Purchase Agreement, dated as of July 27, 2005 - Merrill Lynch International


 Exhibit 10.2 
  

  
 PURCHASE AGREEMENT 
  
 among 
  
  
 Extra Space Storage LP 
  
 ESS Statutory Trust
III, 
  
  
 and 
  
  
 Merrill Lynch International 
  

  
  
 Dated as of July 27, 2005 
  
  


 







 PURCHASE AGREEMENT 
 ($15,000,000 Trust Preferred Securities) 
  
 THIS PURCHASE AGREEMENT, dated as of July 27, 2005, (this “Purchase Agreement”), is entered into among Extra Space Storage LP, a Delaware limited partnership (the “Company”), ESS
Statutory Trust III, a Delaware statutory trust (the “Trust”, and together with the Company, the “Sellers”), Merrill Lynch International (“MLI”) or its assignee (the “Purchaser”).

  
 W I T N E S S E T H : 
  
 WHEREAS, the Sellers propose to issue and sell 40,000 Preferred Securities of
the Trust, having a stated liquidation amount of $1,000 per security (the “Preferred Securities”); 
  
 WHEREAS, the entire proceeds from the sale of the Preferred Securities will be combined with the entire proceeds from the sale by the Trust to the Company
of its common securities (the “Common Securities”), and will be used by the Trust to purchase $41,238,000 in principal amount of the unsecured junior subordinated notes of the Company (the “Junior Subordinated
Notes”); 
  
 WHEREAS, the Preferred Securities and the
Common Securities for the Trust will be issued pursuant to the Amended and Restated Trust Agreement (the “Trust Agreement”), dated as of the Closing Date, among the Company, as depositor, JPMorgan Chase Bank, National Association, a
national banking association, as property trustee (in such capacity, the “Property Trustee”), Chase Bank USA, National Association, a national banking association, as Delaware trustee (in such capacity, the “Delaware
Trustee”), the Administrative Trustees named therein (in such capacities, the “Administrative Trustees”) and the holders from time to time of undivided beneficial interests in the assets of the Trust; and 
  
 WHEREAS, the Junior Subordinated Notes will be issued pursuant to a Junior
Subordinated Indenture, dated as of the Closing Date (the “Indenture”), between the Company and JPMorgan Chase Bank, National Association, a national banking association, as indenture trustee (in such capacity, the
“Indenture Trustee”). 
  
 NOW, THEREFORE, in
consideration of the mutual agreements and subject to the terms and conditions herein set forth, the parties hereto agree as follows: 
  
 1. Definitions. The Preferred Securities, the Common Securities and the Junior Subordinated Notes are collectively referred to herein as the
“Securities.” This Purchase Agreement, the Indenture, the Trust Agreement and the Securities are collectively referred to herein as the “Operative Documents.” All other capitalized terms used but not defined in this
Purchase Agreement shall have the respective meanings ascribed thereto in the Indenture. 
  


					
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 2. Purchase and Sale of the Preferred Securities. 
  
 (a) The Sellers agree to sell to the Purchaser, and the Purchaser agrees to
purchase the preferred securities for an aggregate amount equal to $15,000,000 (the “Purchase Price”). The Purchaser shall be responsible for the rating agency costs and expenses. The Trust shall use the Purchase Price, together
with the proceeds from the sale of the Common Securities, to purchase the Junior Subordinated Notes from the Company. 
  
 (b) Delivery or transfer of, and payment for, the Preferred Securities shall be made at 11:00 A.M. Eastern Standard time (11:00 A.M. New York time), on
July 27, 2005, (such date and time of delivery and payment for the Preferred Securities being herein called the “Closing Date”). The Preferred Securities shall be transferred and delivered to the Purchaser against the payment of the
Purchase Price to the Sellers made by wire transfer in immediately available funds on the Closing Date to a U.S. account designated in writing by the Company at least two business days prior to the Closing Date. 
  
 (c) Delivery of the Preferred Securities shall be made at such location, and
in such names and denominations, as the Purchaser shall designate in writing at least two business days in advance of the Closing Date. The Company and the Trust agree to have the Preferred Securities available for inspection and checking by the
Purchaser not later than 2:00 P.M., Eastern Standard time, on the business day prior to the Closing Date. The closing for the purchase and sale of the Preferred Securities shall occur at the offices of DLA Piper Rudnick Gray Cary US LLP, 1221 S.
Mopac Expressway, Suite 400, Austin, Texas 78746 or such other place as the parties hereto shall agree. 
  
 3. Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions: 
  
 (a) The representations and warranties contained herein shall be accurate as
of the date of delivery of the Preferred Securities. 
  
 (b)
Latham & Watkins LLP and Nelson Christensen & Helsten, P.C., special counsel for the Company and the Trust (collectively, the “Company Counsel”), shall each have delivered an opinion, dated the Closing Date, addressed to the
Purchaser, Cohen Bros. & Company and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex A-I and Annex A-II hereto, respectively, and the Company shall have furnished to the Purchaser the opinion
of the Company’s General Counsel or a certificate signed by the Company’s general partner, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex A-III hereto. In rendering their opinions, the
Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors, partners and trustees of the Company and the Trust and by government officials (provided, however, that copies of any such
certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinions, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the
jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the 
  


					
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 law of any other jurisdiction. If the Company Counsel are not admitted to practice in the State of New York, the opinions
of the Company Counsel may assume, for purposes of the opinions, that the laws of the State of New York are substantively identical, in all respects material to the opinions, to the internal laws of the state in which such counsel are admitted to
practice. Such Company Counsel opinions shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation,
the Legal Opinion Accord of the ABA Section of Business Law (1991). 
  
 (c) The Purchaser and the Sellers shall have been furnished the opinion of DLA Piper Rudnick Gray Cary US LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National
Association, in substantially the form set out in Annex B hereto. 
  
 (d) The Purchaser shall have received the opinion of Richards, Layton & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank,
National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto. 
  
 (e) The Purchaser shall have received the opinion of Gardere Wynne Sewell LLP, special counsel for the Property Trustee and the Indenture Trustee, dated
the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto. 
  
 (f) The Purchaser shall have received the opinion of Richards, Layton & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the
Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto. 
  
 (g) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the general partner of the Company, and the Trust shall have
furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.

  
 (i) the representations and warranties in
this Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust have in all material respects complied with all the agreements and
satisfied all the conditions on either of their part to be performed or satisfied at or prior to the Closing Date; and 
  
 (ii) since the date of the latest Financial Statements (as defined below), there has been no material adverse change in the condition
(financial or other), earnings, business or assets of the Company and its subsidiaries, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”). 
  


					
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 (h) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any
development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Company and its subsidiaries, whether or not occurring in the ordinary course of business, the effect of which is, in
the Purchaser’s reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred securities. 
  
 (i) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further
information, certificates and documents as the Purchaser or its counsel may reasonably request. 
  
 If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of
the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s
obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or by telephone or facsimile confirmed in writing. 

 
 Each certificate signed by any trustee of the Trust or any officer or
partner of the Company and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust
and/or the Company, as the case may be, and not by such trustee, officer or partner in any individual capacity. 
  
 4. Representations and Warranties of the Company and the Trust. The Company and the Trust jointly and severally represent and warrant
to, and agree with the Purchaser, as follows: 
  
 (a) Neither the
Company nor the Trust, nor any of their “Affiliates” (as defined in Rule 501(b) of Regulation D (“Regulation D”) under the Securities Act (as defined below)), nor any person acting on its or their behalf, has, directly or
indirectly, made offers or sales of any security, or solicited offers to buy any security, under circumstances that would require the registration of any of the Securities under the Securities Act of 1933, as amended (the “Securities
Act”). 
  
 (b) Neither the Company nor the Trust, nor any
of their Affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of any of the Securities. 

 
 (c) The Securities (i) are not and have not been listed on a national
securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or quoted on a U.S. automated inter-dealer quotation system and (ii) assuming the Purchaser is a “Qualified
Purchaser” as such term is defined in Section 2(a)(51) of the Investment Company Act of 1940, as amended (the “Investment 
  


					
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 Company Act”), are not of an open-end investment company, unit investment trust or face-amount certificate
company that are, or are required to be, registered under Section 8 of the Investment Company Act, and the Securities otherwise satisfy the eligibility requirements of Rule 144A(d)(3) promulgated pursuant to the Securities Act (“Rule
144A(d)(3)”). 
  
 (d) Neither the Company nor the Trust,
nor any of their Affiliates, nor any person acting on its or their behalf, has engaged, or will engage, in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities.

  
 (e) Assuming the Purchaser is a “Qualified
Purchaser” as such term is defined in Section 2(a)(51) of the Investment Company Act, neither the Company nor the Trust is, and, immediately following consummation of the transactions contemplated hereby and the application of the net proceeds
therefrom, will not be, an “investment company” or an entity “controlled” by an “investment company,” in each case within the meaning of section 3(a) of the Investment Company Act. 
  
 (f) Neither the Company nor the Trust has paid or agreed to pay to any person
any compensation for soliciting another to purchase any of the Securities, except for the Preferred Securities Commission and/or the sales commission in the aggregate amount of $1,200,000, the which Company has agreed to pay as set forth in the Flow
of Funds Memorandum of even date herewith. 
  
 (g) The Trust has
been duly created and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. §3801, et seq. (the “Statutory Trust Act”) with all requisite power and authority to own
property and to conduct the business it transacts and proposes to transact and to enter into and perform its obligations under the Operative Documents to which it is a party. The Trust is duly qualified to transact business as a foreign entity and
is in good standing in each jurisdiction in which such qualification is necessary, except where the failure to so qualify or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, business
or assets of the Trust, whether or not occurring in the ordinary course of business. The Trust is not a party to or otherwise bound by any agreement other than the Operative Documents. 
  
 (h) The Trust Agreement has been duly authorized by the Company and, on the Closing Date specified in Section 2(b),
will have been duly executed and delivered by the Company and the Administrative Trustees of the Trust, and, assuming due authorization, execution and delivery by the Property Trustee and the Delaware Trustee, will be a legal, valid and binding
obligation of the Company and the Administrative Trustees, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency and similar law, affecting creditors’ rights generally and to general principles of
equity. Each of the Administrative Trustees of the Trust is an employee of the Company and has been duly authorized by the Company to execute and deliver the Trust Agreement. 
  
 (i) The Indenture has been duly authorized by the Company and, on the Closing Date, will have been duly executed and
delivered by the Company, and, assuming 
  


					
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 due authorization, execution and delivery by the Indenture Trustee, will be a legal, valid and binding obligation of the
Company enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity. 
  
 (j) The Preferred Securities and the Common Securities have been duly
authorized by the Trust and, when issued and delivered against payment therefor on the Closing Date in accordance with this Purchase Agreement, in the case of the Preferred Securities, and in accordance with the Common Securities Subscription
Agreement, in the case of the Common Securities, will be validly issued, fully paid and non-assessable and will represent undivided beneficial interests in the assets of the Trust entitled to the benefits of the Trust Agreement, enforceable against
the Trust in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity. The issuance of the Securities is not subject to any preemptive
or other similar rights. On the Closing Date, all of the issued and outstanding Common Securities will be directly or indirectly owned by the Company free and clear of any pledge, security interest, claim, lien or other encumbrance of any kind
(each, a “Lien”). 
  
 (k) The Junior Subordinated
Notes have been duly authorized by the Company and, on the Closing Date, will have been duly executed and delivered to the Indenture Trustee for authentication in accordance with the Indenture and, when authenticated in the manner provided for in
the Indenture and delivered to the Trust against payment therefor in accordance with the Junior Subordinated Note Purchase Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, subject to applicable bankruptcy insolvency and similar laws affecting creditors’ rights generally and to general principles of equity. 
  
 (l) This Purchase Agreement has been duly authorized, executed and delivered
by the Company and the Trust. 
  
 (m) Neither the issue and sale
of the Common Securities, the Preferred Securities or the Junior Subordinated Notes, nor the purchase of the Junior Subordinated Notes by the Trust, nor the execution and delivery of and compliance with the Operative Documents by the Company or the
Trust, nor the consummation of the transactions contemplated herein or therein, (i) will conflict with or constitute a violation or breach of (A) the Trust Agreement or the charter or bylaws or other organizational documents of the Company or any
subsidiary of the Company or (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, governmental authority, agency or instrumentality or court, domestic or foreign, having jurisdiction over the Trust or
the Company or any of its subsidiaries or their respective properties or assets (collectively, the “Governmental Entities”), or (ii) will conflict with or constitute a violation or breach of, or a default or Repayment Event (as
defined below) under, or result in the creation or imposition of any Lien upon any property or assets of the Trust, the Company or any of the Company’s subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which (A) the Trust, the Company or any of its subsidiaries 
  


					
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 is a party or by which it or any of them may be bound, or (B) to which any of the property or assets of any of them is
subject, or any judgment, order or decree of any court, Governmental Entity or arbitrator, except, in the case of this clause (ii) and clause (i)(B) above, for such conflicts, breaches, violations, defaults, Repayment Events (as defined below) or
Liens which (X) would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents and (Y) would not, singly or in the aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, business, liabilities and assets of the Company and its subsidiaries taken as a whole, whether or not occurring in the ordinary course of business (a “Material Adverse Effect”). As used herein, a
“Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Trust or the Company or any of its subsidiaries prior to its scheduled maturity. 
  
 (n) The Company has been duly formed and is validly existing as a partnership in good standing under the laws of Delaware, with all requisite power and
authority to own, lease and operate its properties and conduct the business it transacts and proposes to transact, and is duly qualified to transact business and is in good standing in each jurisdiction where the nature of its activities requires
such qualification, except where the failure of the Company to be so qualified would not, singly or in the aggregate, have a Material Adverse Effect. 
  
 (o) The Company has no subsidiaries that are material to its business, financial condition or earnings other than those subsidiaries listed in Schedule
A attached hereto (collectively, the “Significant Subsidiaries”). Each Significant Subsidiary has been duly formed and is validly existing and in good standing under the laws of the jurisdiction in which it is chartered or
organized, with all requisite power and authority to own, lease and operate its properties and conduct the business it transacts and proposes to transact. Each Significant Subsidiary is duly qualified to transact business and is in good standing in
each jurisdiction where the nature of its activities requires such qualification, except where the failure to be so qualified would not, singly or in the aggregate, have a Material Adverse Effect. 
  
 (p) Each of the Trust, the Company and each of the Company’s
subsidiaries hold all necessary approvals, authorizations, orders, licenses, consents, registrations, qualifications, certificates and permits (collectively, the “Governmental Licenses”) of and from Governmental Entities necessary
to conduct their respective businesses as now being conducted, and neither the Trust, the Company nor any of the Company’s subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Government
License, except where the failure to be so licensed or approved or the receipt of an unfavorable decision, ruling or finding, would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except where the invalidity or the failure of such Governmental Licenses to be in full force and effect, would not, singly or in the aggregate, have a Material Adverse Effect; and the Company and its subsidiaries are in
compliance with all applicable laws, rules, 
  


					
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 regulations, judgments, orders, decrees and consents, except where the failure to be in compliance would not, singly or
in the aggregate, have a Material Adverse Effect. 
  
 (q) All of
the issued and outstanding shares of capital stock or other ownership interest, as the case may be, of the Company and each of its subsidiaries are validly issued, fully paid and non-assessable; all of the issued and outstanding capital stock or
other ownership interests of each subsidiary of the Company is owned by the Company, directly or through subsidiaries, free and clear of any Lien, claim or equitable right; and none of the issued and outstanding capital stock or other ownership
interests of the Company or any subsidiary was issued in violation of any preemptive or similar rights arising by operation of law, under the charter or by-laws or other organizational documents of such entity or under any agreement to which the
Company or any of its subsidiaries is a party. 
  
 (r) Neither the
Company nor any of its subsidiaries is (i) in violation of its respective charter or by-laws or similar organizational documents or (ii) 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 agreement or instrument to which the Company or any such subsidiary is a party or by which it or any of them may be bound or to which any of the property or assets of any of them is
subject, except, in the case of clause (ii), where such violation or default would not, singly or in the aggregate, have a Material Adverse Effect. 
  
 (s) There is no action, suit or proceeding before or by any Governmental Entity, arbitrator or court, domestic or foreign, now pending or, to the
knowledge of the general partner of the Company or the administrative trustees of the Trust, threatened against or affecting the Trust or the Company or any of the Company’s subsidiaries, except for such actions, suits or proceedings that, if
adversely determined, would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents or have a Material Adverse Effect. 
  
 (t) The accountants of Extra Space Storage, Inc. (the “Parent”), a
Maryland corporation, who audited and reviewed the Financial Statements (as defined below) are independent public accountants of Parent within the meaning of the Securities Act, and the rules and regulations of the Securities and Exchange Commission
(the “Commission”) thereunder. 
  
 (u) The
audited consolidated financial statements (including the notes thereto) and schedules of Parent, and its consolidated subsidiaries for the fiscal year ended December 31, 2004, and interim Financial Statements dated March 31, 2005 (the
“Financial Statements”) provided to the Purchaser are the most recent available consolidated financial statements of Parent and its consolidated subsidiaries, respectively, and fairly present in all material respects, in accordance
with U.S. generally accepted accounting principles, the financial position of Parent and its consolidated subsidiaries, and the results of operations and changes in financial condition as of the dates and for the periods therein specified. Such
consolidated financial statements and schedules have been prepared in accordance with U.S. 
  


					
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 generally accepted accounting principles (“GAAP”) consistently applied throughout the periods involved
(except as otherwise noted therein). 
  
 (v) None of the Trust,
the Company nor any of its subsidiaries has any liability, whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due,
including any liability for taxes (and there is no past or present fact, situation, circumstance, condition or other basis for any present or future action, suit, proceeding, hearing, charge, complaint, claim or demand against the Company or its
subsidiaries that could give rise to any such liability), except for (i) liabilities set forth in the Financial Statements, (ii) normal fluctuations in the amount of the liabilities referred to in clause (i) above occurring in the ordinary course of
business of the Trust, the Company and all of its subsidiaries since the date of the most recent balance sheet included in such Financial Statements and (iii) liabilities that would not, singly or in the aggregate, have a Material Adverse Effect.

  
 (w) Since the date of the Financial Statements, there has not
been any Material Adverse Change. 
  
 (x) The documents of Parent
filed with the Commission in accordance with the Exchange Act, from and including the commencement of the fiscal year covered by the Company’s most recent Annual Report on Form 10-K, at the time they were or hereafter are filed by Parent with
the Commission (collectively, the “1934 Act Reports”), complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder (the “1934 Act
Regulations”), and, at the date of this Purchase Agreement and on the Closing Date, do not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading; and other than such instruments, agreements, contracts and other documents as are filed as exhibits to Parent’s Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, there are no instruments, agreements, contracts or documents of a character described in Item 601 of Regulation S-K promulgated by the Commission to which Parent or any of its
subsidiaries is a party. Parent is in compliance with all currently applicable requirements of the Exchange Act that were added by the Sarbanes-Oxley Act of 2002, except where such noncompliance would not, singly or in the aggregate, have a Material
Adverse Effect. 
  
 (y) No labor dispute with the employees of the
Trust, the Company or any of its subsidiaries exists or, to the knowledge of the administrative trustees of the Trust or the general partner of the Company, is imminent, except those which would not, singly or in the aggregate, have a Material
Adverse Effect. 
  
 (z) No filing with, or authorization,
approval, consent, license, order, registration qualification or decree of, any Governmental Entity, other than those that have been obtained or will be timely made or obtained, is necessary or required for the performance by the Trust or the
Company of their respective obligations under the Operative 
  


					
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 Documents, as applicable, or the consummation by the Trust and the Company of the transactions contemplated by the
Operative Documents. 
  
 (aa) Each of the Trust, the Company and
each subsidiary of the Company has good and marketable title to all of its respective real and personal properties, in each case free and clear of all Liens and defects, except for those defects in title and Liens that would not, singly or in the
aggregate, have a Material Adverse Effect; and all of the leases and subleases under which the Trust, the Company or any subsidiary of the Company holds properties are in full force and effect, except where the failure of such leases and subleases
to be in full force and effect would not, singly or in the aggregate, have a Material Adverse Effect, and none of the Trust, the Company or any subsidiary of the Company has any notice of any claim of any sort that has been asserted by anyone
adverse to the rights of the Trust, the Company or any subsidiary of the Company under any such leases or subleases, or affecting or questioning the rights of such entity to the continued possession of the leased or subleased premises under any such
lease or sublease, except for such claims that would not, singly or in the aggregate, have a Material Adverse Effect. 
  
 (bb) [Intentionally Omitted] 
  
 (cc) Commencing with its taxable year ended December 31, 2004, Parent has been, and upon the completion of the transactions contemplated hereby, Parent
will continue to be, organized and operated in conformity with the requirements for qualification and taxation as a real estate investment trust (a “REIT”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the “Code”), and Parent’s proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under Sections 856 through 860 of the Code, and no actions have been
taken (or not taken which are required to be taken) which would reasonably be expected to cause such qualification to be lost. Parent expects to continue to be organized and to operate in a manner so as to qualify as a REIT in the taxable year
ending December 31, 2004 and succeeding taxable years. 
  
 (dd)
The Company and each of the Significant Subsidiaries have timely and duly filed all Tax Returns required to be filed by them, and all such Tax Returns are true, correct and complete, except for such failures to timely file or inaccuracies that would
not, singly or in the aggregate, have a Material Adverse Effect. The Company and each of the Significant Subsidiaries have timely and duly paid in full all material Taxes required to be paid by them (whether or not such amounts are shown as due on
any Tax Return). There are no federal, state, or other Tax audits or deficiency assessments proposed or pending with respect to the Company or any of the Significant Subsidiaries, and no such audits or assessments are, to the knowledge of the
general partner of the Company or the administrative trustees of the Trust, threatened, except for such audits or assessments that would not, singly or in the aggregate, have a Material Adverse Effect. As used herein, the terms
“Tax” or “Taxes” mean (i) all federal, state, local, and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax, or
penalties applicable thereto, imposed by any Governmental Entity, and (ii) all liabilities in respect of such amounts arising as a result of being a member of any affiliated, 
  


					
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 consolidated, combined, unitary or similar group, as a successor to another person or by contract. As used herein, the
term “Tax Returns” means all federal, state, local, and foreign Tax returns, declarations, statements, reports, schedules, forms, and information returns and any amendments thereto filed or required to be filed with any Governmental
Entity. 
  
 (ee) To the knowledge of the administrative trustees
of the Trust and the general partner of the Company, there are no rulemaking or similar proceedings before the United States Internal Revenue Service or comparable federal, state, local or foreign government bodies which involve or affect the
Company or any subsidiary, which, if the subject of an action unfavorable to the Company or any subsidiary, could result in a Material Adverse Effect. 
  
 (ff) The books, records and accounts of the Company and its subsidiaries accurately and fairly reflect, in all material respects, the transactions in, and
dispositions of, the assets of and the results of operations of, the Company and its subsidiaries. The Company and each of its subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. 
  
 (gg) The Company and the Significant Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts in all material respects as are customary in the businesses in which they are
engaged or propose to engage after giving effect to the transactions contemplated hereby including but not limited to, real or personal property owned or leased against theft, damage, destruction, act of vandalism and all other risks customarily
insured against. All policies of insurance and fidelity or surety bonds insuring the Company or any of the Significant Subsidiaries or the Company’s or Significant Subsidiaries’ respective businesses, assets, employees, officers, partners
and directors are in full force and effect, except where the failure of such policies to be in full force and effect would not, singly or in the aggregate, have a Material Adverse Effect. The Company and each of the subsidiaries are in compliance
with the terms of such policies and instruments, except where the failure to be in compliance would not, singly or in the aggregate, have a Material Adverse Effect. Neither the Company nor any Significant Subsidiary has reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Averse Effect.
Within the past twelve months, neither the Company nor any Significant Subsidiary has been denied any insurance coverage which it has sought or for which it has applied. 
  
 (hh) Except as would not, singly or in the aggregate, have a Material Adverse Effect, the Company and its subsidiaries or,
to the knowledge of the administrative 
  


					
	 	  	12	  	 








 trustees of the Trust or the general partner of the Company, any person acting on behalf of the Company and its
subsidiaries including, without limitation, any director, officer, agent or employee of the Company or its subsidiaries has not, directly or indirectly, while acting on behalf of the Company and its subsidiaries (i) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds; or (ii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended. 
  
 (ii) Neither the Company nor any of its Significant Subsidiaries have
violated, or received written notice of any violation with respect to any applicable Environmental Law (as defined below), the violation of which would result in a Material Adverse Change. “Environmental Law” means any federal, state or
local environmental law, statute, ordinance, rule or regulation, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675
(“CERCLA”), the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §§ 5101-5127, the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901-6992k, the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050, the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y, the Clean Air Act, 42 U.S.C.
§§ 7401-7642, the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. §§ 1251-1387, the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26, and the Occupational Safety and Health Act, 29 U.S.C. §§
651-678, and any analogous state laws, as any of the above may be amended from time to time and in the regulations promulgated pursuant to each of the foregoing (including environmental statutes and laws not specifically defined herein). 

 
 5. Representations and Warranties of the Purchaser:
MLI represents and warrants to, and agrees with, the Company and the Trust as follows: 
  
 (a) The Purchaser is aware that the Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to “U.S. persons” (as defined in
Regulation S under the Securities Act) except in accordance with Rule 903 of Regulation S under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act. 
  
 (b) The Purchaser is an “accredited investor,” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act. 
  
 (c) Neither the Purchaser, nor any of the Purchaser’s Affiliates, nor any person acting on the Purchaser’s or the Purchaser’s Affiliate’s behalf has, directly or indirectly, made offer, or sales of any security, or
solicited offers to buy any security, under circumstances that would require the registration of any of the Securities under the Securities Act 
  
 (d) Neither the Purchaser, nor any of the Purchaser’s Affiliates, nor any person acting on the Purchaser’s or the Purchaser’s
Affiliate’s behalf has engaged, or will 
  


					
	 	  	13	  	 








 engage, in any form of “general solicitation or general advertising” (within the meaning of Regulation D under
the Securities Act) in connection with any offer or sale of the Preferred Securities. 
  
 (e) The Purchaser understands and acknowledges that (i) no public market exists for any of the Securities and that it is unlikely that a public market will ever exist for the Securities, (ii) the Purchaser is
purchasing the Securities for its own account, for investment and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all times within its control and subject to its ability to resell such Securities pursuant to an effective registration statement under the Securities Act or pursuant to an exemption
therefrom or in a transaction not subject thereto, and the Purchaser agrees to the legends and transfer restrictions applicable to the Securities contained in the Indenture, and (iii) the Purchaser has had the opportunity to ask questions of and
receive answers and request additional information from, the Company and is aware that it may be required to bear the economic risk of an investment in the Securities. 
  
 (f) The Purchaser is a company with limited liability duly incorporated, validly existing and in good standing under the
laws of the jurisdiction in which it is organized with all requisite (i) power and authority to execute, deliver and perform the Operative Documents to which it is a party, to make the representations and warranties specified herein and therein and
to consummate the transactions contemplated herein and (ii) right and power to purchase the Securities. 
  
 (g) This Purchase Agreement has been duly authorized, executed and delivered by the Purchaser and no filing with, or authorization, approval, consent,
license, order registration, qualification or decree of, any governmental body, agency or court having jurisdiction over the Purchaser, other than those that have been made or obtained, is necessary or required for the performance by the Purchaser
of its obligations under this Purchase Agreement or to consummate the transactions contemplated herein. 
  
 (h) The Purchaser is a “Qualified Purchaser” as such term is defined in Section 2(a)(51) of the Investment Company Act. 
  
 6. Covenants and Agreements of the Company and the Trust. The
Company and the Trust jointly and severally agree with the Purchaser as follows: 
  
 (a) During the period from the date of this Agreement to the Closing Date, the Company and the Trust shall use their reasonable efforts and take all action reasonably necessary or appropriate to cause their
representations and warranties contained in Section 4 hereof to be true as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. 
  
 (b) The Company and the Trust will arrange for the qualification of the
Preferred Securities for sale under the laws of such jurisdictions as the Purchaser may designate in writing at least two business days prior to the Closing Date and will maintain 
  


					
	 	  	14	  	 








 such qualifications in effect so long as required for the sale of the Preferred Securities. The Company or the Trust, as
the case may be, will promptly advise the Purchaser of the receipt by the Company or the Trust, as the case may be, of any notification with respect to the suspension of the qualification of the Preferred Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. 
  
 (c) Neither the Company nor the Trust will, nor will either of them permit any of its Affiliates to, nor will either of them permit any person acting on its or their behalf (other than the Purchaser) to, resell any Preferred Securities that
have been acquired by any of them. 
  
 (d) Neither the Company nor
the Trust will, nor will either of them permit any of their Affiliates or any person acting on their behalf to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the
Securities. 
  
 (e) Neither the Company nor the Trust will, nor
will either of them permit any of their Affiliates or any person acting on their behalf to, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration
of any of the Securities under the Securities Act. 
  
 (f) Neither
the Company nor the Trust will, nor will either of them permit any of its Affiliates or any person acting on their behalf to, engage in any form of “general solicitation or general advertising” (within the meaning of Regulation D) in
connection with any offer or sale of the any of the Securities. 
  
 (g) So long as any of the Securities are outstanding, (i) the Securities shall not be listed on a national securities exchange registered under section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and
(ii) neither the Company nor the Trust shall be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section 8 of the Investment Company Act, and, the Securities
shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3) 
  
 (h) So long as any of the Securities are outstanding, each of the Company and the Trust shall furnish to (i) the holders, and subsequent holders of the Preferred Securities, (ii) Taberna Capital Management, LLC (at 450 Park Avenue, 23rd
Floor, New York, New York 10022, or such other address as designated by Taberna Capital Management, LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company and the Trust (which identification may be made by either
such beneficial owner or by Cohen Bros.), a duly completed and executed certificate in the form attached hereto as Annex F, including the financial statements referenced in such Annex, which certificate and financial statements shall be so
furnished by the Company and the Trust not later than sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than one hundred twenty (120) days after the end of each fiscal year of
the Company. 
  


					
	 	  	15	  	 








 (i) So long as any of the Securities are outstanding, each of the Company and the Trust will, during any
period in which Parent is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, provide to each holder of the Securities and to each prospective purchaser (as designated by such holder) of the Securities, upon the request of
such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. 
  
 (j) Neither the Company nor the Trust will, until one hundred eighty (180) days following the Closing Date, without the Purchaser’s prior written
consent, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, directly or indirectly, (i) any Preferred Securities or other securities substantially similar to the Preferred Securities other than as contemplated by
this Purchase Agreement or (ii) any other securities convertible into, or exercisable or exchangeable for, any Preferred Securities or other securities substantially similar to the Preferred Securities. 
  
 (k) Parent will use its reasonable efforts to meet the requirements to
qualify as a REIT under Sections 856 through 860 of the Code, for the taxable year ending December 31, 2005 and succeeding taxable years. 
  
 (l) The Company shall not identify the Purchaser or Cohen Bros. & Company in a press release or any other public statement without the consent of
Purchaser or Cohen Bros. & Company, as applicable, except as required by law. 
  
 7. Payment of Expenses. The Company, as depositor of the Trust, agrees to pay all costs and expenses incident to the performance of the obligations of the Company and the Trust under this Purchase
Agreement, whether or not the transactions contemplated herein are consummated or this Purchase Agreement is terminated, including all costs and expenses incident to (i) the authorization, issuance, sale and delivery of the Preferred Securities and
any taxes payable in connection therewith; (ii) the fees and expenses of qualifying the Preferred Securities under the securities laws of the several jurisdictions as provided in Section 6(b); (iii) the fees and expenses of the counsel, the
accountants and any other experts or advisors retained by the Company or the Trust; (iv) the fees and all reasonable expenses of the Property Trustee, the Delaware Trustee, the Indenture Trustee and any other trustee or paying agent appointed under
the Operative Documents, including the fees and disbursements of counsel for such trustees, which fees shall not exceed a $2,000 acceptance fee, $3,500 for the fees and expenses of Richards, Layton & Finger, P.A., special Delaware counsel
retained by the Delaware Trustee in connection with the Closing, and $4,000 in administrative fees annually; and (v) $20,000 for the fees and expenses of DLA Piper Rudnick Gray Cary US LLP, special counsel retained by the Purchaser. 
  
 If the sale of the Preferred Securities provided for in this Purchase
Agreement is not consummated because any condition set forth in Section 3 hereof to be satisfied by either the Company or the Trust is not satisfied, because this Purchase Agreement is terminated pursuant to Section 9 (other than
pursuant to Section 9(iii) or 9(v)) or because of any failure, refusal or inability on the part of the Company or the Trust to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder other

  


					
	 	  	16	  	 








 than by reason of a default by the Purchaser, the Company will reimburse the Purchaser upon demand for all reasonable
out-of-pocket expenses (including the fees and expenses of each of the Purchaser’s counsel specified in subparagraphs (iv) and (v) of the immediately preceding paragraph) that shall have been incurred by the Purchaser in connection with the
proposed purchase and sale of the Preferred Securities. The Company shall not in any event be liable to the Purchaser for the loss of anticipated profits from the transactions contemplated by this Purchase Agreement. 
  
 8. Indemnification. (a) The Sellers agree, jointly and
severally, to indemnify and hold harmless the Purchaser, Taberna Capital Management, LLC, Cohen Bros. & Company, and Merrill Lynch & Co. (collectively, the “Purchaser Indemnified Parties”) and the Purchaser Indemnified
Parties’ respective directors, officers, employees and agents and each person, if any, who controls the Purchaser Indemnified Parties within the meaning of the Securities Act or the Exchange Act against any out-of-pocket losses, claims, damages
or liabilities, joint or several (collectively, “Losses”), to which the Purchaser Indemnified Parties may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such Losses (or actions in respect thereof) arise out of or are connected with the execution and delivery by Sellers, and the consummation thereby of the transactions contemplated by, this Purchase Agreement or any other
Operative Document. Sellers agree, jointly and severally, to reimburse the Purchaser Indemnified Parties for any legal or other expenses reasonably incurred by the Purchaser Indemnified Parties in connection with investigating or defending any such
Losses or action arising out of or being connected with the execution and delivery by the Sellers, and the consummation by the Sellers of the transactions contemplated by, this Purchase Agreement or the other Operative Documents. This indemnity
agreement will be in addition to any liability that any of the Sellers may otherwise have. 
  
 (b) The Company agrees to indemnify the Trust against all Losses whatsoever due from the Trust under paragraph (a) above. 
  
 (c) Promptly after receipt by an Indemnified Party under this Section 8 of notice of the commencement of any action, such Indemnified Party will,
if a claim in respect thereof is to be made against the indemnifying party under this Section 8, promptly notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under paragraph (a) above unless and to the extent that such failure results in the forfeiture by the indemnifying party of material rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any Indemnified Party other than the indemnification obligation provided in paragraph (a) above. Purchaser shall be entitled to appoint counsel to represent the Indemnified Party in any action for which
indemnification is sought. An indemnifying party may participate at its own expense in the defense of any such action; provided, that counsel to the indemnifying party shall not (except with the consent of the Indemnified Party) also be
counsel to the Indemnified Party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all Indemnified Parties in connection with
any one action or separate but similar or related actions in the same jurisdiction arising 
  


					
	 	  	17	  	 








 out of the same general allegations or circumstances. An indemnifying party will not, without the prior written consent
of the Indemnified Parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not the
Indemnified Parties are actual or potential parties to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim,
action, suit or proceeding. 
  
 (d) In no event shall any
indemnifying party or parties be liable for Losses in the nature of consequential damages, punitive damages, lost profits, damage to reputation or the like, but rather Losses indemnifiable hereunder shall be limited to out-of-pocket Losses and to an
aggregate limit equal to the Purchase Price. 
  
 9.
Termination; Representations and Indemnities to Survive. This Purchase Agreement shall be subject to termination in the reasonable discretion of the Purchaser, by notice given to the Company and the Trust prior to delivery of and
payment for the Preferred Securities, if prior to such time (i) a downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,”
as that term is used by the Commission in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, or such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the
Company’s debt securities or preferred stock, (ii) the Trust shall be unable to sell and deliver to the Purchaser at least $15,000,000 stated liquidation value of Preferred Securities, (iii) a suspension or material limitation in trading in
securities generally shall have occurred on the New York Stock Exchange, (iv) a suspension or material limitation in trading in any of the Company’s securities shall have occurred on the exchange or quotation system upon which the Company’
securities are traded, if any, or (v) there shall have occurred any outbreak or escalation of hostilities, or declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is
such as to make it, in the Purchaser’s reasonable judgment, impracticable or inadvisable to proceed with the offering or delivery of the Preferred Securities. The respective agreements, representations, warranties, indemnities and other
statements of the Company and the Trust or their respective officers, partners or trustees and of the Purchaser set forth in or made pursuant to this Purchase Agreement will remain in full force and effect, regardless of any investigation made by or
on behalf of the Purchaser, the Company or the Trust or any of the their respective officers, directors, partners, trustees or controlling persons, and will survive delivery of and payment for the Preferred Securities for a period of five (5) years
after the Closing Date. The provisions of Sections 7 and 8 shall survive the termination or cancellation of this Purchase Agreement. 
  
 10. Amendments. This Purchase Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a
written agreement by each of the parties hereto. 
  


					
	 	  	18	  	 








 11. Notices. 
  
 (a) Any communication shall be given by letter or facsimile, in the case of notices to the Trust, to it at: 
  
 ESS Statutory Trust III 
 c/o Extra Space Storage LP 
 2795 East Cottonwood Parkway, Suite 400 
 Salt Lake City, UT 84121 
 Facsimile: 801-562-5579 
 Attention: Dean Anderson 
  
 in
the case of notices to the Company, to it at: 
  
 Extra Space Storage LP 
 2795 East Cottonwood Parkway, Suite 400 
 Salt Lake City, UT 84121 
 Facsimile: 801-562-5579 
 Attention: Dean Anderson 
  
 with a copy to: 
  
 Latham & Watkins LLP 
 12636 High Bluff Drive, Suite 300 
 San Diego, CA 92130 
 Facsimile: 858-523-5450 
 Attention: Craig M. Garner 
  
 and in the case of notices to the Purchaser, to it at: 
  
 Merrill Lynch International 
 c/o Cohen Bros. & Company 
 1818 Market Street 
 Philadelphia, Pennsylvania 19103 
 Facsimile: (215) 861-7898 
 Attention: Asset Backed Securities 
  
 with a copy to: 
  
 DLA Piper Rudnick Gray Cary US LLP 
 1221 S. Mopac Expressway, Suite 400 
 Austin, TX 78746 
 Facsimile: (512) 457-7001 
 Attention: David B. Jones 
  


					
	 	  	19	  	 








 which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
This Purchase Agreement may be executed by any one or more of the parties hereto by facsimile. 
  


					
	 	  	21	  	 








 IN WITNESS WHEREOF, this Purchase Agreement has been entered into as of the date first written above.

  

							
	 EXTRA SPACE STORAGE LP

		
	 By:
	 	 ESS Holdings Business Trust I

	 Its:
	 	 General Partner

		
	 By:
	 	 /s/ Charles L. Allen


	 	 	 Name:
	 	 CHARLES L. ALLEN


	 	 	 Title:
	 	 TRUSTEE


	
	 ESS STATUTORY TRUST III

		
	 By:
	 	 Extra Space Storage LP, as Depositor

		
	 By:
	 	 ESS Holdings Business Trust I

			
	 	 	 By:
	 	 /s/ Charles L. Allen


	 	 	 	 	 Name:
	 	 CHARLES L. ALLEN


	 	 	 	 	 Title:
	 	 TRUSTEE


	
	 Merrill Lynch International

		
	 By:
	 	 /s/ W. Berry


	 	 	 Name:
	 	  


	 	 	 Title:
	 	  




  


					
	 	  	22	  	 








 Schedule A 
  

Extra Space Storage, LLC, a Delaware limited liability company 
 Extra Space Properties One LLC, a Delaware limited liability company 
 Extra Space Properties Four LLC, a
Delaware limited liability company 
 Extra Space Properties Seven LP, a Utah limited partnership 
 Extra Space Properties Fourteen LLC, a Delaware limited liability company 
 Extra Space Management, Inc. a Utah limited partnership 
 ESS SUSA Holdings LLC, a Delaware limited liability
company 
 Extra Space Properties Fifty One LLC, a Delaware limited liability company 
 Extra Space Properties Fifty Two LLC, a Delaware limited liability company 
 Extra Space Properties Fifty Three LLC, a Delaware limited liability company 
 Extra Space Properties Sixty
One LLC, a Delaware limited liability company 
 Extra Space Properties Sixty Two LLC, a Delaware limited liability company 
 Extra Space Properties Sixty Three LLC, a Delaware limited liability company 
 Extra Space Properties Sixty Four LLC, a Delaware limited liability company 
 Extra Space Properties Sixty
Five LLC, a Delaware limited liability company 
  


					
	 	  	23	  	 








 ANNEX A-I 
  

Pursuant to Section 3(b)(i) of the Purchase Agreement, Latham & Watkins LLP, special counsel for the Company, shall deliver the following opinion:

  
 Insert Opinion 






 ANNEX A-II 
  

Pursuant to Section 3(b)(i) of the Purchase Agreement, Nelson Christensen & Helsten, P.C., special counsel for the Company, shall deliver the
following opinion: 
  
 Insert Opinion 
  


					
	 	  	A-II-1	  	 








 ANNEX A-III 
  

Pursuant to Section 3(b)(ii) of the Purchase Agreement, General Counsel for the Company shall deliver an opinion, or the Company shall provide a
General Partner’s Certificate, to the effect that: 
  
 (i) to the knowledge of such [counsel/general partner], the issuance of the Preferred Securities and the Common Securities will be free from any contractual preemptive rights; 
  
 (ii) to the knowledge of such [counsel/general
partner], there is no action, suit or proceeding currently pending before or by any government, governmental instrumentality, arbitrator or court, domestic or foreign, that questions the validity of the Operative Documents or the ability of the
Trust or the Company to enter into, or to issue the Securities pursuant to, the Operative Documents; and 
  
 (iii) the execution and delivery by the Trust of the Operative Documents to which they are a party do not, and the performance by the
Trust under such Operative Documents will not (a) conflict with or violate any provision of the organizational documents of the Trust, or (b) to the knowledge of such [counsel/general partner], conflict with or violate any judgment, order,
writ, injunction or decree binding on the Trust, or (c) to the knowledge of such [counsel/general partner], conflict with or violate any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which the Trust is a party or by which the Trust or any of its properties may be bound, or (d) to the knowledge of such [counsel/general partner], result in the creation or imposition of any
material lien, claim, charge, encumbrance or restriction upon any property or assets of the Trust. 
  
 In rendering such opinions, such [counsel/general partner] may (A) state that his opinion is limited to the internal laws of the State of Utah, (B)
rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers or trustees of the Company and the Trust and public officials and (C) take customary assumptions and exceptions as to enforceability and other matters.

  


					
	 	  	A-III-1	  	 








 ANNEX B 
  
 Pursuant to Section 3(c) of the Purchase Agreement, DLA Piper Rudnick Gray Cary US LLP, special tax counsel for the Purchaser, shall deliver an opinion to
the effect that: 
  
 Insert Opinion 
  

 B-1 







 ANNEX C 
  
 Pursuant to Section 3(d) of the Purchase Agreement, Richards, Layton & Finger, P.A., special Delaware counsel for the Delaware Trustee, shall deliver
an opinion to the effect that: 
  
 (i) the Trust
has been duly created and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, and all filings required under the laws of the State of Delaware with respect to the creation and valid existence of the
Trust as a statutory trust have been made; 
  
 (ii) under the Delaware Statutory Trust Act and the Trust Agreement, the Trust has the trust power and authority (A) to own property and conduct its business, all as described in the Trust Agreement, (B) to execute and deliver, and to
perform its obligations under, each of the Purchase Agreement, the Common Securities Subscription Agreement, the Junior Subordinated Note Purchase Agreement and the Preferred Securities and the Common Securities and (C) to purchase and hold the
Junior Subordinated Notes; 
  
 (iii) under the
Delaware Statutory Trust Act, the certificate attached to the Trust Agreement as Exhibit C is an appropriate form of certificate to evidence ownership of the Preferred Securities; the Preferred Securities have been duly authorized by the
Trust Agreement and, when issued and delivered against payment of the consideration as set forth in the Purchase Agreement, the Preferred Securities will be validly issued and (subject to the qualifications set forth in this paragraph) fully paid
and nonassessable and will represent undivided beneficial interests in the assets of the Trust; the holders of the Preferred Securities will be entitled to the benefits of the Trust Agreement and, as beneficial owners of the Trust, will be entitled
to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; and such counsel may note that the holders of the Preferred Securities may
be obligated, pursuant to the Trust Agreement, to (A) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of Preferred Securities certificates and the issuance of replacement
Preferred Securities certificates and (B) provide security or indemnity in connection with requests of or directions to the Property Trustee to exercise its rights and remedies under the Trust Agreement; 
  
 (iv) the Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the Company against payment therefor as described in the Trust Agreement and the Common Securities Subscription Agreement, will be validly issued and fully paid and will represent
undivided beneficial interests in the assets of the Trust entitled to the benefits of the Trust Agreement; 
  

 C-1 







 (v) under the Delaware Statutory Trust Act and the Trust Agreement, the issuance of the
Preferred Securities and the Common Securities is not subject to preemptive or other similar rights; 
  
 (vi) under the Delaware Statutory Trust Act and the Trust Agreement, the execution and delivery by the Trust of the Purchase Agreement,
the Common Securities Subscription Agreement and the Junior Subordinated Note Purchase Agreement, and the performance by the Trust of its obligations thereunder, have been duly authorized by all necessary trust action on the part of the Trust;

  
 (vii) the Trust Agreement constitutes a legal,
valid and binding obligation of the Company and the Trustees, and is enforceable against the Company and the Trustees, in accordance with its terms subject, as to enforcement, to the effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution; 
  
 (viii) the issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the Trust of the Junior Subordinated Notes, the execution, delivery and performance by the Trust of the Purchase Agreement, the Common Securities Subscription Agreement and the Junior
Subordinated Note Purchase Agreement, the consummation by the Trust of the transactions contemplated by the Purchase Agreement and compliance by the Trust with its obligations thereunder do not violate (i) any of the provisions of the Certificate of
Trust or the Amended and Restated Trust Agreement or (ii) any applicable Delaware law, rule or regulation; 
  
 (ix) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Delaware court or
Delaware Governmental Entity or Delaware agency is necessary or required solely in connection with the issuance and sale by the Trust of the Common Securities or the Preferred Securities, the purchase by the Trust of the Junior Subordinated Notes,
the execution, delivery and performance by the Trust of the Purchase Agreement, the Common Securities Subscription Agreement and the Junior Subordinated Note Purchase Agreement, the consummation by the Trust of the transactions contemplated by the
Purchase Agreement and compliance by the Trust with its obligations thereunder; and 
  
 (x) the holders of the Preferred Securities (other than those holders who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as a result of their participation in the Trust and the Trust will not be liable for any income tax imposed by the State of Delaware. 
  

 C-2 







 In rendering such opinions, such counsel may (A) state that its opinion is limited to the laws of the
State of Delaware, (B) rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials and (C) take customary assumptions and exceptions as to enforceability and other matters.

  

 C-3 







 ANNEX D 
  
 Pursuant to Section 3(e) of the Purchase Agreement, Gardere Wynne Sewell LLP, special counsel for the Property Trustee and the Indenture Trustee, shall
deliver an opinion to the effect that: 
  
 (i)
JPMorgan Chase Bank, National Association (the “Bank”) is a national banking association with trust powers, duly and validly existing under the laws of the United States of America, with corporate power and authority to execute, deliver
and perform its obligations under the Indenture and to authenticate and deliver the Securities, and is duly eligible and qualified to act as Trustee under the Indenture pursuant to Section 6.1 thereof and as Property Trustee under the Trust
Agreement pursuant to Section 8.2 thereof; 
  
 (ii) Each Agreement has been duly authorized, executed and delivered by the Bank and constitutes the valid and binding obligation of the Bank, enforceable against it in accordance with its terms except (A) as may be limited by bankruptcy,
fraudulent conveyance, fraudulent transfer, insolvency, reorganization, liquidation, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, and by general equitable principles,
regardless of whether considered in a proceeding in equity or at law and (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought; 
  
 (iii) Neither the execution or delivery by the Bank of the Agreements, the authentication and delivery of the Securities by the Trustee pursuant to the terms of the Agreements, respectively, nor the performance by the Bank of its
obligations under the Agreements (A) requires the consent or approval of, the giving of notice to or the registration or filing with, any governmental authority or agency under any existing law of the United States of America governing the banking
or trust powers of the Bank or (B) violates or conflicts with the Articles of Association or By-laws of the Bank or any law or regulation of the State of New York or the United States of America governing the banking or trust powers of the Bank;

  
 (iv) the Securities have been authenticated
and delivered by a duly authorized officer of the Bank. 
  
 In
rendering such opinions, such counsel may (A) state that its opinion is limited to the laws of the State of New York and the laws of the United States of America, (B) rely as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of JPMorgan Chase Bank, National Association, the Company and public officials, and (C) make customary assumptions and exceptions as to enforceability and other matters. 
  

 D-1 







 ANNEX E 
  
 Pursuant to Section 3(f) of the Purchase Agreement, Richards, Layton & Finger, P.A. counsel for the Delaware Trustee, shall deliver an opinion to the
effect that: 
  
 (i) Chase Bank USA, National
Association is duly formed and validly existing as a national banking association under the federal laws of the United States of America with trust powers and with its principal place of business in the State of Delaware; 
  
 (ii) Chase Bank USA, National Association has the corporate
power and authority to execute, deliver and perform its obligations under, and has taken all necessary corporate action to authorize the execution, delivery and performance of, the Trust Agreement and to consummate the transactions contemplated
thereby; 
  
 (iii) The Trust Agreement has been
duly authorized, executed and delivered by Chase Bank USA, National Association and constitutes a legal, valid and binding obligation of Chase Bank USA, National Association, and is enforceable against Chase Bank USA, National Association, in
accordance with its terms subject as to enforcement, to the effect upon the Trust Agreement of (i) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, fraudulent conveyance or transfer and similar laws relating to or
affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to indemnification or contribution; 
  
 (iv) The execution, delivery and performance by Chase Bank USA, National Association of the Trust Agreement do not conflict with or result
in a violation of (A) articles of association or by-laws of Chase Bank USA, National Association or (B) any law or regulation of the State of Delaware or the United States of America governing the trust powers of Chase Bank USA, National Association
or, to our knowledge, without independent investigation, of any indenture, mortgage, bank credit agreement, note or bond purchase agreement, long-term lease, license or other agreement or instrument to which Chase Bank USA, National Association is a
party or by which it is bound or, to our knowledge, without independent investigation, of any judgment or order applicable to Chase Bank USA, National Association; and 
  
 (v) No approval, authorization or other action by, or filing with, any Governmental Entity of the State of
Delaware or the United States of America governing the trust powers of Chase Bank USA, National Association is required in connection with the execution and delivery by Chase Bank USA, National Association of the Trust Agreement or the performance
by Chase 
  

 E-1 







 
Bank USA, National Association of its obligations thereunder, except for the filing of the Certificate of Trust with the Secretary of State of the State of
Delaware, which Certificate of Trust has been filed with the Secretary of State of the State of Delaware. 
  
 In rendering such opinions, such counsel may (A) state that its opinion is limited to the laws of the State of Delaware and the federal laws of the United
States governing the trust powers of Chase Bank USA, National Association, (B) rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials and (C) take customary assumptions
and exceptions. 
  

 E-2 







 General Partner’s Financial Certificate 
  
 The undersigned, the trustee of the general partner of Extra Space Storage LP
(the “Company”) hereby certifies, pursuant to Section 6(h) of the Purchase Agreement, dated as of July 27, 2005, among the Company, ESS Statutory Trust III (the “Trust”), and Merrill Lynch International, that, as of [date],
20     : 
  
 FOR FISCAL YEAR END: Attached
hereto are the audited consolidated financial statements (including the balance sheet, income statement and statement of cash flows, and notes thereto, together with the report of the independent accountants thereon) of Parent and its consolidated
subsidiaries for the three years ended [date], 20    .] 
  
 [FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and consolidating financial statements (including the balance sheet and income statement) of Parent and its consolidated subsidiaries for the year ended [date],
20    ] for the fiscal quarter ended [date, 20    .] 
  
 The financial statements fairly present in all material respects, in accordance with U.S. generally accepted accounting principles (“GAAP”), the financial position of the Company and its consolidated
subsidiaries, and the results of operations and changes in financial condition as of the date, and for the [         quarter interim] [annual] period ended [date], 20    , and
such financial statements have been prepared in accordance with GAAP consistently applied throughout the period involved (expect as otherwise noted therein). 






 IN WITNESS WHEREOF, the undersigned has executed this General Partner’s Financial Certificate as of
this              day of                 , 20    . 
  

			
	Extra Space Storage LP
		
	By:	 	ESS Holdings Business Trust I
	Its:	 	General Partner
		
	 By:
	 	  


	 Name:
	 	  


	
	 Extra Space Storage LP
 2795 East Cottonwood Parkway, Suite 400
 Salt Lake City, UT 84121