities, expenses and damages (including any and all
investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they, or any of them, may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any amendment or supplement to the Registration Statement or the
Prospectus, or in any documents filed under the Exchange Act and deemed to
be incorporated by reference into the Prospectus, or the omission or
alleged omission to state in such document a material fact required to be
stated in it or necessary to make the statements in it not misleading,
provided that the Company will not be liable to the extent that such loss,
claim, liability, expense or damage arises from the sale of the
International Shares in the public offering to any person by any
International Underwriter and is based on an untrue statement or omission
or alleged untrue statement or omission made in reliance on and in
conformity with information relating to any International Underwriter
furnished in writing to the Company by the Managers on behalf of any
International Underwriter expressly for inclusion in the Registration
Statement, any International Preliminary Prospectus or the International
Prospectus; and provided, further, that the Company will not be liable to
any International Underwriter, the directors, officers, employees or
agents of any International Underwriter or any person controlling any
International Underwriter with respect to any loss, claim, liability,
expense, charge or damage arising out of or based on any untrue statement
or alleged untrue statement or omission or alleged omission to state a
material fact in any International Preliminary Prospectus which is
completely corrected in the International Prospectus if the person
asserting any such loss, claim, liability, charge or damage purchased
Shares from such International Underwriter but was not sent or given a
copy of the International Prospectus at or prior to the written
confirmation of the sale of such Shares to such person. This indemnity
agreement will be in addition to any liability that the Company might
otherwise have.
(b) Each International Underwriter will indemnify and hold
harmless the Company, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each director of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity from
the Company to each International Underwriter, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on any
untrue statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information relating to any
International Underwriter furnished in writing to the Company by the
Managers on behalf of such International Underwriter expressly for use in
the Registration Statement, any International Preliminary Prospectus or
the International Prospectus. The Company acknowledges that the
statements set forth under the heading "Underwriting" in any International
Preliminary Prospectus and the International Prospectus constitute the
only information furnished in writing by or on behalf of the several
International Underwriters for inclusion in the registration statement for
the Shares as originally filed or in any amendment, thereof, any
International Preliminary Prospectus or International Prospectus. This
indemnity will be in addition to any liability that each International
Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this
Section 6, notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party will not relieve it from any liability that
it may have to any indemnified party under the foregoing provisions of
this Section 6 unless, and only to the extent that, such omission results
in the forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to
assume the defense of the action, with counsel satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other
expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection
with the defense. The indemnified party will have the right to employ its
own counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to
direct the defense of such action on behalf of the indemnified party) or
(4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of
the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of
the indemnifying party or parties. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified
party or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or
claim effected without its written consent (which consent will not be
unreasonably withheld).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
the foregoing paragraphs of this Section 6 is applicable in accordance
with its terms but for any reason is held to be unavailable from the
Company or the International Underwriters, the Company and the
International Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and
other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Company from persons
other than the International Underwriters, such as persons who control the
Company within the meaning of the Act, officers of the Company who signed
the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and any one or more of the
International Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on
the one hand and the International Underwriters on the other. The
relative benefits received by the Company on the one hand and the
International Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the International Underwriters, in each case
as set forth in the table on the cover page of the International
Prospectus. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect
not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and the
International Underwriters, on the other, with respect to the statements
or omissions which resulted in such loss, claim, liability, expense or
damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or
the Managers on behalf of the International Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the International Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be
determined by pro rata allocation (even if the International Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be deemed to
include, for purpose of this Section 6(d), 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 Section 6(d), no International Underwriter shall be
required to contribute any amount in excess of the underwriting discounts
received by it and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The International Underwriters' obligations to
contribute as provided in this Section 6(d) are several in proportion to
their respective underwriting obligations and not joint. For purposes of
this Section 6(d), any person who controls a party to this Agreement
within the meaning of the Act will have the same rights to contribution as
that party, and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may
be made under this Section 6(d), will notify any such party or parties
from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have under this Section 6(d). No
party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of the
International Underwriters, (ii) acceptance of any of the International
Shares and payment therefor or (iii) any termination of this Agreement.
7. Termination. The obligations of the several International
Underwriters under this Agreement may be terminated at any time on or
prior to the Closing Date, by notice to the Company from the Managers,
without liability on the part of any International Underwriter to the
Company, if, prior to delivery and payment for the International Shares,
in the sole judgment of the Managers, (i) trading in any of the equity
securities of the Company shall have been suspended by the Commission, by
an exchange that lists such securities or by the National Association of
Securities Dealers Automated Quotation Market System, (ii) trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement,
shall have been imposed upon trading in securities generally by such
exchange or by order of the Commission or any court or other governmental
authority, (iii) a general banking moratorium shall have been declared by
either Federal or New York State authorities, (iv) a moratorium in foreign
exchange trading by major international banks shall have been declared or
(v) any material adverse change in the financial or securities markets or
in political, financial or economic conditions or any outbreak or material
escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred,
the effect of any of which is such as to make it, in the sole judgment of
the Representatives, impracticable or inadvisable to market the Shares on
the terms and in the manner contemplated by the Prospectus.
8. Substitution of Underwriters. If any one or more of the
International Underwriters shall fail or refuse to purchase any of the
International Firm Shares which it or they have agreed to purchase
hereunder, and the aggregate number of International Firm Shares which
such defaulting International Underwriter or International Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of International Firm Shares, the other International
Underwriters shall be obligated, severally, to purchase the International
Firm Shares which such defaulting International Underwriter or
International Underwriters agreed but failed or refused to purchase, in
the proportions which the number of International Firm Shares which they
have respectively agreed to purchase pursuant to Section 1 bears to the
aggregate number of International Firm Shares which all such non-
defaulting International Underwriters have so agreed to purchase, or in
such other proportions as the Managers may specify; provided that in no
event shall the maximum number of International Firm Shares which any
International Underwriter has become obligated to purchase pursuant to
Section 1 be increased pursuant to this Section 8 by more than one-ninth
of the number of International Firm Shares agreed to be purchased by such
U.S. Underwriter without the prior written consent of such International
Underwriter. If any International Underwriter or International
Underwriters shall fail or refuse to purchase any International Firm
Shares and the aggregate number of International Firm Shares which such
defaulting International Underwriter or International Underwriters agreed
but failed or refused to purchase exceeds one-tenth of the aggregate
number of the International Firm Shares and arrangements satisfactory to
the Managers, the Company for the purchase of such International Firm
Shares are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting
International Underwriter, or the Company for the purchase or sale of any
International Shares under this Agreement. In any such case either the
Managers or the Company and the Committee shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in
the International Prospectus or in any other documents or arrangements may
be effected. Any action taken pursuant to this Section 8 shall not
relieve any defaulting International Underwriter from liability in respect
of any default of such International Underwriter under this Agreement.
9. International Distribution. Each International Underwriter
represents and agrees that, except for (x) sales between the U.S.
Underwriters and the International Underwriters pursuant to Section 1 of
the Agreement Between U.S. and International Underwriters and
(y) stabilization transactions contemplated in Section 3 thereof conducted
as part of the distribution of the Shares, (a) it is not purchasing any of
the International Shares for the account of any United States or Canadian
Person and (b) it has not offered or sold, and will not offer or sell,
directly or indirectly, any of the International Shares or distribute any
prospectus relating to the International Shares in the United States or
Canada or to any United States or Canadian Person, and any dealer to whom
it may sell any of the International Shares will represent that it is not
purchasing any of the International Shares for the account of any United
States or Canadian Person and will agree that it will not offer or resell
such International Shares directly or indirectly in the United States or
Canada or to any United States or Canadian Person or to any other dealer
who does not so represent and agree.
10. Miscellaneous. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and, unless otherwise
specified, shall be mailed or delivered (a) if to the Company, at the
office of the Company, Storage Equities, Inc., 600 North Brand Boulevard,
Glendale, California 91203, Attention: Legal Department or (b) if to the
International Underwriters, to the Managers at the offices of PaineWebber
International (U.K.) Ltd., 1 Finsbury Avenue, London EC2M 2PA England,
Attention: Corporate Finance Department. Any such notice shall be
effective only upon receipt. Any notice under Section 7 or 8 may be made
by telex or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of
the International Underwriters and the Company and of the controlling
persons, directors and officers referred to in Section 6, and their
respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors
and assigns" as used in this Agreement shall not include a purchaser, as
such purchaser, of International Shares from any of the several
International Underwriters.
Any action required or permitted to be taken by the Managers
under this Agreement may be taken by them jointly or by PaineWebber
International (U.K.) Ltd.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
The Company and the International Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect of
any claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several International Underwriters.
Very truly yours,
STORAGE EQUITIES, INC.
By: ________________________
Title:
Confirmed as of the date first
above mentioned:
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
Acting on behalf of themselves
and as the Managers of the other
several International Underwriters
named in Schedule I hereof.
By: PAINEWEBBER INTERNATIONAL (U.K.) LTD.
By: ________________________________
Title:
SCHEDULE I
INTERNATIONAL UNDERWRITERS
Number of
Name of International Firm
International Underwriters Shares to be Purchased
-------------------------- ----------------------
PaineWebber International (U.K.) Ltd.
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Raymond James & Associates, Inc.
The Robinson-Humphrey Company, Inc.
Total . . . . . . . . . . . . . . . . . . . . . . . . . _________________
_________________
EXHIBIT A
STORAGE EQUITIES, INC.
_____________________
INTERNATIONAL PRICE DETERMINATION AGREEMENT
May __, 1995
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
As Managers of the several International Underwriters
c/o PaineWebber International (U.K.) Ltd.
1 Finsbury Avenue
London EC2M 2PA
ENGLAND
Dear Sirs:
Reference is made to the International Underwriting Agreement,
dated May __, 1995 (the "International Underwriting Agreement"), among
Storage Equities, Inc., a real estate investment trust and a California
corporation (the "Company"), and the several International Underwriters
named in Schedule I thereto or hereto (the "International Underwriters"),
for whom PaineWebber International (U.K.) Ltd., Smith Barney Inc.,
Donaldson, Lufkin & Jenrette Securities Corporation, Raymond James &
Associates, Inc. and The Robinson-Humphrey Company, Inc. are acting as
Managers (the "Managers"). The International Underwriting Agreement
provides for the purchase by the International Underwriters from the
Company, subject to the terms and conditions set forth therein, of an
aggregate of 700,000 shares (the "International Shares") of the Company's
common stock, par value $.10 per share. This Agreement is the
International Price Determination Agreement referred to in the
International Underwriting Agreement.
Pursuant to Section 1 of the International Underwriting
Agreement, the undersigned agrees with the Managers as follows:
1. The initial public offering price per share for the
International Shares shall be $_______.
2. The purchase price per share for the International
Shares to be paid by the several International Underwriters shall be
$_______ representing an amount equal to the initial public offering price
set forth above, less $______ per share.
The Company represents and warrants to each of the
International Underwriters that the representations and warranties of the
Company incorporated by reference in Section 3 of the International
Underwriting Agreement are accurate as though expressly made at and as of
the date hereof.
As contemplated by the International Underwriting Agreement,
attached as Schedule I is a complete list of the several International
Underwriters, which shall be a part of this Agreement and the
International Underwriting Agreement.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
If the foregoing is in accordance with your understanding of the
agreement among the International Underwriters and the Company, please
sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts and together with the International
Underwriting Agreement shall be a binding agreement among the
International Underwriters and the Company in accordance with its terms
and the terms of the International Underwriting Agreement.
Very truly yours,
STORAGE EQUITIES, INC.
By:_________________________
Name:
Title:
Confirmed as of the date
first above mentioned:
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
RAYMOND JAMES & ASSOCIATES, INC.
THE ROBINSON-HUMPHREY COMPANY, INC.
Acting on behalf of themselves
and as the Managers
of the other several International Underwriters
named in Schedule I hereof.
By: PAINEWEBBER INTERNATIONAL (U.K.) LTD.
By: ________________________
Title:
