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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
June 7, 1995
Date of Report
(Date of earliest event reported)
SHURGARD STORAGE CENTERS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-23466 91-1080141
(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
1201 Third Avenue, Suite 2200
Seattle, Washington 98101
(Address of principal executive offices, including zip code)
(206) 624-8100
(Registrant's telephone number, including area code)
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
Exhibit No. Description
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1.1 Purchase Agreement and annexed Pricing Agreement, which is being
filed pursuant to Regulation S-K, Item 601(b)(1) in lieu of filing
the otherwise required exhibit to the Registration Statement on
Form S-3, File No. 33-58693, under the Securities Act of 1933, as
amended, and which, since this Form 8-K filing is incorporated by
reference in such registration statement, is set forth in full in
such registration statement.
5.1 Opinion of Perkins Coie, which is being filed pursuant to
Regulation S-K, Item 601(b)(5) in lieu of filing the otherwise
required exhibit to the Registration Statement on Form S-3, File
No. 33-58693, under the Securities Act of 1933, as amended, and
which, since this Form 8-K filing is incorporated by reference in
such registration statement, is set forth in full in such
registration statement.
23.1 Consent of Perkins Coie (contained in the opinion filed as Exhibit
5.1 hereto), which is being filed pursuant to Regulation S-K, Item
601(b)(23) in lieu of filing the otherwise required exhibit to the
Registration Statement on Form S-3, File No. 33-58693, under the
Securities Act of 1933, as amended, and which, since this Form 8-K
filing is incorporated by reference in such registration
statement, is set forth in full in such registration statement.
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SIGNATURE
Pursuant to the requirements of the Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SHURGARD STORAGE CENTERS, INC.
Dated: June 5, 1995
By HARRELL L. BECK
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Harrell L. Beck, Senior Vice President,
Chief Financial Officer, Treasurer and
Director
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EXHIBIT INDEX
Exhibit No. Description
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1.1 Purchase Agreement and annexed Pricing Agreement, which is being
filed pursuant to Regulation S-K, Item 601(b)(1) in lieu of filing
the otherwise required exhibit to the Registration Statement on
Form S-3, File No. 33-58693, under the Securities Act of 1933, as
amended, and which, since this Form 8-K filing is incorporated by
reference in such registration statement, is set forth in full in
such registration statement.
5.1 Opinion of Perkins Coie, which is being filed pursuant to
Regulation S-K, Item 601(b)(5) in lieu of filing the otherwise
required exhibit to the Registration Statement on Form S-3, File
No. 33-58693, under the Securities Act of 1933, as amended, and
which, since this Form 8-K filing is incorporated by reference in
such registration statement, is set forth in full in such
registration statement.
23.1 Consent of Perkins Coie (contained in the opinion filed as Exhibit
5.1 hereto), which is being filed pursuant to Regulation S-K, Item
601(b)(23) in lieu of filing the otherwise required exhibit to the
Registration Statement on Form S-3, File No. 33-58693, under the
Securities Act of 1933, as amended, and which, since this Form 8-K
filing is incorporated by reference in such registration
statement, is set forth in full in such registration statement.
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4,500,000 Shares
SHURGARD STORAGE CENTERS, INC.
(a Delaware corporation)
Class A Common Stock
(Par Value $.001 Per Share)
PURCHASE AGREEMENT
June 7, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
as Representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Shurgard Storage Centers, Inc., a Delaware corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Alex. Brown & Sons
Incorporated ("Alex Brown"), Dean Witter Reynolds Inc. ("Dean Witter"),
Prudential Securities Incorporated ("Prudential Securities"), Smith Barney Inc.
("Smith Barney") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Merrill
Lynch, Alex Brown, Dean Witter, Prudential Securities and Smith Barney are
acting as representatives (in such capacity, Merrill Lynch, Alex Brown, Dean
Witter, Prudential Securities and Smith Barney are hereinafter referred to as
the "Representatives"), with respect to the sale by the Company and the purchase
by the Underwriters, acting severally and not jointly, of the respective numbers
of shares of Class A Common Stock, par value $.001 per share, of the Company
("Common Shares") as set forth in said Schedule A and with respect to the grant
by the Company to the Underwriters, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of 675,000
additional Common Shares to cover over-allotments, in each case except as may
otherwise be provided in the Pricing Agreement, as hereinafter defined. The
aforesaid 4,500,000 Common Shares (the "Initial Securities") to be purchased by
the Underwriters and all or any part of the 675,000 Common Shares subject to the
option described in Section 2(b) hereof (the "Option Securities") are
collectively hereinafter called the "Securities."
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Prior to the purchase and public offering of the Securities by the
several Underwriters, the Company and the Representatives, acting on behalf of
the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing 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 Securities
will be governed by this Agreement, as supplemented by the Pricing Agreement.
From and after the date of the execution and delivery of the Pricing Agreement,
this Agreement shall be deemed to incorporate the Pricing Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-58693) for the
registration of, among other securities, the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
amendments thereto as may have been required, and will file such additional
amendments thereto as may hereafter be required. Such registration statement,
as amended, has been declared effective by the Commission. Such registration
statement, on the one hand, and the prospectus constituting a part thereof and
each prospectus supplement relating to the offering of the Securities, on the
other hand, including all documents incorporated therein by reference, as from
time to time amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus," respectively;
PROVIDED, HOWEVER, that a prospectus supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Securities to
which it relates; PROVIDED FURTHER, that if any revised prospectus or prospectus
supplement shall be provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs from the prospectus
or prospectus supplement on file at the Commission with respect to such
Securities, the term "Prospectus" shall refer to such revised prospectus and
prospectus supplement from and after the time it is first provided to the
Underwriters for such use. All references in this Agreement to financial
statements and schedules and other information which is "described,"
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include, without limitation, the filing of any document
under the 1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable, and
the Pricing Agreement has been executed and delivered.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to each Underwriter as of the
date hereof and as of the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") as follows:
(i) The Registration Statement, at the time it became effective,
complied, and as of the Representation Date, will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and on such dates the Registration Statement did not
and will not contain an untrue statement of a material fact
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or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, at the Representation Date and at the Closing Time
referred to in Section 2(c) hereof, will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and will not include an 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 representations
and warranties in this subsection shall not apply to statements
contained in or omissions from the last paragraph of the cover page of
the Prospectus or the second paragraph in the section of the
Prospectus under the heading "UNDERWRITING."
(ii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were or hereafter are filed with the
Commission, complied or will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date or Closing Time or during the period
specified in Section 3(e), did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the representations and warranties in this
subsection shall not apply to statements contained in or omissions
from the last paragraph of the cover page of the Prospectus or the
second paragraph in the section of the Prospectus under the heading
"UNDERWRITING."
(iii) The Registration Statement has become effective. No
stop order suspending the effectiveness of the Registration Statement
or any part thereof has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by
the Commission or the state securities authority of any jurisdiction.
No order preventing or suspending the use of the Prospectus has been
issued and no proceeding for that purpose has been instituted or, to
the knowledge of the Company, threatened by the Commission or the
state securities authority of any jurisdiction.
(iv) Deloitte & Touche LLP, the accounting firm that certified
the financial statements, and supporting schedules, if any, included
in the Registration Statement and Prospectus, are independent auditors
as required by the 1933 Act and the 1933 Act Regulations.
(v) The financial statements (including the notes thereto)
included in the Registration Statement and the Prospectus present
fairly the financial position of the respective entity or entities
presented therein as at the respective dates indicated and the results
of their operations for the respective periods specified, and except
as otherwise stated in the Registration Statement, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The supporting
schedules, if any, included in the Registration Statement present
fairly the information required to be stated therein. The financial
information and data included in the Registration Statement and the
Prospectus present fairly the information included therein and, except
as otherwise described therein, have been prepared on a basis
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consistent with that of the financial statements included in the
Registration Statement and the Prospectus and the books and records of
the respective entities presented therein. Pro forma financial
information included in the Prospectus has been prepared in accordance
with the applicable requirements of the 1933 Act and the 1933 Act
Regulations with respect to pro forma financial information and
includes all adjustments necessary to present fairly the pro forma
financial position of the respective entity or entities presented
therein at the respective dates indicated and the results of their
operations for the respective periods specified. The adjusted
financial information included in the Registration Statement and the
Prospectus presents fairly the information shown therein and has been
properly compiled on the adjusted bases described therein, and, in the
opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein. Other than the historical and pro forma
financial statements and supporting schedules, if any, included
therein, no other historical or pro forma financial information or
supporting schedule is required by the 1933 Act or the 1933 Act
Regulations to be included in the Registration Statement. Except as
reflected or disclosed in the financial statements included in the
Registration Statement or otherwise set forth in the Prospectus, the
Company is not subject to any material indebtedness, obligation or
liability, contingent or otherwise.
(vi) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of the Company and its
subsidiaries, including any partnerships, joint ventures or similar
legal entities in which the Company or a subsidiary owns or holds an
interest (collectively, the "Subsidiaries"), considered as one
enterprise, whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by the Company or any
of its Subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, or would result, upon
consummation, in any inaccuracy in the representations contained in
Section 1(a)(v) above, (C) there has been no casualty, loss or
condemnation or other adverse event with respect to any property owned
by the Company or any of its Subsidiaries that is material with
respect to the Company and its Subsidiaries considered as one
enterprise, (D) except for dividends or distributions paid or made
solely to the Company by its corporate Subsidiaries, there has been no
dividend or distribution of any kind declared, paid or made by the
Company or any of its corporate Subsidiaries on any class of their
respective capital stock, and (E) there has been no material change in
the capital stock or the partnership or joint venture interests, as
the case may be, or in any indebtedness of the Company or any of its
Subsidiaries.
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the
Pricing Agreement to which it is or will be a party. The Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
not have a material
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adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise.
(viii) Each corporate Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its state of incorporation with corporate power and
authority to own, lease and operate its properties and to conduct the
business in which it is engaged or proposes to engage as described in
the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise. All of the issued and
outstanding shares of capital stock of each corporate Subsidiary have
been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(ix) Each limited partnership Subsidiary of the Company has been
duly formed and is validly existing as a limited partnership under the
laws of the state of its formation with partnership power and
authority to own, lease and operate its properties and to conduct the
business in which it is engaged or proposes to engage as described in
the Prospectus and is duly qualified as a foreign partnership to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise. All of the limited partner
interests in each of the limited partnership Subsidiaries in which the
Company or a corporate Subsidiary is a general partner have been
validly issued. All of the limited partner interests in the limited
partnership Subsidiaries which are owned by the Company, directly or
through Subsidiaries, have been validly issued and all required
capital contributions with respect thereto have been made. All of the
general partner and limited partner interests in the limited
partnership Subsidiaries which are owned by the Company, directly or
through Subsidiaries, are owned free and clear of any security
interest, mortgage, pledge, lien or encumbrance, and of any claim or
equity, except for claims and equities which would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise. The
Company, directly or through Subsidiaries, owns all of the general
partner and limited partner interests in Shurgard Evergreen Limited
Partnership, a Delaware limited partnership (the "Evergreen
Partnership").
(x) Each Subsidiary of the Company which is not a corporate or
limited partnership Subsidiary (collectively, the "Other
Subsidiaries"), is validly existing under the laws of the state or
jurisdiction of its formation with all necessary power and authority
to own, lease and operate its properties and to conduct the business
in which it is engaged or proposes to engage as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such
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qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise. All interests owned or held by the
Company, directly or through Subsidiaries, in each of the Other
Subsidiaries are free and clear of any security interest, mortgage,
pledge, lien or encumbrance, except for those granted pursuant to the
joint venture agreements relating to the formation of certain of the
Other Subsidiaries to secure the performance by the Company or
applicable Subsidiary of its obligations thereunder, and are free and
clear of any claim or equity, except for claims and equities which
would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, assets, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise. As used in this Agreement, the term "Other Subsidiaries"
includes SSC Benelux & Co., SCS, a Belgium societe en commandite
("Benelux").
(xi) Each of the partnership and joint venture agreements to
which the Company or any of its Subsidiaries is a party, including the
agreements or documents pursuant to which Benelux was formed, has been
duly authorized, executed and delivered by such applicable party and
constitutes the valid and binding agreement thereof, and the
execution, delivery and performance of any of such agreements did not,
at the time of execution and delivery, and does not constitute a
breach of, or default under, the charter, bylaws, partnership
agreement or similar organizational document of such party or any
material contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(xii) The authorized capital stock of the Company conforms to
the descriptions thereof set forth in the Prospectus under the
headings "DESCRIPTION OF COMMON STOCK AND CLASS B COMMON STOCK,"
"DESCRIPTION OF PREFERRED STOCK" and "RESTRICTIONS ON TRANSFERS OF
CAPITAL STOCK; EXCESS STOCK," and the issued and outstanding capital
stock of the Company is as set forth in the Prospectus under the
heading "CAPITALIZATION," except for subsequent issuances, if any,
pursuant to employee benefit plans, or employee stock option plans
described in the Prospectus. All of the issued and outstanding Common
Shares, and all of the issued and outstanding shares of Class B Common
Stock, par value $.001 per share, of the Company (the "Class B
Shares"), have been duly authorized and validly issued, and are fully
paid and nonassessable and have been offered and sold in compliance
with all applicable laws, including, without limitation, federal and
state securities laws. No shares of capital stock of the Company are
reserved for any purpose except the issuance of certain additional
Common Shares to shareholders of Shurgard Incorporated (the
"Management Company") as described in the Prospectus, the conversion
of Class B Shares and the issuance of certain Common Shares in
connection with the various stock option plans of the Company as
described in the Prospectus. Except in connection with the various
stock option plans of the Company as described in the Prospectus or as
otherwise set forth in the Prospectus, there are no outstanding
securities convertible into or exchangeable for any shares of capital
stock of the Company and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for such shares or
any other securities of the Company. Immediately after the Closing
Time, 22,595,988 Common Shares and 154,604 Class B Shares will be
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issued and outstanding, all of which shares, upon issuance, will be
validly issued, fully paid and nonassessable. The terms of the Common
Shares, the Class B Shares and Excess Stock, par value $.001 per
share, of the Company ("Excess Stock") conform in all material
respects to all statements and descriptions related thereto contained
in the Prospectus. The form of share certificate to be used to
evidence the Common Shares will be in due and proper form and will
comply with all applicable legal requirements.
(xiii) The Securities have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement, and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth in the Pricing Agreement, will
be validly issued, fully paid and nonassessable and each of the
Underwriters will receive valid title to the Securities, free and
clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The issuance of the Securities is
not subject to any preemptive or other similar rights.
(xiv) This Agreement has been duly and validly authorized,
executed and delivered by the Company, and assuming due authorization,
execution and delivery by the Representatives, is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
(a) the effect of bankruptcy, insolvency, reorganization, moratorium
and other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors, (b) the effect of
general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before
which any proceeding therefor may be brought, or (c) the effect of
federal and state securities laws, regulations and pronouncements
relating to the indemnification provisions of this Agreement. At the
Representation Date, the Pricing Agreement will have been duly and
validly authorized, executed and delivered by the Company, and
assuming due authorization, execution and delivery by the
Representatives, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
as enforceability may be limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors, or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought.
(xv) Except as disclosed in the Prospectus: (A) neither the
Company nor any of its Subsidiaries is in violation of, or default
under, its charter, bylaws, partnership agreement, joint venture
agreement or other similar governing document, and none of such
entities is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may
be bound or affected, or to which any of the property or assets of
such entity is subject, except for such violations or defaults which
would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, assets, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise; (B) the execution, delivery and performance of this
Agreement and the Pricing Agreement by the Company and the
consummation of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder will not conflict with or constitute a breach of, or
default under, or result in
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the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant
to, any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which such entity is a party or by which
such entity may be bound or affected, or to which any of the property
or assets of such entity is subject, nor will such action result in
any violation of, or default under, the charter, bylaws, partnership
agreement, joint venture agreement or other similar governing document
of such entity or any applicable law, administrative regulation or
administrative or court decree.
(xvi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its Subsidiaries, or to which any of
their respective property or assets is the subject, which is required
to be disclosed in the Registration Statement, other than as disclosed
therein, or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, or which might materially
and adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of the transactions
contemplated by this Agreement. All pending legal or governmental
proceedings to which the Company or any of its Subsidiaries is a party
or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the earnings, assets,
business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise. There are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments or documents of the Company or any of its Subsidiaries
which are required to be described or referred to in the Registration
Statement or filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations other than those described or
referred to therein or filed as exhibits thereto, and the descriptions
thereof or references thereto in the Registration Statement are true
and correct in all material respects.
(xvii) Commencing with the Company's taxable year ended
December 31, 1994, the Company has been, and is, organized and has
operated in conformity with the requirements for qualification as a
real estate investment trust under the Internal Revenue Code of 1986,
as amended (the "Code"), and its organization and method of operation
as described in the Prospectus will enable it to satisfy the
requirements for taxation as a real estate investment trust under the
Code.
(xviii) Neither the Company nor any of its Subsidiaries is
required to own or possess any copyrights, trademarks, service marks,
trade names or other intellectual property rights (collectively, the
"Proprietary Rights") in order to conduct the business now engaged by
them or proposed to be engaged by them as described in the Prospectus,
other than those the failure to possess or own would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise. Neither
the Company nor any of its Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Proprietary Rights, or of any
facts which would render any Proprietary Rights invalid, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or
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finding) or invalidity, individually or in the aggregate, would result
in any material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business
prospects of the Company and its Subsidiaries considered as one
enterprise.
(xix) No authorization, approval or consent of any court or
governmental authority or agency is necessary to be obtained by the
Company or any of its Subsidiaries in connection with the offering,
issuance or sale of the Securities hereunder, except such as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws and except for such as have been obtained.
(xx) Each of the Company and its Subsidiaries possesses, or can
acquire on reasonable terms, such certificates, authorities or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now engaged by
them or proposed to be engaged by them as described in the Prospectus,
other than those the failure to possess or acquire on reasonable terms
would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company and its Subsidiaries considered as one enterprise.
Neither the Company nor any of its Subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of the Company and its Subsidiaries considered as
one enterprise.
(xxi) No material labor dispute between the Company or any of
its Subsidiaries and the employees of the Company or any its
Subsidiaries exists. Neither the Company nor any of its Subsidiaries,
has any knowledge of any imminent labor dispute between the Company or
any of its Subsidiaries and the employees of the Company or any of its
Subsidiaries which would result in any material adverse change in the
condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise.
(xxii) The Securities have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance.
(xxiii) Neither the Company nor any of its Subsidiaries is, or
at the Closing Time will be, an "investment company" as such term is
defined under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xxiv) (A) Except as has been disclosed in the Prospectus,
the real property owned, occupied, operated or managed by the Company
or any of its Subsidiaries (collectively, the "Properties"), are
presently operated in compliance with all Environmental Laws (as
defined below), except where a failure to comply would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise.
(B) Except as has been disclosed in the Prospectus,
there are no Environmental Laws requiring any remediation, clean-up,
repairs, construction or capital
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expenditures (other than normal maintenance) with respect to the
Properties which would have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise.
(C) Except as has been disclosed in the Prospectus,
(i) no notices of any violation or alleged violation of any
Environmental Laws relating to the Properties or their uses have been
received by the Company or any of its Subsidiaries or, to the best
knowledge of the Company, by any prior owner, operator, occupant or
manager of the Properties, and (ii) there are no writs, injunctions,
decrees, orders or judgments outstanding, or any actions, suits,
claims, proceedings or investigations pending or, to the best
knowledge of the Company, threatened, relating to the ownership, use,
maintenance, management or operation of the Properties.
(D) Except as has been disclosed in the Prospectus,
all material permits and licenses required under any Environmental
Laws in respect of the operations of the Properties have been
obtained, and such Properties and the owners, operators and managers
thereof are in compliance, in all material respects, with the terms
and conditions of such permits and licenses.
(E) All written reports of environmental surveys,
audits, investigations and assessments in the possession or control of
the Company and its Subsidiaries relating to the Properties (the
"Environmental Reports") have been disclosed or made available to the
Underwriters or their counsel.
(F) To the best knowledge of the Company, none of the
Properties (i) is included or proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA") or on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA as a potential
CERCLA removal, remedial or response site or (ii) except as set forth
in the Environmental Reports, is included or proposed for inclusion
on, any similar list of potentially contaminated sites pursuant to any
other applicable Environmental Law nor has the Company or any of its
Subsidiaries, received any written notice from the EPA or any other
Governmental Authority proposing the inclusion of any Properties on
such list.
(G) There currently are no underground or above-ground
storage tanks located on or in any Properties, except for such storage
tanks which are disclosed in the Environmental Reports or which,
individually or in the aggregate, would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise.
(H) "Environmental Law" means all applicable statutes,
regulations, rules, ordinances, codes, licenses, permits, orders,
demands, approvals, authorizations and similar items of all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial, administrative and
regulatory decrees, judgments and orders relating to the protection of
human health or the environment as in effect as of the date hereof,
including but not limited to those pertaining to reporting, licensing,
permitting,
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investigation and remediation of emissions, discharges, releases or
threatened releases of "Hazardous Materials," substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes
whether solid, liquid or gaseous in nature, into the air, surface
water, ground water or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of substances, pollutants, contaminants or hazardous or
toxic substances, materials, or wastes, whether solid, liquid or
gaseous in nature, including by way of illustration and not by way of
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Sections 9601 ET SEQ.) ("CERCLA"), the
Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 ET
SEQ.) ("RCRA"), the Clean Air Act (42 U.S.C. Sections 7401 ET SEQ.),
the Federal Water Pollution Control Act (33 U.S.C. Sections 1251), the
Safe Drinking Water Act (42 U.S.C. Sections 300f ET SEQ.), the Toxic
Substances Control Act (15 U.S.C. Sections 2601 ET SEQ.), the
Endangered Species Act (16 U.S.C. Sections 1531 ET SEQ.), the
Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C.
Sections 11001 ET SEQ.), the Hazardous Materials Transportation Act,
as amended (49 U.S.C. Section 1801 ET SEQ.), the Clean Water Act, as
amended (33 U.S.C. Section 1251 ET SEQ.), the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. Section 136 ET SEQ.), and the
Occupational Safety and Health Act, as amended (29 U.S.C. Section 651
ET SEQ.), and analogous state and local provisions.
(I) "Hazardous Material" means any chemical substance:
(i) the presence of which requires
investigation or remediation under any federal, state or local
statute, regulation, ordinance, order, action or policy,
administrative request or civil complaint under any of the
foregoing or under common law; or
(ii) which is defined as a "hazardous waste" or
"hazardous substance" under any federal, state or local statute,
regulation or ordinance or amendments thereto as in effect as of
the date hereof, or as hereafter amended, including, without
limitation, CERCLA and/or RCRA; or
(iii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or
otherwise hazardous and is regulated by any governmental
authority, agency, department, commission, board, agency or
instrumentality of the United States, or any state or any
political subdivision thereof having or asserting jurisdiction
over any of the Properties; or
(iv) the presence of which on any of the
Properties causes a nuisance upon the Properties or to adjacent
properties or poses a hazard to the health or safety of persons
on or about any of the Properties; or
(v) the presence of which on adjacent
properties constitutes a trespass by any owner or operator of the
Properties; or
(vi) which contains gasoline, diesel fuel or
other petroleum hydrocarbons, polychlorinated biphenyls (PCBs) or
asbestos or asbestos-containing materials or urea formaldehyde
foam insulation; or
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(vii) which constitutes radon gas.
(J) "Governmental Authority" shall mean any federal,
state or local governmental office, agency or authority having
the duty or authority to promulgate, implement or enforce any
Environmental Law;
(xxv) Except as described in the Prospectus: (A) at the
Closing Time, the Company or a Subsidiary, as the case may be, will
have good and marketable fee simple title (except as set forth in
clause (B) below) to the land and improvements thereon of the
properties that are listed in the Prospectus in the first table set
forth under the subheading "The Properties" under the heading
"BUSINESS AND PROPERTIES" (collectively, the "Shurgard Properties")
(in each case with title insurance thereon in full force and effect
and that the Company believes to be adequate in accordance with
industry standards) and all other assets that are required for the
effective operation of the Shurgard Properties in the manner in which
they are currently operated; (B) except for a mortgage securing a
mortgage loan on the Company's property located in Bellingham,
Washington, all liens, charges or encumbrances, including without
limitation any mortgage financing, on or affecting any of the Shurgard
Properties or the other property and assets of the Company or any of
its Subsidiaries which are required to be disclosed in the Prospectus
are described therein; (C) the Company or a Subsidiary will be the
lessor of all tenant leases at each of the Shurgard Properties, and
neither the Company nor any of its Subsidiaries has notice of any
default by any tenants under such leases which taken together would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its Subsidiaries considered as one enterprise; (D) each of the
Shurgard Properties, and to the best knowledge of the Company, each of
the Properties other than the Shurgard Properties, complies in all
material respects with all applicable federal, state and local codes,
laws and regulations (including, without limitation, building and
zoning codes, laws and regulations, and laws relating to handicapped
access to the Properties), except for such instances of noncompliance
that, individually or in the aggregate, would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise; (E) there
are in effect for the Shurgard Properties and other properties and
assets of the Company and its Subsidiaries, and to the best knowledge
of the Company, for the Properties other than the Shurgard Properties,
insurance policies covering risks and in amounts that are commercially
reasonable for the types of assets owned by them and that are
consistent with the types and amounts of insurance typically
maintained by prudent owners of similar assets, and neither the
Company nor any of its Subsidiaries has received from any insurance
company notice of any material defects or deficiencies affecting the
insurability of any such assets or any notices of cancellation or
intent to cancel any such policies, except for such notices of
cancellation received in the ordinary course of business in connection
with the annual renewal of such policies; (F) neither the Company nor
any of its Subsidiaries has knowledge of any pending or threatened
condemnation proceedings, zoning change, or other proceeding or action
that will have a material adverse effect on the size of, use of,
improvements on, construction on or access to any of the Properties.
(xxvi) The Company and each of its Subsidiaries have timely
filed all federal, state, local and foreign income, franchise, sales
and other tax returns which have been required to be filed, or have
applied for an extension to file such tax returns, and all such
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<PAGE>
returns are complete and accurate in all material respects, except for
any failures to so file and complete such returns or to so apply for
such extensions with respect thereto that, individually or in the
aggregate, would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of the Company and its Subsidiaries considered as
one enterprise. The Company and each of its Subsidiaries have paid
all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such tax, assessment, fine or penalty
which the Company or its Subsidiary is contesting in good faith
through appropriate proceedings and as to which appropriate reserves
have been established, and except for any failures to pay any such
tax, other assessment, fine or penalty that, individually or in the
aggregate, would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of the Company and its Subsidiaries considered as
one enterprise.
(xxvii) Neither the Company nor its Subsidiaries nor any of
their respective directors, officers or controlling persons, has taken
or will take, directly or indirectly, any action resulting in a
violation of Rule 10b-6 under the 1934 Act Regulations, or designed to
cause or result in, or that has constituted or that reasonably might
be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(xxviii) Except as described in the Prospectus, there are no
persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxix) Neither the Company nor any of its Subsidiaries has
incurred any liability for finder's or broker's fees or agent's
commissions (other than those payable to the Underwriters) in
connection with the execution and delivery of this Agreement, the
offer and sale of the Securities or the transactions contemplated
thereby.
(xxx) Neither the Company nor any of its Subsidiaries is
required to register as a "broker" or "dealer" in accordance with the
provisions of the 1934 Act or the 1934 Act Regulations.
(xxxi) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
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SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in the Pricing Agreement, the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, severally and not jointly,
to purchase up to an additional 675,000 Common Shares at the price per share set
forth in the Pricing Agreement. The option hereby granted will expire 30 days
after the Representation Date, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Securities upon
notice by the Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days or earlier
than two full business days after the exercise of said option, nor in any event
prior to the Closing Time unless otherwise agreed by the Representatives and the
Company. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of Perkins Coie, 1201
Third Avenue, 40th Floor, Seattle, Washington 98101; or at such other place as
shall be agreed upon by the Representatives and the Company, at 7:00 a.m.
(Seattle time), on the fourth business day (unless postponed in accordance with
the provisions of Section 10) following the Representation Date, or such other
time not later than ten business days after such date as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Time"). In addition, in the event that any or
all of the Option Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices of Perkins Coie, or at such other
place as shall be agreed upon by the Representatives and the Company, on each
Date of Delivery as specified in the notice from the Representatives to the
Company. Payment shall be made to the Company by certified or official bank
check or checks drawn in New York Clearing House funds or similar next day funds
payable to the order of the Company, by wire transfer (with interest for same
day funds to be paid by the Company) or by book-to-book transfer of next day
funds, against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the Securities to be purchased by them.
Certificates for the Initial Securities and the Option Securities, if any, shall
be in such denominations and registered in such names as the Representatives may
request in writing at least two business days before the Closing Time or the
relevant Date of Delivery, as the case may be. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Merrill Lynch, Alex Brown, Dean Witter, Prudential Securities and
Smith Barney, individually and not as Representatives of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Initial Securities or the Option
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Securities, if any, to be purchased by any Underwriter whose check has not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Initial Securities and the Option
Securities, if any, will be made available in New York for examination and
packaging by the Representatives not later than 9:00 a.m. (New York time) on the
last business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) The Company will prepare a prospectus supplement setting forth
the number of Securities covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Securities are being issued, the names
of the Underwriters participating in the offering and the number of Securities
which each severally has agreed to purchase, the names of the Underwriters
acting as co-managers in connection with the offering, the price at which the
Securities are to be purchased by the Underwriters from the Company, the public
offering price, if any, the selling concession and reallowance, if any, and such
other information as the Representatives and the Company deem appropriate in
connection with the offering of the Securities; and the Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus Supplement as the
Representatives shall reasonably request.
(b) The Company will notify the Representatives immediately, and
confirm the notice in writing, (i) of the receipt of any comments regarding the
Registration Statement from the Commission, (ii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iii) of the
effectiveness of any post-effective amendment to the Registration Statement, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order by any state securities
administrator suspending the qualification of the Securities in such state or
the initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will give the Representatives notice of its intention
to file or prepare any post-effective amendment to the Registration Statement or
any amendment or supplement to the Prospectus (including any revised prospectus
or prospectus supplement which the Company proposes for use by the Underwriters
in connection with the offering of the Securities which differs from the
prospectus or prospectus supplement on file at the Commission), will furnish the
Representatives with copies of any such amendment or supplement within a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such amendment or supplement or use any such
Prospectus to which the Representatives or counsel for the Underwriters shall
reasonably object.
(d) The Company will deliver to each of the Representatives as many
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) as each of the Representatives may reasonably request and
will also deliver to each of the Representatives as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(excluding exhibits) as each of the Representatives may reasonably request.
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(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable rules
and regulations of the Commission thereunder.
(f) If any event shall occur as a result of which it is necessary, in
the opinion of Latham & Watkins, counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
light of the circumstances existing at the time it is delivered to a purchaser,
or in order to otherwise comply with the 1933 Act or the 1934 Act, the Company
will forthwith amend or supplement the Prospectus (in form and substance
reasonably satisfactory to Latham & Watkins) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Company will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(g) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Representatives may designate; PROVIDED, HOWEVER, that the Company shall not be
obligated to qualify as a foreign corporation or to file any general consent to
service of process in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the Representation Date.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning
not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under the
heading "USE OF PROCEEDS."
(j) The Company will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
(k) The Company will use its best efforts to list the Securities on
the New York Stock Exchange.
(l) The Company will cause, or has caused, each executive officer of
the Company who will hold Common Shares or Class B Shares (other than the
Securities) at the Closing Time to enter into a lock-up agreement ("Lock-Up
Agreement") that prevents such person from, directly or indirectly, selling,
offering to sell, assigning, transferring, encumbering (other than such
encumbrances as are permitted under such Lock-Up Agreement), or otherwise
disposing such Common Shares or Class B Shares during a period of 90 days from
the date of the Pricing Agreement, and the Company acknowledges that the
Representatives are intended third party beneficiaries of such Lock-Up
Agreements.
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(m) During a period of 90 days from the date of the Pricing
Agreement, the Company will not, without the prior written consent of Merrill
Lynch, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Common Shares, Class B Shares or any other
security convertible into or exchangeable or exercisable for Common Shares or
Class B Shares, except for (i) Common Shares issued pursuant to this Agreement,
(ii) options or Common Shares issued pursuant to stock option plans as described
in the Prospectus or (iii) Common Shares issued upon conversion of Class B
Shares.
(n) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code, unless the Company's
Board of Directors believes it is in the best interests of the Company's
stockholders not to so qualify.
(o) Except for the authorization of actions permitted to be taken by
the Underwriters as contemplated herein or in the Prospectus, the Company will
not (i) take, directly or indirectly, any action designed to cause or to result
in, or that might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities, (ii) sell, bid for or purchase the Securities or
pay any person any compensation for soliciting purchases of the Securities or
(iii) pay or agree to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(p) During the period from the Closing Time until five years after
the Closing Time, the Company will deliver to the Representatives, (i) promptly
upon their becoming available, copies of all current, regular and periodic
reports of the Company mailed to its stockholders or filed with any securities
exchange or with the Commission or any governmental authority succeeding to any
of the Commission's functions, and (ii) such other information concerning the
Company or any of its Subsidiaries as the Representatives may reasonably
request.
(q) Prior to the Closing Time, the Company will notify the
Representatives in writing immediately if any event occurs that renders any of
the representations and warranties of the Company contained herein inaccurate or
incomplete in any material respect.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing (or reproduction) and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the printing (or
reproduction) of this Agreement and the Pricing Agreement, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and other charges of the Company's counsel and
accountants, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(g) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing (or reproduction) and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vii) the printing (or reproduction) and
delivery to the Underwriters of copies of the Blue Sky Survey, (viii) the fees
of the National Association of Securities Dealers, Inc., ("NASD") in connection
with the NASD's review of the terms of the proposed public offering of the
Securities, (ix) the fees and expenses incurred in connection with the listing
of the Common Shares on the New York Stock Exchange, and (x) the reasonable fees
and disbursements of counsel for the Underwriters in connection with matters
related to Securities, if any, which are designated by the Company for sale to
employees and others having a business relationship with the Company.
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If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and other charges of counsel for the Underwriters,
reasonably incurred in connection with investigation, marketing or proposing to
market the Securities or in contemplation of performing their obligations
hereunder; but the Company shall not in any event be liable to any of the
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Securities.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of their respective obligations hereunder, and to the following further
conditions:
(a) At the Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(b) At the Closing Time, the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time, of
Perkins Coie, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to own,
lease and operate its properties and to conduct the business in
which it is engaged or proposes to engage as described in the
Prospectus, and to enter into and perform its obligations under
this Agreement and the Pricing Agreement. The Company is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets or business affairs of the Company and
its Subsidiaries, considered as one enterprise.
(B) The authorized capital stock of the Company conforms to
the descriptions thereof set forth in the Prospectus under the
headings "DESCRIPTION OF COMMON STOCK AND CLASS B COMMON STOCK,"
"DESCRIPTION OF PREFERRED STOCK" and "RESTRICTIONS ON TRANSFERS
OF CAPITAL STOCK; EXCESS STOCK," and the issued and outstanding
capital stock of the Company is as set forth in the Prospectus
under the heading "CAPITALIZATION." All of the issued and
outstanding Common Shares, and all of the issued and outstanding
Class B Shares, have been duly authorized and validly issued, and
are fully paid and nonassessable. The terms of the Common
Shares, Class B Shares and Excess Stock conform in all material
respects to all statements and descriptions related thereto
contained in the Prospectus under the headings "DESCRIPTION OF
COMMON STOCK AND CLASS B COMMON STOCK" and "RESTRICTIONS ON
TRANSFERS OF CAPITAL STOCK; EXCESS STOCK." The form of share
certificate evidencing
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the Common Shares is in due and proper form and complies with all
applicable legal requirements. Except as set forth in the
Prospectus, there are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any Common Shares pursuant to the Company's charter
or bylaws or, to the best knowledge of such counsel, any
agreement or other instrument.
(C) Each corporate Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its state of incorporation with
corporate power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets or
business affairs of the Company and its Subsidiaries considered
as one enterprise. All of the issued and outstanding shares of
capital stock of each corporate Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable
and are owned of record by the Company, directly or through
Subsidiaries. For purposes of this paragraph (C), the term
corporate Subsidiary shall not include Shurope Storage S.A., a
Belgian corporation, or Shurgard Benelux S.A., a Belgian
corporation.
(D) Each of the limited partnership Subsidiaries of the
Company has been duly formed and is validly existing as a limited
partnership under the laws of the state of its formation with
partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus. Each of the
limited partnership Subsidiaries in which the Company or a
corporate Subsidiary is the general partner, including the
Evergreen Partnership, is duly qualified as a foreign partnership
to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets or business affairs of the Company and its
Subsidiaries considered as one enterprise. The Evergreen
Partnership limited partnership agreement has been duly
authorized, executed and delivered by the Company and each
Subsidiary which is a party thereto, and the limited partner
interests of the Evergreen Partnership have been validly issued.
(E) Each of the general partnership and joint venture
agreements to which the Company or any of its Subsidiaries is a
party, excluding the agreements or documents pursuant to which
Benelux was formed, has been duly authorized, executed and
delivered by such applicable party. Each of the Other
Subsidiaries is duly qualified to transact business in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets or business affairs of the Company and
its Subsidiaries
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considered as one enterprise. For purposes of this paragraph
(E), the term "Other Subsidiaries" shall not include Benelux.
(F) To the best knowledge of such counsel, there is no
action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending or threatened
against the Company or any of its Subsidiaries or an officer or
director of the foregoing that is required to be disclosed in the
Registration Statement and the Prospectus which is not disclosed
therein. To the best knowledge of such counsel, there are no
contracts, indentures, mortgages, loan agreements, notes, lease
or other instruments of a character which are required to be
described or referred to in the Registration Statement and the
Prospectus or to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations, other
than those described or referred to therein or filed as exhibits
thereto, and the descriptions thereof or references thereto in
the Registration Statement and the Prospectus are correct and
accurate in all material respects.
(G) No consent, approval or authorization of any
governmental agency or authority or, to the knowledge of such
counsel, no order of any court, is required to be obtained by the
Company or any of its Subsidiaries in connection with the
offering, issuance or sale of the Securities under this
Agreement, except such as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws of any state or
other jurisdiction and except for such as have been obtained.
(H) The Registration Statement has been declared effective
under the 1933 Act, and to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated before or threatened by the Commission.
(I) The Registration Statement, at the time it became
effective and at the Representation Date, and the Prospectus, at
the Representation Date and at the Closing Time (other than the
financial statements and supporting schedules included therein,
the notes thereto and other financial, statistical and accounting
data included therein or omitted therefrom as to which no opinion
need be rendered), complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations.
(J) The information in the Prospectus under "DESCRIPTION OF
DEBT SECURITIES," "DESCRIPTION OF COMMON STOCK AND CLASS B COMMON
STOCK," "DESCRIPTION OF PREFERRED STOCK," "RESTRICTIONS ON
TRANSFERS OF CAPITAL STOCK; EXCESS STOCK," "CERTAIN FEDERAL
INCOME TAX CONSIDERATIONS TO HOLDERS OF COMMON STOCK," "CERTAIN
FEDERAL INCOME TAX CONSIDERATIONS," the subheadings "General Real
Estate Investment Risks and Self Storage Industry Risks --
Investments in Other Commercial Real Estate," "--Indirect
Investments," "--Debt Financing Obligations," "--Possible
Liability Relating to Environmental Matters," and "--Cost of
Compliance With Americans With Disabilities Act and Fire and
Safety Regulations" and the subheading "Risks Relating to
Qualification and Operation as a REIT" under the
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heading "RISK FACTORS," "DISTRIBUTION POLICY," the subheading
"Regulation" under the heading "BUSINESS AND PROPERTIES,"
"POLICIES REGARDING INVESTMENT AND CERTAIN OTHER ACTIVITIES," and
the subheading "Classified Board of Directors" under the heading
"SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT,"
to the extent that such information constitutes matters of law,
summaries of legal matters, documents, proceedings or legal
conclusions, has been reviewed by such counsel and is correct in
all material respects.
(K) To the best knowledge of such counsel, there are no
persons with registration or other similar rights to have any
securities of the Company registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933
Act.
(L) Commencing with the Company's taxable year ended
December 31, 1994, the Company has been organized in conformity
with the requirements for qualification as a "real estate
investment trust," and its prior and future proposed method of
operation as described in the Prospectus will enable it to meet
the requirements for qualification and taxation as a "real estate
investment trust" under the Code, provided that such counsel's
opinion as to this matter shall be conditioned upon certain
representations as to factual matters made by the Company to such
counsel as described therein and as reasonably approved by
counsel to the underwriters.
(M) Neither the Company nor any Subsidiary is, or at the
Closing Time will be, an "investment company," as such terms are
defined under the 1940 Act.
(N) The Securities have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement, and when
issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in the Pricing
Agreement, will be validly issued, fully paid and nonassessable,
and each of the Underwriters will receive valid title to the
Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities.
(O) The Securities have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance.
(P) This Agreement and the Pricing Agreement have been duly
and validly authorized, executed and delivered by the Company.
(Q) The Company satisfies all eligibility requirements for
use of a Registration Statement on Form S-3 under the 1933 Act,
the 1933 Act Regulations and the general instructions to Form
S-3.
(R) Each document filed pursuant to the 1934 Act (other
than the financial statements and supporting schedules included
therein, the notes thereto, and other financial, statistical and
accounting data included therein or omitted therefrom, as to
which no opinion need be rendered) and incorporated or deemed
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to be incorporated by reference in the Prospectus complied when
so filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations, it being understood that in passing
upon compliance as to the form of such documents, such counsel
may assume that the statements made therein are correct and
complete. Such counsel may identify in its opinion each document
incorporated or deemed to be incorporated by reference in the
Prospectus.
(ii) The favorable opinion, dated as of the Closing Time, of
Latham & Watkins, counsel for the Underwriters, with respect to such
matters as the Representatives may reasonably request.
In rendering the opinion required by subsection (b)(i)
of Section 5, Perkins Coie may rely as to matters governed other than
by the Delaware General Corporation Law, the laws of the State of
Washington or federal laws on local counsel in such jurisdictions,
provided that in each case Perkins Coie shall state that it believes
that it and the Underwriters are justified in relying on such other
counsel. In giving their opinions required by subsections (b)(i) and
(b)(ii), respectively, of this Section 5, Perkins Coie and Latham &
Watkins shall each additionally state that nothing has come to their
attention that led them to believe that the Registration Statement
(except for financial statements and schedules included therein, the
notes thereto, and other financial, statistical and accounting data
included therein or omitted therefrom, as to which counsel need make
no statement), at the time it became effective (or at the time any
document incorporated by reference was filed, whichever is later) or
at the Representation 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 (except for financial statements and
schedules and other financial or statistical data included or
incorporated by reference therein, as to which counsel need make no
statement), at the Representation Date or at the Closing Time,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(c) At the Closing Time, (i) the Registration Statement and the
Prospectus shall contain all statements that are required to be stated therein
in accordance with the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, and neither the Registration Statement nor the Prospectus shall
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) the representations and warranties in Section 1 hereof
shall be true and correct in all material respects with the same force and
effect as though expressly made at and as of the Closing Time, (iii) there shall
not have been, since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business prospects of
the Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (iv) no action, suit or proceedings
at law or in equity shall be pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries before or by any
court or governmental agency wherein an unfavorable decision, ruling or finding
might result in any material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business prospects
of the Company and its Subsidiaries considered as one enterprise, other than as
set forth in the Prospectus, (v) no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the
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Company, threatened by the Commission or by the state securities authority
of any jurisdiction, and (vi) the Representatives shall have received, at the
Closing Time, a Certificate of the Chairman of the Board and Chief Executive
Officer and the Chief Financial Officer of the Company, dated as of the Closing
Time, evidencing compliance with the provisions of this subsection (c), stating
that the representations and warranties set forth in Section 1(a) hereof are
true and correct in all material respects as though expressly made at and as of
the Closing Time, and stating that the conditions precedent set forth in this
Section 5 have been satisfied or waived.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP a letter dated
such date, in form and substance reasonably satisfactory to the Representatives,
to the effect that (i) they are independent auditors with respect to the Company
and its Subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion that the financial statements and the
supporting schedules thereto, if any, included in the Registration Statement and
the Prospectus and covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations; (iii) based upon limited procedures set forth in
detail in such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited financial statements and supporting schedules, if
any, of the Company included in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or are not presented
in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement and the Prospectus, (B) the pro forma financial
information included in the Registration Statement and the Prospectus was not
prepared in accordance with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations with respect to pro forma financial information
or was not determined on a basis consistent with that described in the
Registration Statement and the Prospectus or that the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of such
information, (C) the adjusted financial information included in the Registration
Statement and the Prospectus has not been properly compiled on the adjusted
bases described therein or the adjustments used therein are not appropriate to
give effect to the transactions or circumstances referred to therein, or (D) at
a specified date not more than five days prior to the date of this Agreement,
there has been any change in the capital stock of the Company or any increase in
the total liabilities or total debt of the Company or decrease in consolidated
shareholders' equity as compared with the amounts shown in the March 31, 1995
balance sheet of the Company included in the Registration Statement and the
Prospectus or, during the period from April 1, 1995 to a specified date not more
than five days prior to the date of this Agreement, there were any decreases, as
compared with the corresponding period in the preceding year, in store (defined
as all owned storage centers and business parks) revenue, or store net operating
income (defined as store revenue less store operating expense and real estate
taxes) of the Company, except in all instances for changes, increases or
decreases which the Registration Statement and the Prospectus disclose as having
occurred or that may occur; and (iv) in addition to the audit referred to in
their opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information which are
included in the Registration Statement and Prospectus and which are specified by
the Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Company or its Subsidiaries identified in such letter.
(e) At the Closing Time, the Representatives shall have received from
Deloitte & Touche LLP a letter, dated as of the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section 5, except that the specified date referred to shall be a
date not more than five days prior to the Closing Time.
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(f) At or prior to the Closing Time, the Securities shall have been
duly listed on the New York Stock Exchange, subject to official notice of
issuance.
(g) At or prior to the Closing Time, each person named in the Lock-Up
Agreement shall have executed and delivered to the Representatives the Lock-Up
Agreement.
(h) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and counsel for the Underwriters.
(i) In the event that the Underwriters exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the Option Securities,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be true
and correct in all material respects as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have received:
(i) A certificate, dated such Date of Delivery, of the
Chairman of the Board and Chief Executive Officer and the Chief
Financial Officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(c) hereof remains
true and correct in all material respects with the same force and
effect as though expressly made at and as of such Date of Delivery.
(ii) The favorable opinion of Perkins Coie, counsel for the
Company, in form and substance reasonably satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(i) and
5(b)(iii) hereof.
(iii) The favorable opinion of Latham & Watkins, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(ii) and
5(b)(iii) hereof.
(iv) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to the Representatives pursuant to Section 5(e) hereof, except that
the "specified date" in the letter furnished pursuant to this Section
5(i)(iv) shall be a date not more than five days prior to such Date of
Delivery.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Sections 4, 6 and 7 hereof.
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SECTION 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever for which indemnification is
provided under Subsection (i) above, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever (including, subject
to Section 6(c), the fees and charges of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever for which indemnification is provided under subsection (i)
above, to the extent that any such expense is not paid under
subsection (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnification agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission contained
in the last paragraph on the cover page of the Prospectus or the second
paragraph in the section of the Prospectus under the heading "UNDERWRITING."
The foregoing indemnification with respect to any untrue statement contained in
or omission from a preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person controlling any such Underwriter) from whom the
person asserting any such loss, liability, claim, damage or expense purchased
any of the Securities which are the subject thereof if such person was not sent
or given a copy of the Prospectus (or the Prospectus as amended or supplemented)
(in each case exclusive of the documents from which information is incorporated
by reference) at or prior to the written confirmation of the sale if such
preliminary prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, the Company's directors (including each person, if any, who, with
his consent, is named in the Registration Statement as a proposed director of
the Company), each of the officers of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a)(i), (ii) and
(iii) of this Section 6, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, contained in the last
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paragraph on the cover page of the Prospectus or the second paragraph in the
section of the Prospectus under the heading "UNDERWRITING."
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have except to the extent of any prejudice to such
indemnifying party arising from such failure to provide such notice. An
indemnifying party may participate at its own expense in the defense of any such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying
party assumes the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification agreement provided
for in Section 6 hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnification agreement incurred by the
Company, on the one hand, and one or more of the Underwriters, on the other
hand, as incurred, in such proportions that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus bears to the public offering price
appearing thereon and the Company is responsible for the balance; PROVIDED,
HOWEVER, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company (including
each person who with his consent is named in the Registration Statement as a
proposed director of the Company), each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to their respective underwriting commitments and not
joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
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SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice to
the Company, at any time at or prior to the Closing Time (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in the Common Shares has been suspended by
the Commission or if trading generally on either the New York Stock Exchange or
the American Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
federal, New York or Washington authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Sections 4, 6 and 7 hereof.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or
more of the Underwriters shall fail at the Closing Time to purchase the Initial
Securities which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Initial Securities, each of the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Initial Securities, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Merrill Lynch,
27
<PAGE>
Merrill Lynch World Headquarters, North Tower, World Financial Center, New York,
New York 10281, attention of Equity Capital Markets; notices to the Company
shall be directed to it at 1201 Third Avenue, Suite 2200, Seattle, WA 98101,
attention of Charles K. Barbo, Chairman of the Board and Chief Executive
Officer.
SECTION 12. PARTIES. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters and the
Company, and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 hereof and their successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE PRICING AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW
YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
28
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
SHURGARD STORAGE CENTERS, INC.
By CHARLES K. BARBO
--------------------------------------------------
Charles K. Barbo
Chairman of the Board and Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By VICTORIA K. COLLISON
-----------------------------
Name: Victoria K. Collison
Title: Vice President
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
28
<PAGE>
SCHEDULE A
Number
of
Name of Underwriter Securities
------------------- ----------
Merrill Lynch, Pierce, Fenner & Smith Incorporated . . . . . . 576,000
Alex. Brown & Sons Incorporated . . . . . . . . . . . . . . . . 576,000
Dean Witter Reynolds Inc. . . . . . . . . . . . . . . . . . . 576,000
Prudential Securities Incorporated . . . . . . . . . . . . . . 576,000
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . 576,000
Bear, Stearns & Co. Inc. . . . . . . . . . . . . . . . . . . . 80,000
Dillon, Read & Co. Inc. . . . . . . . . . . . . . . . . . . . . 80,000
A.G. Edwards & Sons, Inc. . . . . . . . . . . . . . . . . . . . 80,000
Montgomery Securities . . . . . . . . . . . . . . . . . . . . . 80,000
Oppenheimer & Co., Inc. . . . . . . . . . . . . . . . . . . . . 80,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . 80,000
Robertson, Stephens & Company, L.P. . . . . . . . . . . . . . . 80,000
J.C. Bradford & Co. . . . . . . . . . . . . . . . . . . . . . . 40,000
Cowen & Company . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Dain Bosworth Incorporated . . . . . . . . . . . . . . . . . . 40,000
First Albany Corporation . . . . . . . . . . . . . . . . . . . 40,000
Furman Selz Incorporated . . . . . . . . . . . . . . . . . . . 40,000
Gruntal & Co., Incorporated . . . . . . . . . . . . . . . . . . 40,000
Interstate/Johnson Lane Corporation . . . . . . . . . . . . . . 40,000
Janney Montgomery Scott Inc. . . . . . . . . . . . . . . . . . 40,000
Edward D. Jones & Co. . . . . . . . . . . . . . . . . . . . . . 40,000
Kemper Securities, Inc. . . . . . . . . . . . . . . . . . . . . 40,000
Legg Mason Wood Walker, Incorporated . . . . . . . . . . . . . 40,000
McDonald & Company Securities, Inc. . . . . . . . . . . . . . . 40,000
Morgan Keegan & Company, Inc. . . . . . . . . . . . . . . . . . 40,000
Piper Jaffray Inc. . . . . . . . . . . . . . . . . . . . . . . 40,000
Ragen MacKenzie Incorporated . . . . . . . . . . . . . . . . . 40,000
Rauscher Pierce Refsnes, Inc. . . . . . . . . . . . . . . . . . 40,000
Raymond James & Associates, Inc. . . . . . . . . . . . . . . . 40,000
The Robinson-Humphrey Company, Inc. . . . . . . . . . . . . . . 40,000
Sch A - 30
<PAGE>
Number
of
Name of Underwriter Securities
------------------- ----------
Stifel, Nicolaus & Company, Incorporated . . . . . . . . . . . 40,000
Sutro & Co. Incorporated . . . . . . . . . . . . . . . . . . . 40,000
Tucker Anthony Incorporated . . . . . . . . . . . . . . . . . . 40,000
Wheat, First Securities, Inc. . . . . . . . . . . . . . . . . . 40,000
Anderson & Strudwick, Incorporated . . . . . . . . . . . . . . 20,000
Branch, Cabell and Company . . . . . . . . . . . . . . . . . . 20,000
Commonwealth Associates . . . . . . . . . . . . . . . . . . . . 20,000
Equitable Securities Corporation . . . . . . . . . . . . . . . 20,000
Johnston, Lemon & Co. Incorporated . . . . . . . . . . . . . . 20,000
John G. Kinnard and Company Incorporated . . . . . . . . . . . 20,000
Luther, Smith & Small Inc. . . . . . . . . . . . . . . . . . . 20,000
Roney & Co. . . . . . . . . . . . . . . . . . . . . . . . . . 20,000
Scott & Stringfellow, Inc. . . . . . . . . . . . . . . . . . . 20,000
---------
Total 4,500,000
Sch A -31
<PAGE>
EXHIBIT A
4,500,000 Shares
SHURGARD STORAGE CENTERS, INC.
(a Delaware corporation)
Class A Common Stock
(Par Value $.001 Per Share)
PRICING AGREEMENT
June 7, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
as Representatives of the several Underwriters
named in the within-mentioned Purchase Agreement
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated June 7, 1995 (the
"Purchase Agreement") relating to the purchase by the several Underwriters named
in Schedule A thereto, for whom Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Alex. Brown & Sons Incorporated, Dean Witter
Reynolds Inc., Prudential Securities Incorporated and Smith Barney Inc. are
acting as representatives (the "Representatives"), of the above shares of Class
A Common Stock (the "Securities") of Shurgard Storage Centers, Inc., a Delaware
corporation (the "Company").
Pursuant to Section 2 of the Purchase Agreement, the Company agrees
with each Underwriter as follows:
1. The public offering price per share for the Securities,
determined as provided in said Section 2, shall be $23.00.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $21.735, being an amount equal to the public
offering price set forth above less $1.265 per share; PROVIDED that the
purchase price per share for any Option Securities (as defined in the
Purchase Agreement) purchased upon exercise of the over-allotment option
described in Section 2(b) of the Purchase Agreement shall be reduced by an
amount per share equal to any dividends declared by the Company and payable
on the Initial Securities (as defined in the Purchase Agreement) but not
payable on the Option Securities.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
SHURGARD STORAGE CENTERS, INC.
By
-------------------------------------------------
Charles K. Barbo
Chairman of the Board and Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
PRUDENTIAL SECURITIES INCORPORATED
SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By
-------------------------------
Name:
Title:
For themselves and as Representatives of the
other Underwriters named in the Purchase Agreement.
<PAGE>
Exhibit 5.1
PERKINS COIE
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
1201 THIRD AVENUE, 40TH FLOOR - SEATTLE, WASHINGTON 98101-3099
TELEPHONE: (206) 583-8888 - FACSIMILE: (206) 583-8500
June 7, 1995
Shurgard Storage Centers, Inc.
1201 Third Avenue, Suite 2200
Seattle, Washington 98101
Gentlemen and Ladies:
We have acted as counsel to you in connection with (i) the proceedings for
the authorization and issuance by Shurgard Storage Centers, Inc. (the "Company")
of up to 4,500,000 shares of the Company's Class A Common Stock, par value $.001
per share (the "Common Stock"), together with an additional 675,000 shares if
the underwriters exercise an overallotment option (the "Overallotment Shares"),
(ii) the preparation and filing of a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended, which
you have filed with the Securities and Exchange Commission with respect to the
Common Stock and the Overallotment Shares, and (iii) the preparation and filing
of a prospectus supplement to such Registration Statement, which you have filed
with the Securities and Exchange Commission with respect to the Common Stock and
the Overallotment Shares (the "Prospectus Supplement").
We have examined the Registration Statement, the Prospectus Supplement and
such documents and records of the Company and other documents as we have deemed
necessary for the purpose of this opinion.
Based upon the foregoing, we are of the opinion that upon the happening of
the following events,
(a) due action by the Board of Directors of the Company authorizing the
issuance and sale of the Common Stock and the Overallotment Shares,
and
(b) due execution by the Company and registration by its registrar of the
Common Stock and the Overallotment Shares, and the sale of the Common
Stock and the Overallotment Shares as contemplated by the Registration
Statement and the Prospectus Supplement and in accordance with the
aforesaid corporate, stockholder and governmental authorizations,
<PAGE>
the Common Stock and the Overallotment Shares will be duly authorized,
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Form
8-K, and to the reference to our firm in the Prospectus Supplement and the
Registration Statement under the headings "Legal Matters."
Very truly yours,
PERKINS COIE
