SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) April 21, 1998
STORAGE TRUST REALTY
(Exact Name of Registrant as Specified in Charter)
Maryland
(State of Other Jurisdiction
of Incorporation)
1-13462
(Commission File Number)
43-1689825
(I.R.S. Employer
Identification No.)
2407 Rangeline St., Columbia Missouri 65202
(Address of Principal Executive Offices) (Zip Code)
(573) 499-4799
Registrant's Telephone Number, Including Area Code
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
See Index to Exhibits, which is hereby incorporated by reference herein.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
STORAGE TRUST REALTY
By: /s/ MICHAEL G. BURNAM
Name: Michael G. Burnam
Title: Chief Executive Officer
Date: April 23, 1998
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INDEX TO EXHIBITS
Exhibit
No. Document Description
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1.1 Underwriting Agreement, dated April 21, 1998 between A.G. Edwards,
Inc. and Storage Trust Realty.
Storage Trust Realty
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
COMMON SHARES OF BENEFICIAL INTEREST
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
April 21, 1998
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Ladies and Gentlemen:
Storage Trust Realty, a Maryland real estate investment trust (the
"Company"), hereby agrees to sell to A.G. Edwards, Inc. ("you" or the
"Underwriter") 631,811 common shares of beneficial interest, $.01 par value
per share, of the Company (the "Common Shares").
As used herein, the amount of Common Shares to be issued to you
are the "Underwritten Shares".
The Company has filed with the Securities and Exchange Commission
(the "Commission") (i) a registration statement on Form S-3 (File No.
333-16219) covering the registration of the Common Shares under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 424 and 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. Such registration statement (as amended, if applicable)
has been declared effective by the Commission. Such registration statement
and the prospectus constituting a part thereof and each prospectus
supplement (the "Prospectus Supplement") relating to the offering of
Underwritten Shares pursuant to Rule 415 of the 1933 Act Regulations (the
"Prospectus"), including all documents incorporated therein by reference
and 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 collectively referred to herein as the "Registration
Statement"; provided, that, if any revised prospectus shall be provided to
the Underwriter by the Company for use in connection with the offering of
Underwritten Shares which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to each such revised prospectus from and after the
time it is first provided to the Underwriter for such use; provided,
further, that a Prospectus Supplement shall be deemed to have supplemented
the Prospectus, and be part of the Prospectus and the Registration
Statement, only with respect to the offering of Underwritten Shares to
which it relates. Any prospectus (including any amendment or supplement
thereto or information which is deemed part thereof) included in a
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations and/or any term sheet as contemplated by Rule 434 of the 1933
Act Regulations (a "Term Sheet"), if any, shall be deemed to be part of the
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Prospectus. Except as otherwise provided, all references in this Agreement
to financial statements and schedules and other information which is
"contained," "included," "stated," "described," or "disclosed" 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 into 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 the filing of any document under the
1934 Act which is or is deemed to be incorporated by reference into the
Registration Statement or the Prospectus, as the case may be. Capitalized
terms used but not otherwise defined herein shall have the meanings given
to those terms in the Registration Statement.
The term "subsidiary" means a corporation or a partnership a
majority of the outstanding voting stock or partnership interests, as the
case may be, of which is owned or controlled, directly or indirectly, by
the Company or the Operating Partnership (as hereinafter defined), as the
case may be, or by one or more other subsidiaries of the Company or the
Operating Partnership.
Storage Trust Properties, L.P., a Delaware limited partnership is
defined herein as the "Operating Partnership" and, together with the
Company, the "Primary Entities."
Section 1. Representations and Warranties of the Primary Entities.
(a) Each of the Primary Entities represents and warrants,
jointly and severally, to the Underwriter, as of the date hereof, and as of
the Closing Time (as hereinafter defined) (in each case, a "Representation
Date"), as follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective, complied,
and as of each Representation Date will comply, in all Material
(as hereinafter defined) respects with the requirements of the
1933 Act and the 1933 Act Regulations. The Registration Statement,
at the time the Registration Statement became effective, did not,
and as of each Representation Date, will not, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as of the date hereof does
not, and as of each Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to you
by the Company for use in connection with an offering of
Underwritten Shares which differs from the Prospectus on file at
the Commission at the time the Registration Statement becomes
effective, in which case at the time it is first provided to you
for such use) and at the Closing Time (as hereinafter defined),
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
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apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any
Underwriter expressly for use in the Registration Statement or
Prospectus.
(ii) Each preliminary prospectus, Prospectus, preliminary
prospectus supplement and Prospectus Supplement, which preliminary
prospectus, Prospectus, preliminary prospectus supplement or
Prospectus Supplement relates to the applicable Underwritten
Shares, filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the 1933 Act Regulations, or any Term Sheet filed
pursuant to Rule 434 of the 1933 Act Regulations, complied or will
comply when so filed in all Material respects with the 1933 Act
and the 1933 Act Regulations.
(iii) The documents incorporated or deemed to be
incorporated by reference into the Prospectus pursuant to Item 12
of Form S-3 under the 1933 Act, at the time they were filed with
the Commission, complied 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, the Closing Time or during the
period specified in Section 3(f), did not and will not include an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) Ernst & Young LLP, the accounting firm that audited
the financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and
Prospectus, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(v) The financial statements (including the notes and
schedules thereto) included in, or incorporated by reference into,
the Registration Statement and the Prospectus present fairly the
financial position of the respective entity or entities or group
presented therein at the respective dates indicated and the
results of their operations for the respective periods specified;
except as otherwise stated in the Registration Statement and
Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis; the supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein. The financial information and data included in, or
incorporated by reference into, the Registration Statement and the
Prospectus present fairly the information included or incorporated
therein and have been prepared on a basis consistent, except as
may be noted therein, with that of the financial statements
included in, or incorporated by reference into, the Registration
Statement and the Prospectus and the books and records of the
respective entities
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presented therein. Pro forma financial information included in or
incorporated by reference into the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the 1933 Act, the 1933 Act Regulations and
guidelines of the American Institute of Certified Public
Accountants (the "AICPA") with respect to pro forma financial
information and includes all adjustments necessary to present
fairly the pro forma financial position of the Company at the
respective dates indicated and the results of operations for the
respective periods specified. All financial statements that are
required under the 1933 Act, the 1933 Act Regulations, the 1934
Act or the 1934 Act Regulations to be included in, or incorporated
by reference into the Registrations Statement and the Prospectus
are included in, or incorporated by reference, into the
Registration Statement and the Prospectus.
(vi) 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 Primary Entities, threatened by the Commission or
by 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 Primary Entities, threatened by the Commission or
by the state securities authority of any jurisdiction.
(vii) 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 financial condition, or in the earnings,
assets, business affairs or business prospects of the Primary
Entities, Storage Realty Management Co., a Delaware corporation
(the "Management Company") or any other subsidiary of the Company
(the "Subsidiary Companies") (the Primary Entities, the Management
Company, the Subsidiary Companies or any entity through which the
Primary Entities own a joint venture interest in any Facility (the
"Joint Venture Entities") being sometimes hereinafter collectively
referred to as the "Transaction Entities" and individually as a
"Transaction Entity"), or any Facility, whether or not arising in
the ordinary course of business, which would be material to the
Company, the Operating Partnership, the Subsidiary Companies and
the Management Company considered as one enterprise (any such
adverse change which would be material to the Company, the
Operating Partnership, the Subsidiary Companies and the Management
Company, considered as one enterprise, being hereinafter referred
to as a "Material Adverse Change"); (B) no casualty loss or
condemnation or other adverse event with respect to any of the
Facilities has occurred which would be material to the Company,
the Operating Partnership, the Subsidiary Companies and the
Management Company, considered as one enterprise (anything which
would be material to the Company, the Operating Partnership, the
Subsidiary Companies and the Management Company, considered as one
enterprise, being hereinafter referred to as "Material"); (C)
there have been no transactions or acquisitions entered into by
the Transaction Entities, other than those in the ordinary course
of business, which would be Material; (D) none of the
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Transaction Entities has incurred any obligation or liability,
direct, contingent or otherwise which is Material; and (E) there
has been no Material change in the short-term debt or long-term
debt of the Transaction Entities.
(viii) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under
and by virtue of the laws of the State of Maryland, with 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 Registration Statement and the Prospectus, and to
enter into and perform its obligations under this Agreement and
the other Company Documents (as hereinafter defined) to which it
is a party; and the Company is duly qualified or registered to
transact business and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register would
not result in a Material Adverse Change.
(ix) The Operating Partnership has been duly organized
and is validly existing as a limited partnership in good standing
under and by virtue of the laws of the State of Delaware, with
partnership power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and
proposes to engage, in each case as described in the Registration
Statement and the Prospectus, and to enter into and perform its
obligations under this Agreement and the other Company Documents
to which it is a party. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or register would not result in a Material
Adverse Change. The Company is the sole general partner of the
Operating Partnership. The Amended and Restated Limited
Partnership Agreement of the Operating Partnership (the "Operating
Partnership Agreement") is in full force and effect in the form,
except with respect to Exhibit A thereto, in which it was
incorporated by reference as an exhibit in the Company's Annual
Report on Form 10-K for the fiscal year ended December<0- 32>31,
1997 (the "10-K"), and the aggregate percentage interests of the
general partner and the limited partners in the Operating
Partnership are as set forth therein or in any amended Exhibit A
thereto.
(x) The Management Company has been duly incorporated
and is validly existing as a corporation in good standing under
and by virtue of the laws of the State of Delaware with corporate
power and authority to own, lease and operate its properties, to
conduct the business in which it is engaged or proposes to engage
as described in the Registration Statement and the Prospectus, and
to enter into and perform its obligations under the Company
Documents to which it is a party. The Management Company is duly
qualified or registered as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason
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of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register would
not result in a Material Adverse Change. All of the issued and
outstanding capital stock of the Management Company is duly
authorized, validly issued, fully paid and non-assessable, and has
been offered and sold in compliance with all applicable laws
(including, without limitation, federal or state securities laws)
and, except as disclosed in the Prospectus, the capital stock
which is owned by the Operating Partnership (5% of the common
stock and 100% of the preferred stock) is free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim,
restriction or equities. No shares of capital stock of the
Management Company are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any
capital stock of the Management Company and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase
or to subscribe for shares of such capital stock or any other
securities of the Management Company, except as disclosed in the
Prospectus.
(xi) Each of the Subsidiary Companies has been duly
organized and is validly existing as a corporation, limited
partnership or other legal entity, as the case may be, in good
standing under and by virtue of the laws of its state of
organization with the requisite power and authority to own, lease
and operate its properties, to conduct the business in which it is
engaged or proposes to engage, and to enter into and perform its
obligations under the Company Documents to which it is a party, if
any. Each of the Subsidiary Companies is duly qualified or
registered as a foreign corporation, limited partnership or other
legal entity, as the case may be, to transact business and is in
good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or register would not result in a Material
Adverse Change. All of the issued and outstanding capital stock,
units of limited partnership or other equity interest, as the case
may be, of each of the Subsidiary Companies is duly authorized,
validly issued, fully paid and, in the case of capital stock,
non-assessable, and has been offered and sold in compliance with
all applicable laws (including, without limitation, federal or
state securities laws) and, except as disclosed in the Prospectus,
the capital stock, units of limited partnership or other equity
interest, as the case may be, are owned by the Company or its
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim, restriction or equities. No
shares of capital stock, units of limited partnership or other
equity interest, as the case may be, of any of the Subsidiary
Companies are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any
capital stock, units of limited partnership or other equity
interest, as the case may be, of any Subsidiary Company and no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or to subscribe for shares of such capital stock,
units of limited partnership or other equity interest, as the case
may be, or any other securities of such Subsidiary Company, except
as disclosed in the Prospectus.
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(xii) The Company has an authorized capitalization as set
forth in the documents incorporated by reference into the
Prospectus. All the issued and outstanding Common Shares of the
Company have been duly authorized and are validly issued, fully
paid and, except as described in the Prospectus, non-assessable
and have been offered and sold in compliance, in all Material
respects, with all applicable laws (including, without limitation,
federal or state securities laws).
(xiii) The applicable Underwritten Shares have been duly
authorized for issuance and sale to the Underwriter pursuant to
this Agreement, and when issued and, delivered by the Company
pursuant to this Agreement against payment of the consideration
therefor, will be validly issued, fully paid and, except as
described in the Prospectus, non-assessable. Upon payment of the
purchase price and delivery of the Underwritten Shares in
accordance herewith, the Underwriter will receive the Underwritten
Shares, free and clear of all security interests and liens if the
Underwriter acquires such Common Shares in good faith and without
notice of any such security interests or liens. The terms of such
applicable Underwritten Shares conform in substance, in all
Material respects, to all statements and descriptions related
thereto contained in the Prospectus. The form of share
certificates to be used to evidence such applicable Underwritten
Shares will be in due and proper form and will comply, in all
Material respects, with all applicable legal requirements. The
issuance of such applicable Underwritten Shares is not subject to
any preemptive or other similar rights.
(xiv) All the issued and outstanding Units have been duly
authorized and are validly issued and fully paid and have been
offered and sold or exchanged in compliance, in all Material
respects, with all applicable laws (including, without limitation,
federal and state securities laws).
(xv) The Common Shares issuable upon exchange of any of
the outstanding Units are duly and validly authorized by all
necessary action and such shares, when issued upon such exchange,
will be duly and validly issued, fully paid and, except as
described in the Prospectus, non-assessable, and the issuance of
such shares upon such exchange will not be subject to preemptive
or other similar rights; the Common Shares so issuable conform in
all Material respects to all statements relating thereto contained
in the Prospectus.
(xvi) None of the Transaction Entities is, and at the
Closing Time none of the Transaction Entities will be, in
violation of its charter, declaration of trust, by-laws,
certificate of limited partnership, agreement of limited
partnership or other governing document, as the case may be, and
none of the Transaction Entities is, and at the Closing Time none
of the Transaction Entities will be, 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 or of any applicable law, rule,
order, administrative regulation or administrative or court decree,
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to which such entity is a party or by which such entity may be
bound, or to which any of its property or assets or any Facility
may be bound or subject, except for such violations and defaults
that would not, individually or in the aggregate, result in a
Material Adverse Change.
(xvii) (A) This Agreement has been duly and validly
authorized, executed and delivered by each of the Primary Entities
and, assuming due authorization, execution and delivery by the
Underwriter, is a valid and binding agreement of each of the
Primary Entities, enforceable against the Primary Entities in
accordance with its terms, except as such enforceability may be
subject to (1) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or similar laws affecting
creditors' rights generally and (2) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and except as enforceability of
any applicable indemnification provisions may be limited under
federal or state securities laws; (B) at the applicable
Representation Date will have been duly and validly authorized,
executed and delivered by the Company, and assuming due
authorization, execution and delivery by the Underwriter, will be
a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as such
enforceability may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except as
enforceability of any applicable indemnification provisions may be
limited under federal or state securities laws; (C) each agreement
filed pursuant to Item 601(b)(10) of Regulation S-K as an exhibit
to the Registration Statement and the 10-K, or any report filed
subsequently by the Company which is incorporated by reference
into the Registration Statement (each a "Material Agreement") has
been duly and validly authorized, executed and delivered by the
Transaction Entities which are parties thereto and is a valid and
binding agreement, enforceable against the Transaction Entities
which are parties thereto in accordance with its terms except as
such enforceability may be subject to (1) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or
similar laws affecting creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except as
enforceability of any applicable indemnification provisions may be
limited under federal or state securities laws. This Agreement,
the Operating Partnership Agreement and any Material Agreement are
sometimes hereinafter collectively called the "Company Documents."
(xviii) The execution and delivery of this Agreement, the
Company Documents and the applicable Underwritten Shares, the
performance of the obligations set forth herein or therein and the
consummation of the transactions contemplated hereby and thereby
or in the Prospectus by the Transaction Entities will not conflict
with or constitute a breach or violation by such parties of, or
default under or result in the
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creation or imposition of any lien, charge or encumbrance upon any
Facility, or any other property or asset of a Transaction Entity
under or pursuant to, (A) any of the other Company Documents or
(B) any contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument
or agreement to which any Transaction Entity is a party or by
which they, any of them, any of their respective properties or
other assets or any Facility may be bound or subject; nor will
such action conflict with or constitute a breach or violation by
the Transaction Entities of, or default under, (X) the charter,
declaration of trust, by-laws, certificate of limited partnership,
partnership agreement or other governing documents, as the case
may be, of any Transaction Entity or (Y) any applicable law, rule,
order, administrative regulation or administrative or court
decree; except in each case for conflicts, breaches, violations or
defaults that would not result in a Material Adverse Change.
(xix) (a) No labor dispute with the employees of either of
the Primary Entities or the Management Company exists or is
imminent, and (b) no Primary Entity is aware of any existing or
imminent labor disturbance by the employees of any of the
Transaction Entities' principal suppliers, manufacturers or
contractors, which, in the case of either (a) or (b), might be
expected to result in any Material Adverse Change.
(xx) 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 Primary Entities, after due
inquiry, threatened against or affecting any Transaction Entity,
Facility or officer or trustee of the Company, which is required
to be disclosed in the Registration Statement or the Prospectus
(other than as disclosed therein), or that, if determined
adversely to any Transaction Entity, Facility, or such officer or
trustee, will or could reasonably be expected to result in a
Material Adverse Change. There are no pending legal or
governmental proceedings to which any Transaction Entity is a
party or of which they or any of their respective properties or
assets or any Facility is the subject, including ordinary routine
litigation incidental to the business, that, considered in the
aggregate, could reasonably be expected to result in a Material
Adverse Change. There are no contracts or documents of any
Transaction Entity which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or the 1933 Act
Regulations, which have not been so filed, or which are required
to be incorporated by reference into the Prospectus by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations which have not been so incorporated.
(xxi) At all times since November 8, 1994, the Company
(including as a result of its investments in the Operating
Partnership and the Management Company) has been, and upon the
sale of the applicable Underwritten Shares, the Company will
continue to be, organized and 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 proposed method of operation will enable it to continue to
meet the requirements for taxation as a real estate investment
trust under the Code.
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(xxii) Each of the Transaction Entities has filed all
federal, state, local and foreign income tax returns which have
been required to be filed (except in any case in which the failure
to so file would not result in a Material Adverse Change) and has
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, in all cases, for any such
tax, assessment, fine or penalty that is being contested in good
faith and except in any case in which the failure to so pay would
not result in a Material Adverse Change.
(xxiii) At all times since November 8, 1994, the Operating
Partnership has been, and upon the sale of the applicable
Underwritten Shares, will continue to be classified as a
partnership for Federal income tax purposes.
(xxiv) None of the Transaction Entities is, and at the
Closing Time none of the Transaction Entities will be, required to
be registered under the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxv) To the knowledge of the Primary Entities, none of
the Transaction Entities is, and at the Closing Time will not be,
required to own or possess or to obtain the consent of any holder
of any trademarks, service marks, trade names or copyrights not
now lawfully owned or possessed in order to conduct the business
proposed to be operated by the Transaction Entities.
(xxvi) No Material authorization, approval, consent or
order of any court or governmental authority or agency or other
entity or person is necessary in connection with the offering,
issuance or sale of the applicable Underwritten Shares hereunder,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or state securities, real estate syndication or blue
sky laws or the corporate financing rule of the National
Association of Securities Dealers, Inc. (the "NASD") or the
listing requirements of the New York Stock Exchange ("NYSE") or
such as have been received.
(xxvii) Each of the Transaction Entities possesses, and at
the Closing Time will possess, such certificates, authorizations
or permits issued by the appropriate local, state, federal or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by it, or proposed to be conducted by it,
except for such certificates, authorizations and permits, the
failure to obtain, maintain or possess which by any of the
Transaction Entities would not result in a Material Adverse
Change, and none of the Transaction Entities has received any
notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a Material Adverse Change.
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(xxviii) Except as disclosed in the Prospectus, there are no
persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement.
(xxix) The outstanding Common Shares are listed on the NYSE
and the applicable Underwritten Shares will be listed on the NYSE,
subject to official notice of issuance.
(xxx) Except for each instance which would not result in a
Material Adverse Change, (A) at the Closing Time, the Operating
Partnership, one of the Subsidiary Companies or one of the Joint
Venture Entities will have good and marketable title (or, with
respect to any Facilities located in Texas, good and indefeasible
fee simple title, or such substantially equivalent quality of
title as provided by the applicable title insurance policy) to
each of the Facilities and all other items of real property (and
improvements therein), in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than
those (i) referred to in the Registration Statement or described
in any document incorporated by reference into the Registration
Statement or (ii) which are not Material in amount; (B) all liens,
charges, encumbrances, claims or restrictions on or affecting any
of the Facilities and the assets of any Transaction Entity which
are required to be disclosed in the Prospectus are disclosed
therein; (C) except as otherwise described in the Prospectus,
neither Primary Entity nor the Management Company is, and, to the
knowledge of the Primary Entities, no Joint Venture Entity or
Subsidiary Company is, in default under (i) any space or ground
leases (as lessor or lessee, as the case may be) relating to the
Facilities, or (ii) any of the mortgages or other security
documents or other agreements encumbering or otherwise recorded
against the Facilities, and no Primary Entity knows, after due
inquiry, of any event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of
such documents or agreements; (D) except as disclosed in the
Prospectus, there are no options or rights of first refusal to
purchase any Facility or any part thereof (except that the
Operating Partnership has options to purchase (a) the self storage
facility owned by the Marian Ridge Joint Venture (Marian Ridge
L.L.C.) and (b) two facilities near Houston, Texas on which the
Operating Partnership has made short term loans); (E) each of the
Facilities complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning
codes, laws and regulations and laws relating to access to the
Facilities); and (F) no Primary Entity has knowledge of, after due
inquiry, any pending or threatened condemnation proceeding, zoning
change or other proceeding or action that will in any Material
manner affect the size of, use of, improvements on, construction
on or access to the Facilities.
(xxxi) Each of the Facilities has property, title, casualty
and liability insurance in favor of either the Operating
Partnership, one of the Subsidiary Companies or one of the Joint
Venture Entities with respect to the Facilities by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are prudent and
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customary in the businesses in which they are engaged; and none of
the Operating Partnership, the Subsidiary Companies or the Joint
Venture Entities has any reason to believe that they will not be
able to renew their existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their businesses at a
cost that would not have a Material Adverse Change, except as
described in or contemplated by the Registration Statement and the
Prospectus.
(xxxii) Except as disclosed in the Prospectus, and, except
for activities, conditions, circumstances or matters that would
not result in a Material Adverse Change and except that the
following does not apply to conditions arising from the storage of
customer goods in storage units at the Facilities or any of the
Company's properties under management to which the Company does
not have actual knowledge: (A) to the knowledge of the Primary
Entities, after due inquiry, the operations of the Company, the
Operating Partnership and the Management Company are in compliance
with all Environmental Laws (as defined below) and all
requirements of applicable permits, licenses, approvals and other
authorizations issued pursuant to Environmental Laws; (B) to the
knowledge of the Primary Entities, after due inquiry, none of the
Transaction Entities has caused or suffered to occur any Release
(as defined below) of any Hazardous Substance (as defined below)
into the Environment (as defined below) on, in, under or from any
Facility or any developed or undeveloped land held by the
Operating Partnership ("Storage Land"), and no condition exists
on, in or under any Facility or Storage Land that could result in
the incurrence of liabilities under, or any violations of, any
Environmental Law or give rise to the imposition of any Lien (as
defined below), under any Environmental Law; (C) none of the
Transaction Entities has received any written notice of a claim
under or pursuant to any Environmental Law or under common law
pertaining to Hazardous Substances on, in, under or originating
from any Facility or Storage Land; (D) none of the Transaction
Entities has actual knowledge of, after due inquiry, or received
any written notice from any Governmental Authority (as defined
below) or other person claiming, any violation of any
Environmental Law or a determination to undertake and/or request
the investigation, remediation, clean-up or removal of any
Hazardous Substance released into the Environment on, in, under or
from any Facility or Storage Land; and (E) no Facility or Storage
Land is included or, to the knowledge of the Primary Entities,
after due inquiry, 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, and
neither of the Primary Entities has actual knowledge, after due
inquiry, that any Facility or Storage Land has otherwise been
identified in a published writing by the EPA as a potential CERCLA
removal, remedial or response site or, to the knowledge of the
Primary Entities, after due inquiry, proposed for inclusion on any
similar list of potentially contaminated sites pursuant to any
other Environmental Law.
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As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic substance, pollutant,
hazardous material, or similarly designated materials including,
without limitation, oil, petroleum or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials,
PCBs, pesticides, explosives, radioactive materials, dioxins, urea
formaldehyde insulation or any constituent of any such substance,
pollutant or waste which is identified, regulated, prohibited or
limited under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R.
ss.172.101, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302) as the same may now or
hereafter be amended; "Environment" shall mean any surface water,
drinking water, ground water, land surface, subsurface strata,
river sediment, buildings, structures, and ambient, workplace and
indoor and outdoor air; "Environmental Law" shall mean the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. ss.9601 et seq.) ("CERCLA"),
the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. ss.6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
ss.7401, et seq.) the Clean Water Act, as amended (33 U.S.C.
ss.1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. ss.2601, et seq.), the Occupational Safety and Health
Act of 1970, as amended (29 U.S.C. ss.651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. ss.1801, et
seq.), and all other federal, state and local laws, ordinances,
regulations, rules and orders relating to the protection of the
environment or of human health from environmental effects;
"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; "Lien" shall mean, with respect to any Facility, any
mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment or other
liability in, on or affecting such Facility; and "Release" shall
mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release,
emission, discharge or similar term, as those terms are defined or
used in any Environmental Law.
(xxxiii) To the knowledge of the Primary Entities, none of
the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Facilities
was employed for such purpose on a contingent basis or has any
substantial interest in any Transaction Entity, and none of them
nor any of their directors, officers or employees is connected
with any Transaction Entity as a promoter, selling agent, voting
trustee, director, officer or employee.
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<PAGE>
(b) Any certificate signed by any officer or authorized
representative of any Primary Entity or any Company Document signed by any
officer or authorized representative of any Primary Entity, and delivered
to the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by such entity or person, as the case may be,
to the Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to Underwriter; 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 the Underwriter and the Underwriter agrees to
purchase from the Company, at the price per share set forth below, 613,811
Underwritten Shares. The purchase price per share for the Underwritten
Shares to be paid by the Underwriter shall be $23.2175.
(b) Payment of the purchase price for, and delivery of
certificates for, the Underwritten Shares to be purchased by the
Underwriter shall be made at the offices of Chapman and Cutler, 111 West
Monroe Street, Chicago, Illinois 60603, or at such other place as shall be
agreed upon by the Underwriter and the Company at 9:00 A.M. on the fourth
business day (or the third business day if required under Rule 15c6-1 of
the 1934 Act, or unless postponed in accordance with the provisions of
Section 10) following the date of this Agreement or at such other time as
shall be agreed upon by the Underwriter and the Company (each referred to
herein as the "Closing Time"). Payment shall be made to the Company by
intra-bank transfer or wire transfer of New York Clearing House funds or
similar next day funds to such accounts as may be designated by the Company
at least two business days prior to the Closing Time; or in such other
manner as shall be agreed upon by the Underwriter and the Company, payable
to the order of the Company against delivery to the Underwriter for the
account of the Underwriter of certificates for the applicable Underwritten
Shares to be purchased by them. Certificates for the Underwritten Shares
shall be in such denominations and registered in such names as the
Underwriter may request in writing at least two business days before the
Closing Time. The certificates for the Underwritten Shares will be made
available for examination and packaging by the Underwriter not later than
10:00 A.M. on the last business day prior to the Closing Time in New York,
New York.
Section 3. Covenants of the Company and the Operating
Partnership. Each of the Company and the Operating Partnership covenants
with the Underwriter as follows:
(a) In respect to each offering of Underwritten Shares, the
Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Shares covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Underwritten Shares are being
offered, the name of the Underwriter participating in the offering and the
number of Underwritten Shares which such Underwriter has agreed to
purchase, the price at which the Underwritten Shares are to be purchased by
the Underwriter from the Company, the initial public offering price, if
any, the selling concession and reallowance, if any, and such other
information as the Underwriter and the Company deem appropriate in
connection with the
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<PAGE>
offering of the Underwritten Shares; and the Company will transmit copies
of the Prospectus Supplement to the Commission for filing pursuant to Rule
424(b), to the extent and within the period requested by Rule 424(b) under
the 1933 Act Regulations, and will furnish to the Underwriter as many
copies of the Prospectus (including such Prospectus Supplement) as the
Underwriter shall reasonably request.
(b) If, at the time the preliminary prospectus supplement was
filed with the Commission pursuant to Rule 424(b) under the 1933 Act
Regulations, any information shall have been omitted therefrom, then the
Company will immediately prepare, and file or transmit for filing with the
Commission in accordance with Rule 424(b) under the 1933 Act Regulations, a
copy of a final Prospectus Supplement, containing all information so
omitted.
(c) For a period of three months following any sale of
Underwritten Shares, the Company will notify the Underwriter immediately,
and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus Supplement or other supplement or
amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the
receipt of any comments from the Commission, (iv) any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose; and the Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Shares, the Company will give the Underwriter notice of its
intention to file or prepare any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether pursuant to the 1933
Act, 1934 Act or otherwise, will furnish the Underwriter with copies of any
such amendment or supplement a reasonable amount of time prior to such
proposed filing and, unless required by law, will not file or use any such
amendment or supplement or other documents in a form to which the
Underwriter or counsel for the Underwriter shall reasonably object.
(e) The Company will, to the extent it has not already done so,
deliver to the Underwriter as soon as possible one signed copy of the
Registration Statement as originally filed and of each amendment (with
respect to documents filed pursuant to the 1934 Act, conformed copies will
suffice) thereto (including conformed copies of exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference
therein) and will also delivery to the Underwriter as many conformed copies
of the Registration Statement as originally filed and of each amendment
thereto or to the Prospectus, including documents incorporated by reference
into the Prospectus, as the Underwriter may reasonably request.
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<PAGE>
(f) The Company will furnish to the 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 the 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.
(g) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriter, to
amend or supplement the Prospectus in order to comply with the 1933 Act or
the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder or to make the Prospectus not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser,
the Company will forthwith amend or supplement the Prospectus (in form and
substance reasonably satisfactory to counsel for the Underwriter) 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 the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading.
(h) The Company will endeavor, in cooperation with the
Underwriter, to qualify or register the applicable Underwritten Shares for
offering and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions as the Underwriter
may reasonably designate; provided, however, the Company will not be
required to qualify or to register as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject, or provide any undertaking or make any change in
its charter, declaration of trust, by-laws or other governing document that
the Board of Trustees of the Company reasonably determines to be contrary
to the best interests of the Company and its shareholders. In each
jurisdiction in which the applicable Underwritten Shares have been so
qualified or registered, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification or registration in effect for so long as may be required for
the distribution of the applicable Underwritten Shares.
(i) With respect to each sale of Underwritten Shares, the
Company will make generally available to its security holders as soon as
practicable, but not later than 60 days after the close of the period
covered thereby (ninety (90) days in the event that the close of such
period is the close of the Company's fiscal year), an earning 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.
(j) The Company will use the net proceeds received by it from
the sale of the Underwritten Shares in the manner specified in the
Prospectus Supplement under "Use of Proceeds."
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<PAGE>
(k) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Sections 13,
14 or 15 of the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
(l) The Company will use its best efforts to maintain the
listing of the Common Shares on the NYSE.
(m) The Company will use its reasonable best efforts to continue
to meet the requirements to qualify as a "real estate investment trust"
under the Code.
(n) During the period from the Closing Time until five years
after the Closing Time, the Company will deliver to the Underwriter, (i)
promptly upon their being mailed or filed, copies of all current, regular
and periodic reports of the Company mailed to its shareholders 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 and its subsidiaries and
affiliates as the Underwriter may reasonably request.
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 and filing of the Registration
Statement as originally filed and of each amendment thereto, of each
preliminary prospectus, and of the Prospectus and any amendments and
supplements thereto; (ii) the cost of reproducing and distributing to the
Underwriter copies of this Agreement; (iii) the preparation, issuance and
delivery of the certificates of the Underwritten Shares to the Underwriter;
(iv) the fees and disbursements of the Company's counsel and accountants;
(v) the qualifications of the Underwritten Shares under securities laws and
real estate syndication laws in accordance with the provisions of Section
3(h) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey; (vi) the printing
and delivery to the Underwriter 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 cost of reproducing and delivering to the Underwriter
copies of the Blue Sky Survey; (viii) the fee of the NASD, if any; (ix) the
fees and expenses incurred in connection with the listing of the
Underwritten Shares on the NYSE; (x) the cost and charge of any transfer
agent or registrar, and the cost of preparing share certificates; and (xi)
any transfer taxes imposed on the sale of the Underwritten Shares to the
Underwriter.
If this Agreement is canceled or terminated by the Underwriter in
accordance with the provisions of Section 5 and Section 9(i) hereof, the
Company and the Operating Partnership shall reimburse the Underwriter for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
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Section 5. Conditions of Underwriter's Obligations. The
obligations of the Underwriter hereunder are subject to the accuracy in all
Material respects, as of the date hereof and at Closing Time, of the
representations and warranties of the Primary Entities herein contained, to
the performance by the Primary Entities of their respective obligations
hereunder, and to the following further conditions:
(a) At the Closing Time, (i) 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; (ii) if the Company has elected to rely upon Rule 434 of the
1933 Act Regulations, the public offering price of and other related terms
of the Underwritten Shares, as the case may be, and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 434 shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) and/or Rule 434 under the 1933 Act
Regulations within the prescribed time period, and prior to the applicable
Closing Time, the Company shall have provided evidence satisfactory to the
Underwriter of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 434 under the 1933 Act
Regulations.
(b) At Closing Time the Underwriter shall have received:
(1) The favorable opinion in form and substance
reasonably satisfactory to counsel for the Underwriter, dated as
of the Closing Time of Mayer, Brown & Platt, Chicago, Illinois,
counsel for each of the Company, the Operating Partnership and the
Management Company with respect to the matters set forth below:
(i) The Company has been duly organized and is
validly existing as a real estate investment trust in
good standing under and by virtue of the laws of the
State of Maryland. The Company has the requisite 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 Registration
Statement and the Prospectus, and the Company has the
requisite power and authority to enter into and perform
its obligations under this Agreement and the Other
Company Documents to which it is a party. The Company is
duly qualified or registered to transact business and is
in good standing in each jurisdiction in which such
qualification or registration is required, whether by
reason of the ownership or leasing of property or the
conduct of business, except where the failure to so
qualify or register would not result in a Material
Adverse Change.
(ii) The Operating Partnership has been duly
organized and is validly existing as a limited
partnership in good standing under and by virtue of the
laws of the State of Delaware. The Operating Partnership
has all requisite partnership power and authority to own,
lease and operate its properties, to conduct the
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business in which it is engaged and proposes to engage,
in each case as described in the Registration Statement
and the Prospectus, and to enter into and perform its
obligations under this Agreement and the other Company
Documents to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction
in which such qualification or registration is required,
whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to
so qualify or register would not result in a Material
Adverse Change. The Company is the sole general partner
of the Operating Partnership. All the issued and
outstanding Units have been duly authorized and are
validly issued and fully paid and have been offered and
sold in compliance, in all Material respects, with all
applicable laws of the United States. To the knowledge of
such counsel, no Units of the Operating Partnership are
reserved for any purpose, and there are no outstanding
securities convertible into or exchangeable for any Units
of the Operating Partnership, and no outstanding options,
rights (preemptive or otherwise) or warrants to purchase
or to subscribe for Units for any other securities of the
Operating Partnership, except (i) as disclosed in the
Prospectus, (ii) Units issuable pursuant to the Share
Option Plans and (iii) to the extent applicable, Units
issuable by the Operating Partnership in connection with
the acquisition of real property or direct or indirect
interests in real property.
(iii) The Management Company has been duly
incorporated and is validly existing as a corporation in
good standing under and by virtue of the laws of the
State of Delaware. The Management Company has all
requisite 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 Registration Statement and the Prospectus, and the
Management Company has the corporate power and authority
to enter into and perform its obligations under the
Company Documents to which it is a party. The Management
Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing
in each jurisdiction in which such qualification or
registration is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure to so qualify or
register would not result in a Material Adverse Change.
(iv) The Company has or will have, as of the
Closing Time, duly authorized capital shares as set forth
in the Prospectus under "Description of Common Shares"
and in the Prospectus Supplement under "Capitalization"
(except for subsequent issuances otherwise permitted
under this Agreement) in the Prospectus. All the issued
and outstanding Common Shares of the Company have been
duly authorized and are validly issued, fully paid and,
except as described in the Prospectus, non-assessable,
and have been offered and sold in compliance, in all
Material respects, with all applicable federal laws of
the United States. To
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the knowledge of such counsel, no capital shares of the
Company are reserved for any purpose except in connection
with the possible issuance of Common Shares (1) upon the
exchange of the Units, (2) pursuant to the Share Option
Plans and (3) to the extent applicable, in connection
with the acquisition of real property or direct or
indirect interests in real property. To the knowledge of
such counsel, except for (1) Units, (2) options issued
under the Share Option Plans and (3) to the extent
applicable, Units and/or Common Shares issuable in
connection with the acquisition of real property or
direct or indirect interests in real property, there are
no outstanding securities convertible into or
exchangeable for any capital shares of the Company and no
outstanding options, other than as provided in this
Agreement, rights (preemptive or otherwise) or warrants
to purchase or to subscribe for such shares or any other
securities of the Company.
(v) The applicable Underwritten Shares have
been duly authorized for issuance and sale to the
Underwriter pursuant to this Agreement and, when issued
and delivered by the Company pursuant to this Agreement
against payment of the consideration therefor, will be
validly issued, fully paid and, except as described in
the Prospectus, non-assessable. The terms of the
applicable Underwritten Shares conform, in all Material
respects, to all statements and descriptions related
thereto contained in the Prospectus. The form of share
certificates evidencing the applicable Underwritten
Shares is in due and proper form and complies in all
Material respects with all applicable legal requirements.
The issuance of the Common Shares is not subject to any
preemptive or other similar rights arising under Maryland
General Corporation Law, and Second Amended and Restated
Declaration of Trust or the Amended and Restated By-laws
of the Company, or any agreement of which such counsel is
aware.
(vi) Except in each case for conflicts,
breaches, violations or defaults that, individually or in
the aggregate, would not result in a Material Adverse
Change, to the knowledge of such counsel, none of the
Company, the Operating Partnership and the Management
Company is in breach or violation of or default in the
performance of any obligation, agreement, covenant or
condition contained in (1) any of the Company Documents;
(2) any contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement or
other instrument or agreement to which any such entity is
a party or by which it or any of them or any of their
respective properties or other assets or any Facility may
be bound or subject and of which such counsel is aware;
(3) the charter, declaration of trust, certificate of
limited partnership, partnership agreement or other
governing document, as the case may be, of any such
entity; (4) any applicable law, rule or administrative
regulation of the United States or the jurisdiction of
its incorporation or formulation; or (5) any order of
administrative or court decree of which such counsel is
aware.
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(vii) Each of this Agreement and the other
Company Documents was duly and validly authorized,
executed and delivered by each of the Company, the
Operating Partnership and the Management Company to the
extent the foregoing are parties thereto, each is a valid
and binding agreement of the Company, the Operating
Partnership and the Management Company to the extent the
foregoing are parties thereto, and the Company, the
Operating Partnership and the Management Company, have
the power and authority to perform their obligations
hereunder and thereunder.
(viii) Except in each case for conflicts,
breaches, violations or defaults, that individually or in
the aggregate, would not result in a Material Adverse
Change, the execution and delivery of this Agreement and
the Company Documents, the performance of the obligations
set forth herein or therein, by the Company, the
Operating Partnership and the Management Company, to the
extent the foregoing are parties thereto, did not, do not
and will not conflict with or constitute a breach or
violation of, or default under (1) any of the Company
Documents; (2) any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement to which any
such entity is a party or by which it or any of them or
any of their respective properties or other assets or any
Facility may be bound or subject and of which such
counsel is aware; (3) the charter, declaration of trust,
certificate of limited partnership, partnership agreement
or other governing document, as the case may be, of any
such entity; (4) any applicable law, rule or
administrative regulation of the United States or the
jurisdiction of its incorporation or formation; or (5)
any order or administrative or court decree of which such
counsel is aware.
(ix) Since November 8, 1994, the Company has
been organized in conformity with the requirements for
qualification and taxation as a "real estate investment
trust" under the Code, and the accrual and proposed
method of operation of the Company as described in the
Registration Statement and the Prospectus Supplement has
and will enable the Company to continue to satisfy the
requirements for qualification as a "real estate
investment trust" provided that such counsel's opinion as
to this matter may be conditioned upon certain
representations as to factual matters made by the Company
to such counsel as described therein.
(x) None of the Company, the Operating
Partnership and the Management Company is required to be
registered under the 1940 Act.
(xi) To the knowledge of such counsel, no
authorization, approval, consent or order of any court or
governmental authority or agency or any other entity is
required in connection with the offering, issuance or
sale of the applicable Underwritten Shares hereunder in
each case, except such as may be
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required under the 1933 Act or the 1933 Act Regulations,
the corporate finance rule of the NASD, the listing
requirements of the NYSE, state securities or real estate
syndication laws or such as have been received prior to
the date of such opinion.
(xii) The Registration Statement is effective
under the 1933 Act and, to the 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 or threatened by the
Commission.
(xiii) At the time the Registration Statement
became effective and at the Representation Date, the
Registration Statement and the Prospectus (other than the
financial statements and supporting schedules and other
financial data included therein, or incorporated therein
by reference, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations.
(xiv) To such counsel's knowledge, there are no
legal or governmental proceedings pending against,
threatened against or affecting the Company, the
Operating Partnership or the Management Company which are
required to be disclosed in the Registration Statement or
the Prospectus, other than those disclosed therein.
(xv) The information in the Prospectus under
"Description of Common Shares," "Description of Common
Share Warrants," "Certain Provisions of Maryland Law and
of the Company's Declaration of Trust and By-Laws,"
"Federal Income Tax Considerations," and the information
in the applicable Prospectus Supplement under, "Recent
Developments--Revolving Line of Credit" and "Use of
Proceeds" and the information in the 10-K under, "Legal
Proceedings," "Submission of Matters to a Vote of
Security Holders," "Management's Discussion and Analysis
of Financial Condition and Results of Operations,"
"Executive Compensation," "Security Ownership of Certain
Beneficial Owners and Management," and "Certain
Relationships and Related Transactions," to the extent
that it constitutes statements of law, descriptions of
statutes, rules or regulations, summaries of documents or
legal conclusions, has been reviewed by such counsel and
is correct in all Material respects and presents fairly
the information required to be disclosed therein.
(xvi) To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreement, notes,
leases or other instruments required to be described or
referred to in the Registration Statement or to be filed
as exhibits thereto by the 1933 Act Regulations other
than those described or referred to
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therein or filed as exhibits thereto, and the
descriptions thereof or references thereto are accurate
in all material respects.
(xvii) To the best knowledge of such counsel,
there are no persons with registration or other similar
rights to have any securities registered pursuant to the
Registration Statement.
(xviii) The Company satisfies all conditions and
requirements for filing the Registration Statement on
Form S-3 under the 1933 Act and 1933 Act Regulations.
(xix) The applicable Underwritten Shares have
been approved for listing, subject to official notice of
issuance, on the New York Stock Exchange.
(xx) The Operating Partnership is and will be
classified as a partnership for Federal income tax
purposes.
In addition, Mayer, Brown & Platt shall state that they
have participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants for the Company and representatives of the
Underwriter at which the contents of the Registration Statement
and the Prospectus and related matters were discussed. On the
basis thereto, but without independent verification by such
counsel of, and without passing upon or assuming any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus or any amendments or supplements thereto, no facts have
come to the attention of such counsel that lead them to believe
that (i) the Registration Statement, at the time such Registration
Statement or any amendment thereto became effective, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order
to make the statements therein not misleading or (ii) the
Prospectus or any amendment or supplement thereto, as of its date
or at the Closing Time, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect
to the financial statements, schedules and other financial data
included, or incorporated by reference, in the Registration
Statement or the Prospectus).
This opinion described in paragraph 5(b)(1)(ix) above may
be conditioned upon representations made by the Company as to
certain factual matters relating to the Company's organization and
intended or expected manner of operation, and the opinion in
paragraph 5(b)(1)(xxi) above may be based upon representations of
the Company and may assume that the Operating Partnership will not
constitute a "publicly traded partnership" within the meaning of
Section 7704(b) of the Code.
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In giving its opinion, such counsel may rely, (A) as to
all matters of fact, upon certificates and written statements of
officers, directors, partners and employees of and accountants for
each of the Transaction Entities, (B) as to matters of Maryland
law, on the opinion of Ballard Spahr Andrews & Ingersoll,
Baltimore, Maryland, which opinion shall be in form and substance
reasonably satisfactory to counsel for the Underwriter, and (C) as
to the good standing and qualification of the Company, the
Operating Partnership and the Management Company to do business in
any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such jurisdictions.
Counsel need express no opinion (i) as to the enforceability of
forum selection clauses in the federal courts, (ii) with respect
to the requirements of, or compliance with, any state securities,
real estate syndication or "Blue Sky" laws.
(2) The favorable opinion, dated as of the Closing Time,
of Chapman and Cutler, Chicago, Illinois, counsel for the
Underwriter.
In giving its opinion, Chapman and Cutler may rely, (A)
as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for the
Transaction Entities, (B) as to the good standing and
qualification of the Company to do business in any state or
jurisdiction, upon certificates of appropriate government
officials or opinions of counsel in such jurisdictions, which
opinions shall be in form and substance satisfactory to counsel
for the Underwriter, and (C) as to certain matters of law, upon
the opinions given pursuant to Section 5(b)(1) above.
(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 the Registration Statement shall not contain
any 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; and 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 under which they were
made, not misleading, (ii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of any Primary Entity, after
due inquiry, threatened against the Transaction Entities or any Facility
which would be required to be set forth in the Prospectus other than as set
forth therein, (iii) there shall not have been, since the date hereof or
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any Material Adverse Change,
(iv) no proceedings shall be pending or to the knowledge of the Primary
Entities, after due inquiry, threatened against any Transaction Entity or
any Facility before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
could reasonably be expected to result in a Material Adverse Change, 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
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<PAGE>
proceedings for that purpose shall have been instituted or, to the
knowledge of the Primary Entities, after due inquiry, threatened by the
Commission or by the state securities authority of any jurisdiction, and
(vi) the Underwriter shall have received a certificate of the President or
a Vice President and the chief financial or chief accounting officer (or
such officer acting in a similar capacity) of the Company, and as the
holder of such office for the sole general partner of the Operating
Partnership, dated as of the Closing Time, evidencing compliance with the
provisions of this subsection (c) and stating that the representations and
warranties in Section 1 hereof are true and correct, in all Material
respects, with the same force and effect as though expressly made at and as
of Closing Time.
(d) At the time of the execution of this Agreement, the
Underwriter shall have received from Ernst & Young LLP a letter dated such
date, in form and substance satisfactory to the Underwriter, to the effect
that: (i) they are independent public accounts with respect to the Company
and BHC Properties Group (as defined in the Registration Statement) as
required by the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the financial statements and supporting schedules included in
the Registration Statement and Prospectus or incorporated by reference
therein, 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, including a reading of the latest available
interim financial statements of the Company, a reading of the minute books
of the Company, inquires of officials of the Company responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing has come to their attention which
causes them to believe that (A) the unaudited financial statements and
supporting schedules of the Company included in the Registration Statement
and Prospectus, or incorporated by reference therein, 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 in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in, or
incorporated by reference into, the Registration Statement and Prospectus,
(B) the operating data and balance sheet data set forth in the Prospectus
under the caption "Selected Financial Information" were not determined on a
basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statement included in, or
incorporated by reference into, the Registration Statement and Prospectus,
(C) the pro forma financial information included in, or incorporated by
reference into, the Registration Statement and Prospectus was not prepared
in accordance with the applicable requirements of the 1933 Act, the 1933
Act Regulations or AICPA Guidelines with respect to pro forma financial
information or was not determined on a basis substantially consistent with
that of the audited financial statements included in the Registration
Statement and Prospectus 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 shares of the Company or partnership units of the Operating
Partnership or any increase in the debt of the Company or its subsidiaries
or any decrease in the net assets of the Company or its subsidiaries as
compared with the amounts shown in the most recent consolidated balance
sheet of the Company, the Operating Partnership and their subsidiaries,
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included in the Registration Statement and the Prospectus or incorporated
by reference therein, or, during the period from the date of the most
recent consolidated statement of operations included in the Registration
Statement and Prospectus or incorporated by reference therein 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 total revenues, net income or funds from operations of
the Company, except in all instances for changes, increases or decreases
which the Registration Statement and Prospectus disclose have occurred or
may occur; and (iv) in addition to the examination 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 Underwriter, 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 BHC Properties Group
identified in such letter.
(e) At the Closing Time, the Underwriter shall have received
from Ernst & Young LLP a letter, dated the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred
to shall be a date not more than five days prior to the Closing Time and,
if the Company has elected to rely on Rule 434 of the 1933 Act Regulations,
to the further effect that they have carried out procedures as specified in
clause (iv) of subsection (d) of this Section with respect to certain
amounts, percentages and financial information specified by the Underwriter
and deemed to be a part of the Registration Statement pursuant to Rule 434
and have found such amounts, percentages and financial information to be in
agreement with the records specified in such clause (iv).
(f) At the Closing Time, the applicable Underwritten Shares
shall be approved for listing, subject to official notice of issuances, on
the NYSE.
(g) At the Closing Time, counsel for the Underwriter shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of the applicable Underwritten Shares as herein contemplated and related
proceedings, 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 applicable Underwritten Shares as herein
contemplated shall be reasonably satisfactory in form and substance to the
Underwriter and counsel for the Underwriter.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Company at any time at or
prior to Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4 hereof.
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<PAGE>
Section 6. Indemnification.
(a) Each of the Primary Entities agrees, jointly and severally,
to indemnify and hold harmless the Underwriter and each person, if any, who
controls the 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),
including the information deemed to be part of the Registration
Statement pursuant to Rule 434 of the 1933 Act Regulations, if
applicable, 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 the light of circumstances under which they
were made, not misleading; provided, however, that this indemnity
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 made in reliance
upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto); and
provided, further, that this indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of the
Underwriter from whom the person asserting any such losses,
liabilities, claims, damages or expenses purchased the applicable
Underwritten Shares, or any person controlling the Underwriter, if
a copy of the Prospectus (as then amended or supplemented, if the
Company shall have furnished any such amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter
to such person, if such is required by law, at or prior to the
written confirmation of the sale of the Common Shares to such
person and if the Prospectus (as so amended or supplemented) would
have corrected the defect giving rise to such loss, liability,
claim, damage or expense;
(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
indemnifying party; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the reasonable fees
and disbursements of counsel chosen by A.G. Edwards & Sons, Inc.),
reasonably incurred in investigating, preparing or defending
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<PAGE>
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) or (ii) above, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) The Underwriter agrees to indemnify and hold harmless the
Primary Entities, each of the Company's trustees and each of the Company's
officers who signs the Registration Statement or any amendment thereto and
each person, if any, who controls any Primary Entity 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)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any claims asserted
against or any action commenced against it in respect of such 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
otherwise than on account of this indemnity agreement except to the extent
the indemnifying party has been prejudiced in any material respect by such
failure. 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 reasonably 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 substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. Anything in
this Section 6 to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected without
its written consent provided that such consent was not unreasonably
withheld.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnifying 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 Primary Entities, on the one hand, and the Underwriter, on the
other hand,
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<PAGE>
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Primary Entities, on the one hand, and the Underwriter, on the other
hand, (a) in such proportion as is appropriate to reflect the relative
benefits received by the Primary Entities, on the one hand, and the
Underwriter, on the other, from the offering of the Underwritten Shares, or
(b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (a) above but also the relative
fault (as determined by a court of competent jurisdiction or a panel of
arbitration) of the Primary Entities, on the one hand, and the Underwriter,
on the other, in connection with the statements or omissions that resulted
in such losses, liabilities, claims, damages, and expenses, as well as any
other relevant equitable considerations. The relative benefits received by
the Primary Entities, on the one hand, and the Underwriter, on the other,
shall be deemed to be in the same proportions as the total gross proceeds
from the offering (before deducting expenses) received by the Company bear
to the total underwriting discount received by the Underwriter (which
discount shall be equal the difference between the closing price of a
Common Share on the date of this Agreement and the per share price at which
the Underwritten Shares are being sold to the Underwriter hereunder). The
relative fault of the Primary Entities, on the one hand, and the
Underwriter, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact or
the omission to state a material fact relates to information supplied by
the Primary Entities, on the one hand, or by the Underwriter, on the other,
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just or equitable if
contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 7, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriter has otherwise been
required to pay in respect of such losses, liabilities, claims, damages and
expenses. 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, the Primary Entities shall be
deemed one party and jointly and severally liable for any obligations
hereunder. For purposes of this Section 7, each person, if any, who
controls the Underwriter or such controlling person, shall have the same
rights to contribution as the Underwriter, and each person, if any, who
controls the Primary Entities within the meaning of Section 15 of the 1993
Act, or any director, officer, employee or affiliate of the Primary
Entities or such controlling person, shall have the same rights to
contribution as the Primary Entities.
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<PAGE>
Section 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained
in this Agreement, or contained in certificates of the officers or
authorized representatives of the Primary Entities submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Underwriter or controlling
person, or by or on behalf of the Primary Entities and shall survive
delivery of the applicable Underwritten Shares to the Underwriter.
Section 9. Termination of Agreement. The Underwriter 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
Prospectus, any Material Adverse Change; or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
any outbreak of hostilities or escalation of existing hostilities or other
calamity or crises the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Underwriter,
impracticable to market the applicable Underwritten Shares or to enforce
contracts for the sale of the applicable Underwritten Shares; or (iii) if
trading in the Common Shares has been suspended by the Commission or if
trading generally on either the NYSE or the American Stock Exchange, Inc.
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 or New York authorities.
Section 10. 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 Underwriter shall be directed to A.G. Edwards & Sons, Inc., One
North Jefferson Avenue, St. Louis, Missouri 63103, Attention: Syndicate,
with a copy to Jonathan A. Koff, Chapman and Cutler, 111 West Monroe
Street, Chicago, Illinois 60603-4080; notices to any Primary Entity shall
be directed to it at 2407 Rangeline Street, Columbia, Missouri 65202,
attention of Michael G. Burnam, with a copy to Mayer, Brown & Platt, 190
South LaSalle Street, Chicago, Illinois 60603, attention of Edward<0- 32>J.
Schneidman.
Section 11. Parties. This Agreement shall each inure to the
benefit of and be binding upon the parties hereto and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than
those referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof and thereof are intended to be for
the sole and exclusive benefit of the parties hereto and thereto 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 Underwritten Shares
from the Underwriter shall be deemed to be a successor by reason merely of
such purchase.
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Section 12. Limitation of Liability of Shareholders and
Officers of the Company. No obligation or liability of the Company which
may arise at any time under this Agreement or any obligation or liability
which may be incurred by it pursuant to any other instrument, transaction
or undertaking contemplated hereby or thereby shall be personally binding
upon, nor shall resort for the enforcement thereof be had to, the property
of any of the Company's shareholders, trustees, officers, employees or
agents solely as a result of their status as, and solely in their
capacities as, shareholders, trustees, officers, employees or agents, as
the case may be, regardless of whether such obligation or liability is in
the nature of contract, tort or otherwise. Nothing contained herein shall
act to limit any liability of the Company's trustees, officers, employees
or agents to the Company or limit the ability of shareholders of the
Company to bring a derivative action on behalf of the Company against its
trustees, officers, employees or agents.
Section 13. Governing Law and Time. This 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 said State.
Specified times of day refer to New York City time.
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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 among the Underwriter and the Primary Entities in
accordance with its terms.
Very truly yours,
Storage Trust Realty
By: /s/ Michael G. Burnam
Name: Michael G. Burnam
Title: Chief Executive Officer
Storage Trust Properties, L.P.
By: Storage Trust Realty
its General Partner
By: /s/ Michael G. Burnam
Name: Michael G. Burnam
Title: Chief Executive Officer
Confirmed and Accepted,
as of the date first above written:
A.G. Edwards & Sons, Inc.
By: /s/ Douglas D. Rubenstein
Name: Douglas D. Rubenstein
Title: Authorized Signatory
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