UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(b) of The Securities Exchange
Act of 1934
Date of Report (Date of earliest event reported)
November 5, 1996 (November 1, 1996)
SUSA Partnership, LP
(Exact name of registrant as specified in its charter)
Tennessee 333-03344 62-1554135
(State or other (Commission (IRS Employer
jurisdiction File Number) Identification No.)
of incorporation)
10440 Little Patuxent Parkway, Suite 1100, 21044
Columbia, Maryland
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (410) 730-9500
<PAGE>
The purpose of this Current Report on Form 8-K is to file as
exhibits the Indenture, dated as of November 1, 1996 between SUSA
Partnership, L.P. (the "Partnership") and First National Bank of
Chicago, as Trustee, an Underwriting Agreement, a Pricing
Agreement and Form of Note.
Item 7: Financial Statements and Exhibits
(c)Exhibits
Exhibit Description
1 Underwriting Agreement, dated November 4, 1996,
between SUSA Partnership, L.P. and Goldman,
Sachs & Co.
1.2 Pricing Agreement, dated November 4, 1996,
between SUSA Partnership, L.P. and Goldman,
Sachs & Co.
4.1 Indenture between SUSA Partnership, L.P. (the
"Partnership") and First National Bank of
Chicago, as Trustee, dated November 1, 1996
4.2 Form of $100,000,000 Note, dated November 7,
1996
<PAGE>
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 thereunto duly authorized.
DATED: November 5, 1996
SUSA PARTNERSHIP, L.P.
By: /s/ Thomas E. Robinson
Thomas E. Robinson
President and
Chief Financial Officer
SUSA PARTNERSHIP, L.P.
Debt Securities
Underwriting Agreement
November 4, 1996
Goldman, Sachs & Co.,
First Chicago Capital Markets, Inc.
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
From time to time SUSA Partnership, L.P., a Tennessee limited
partnership (the "Company"), proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of
Annex I hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain of its
debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement,
the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement
relating thereto and in or pursuant to the indenture (the
"Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made
from time to time to the Underwriters of such Securities, for
whom the firms designated as representatives of the Underwriters
of such Securities in the Pricing Agreement relating thereto will
act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or
their representatives. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase any of the Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall
specify the aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such
Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated
Securities to be purchased by each Underwriter and the
commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery
of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters
under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-
03344) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
2
statement, but including all documents incorporated by reference
in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by
the Commission in such form; no other document with respect to
such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with
the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus"); the various parts of such
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained
in the registration statement at the time such part of the
registration statement became effective but excluding Form T-1,
each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called
the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual
report of the Company
3
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to
such Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the
Trust Indenture Act of 1939,
4
as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such
Securities;
(d) None of Storage USA, Inc., a Tennessee corporation
and the sole general partner of the Company ("Storage"),
Storage USA Trust, a Maryland business trust and a limited
partner of the Company (the "Trust"), the Company or SUSA
Management, Inc., a Tennessee corporation and wholly-owned
subsidiary of the Company (the "Subsidiary Corporation") or
any of their respective subsidiaries has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the
Prospectus (for purposes of this Underwriting Agreement, the
terms "subsidiary" and "subsidiaries" refer to any corporation,
partnership, limited liability company, trust or other
organization or association in which an entity owns a direct
or indirect interest); and, since the respective dates as of
which information is given in the Registration Statement and
the Prospectus, there has not been any material change in the
capital stock, partnership interests or beneficial interests,
as applicable, long-term debt, obligations under capital
leases or short-term borrowings of Storage, the Company, the
Trust or the Subsidiary Corporation or any material adverse
change, or any development involving a prospective material
5
adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity, partnership capital
or results of operations, as applicable, of Storage, the
Trust, the Company or the Subsidiary Corporation, if any,
otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented;
(e) The Company and its subsidiaries have good and
marketable title in fee simple to all real property,
including the self-storage facilities described in the
Prospectus as amended or supplemented or as otherwise
described in the applicable Pricing Agreement as being owned
by such entities (each a "Facility" and together the
"Facilities"), and good and marketable title to all personal
property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in
the Prospectus as amended or supplemented or such as do not
materially affect the value of such property and do not
materially interfere with the use made or proposed to be made
of such property by the Company; and any real property and
buildings held under lease by Storage, the Company and the
Subsidiary Corporation are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material
and do not interfere with the use made or proposed to be made
of such property and buildings by the Company, Storage and
the Subsidiary Corporation, as the case may be; the
improvements at the Facilities, if any, are, or upon
completion of scheduled improvements and repairs will be, in
good condition and repair and, to the knowledge of the Company
and Storage, there are no material latent or patent defects in
the condition of any of the Facilities, the structural
elements thereof, or the mechanical systems therein, except
for any such defect, damage, or condition that has been
corrected or will be corrected in the ordinary course of
business as part of scheduled maintenance and improvement
programs or that, if not so corrected, could not reasonably
be expected to have a material adverse effect on the Facility
to which such defect, damage or condition relates; and each
of the Facilities complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning
codes, laws and regulations and laws relating to access to
the Facilities), except where noncompliance with such codes,
laws or regulations
6
could not reasonably be expected to have a material adverse
effect on such Facility; and neither the Company nor Storage has
knowledge of any pending or threatened condemnation proceedings,
zoning changes or other proceedings or actions that will in any
manner affect the size of, use of, improvements or construction
on or access to the Facilities, except such proceedings or
actions that would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets or
business affairs of Storage, the Company, the Trust or Subsidiary
Corporation, in each case taken as a whole;
(f) The Company has been duly formed and is validly
existing as a limited partnership under the Tennessee Revised
Uniform Limited Partnership Act with power and authority
(partnership and other) to own its properties and to conduct any
business relating thereto;
(g) Each of Storage and the Subsidiary Corporation has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Tennessee, with power and authority (corporate and other) to
own, lease, license and operate its properties and conduct
its business as described in the Prospectus as amended or
supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as
to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(h) The Trust has been duly formed and is validly
existing as a business trust in good standing under the laws
of the State of Maryland, with power and authority (trust and
other) to own its limited partnership interest in the Company
and to conduct any business appropriate in connection
therewith, and has been duly qualified as a foreign trust for
the transaction of such business and is in good standing
under the laws of each other jurisdiction in which it
conducts any business so as to require such qualification,
7
or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction; the
only activity of the Trust is the ownership of its limited
partnership interest in the Company and taking such activity,
if any, as may be appropriate in connection therewith;
(i) Storage and the Trust have no subsidiaries other than
the Company; and the Company has no subsidiaries other than
(i) the Subsidiary Corporation, (ii) Clarendon Storage
Associates L.P., in which it owns a 50% general partnership
interest, (iii) SUSA/38th Avenue, Capitola, L.P., in which
it owns an 86% general partnership interest and (iv) the
following entities, each of which is directly or indirectly
wholly-owned by the Company: Storage USA Franchise Corp.,
Tamiami Mini-Storage Partners, Ltd., 441 Mini-Storage
Partners, Ltd., Sunset Mini-Storage Partners, Ltd., Dade
County Mini-Storage Associates Ltd., Southeast Mini-Storage
Limited Partners, Buzzman Partners I Ltd. Partnership, Buzzman
Partners II Ltd. Partnership, Storage USA of Palm Beach County,
L.P., Storage USA Construction, Inc., Peachtree Development II,
Inc. and Preston Self Storage Limited;
(j) The Second Amended and Restated Agreement of
Limited Partnership of SUSA Partnership, L.P., dated as of
September 21, 1994 as amended by the First Amendment to
Second Amended and Restated Agreement of Limited Partnership
of SUSA Partnership, L.P., dated as of March 19, 1996, and the
Second Amendment to Second Amended and Restated Agreement of
Limited Partnership of SUSA Partnership, L.P., dated as of June
14, 1996, and the Third Amendment to Second Amended and
Restated Agreement of Limited Partnership of SUSA Partnership,
L.P., dated as of August 14, 1996 (the "Operating Partnership
Agreement"), has been duly authorized, executed and delivered by
each partner thereto and is valid, legally binding and
enforceable in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy,
insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights or by
general equity principles, whether considered at law or in
equity; the Company has a capitalization as set forth in the
Prospectus as
8
amended or supplemented, and all of the partnership interests of
the Company have been duly and validly authorized and issued and
are fully paid and conform to the description thereof contained
in the Prospectus; all of the issued shares of capital stock of
the Subsidiary Corporation have been duly and validly authorized
and issued, are fully paid and non-assessable; and all of the
general partnership interests in the Company are owned directly
by Storage and all of the issued shares of capital stock of the
Subsidiary Corporation are owned directly by the Company
(except for such shares as are owned by Dean Jernigan), in
each case free and clear of all liens, encumbrances, equities
or claims;
(k) Storage is the sole general partner of the Company
and owns, directly and through the Trust, approximately 95%
of the partnership interests in the Company;
(l) The Securities have been duly authorized, and, when
the Designated Securities are issued and delivered pursuant
to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of
the Company, subject, as to enforcement, to the effects of
bankruptcy, insolvency, reorganization or other similar laws
of general applicability relating to or affecting creditors'
rights or of general equity principles, whether considered at
law or in equity, and will be entitled to the benefits
provided by the Indenture, which will be substantially in the
form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles, whether
considered at law or in equity; and the Indenture conforms,
and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus
9
as amended or supplemented with respect to such Designated
Securities;
(m) No person or entity holds the rights to require or
participate in the registration under the Act of the Securities
pursuant to the Registration Statement;
(n) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
which Storage, the Company or any of their respective
subsidiaries is a party or by which Storage, the Company or
any of their respective subsidiaries is bound or to which any of
the property or assets of Storage, the Company or any of their
respective subsidiaries is subject, nor will such action result
in any violation of the provisions of the certificate of
incorporation or by-laws of Storage, the certificate of
limited partnership of the Company or the Operating
Partnership Agreement or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Storage, the Company or any of their
respective subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental
agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will
have been prior to each Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters;
(o) The statements set forth (i) in the Prospectus under
the caption "Description of Debt Securities" and in the
Prospectus as
10
amended or supplemented under the caption "Description of Notes",
insofar as they purport to constitute a summary of the terms of
the Securities, and (ii) in the Prospectus under the caption
"Plan of Distribution" and in the Prospectus as amended or
supplemented under the caption "Underwriting", insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all
material respects;
(p) Other than as set forth in the Prospectus as amended
or supplemented, there are no legal or governmental
proceedings pending to which Storage, the Company or any of
their respective subsidiaries is a party or of which any
property of Storage, the Company or any of their respective
subsidiaries is the subject which, if determined adversely to
Storage, the Company or any of their respective subsidiaries,
would individually or in the aggregate have a material
adverse effect on the current or future consolidated
financial position, shareholder's equity or partnership capital,
as applicable, or results of operations of Storage, the
Company or any of their respective subsidiaries, in each case
taken as a whole; and, to the best of Storage's and the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(q) None of Storage, the Company, the Trust or the
Subsidiary Corporation is in violation of its charter and by-
laws (in the case of Storage and the Subsidiary Corporation),
its certificate of limited partnership or the Operating
Partnership Agreement (in the case of the Company), the
Declaration of Trust (in the case of the Trust) or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(r) None of Storage, the Trust or the Company is and,
after giving effect to the offering and sale of the
Securities, none of them will be an "investment company" or
an entity "controlled" by a "registered investment company",
as such terms are defined or
11
used, as the case may be, in the Investment Company Act of 1940,
as amended (the "Investment Company Act");
(s) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes;
(t) The Company and its subsidiaries maintain, or will
have in full force and effect at each Time of Delivery (as
defined in Section 4 herein), insurance on all of the
Facilities, and their respective other assets and operations
(issued by issuers of recognized financial responsibility) of
the types and in the amounts generally deemed adequate for
their respective businesses and, to the best knowledge of the
Company, consistent with insurance coverage maintained by
similar companies in similar businesses, including, but not
limited to, insurance covering real and personal property
owned or managed by the Company and its subsidiaries against
theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in
full force and effect;
(u) Except as otherwise disclosed in the Prospectus as
amended or supplemented, neither Storage nor the Company (with
respect to the Facilities) or, to the knowledge of the Company or
Storage, any owner of, or any party to any of the acquisition
agreements relating to, any facility that the Company expects
to purchase, has authorized or conducted, or has knowledge of
the generation, transportation, storage, presence, use,
treatment, disposal, release or other handling of any
hazardous substance, asbestos, radon, polychlorinated
byphenyls ("PCBs"), petroleum product or waste (including
crude oil or any fraction thereof), natural gas, liquified
gas, synthetic gas or other material defined, regulated,
controlled or potentially subject to any remediation requirement
under an environmental law (collectively, "Hazardous
Materials") on, in, under or affecting any real property
comprising any part of such Facilities owned or by any means
controlled by, or facilities to be acquired by, the Company,
except in full compliance with and as
12
would not result in any liability under any federal, state and
local laws, ordinances, rules, regulations, and other
governmental requirements relating to pollution, control of
chemicals, management of waste, discharges of materials into the
environment, health, safety, natural resources, and the
environment (collectively, "Environmental Laws"), other than such
instances of noncompliance as could not reasonably be expected to
have a material adverse effect on the Company or any of the
Facilities; and Storage, the Company and their respective
subsidiaries are, and, to the knowledge of Storage and the
Company, the entities from which any of the Facilities were
acquired with respect to the real property comprising any part of
the Facilities owned or by any means controlled by the Company or
Storage were, at the time of acquisition, in compliance with all
Environmental Laws, except for such instances of noncompliance as
could not reasonably be expected to have a material adverse
effect on the Company or any of the Facilities; and Storage, the
Company and each of their respective subsidiaries have been and
are in compliance with and, to the knowledge of Storage and the
Company, the entities from which any Facility was acquired
were, at the time of acquisition, in compliance with, all
licenses, permits, registrations and government authorizations
necessary to operate under all applicable Environmental Laws,
except for such instances of noncompliance as could not
reasonably be expected to have a material adverse effect on the
Company or any of the Facilities. Except as otherwise disclosed
in the Prospectus, none of Storage, the Company or any of their
respective subsidiaries with respect to any Facility, nor, to
the knowledge of Storage and the Company, any owner of any
facility proposed to be purchased directly or indirectly by the
Company, has received any written or oral notice from any
governmental entity or any other person of any claim and there
is no pending or threatened claim, litigation, or any
administrative agency proceeding that (with respect to any such
facility proposed to be purchased by the Company, or any owner of
such facility, to the knowledge of Storage and the Company) (a)
alleges a violation of any Environmental Laws by Storage, the
Company, any of their respective subsidiaries or that alleges
that any such person is a liable party or potentially responsible
party under the Comprehensive
13
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, et seq., or any state superfund law; (b) has
resulted in or could result in the attachment of an environmental
lien on any of the Facilities or such facilities; or (c) alleges
contamination of any of the Facilities, damage to natural
resources, property damage or personal injury based on their
activities or the activities of their predecessors or third
parties (whether at the Facilities, such facilities or elsewhere)
involving Hazardous Materials, whether arising under the
Environmental Laws, common law principles, or other legal
standards;
(v) The Subsidiary Corporation has the power and
authority to own its properties and conduct its business, and
has been duly qualified as a foreign corporation or otherwise
for the transaction of business, in each case as described in
the Prospectus as amended or supplemented and is in good
standing under the laws of each other jurisdiction in which
it owns or leases property or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified or to be in good standing in any such jurisdiction; and
(w) Each of Coopers & Lybrand L.L.P. and such other
accountants acceptable to the Representatives, if any, who have
certified certain financial statements of Storage, the Company
and their subsidiaries, respectively, are independent public
accountants as required by the Act and the rules and
regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the
Representatives of the release of such Designated Securities, the
several Underwriters propose to offer such Designated Securities
for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives
may request upon at
14
least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives
for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks or wire transfer,
payable to the order of the Company in the funds specified in
such Pricing Agreement, all in the manner and at the place and
time and date specified in such Pricing Agreement or at such
other place and time and date as the Representatives and the
Company may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second (or, in the case of
a filing pursuant to Rule 424(b)(3), the fifth) business day
following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating
to such Securities and prior to the Time of Delivery for such
Securities which shall be disapproved by the Representatives for
such Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and to furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and
during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been
15
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of
such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the
issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to
the Securities or suspending any such qualification, promptly
to use its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such
Securities for offering and sale under the securities laws of
such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign partnership or
to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as
the Representatives may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Securities and
if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with
16
the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to holders of outstanding
Securities as soon as practicable, but in any event not later
than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and
continuing to and including the later of (i) the termination
of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or Storage which mature more
than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f) To furnish to holders of outstanding Securities as
soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of
income, return of capital, partners' equity and cash flows,
as applicable, of the Company and its consolidated
subsidiaries, certified by independent public accountants)
and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the date hereof), consolidated
summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
17
(g) During a period of five years from the date hereof,
to furnish to the Underwriters copies of all reports or other
communications (financial or other) furnished to securityholders
of the Company, and to deliver to the Underwriters (i) as soon as
they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of
the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as
the Underwriters may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent
the accounts of the Company, and its subsidiaries are
consolidated in reports furnished to its securityholders
generally or to the Commission);
(h) To use the net proceeds received by the Company from
the sale of the Securities pursuant to this Agreement in the
manner specified in the Prospectus as amended or supplemented
under the caption "Use of Proceeds";
(i) Not to invest, reinvest, or otherwise use the
proceeds received by the Company from the sale of Designated
Securities pursuant to this Agreement in such a manner, or
take any action, or omit to take any action, that would cause
Storage, the Company or any of their respective subsidiaries
to become an "investment company" as that term is defined in
the Investment Company Act; and
(j) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange (the
"Exchange").
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
18
and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing
documents and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii)
all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees
and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and
Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees
incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, any required review by
the National Association of Securities Dealers, Inc. of the terms
of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any trustee and any
agent of any trustee and the fees and disbursements of counsel
for any Trustee in connection with any Indenture and the
Securities; (viii) all fees and expenses in connection with the
listing of the Securities on any national exchange; and (ix) all
other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such
Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated
by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the
Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
19
(a) The Prospectus as amended or supplemented in relation
to such Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to
the Representatives such opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to
the organization of the Company, the validity of the
Designated Securities being delivered at such Time of
Delivery, the Registration Statement and the Prospectus as
amended or supplemented as well as such other related matters
as the Representatives may reasonably request, and such
counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such
matters;
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives
their written opinions, dated each Time of Delivery for such
Designated Securities, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly formed and is validly
existing as a limited partnership under the laws of the State
of Tennessee, with all requisite partnership power and
authority to own, lease, license and operate its properties and
conduct its business as described in the Prospectus as amended or
supplemented and the Operating Partnership Agreement has been
duly authorized, executed and delivered by Storage as general
partner and the Trust as limited partner and, assuming due
authorization, execution and delivery by
20
each other signatory thereto, is legally binding and enforceable
in accordance with its terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, reorganization or other
laws of general applicability relating to or affecting creditors'
rights or by general equity principles, whether considered at law
or in equity;
(ii) Storage has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the of the State of Tennessee, with power and authority
(corporate and other) to own, lease, license and operate its
properties and conduct its business as described in the
Prospectus as amended or supplemented;
(iii) The Subsidiary Corporation has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Tennessee;
(iv) The Trust has been duly formed and is validly
existing as a trust in good standing under the laws of
Maryland, with power and authority (trust and other) to
own its interest in the Company and conduct any business
necessary or appropriate in connection therewith;
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or supplemented,
there are no legal or governmental proceedings pending to which
Storage, the Company or any of their respective subsidiaries is a
party or of which any property of Storage, the Company or any of
their respective subsidiaries is the subject which, if determined
adversely to Storage, the Company or any of their subsidiaries,
would individually or in the aggregate have a material adverse
effect on the consolidated financial position, return of capital,
shareholders' equity or results of operations, as applicable, of
the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
21
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, issued and delivered and, assuming that the
Designated Securities have been duly authenticated by the
Trustee in the manner described in the Trustee's Certificate
delivered to you at the Time of Delivery, the Designated
Securities constitute valid and legally binding obligations of
the Company entitled to the benefits provided by their terms
and by the Indenture; and the Designated Securities and
the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented;
(viii) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid
and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors'
rights and to general equity principles, whether
considered at law or in equity; and the Indenture has
been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, this Agreement and
the Pricing Agreement with respect to theDesignated Securities
and the consummation of the transactions herein and therein
contemplated and the application of the proceeds from the sale of
the Designated Securities as described in the Prospectus as
amended or supplemented will not will not result in a
breach or violation of any of the terms or provisions
22
of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument known to such counsel to which Storage, the
Company or any of their respective subsidiaries is a party or
by which Storage, the Company or any of their respective
subsidiaries is bound or to which any of the property or assets
of Storage, the Company or any of their respective
subsidiaries is subject, nor will such actions result in
any violation of the provisions of the certificate of
limited partnership of the Company or Operating Partnership
Agreement or the certificate of incorporation or by-laws of
Storage or any corporate subsidiary of Storage or the Company or
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over Storage, the Company or any of their respective
subsidiaries or any of its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the issue
and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture,
except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of
the Designated Securities by the Underwriters;
(xi) To such counsel's knowledge, none of Storage, the
Company or any of their respective subsidiaries is in
violation of, in the case of Storage and any corporate
subsidiary, its certificate of incorporation or by-laws,
in the case of the Company or any partnership subsidiary,
its certificate of limited partnership or partnership
agreement, or in default in the performance or observance
of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other
23
instrument known to such counsel to which it is a party or by
which it or any of its properties may be bound;
(xii) The statements set forth in the Prospectus under
the captions "Description of Debt Securities" and in the
Prospectus as supplemented or amended under the caption
"Description of Notes" insofar as they purport to constitute a
summary of the terms of the Securities and in the Prospectus
under the caption "Plan of Distribution" and in the
Prospectus as amended or supplemented under the caption
"Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(xiii) Neither the Company nor Storage is an "investment
company" or an entity "controlled" by a "registered
investment company", as such terms are defined or used, as
the case may be, in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and other financial
information therein, as to which such counsel need express no
opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such
documents, when they became effective or were so filed,
as the case may be, contained, in the case of a
registration statement which became effective under the
Act, an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light
24
of the circumstances under which they were made
when such documents were so filed, not misleading;
(xv) The Registration Statement and the Prospectus as
amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time
of Delivery for the Designated Securities (other than the
financial statements and related schedules and other financial
information therein, as to which such counsel need express no
opinion), comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; although they
do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for
those referred to in the opinion in subsection (xii) of
this Section 7(c), they have no reason to believe that,
as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior
to such Time of Delivery (other than the financial
statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
25
information therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement
or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules and other
financial information therein, as to which such counsel
need express no opinion) contains an untrue statement of
a material fact or omits to state a material fact
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any
contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated
by reference or described as required; and
(xvi) The Company and each of its partnership
subsidiaries will be treated for Federal income tax purposes as a
partnership and not as an association taxable as a corporation
and will not be treated as a "publicly traded partnership"
as defined in the Code;
(d) On the date of the Pricing Agreement for such
Designated Securities at a time prior to the execution of the
Pricing Agreement with respect to such Designated Securities
and at the Time of Delivery for such Designated Securities,
the independent accountants of the Company who have certified
the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with
the Commission containing financial statements and
incorporated by reference in the Registration Statement, if the
date of such report is later than such effective date, and a
letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such
letter dated such Time of Delivery, as to such other matters
as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
26
(e) (i) None of Storage, the Company, the Trust, the
Subsidiary Corporation or any of their respective subsidiaries or
the Facilities shall have sustained since the date of the
latest audited financial statements included or incorporated
by reference in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated
Securities any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the
date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the
capital stock or partnership interests, as applicable, long-
term debt, obligations under capital leases or short-term
borrowings of Storage, the Company or any of their respective
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or
partnership capital, as applicable or results of operations
of Storage, the Company, the Trust or the Subsidiary
Corporation, in each case taken as a whole, otherwise than as
set forth or contemplated in the Prospectus as amended prior
to the date of the Pricing Agreement relating to the
Designated Securities, the effect of which, in any such case
described in Clause (i) or (ii) above, is in the judgment of the
Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as
first amended or supplemented relating to the Designated
Securities;
(f) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading
shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced
27
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's or Storage's securities on the New
York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the judgment
of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers
of Storage satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the
Representatives may reasonably request. In addition, the Company
shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated
Securities certificates of good standing or valid existence
issued by an appropriate official of each of the several
states in which Storage or the Company has been duly
qualified as a foreign corporation or foreign partnership,
respectively, for the transaction of business or in which
either Storage or the Company owns or leases, or, at such
Time of Delivery, proposes to own or lease, properties; and
28
(i) The Securities at the Time of Delivery shall have
been duly listed, subject to notice of issuance, on the New
York Stock Exchange.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented
and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented
and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to
such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities, joint
or several, to which the Company may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration
29
Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities,
or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified
30
party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include any statement
as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact
31
relates to information supplied by the Company on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each partner of the Company and
to each person, if any, who controls the Company within the
meaning of the Act.
32
9. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities which it has agreed to
purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange
for themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure
another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such
terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for
the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus
as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount
of such Designated Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the
Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Designated Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount
33
of Designated Securities which such Underwriter
agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate principal amount
of Designated Securities which remains unpurchased exceeds one-
eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter,
or the Company or any officer or director or controlling person
of the Company, and shall survive delivery of and payment for the
Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall then be under no liability to
any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Sections 6 and 8
hereof; but, if for any other reason Designated Securities are
not delivered by or on behalf of the Company as provided herein,
the Company will reimburse
34
the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements
of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such
Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each
of such Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Representatives as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent
by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing
Agreement.
35
No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement.
As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
36
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any
number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
Very truly yours,
SUSA Partnership, L.P.
By: Storage USA, Inc.,
General Partner
By:_________________________
_________
Name: Thomas E. Robinson
Title: President and Chief
Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
First Chicago Capital Markets, Inc.
J.P. Morgan Securities Inc.
By: _____________________________
(Goldman, Sachs & Co.)
37
ANNEX I
Pricing Agreement
Goldman, Sachs & Co.,
First Chicago Capital Markets, Inc.
J.P. Morgan Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
[Date]
Ladies and Gentlemen:
SUSA Partnership, L.P., a Tennessee limited partnership (the
"Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated November 4, 1996
(the "Underwriting Agreement"), between the Company on the one
hand and Goldman, Sachs & Co. and First Chicago Capital Markets,
Inc. and J.P. Morgan Securities Inc. on the other hand, to issue
and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto
(the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation
to the Prospectus (as therein defined), and also a representation
and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of
the Underwriters of the Designated Securities pursuant to Section
12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement
to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return counterparts hereof to us one for the
Company and one for each of the Representatives plus one for each
counsel, and upon acceptance hereof by you, on behalf of each of
the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company. It
is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives
as to the authority of the signers thereof.
Very truly yours,
SUSA Partnership, L.P.
2
By: Storage USA, Inc.,
General Partner
By:______________________
_________
Name: Thomas E. Robinson
Title: President and
Chief Financial
Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
First Chicago Capital Markets, Inc.
J.P. Morgan Securities Inc.
By: ________________________________
(Goldman, Sachs & Co.)
3
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
Underwriter
Goldman, Sachs & Co. $
First Chicago Capital Markets, Inc.
J.P. Morgan Securities Inc.
[Names of other Underwriters]
4
Total . . . . . . . . . . . . . . . $________________
5
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities,
plus accrued interest[, if any,] from to
[and accrued amortization[, if any,] from
to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities,
plus accrued interest from to [and
accrued amortization[, if any,] from
to ]
Form of Designated Securities:
[Definitive form to be made available for checking and
packaging at least twenty-four hours prior to the Time of
Delivery at the office of [The Depository Trust Company or its
designated custodian] [the Representatives]]
6
[Book-entry only form represented by one or more global
securities deposited with The Depository Trust Company ("DTC")
or its designated custodian, to be made available for checking
by the Representatives at least twenty-four hours prior to the
Time of Delivery at the office of DTC.]
7
Specified funds for payment of purchase price:
[New York] Clearing House (next day) funds
Time of Delivery:
a.m. (New York City time), , 19
Indenture:
Indenture dated November 1, 1996, between the Company and
The First National Bank of Chicago, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 19..]
Redemption Provisions:
[No provisions for redemption]
8
[The Designated Securities may be redeemed, otherwise than
through the sinking fund, in whole or in part at the option of
the Company, in the amount of [$ ] or an integral
multiple thereof,
9
[on or after , at the following
redemption prices (expressed in percentages of principal
amount). If [redeemed on or before , %, and if]
redeemed during the 12-month period beginning ,
Redemption
Year Price
and thereafter at 100% of their principal amount, together
in each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest
to the date of redemption.]]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire [$ ] principal amount of
Designated Securities on in each of the years
through at 100% of their principal amount plus accrued
interest[, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an
additional [$ ] principal amount of Designated
Securities in the years through at 100%
of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert-
10
- -Extendable provisions:
Designated Securities are repayable on ,
[insert date and years], at the option of the holder, at their
principal amount with accrued interest. The initial annual
interest rate will be %, and thereafter the annual
interest rate will be adjusted on , and
to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year
maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities,
insert--
Floating rate provisions:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
, and ] [to an annual rate of %
above the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest
rate [thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of
Interest Differential (the excess, if any, of (i) the then
current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) the then current
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from
and thereafter the rate will be the then current interest
yield equivalent plus % of Interest Differential].]
Defeasance provisions:
11
Closing location for delivery of Designated Securities:
12
Additional Closing Conditions:
Paragraph 7(g) of the Underwriting Agreement should be modified
in the event that the Securities are denominated in, indexed
to, or principal or interest are paid in, a currency other than
the U.S. dollar, more than one currency or in a composite
currency. The country or countries issuing such currency
should be added to the banking moratorium and hostilities
clauses and the following additional clause should be added to
the paragraph (the entire paragraph should be restated, as
amended):
"; ( ) the imposition of the proposal of exchange controls
by any governmental authority in [insert the country or
countries issuing such currency, currencies or composite
currency]".
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
_________________________
* A description of particular tax, accounting or other unusual
features (such as the addition of event risk provisions) of the
Designated Securities should be set forth, or referenced to an
attached and accompanying description, if necessary, to ensure
agreement as to the terms of the Designated Securities to be
purchased and sold. Such a description might appropriately be in
the form in which such features will be described in the
Prospectus Supplement for the offering.
13
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the
effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) in their opinion, the financial statements and any
supplementary financial information and schedules audited (and,
if applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma
financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of
the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
separately furnished to the representative or representatives of
the Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being
designated as its or their representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Prospectus and/or included in the
Company's and Storage's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention
that caused them to believe that the unaudited condensed
1
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of
the Company for the fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of Storage's
Annual Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for
such fiscal years which were included or incorporated by
reference in Storage's Annual Reports on Form 10-K for such
fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such
letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the Company,
Storage and their subsidiaries, inspection of the minute books of
Storage and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company, Storage and
their subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that
caused them to believe that:
(A)(i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Companys and
Storage's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to
the
2
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's and Storage's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
Storage's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in Storage's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
3
increase in the consolidated long-term debt of the Company and
Storage, as applicable, and their subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives,
except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of the Company,
Storage and their subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Company, Storage
and their subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as defined in the Underwriting
Agreement as of the
4
date of the letter delivered on the date of the Pricing Agreement
for purposes of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by reference
therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
5
Exhibit 1.2
Pricing Agreement
Goldman, Sachs & Co.,
First Chicago Capital Markets
J.P. Morgan Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
November 4, 1996
Ladies and Gentlemen:
SUSA Partnership, L.P., a Tennessee limited partnership (the
"Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated November 4, 1996
(the "Underwriting Agreement"), between the Company on the one
hand and Goldman, Sachs & Co. and First Chicago Capital Markets,
Inc. and J.P. Morgan Securities Inc. on the other hand, to issue
and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto
(the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation
to the Prospectus (as therein defined), and also a representation
and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of
the Underwriters of the Designated Securities pursuant to Section
12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement
to the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return counterparts hereof to us one for the
Company and one for each of the Representatives plus one for each
counsel, and upon acceptance hereof by you, on behalf of each of
the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company. It
is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives
as to the authority of the signers thereof.
Very truly yours,
SUSA Partnership, L.P.
By: Storage USA, Inc.,
General Partner
By:__________________
Name: Thomas E. Robinson
Title: President and Chief
Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
First Chicago Capital Markets, Inc.
J.P. Morgan Securities Inc.
By: ________________________________
(Goldman, Sachs & Co.)
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
Underwriter
Goldman, Sachs & Co. $60,000,000
First Chicago Capital Markets 20,000,000
J.P. Morgan Securities Inc. 20,000,000
Total $100,000,000
<PAGE>
SCHEDULE II
Title of Designated Securities:
7.125% Notes due November 1, 2003
Aggregate principal amount:
$100,000,000
Price to Public:
99.721% of the principal amount of the Designated Securities,
plus accrued interest from November 1, 1996
Purchase Price by Underwriters:
99.321% of the principal amount of the Designated Securities,
plus accrued interest from November 1, 1996
Form of Designated Securities:
Book-entry only form represented by one or more global
securities deposited with The Depository Trust Company
("DTC") or its designated custodian, to be made available
for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery at the office of DTC.
Specified funds for payment of purchase price:
Federal (same day) funds by wire transfer
Time of Delivery:
11:00 a.m. (New York City time), November 7, 1996
Indenture:
Indenture dated as of November 1, 1996, between the Company
and The First National Bank of Chicago, as Trustee
<PAGE>
Maturity:
November 1, 2003
Interest Rate:
7.125%
Interest Payment Dates:
May 1 and November 1, commencing May 1, 1997
<PAGE>
Redemption Provisions:
The Designated Securities may be redeemed, in whole or in
part at the option of the Company, at 100% of their principal
amount, together in each case with accrued interest to the
redemption date plus the Make-Whole Amount (as defined in the
Designated Securities).
Sinking Fund Provisions:
No sinking fund provisions
Defeasance provisions:
No defeasance provisions
Closing location for delivery of Designated Securities:
125 Broad Street, 33rd Floor
New York, New York
Names and addresses of Representatives:
Designated Representatives:
Goldman, Sachs & Co.
Address for Notices, etc.:
85 Broad Street
New York, New York 10004
Exhibit 4.1
SUSA PARTNERSHIP, L.P.
Company
TO
The First National Bank of Chicago
Trustee
______________
Indenture
Dated as of November 1, 1996
______________
<PAGE>
...............................................................
Certain Sections of this Indenture relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310(a)(1). . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . 701
702
(b) . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B). . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1). . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . 107
___________________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
__________
Page
Recitals of the Company. . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application . . . . 1
Section 101. Definitions. . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . 2
Adjusted Total Assets. . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . 2
control. . . . . . . . . . . . . . . . . . . . 2
Annual Service Charge. . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . 3
Company. . . . . . . . . . . . . . . . . . . . 3
Company Order" or "Company Request . . . . . . 3
Consolidated Net Income. . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . 3
corporation. . . . . . . . . . . . . . . . . . 3
Covenant Defeasance. . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . 4
Expiration Date. . . . . . . . . . . . . . . . 4
Financial Statements . . . . . . . . . . . . . 4
General Partner. . . . . . . . . . . . . . . . 4
Global Security. . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . 4
Indenture. . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date. . . . . . . . . . . . . 5
Investment Company Act . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . 5
NASD . . . . . . . . . . . . . . . . . . . . . 5
Notice of Default. . . . . . . . . . . . . . . 5
Officers' Certificate. . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . 5
Outstanding. . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . 7
Redemption Date. . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . 7
Regular Record Date. . . . . . . . . . . . . . 7
Repayment Date . . . . . . . . . . . . . . . . 7
Required Filing Dates. . . . . . . . . . . . . 7
Responsible Officer. . . . . . . . . . . . . . 7
Secured Indebtedness . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . 7
Security Register" and "Security Registrar . . 7
Significant Subsidiary . . . . . . . . . . . . 8
Special Record Date. . . . . . . . . . . . . . 8
Stated Maturity. . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . 8
Total Assets . . . . . . . . . . . . . . . . . 8
Total Unencumbered Assets. . . . . . . . . . . 8
Trust Indenture Act. . . . . . . . . . . . . . 8
Trustee. . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligation . . . . . . . . . . 8
Undepreciated Real Estate Assets . . . . . . . 9
Unsecured Indebtedness . . . . . . . . . . . . 9
Vice President . . . . . . . . . . . . . . . . 9
Yield to Maturity. . . . . . . . . . . . . . . 9
Section 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . 9
Section 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . 10
Section 104. Acts of Holders; Record Dates. . . . 10
Section 105. Notices, Etc. to Trustee and
Company . . . . . . . . . . . . . . 12
Section 106. Notice to Holders; Waiver. . . . . . 13
Section 107. Conflict with Trust Indenture Act. . 13
Section 108. Effect of Headings and Table
of Contents . . . . . . . . . . . . 13
Section 109. Successors and Assigns . . . . . . . 13
Section 110. Separability Clause. . . . . . . . . 14
Section 111. Benefits of Indenture. . . . . . . . 14
Section 112. Governing Law. . . . . . . . . . . . 14
Section 113. Legal Holidays . . . . . . . . . . . 14
ARTICLE TWO
Security Forms. . . . . . . . 14
Section 201. Forms Generally. . . . . . . . . . . 14
Section 202. Form of Face of Security . . . . . . 15
Section 203. Form of Reverse of Security. . . . . 17
Section 204. Form of Legend for Global
Securities . . . . . . . . . . . . .. 21
Section 205. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . 21
ARTICLE THREE
The Securities. . . . . . . . . 22
Section 301. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . . . 22
Section 302. Denominations. . . . . . . . . . . . 24
Section 303. Execution, Authentication,
Delivery and Dating . . . . . . . . 25
Section 304. Temporary Securities . . . . . . . . 26
Section 305. Registration; Registration of
Transfer and Exchange. . . . . . . . 27
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . 28
Section 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . 29
Section 308. Persons Deemed Owners. . . . . . . . 30
Section 309. Cancellation . . . . . . . . . . . . 31
Section 310. Computation of Interest. . . . . . . 31
ARTICLE FOUR
Satisfaction and Discharge. . . . . . 31
Section 401. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . 31
Section 402. Application of Trust Money . . . . . 32
ARTICLE FIVE
Remedies . . . . . . . . . 32
Section 501. Events of Default. . . . . . . . . . 32
Section 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . 34
Section 503. Collection of Indebtedness and
Suits for Enforcement by Trustee . . 35
Section 504. Trustee May File Proofs of Claim . . 36
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . 37
Section 506. Application of Money Collected . . . 37
Section 507. Limitation on Suits. . . . . . . . . 37
Section 508. Unconditional Right of Holders
to Receive Principal, Premium
and Interest . . . . . . . . . . . . 38
Section 509. Restoration of Rights and
Remedies . . . . . . . . . . . . . . 38
Section 510. Rights and Remedies Cumulative . . . 38
Section 511. Delay or Omission Not Waiver . . . . 39
Section 512. Control by Holders . . . . . . . . . 39
Section 513. Waiver of Past Defaults. . . . . . . 39
Section 514. Undertaking for Costs. . . . . . . . 40
Section 515. Waiver of Usury, Stay or
Extension Laws . . . . . . . . . . 40
ARTICLE SIX
The Trustee . . . . . . . . 40
Section 601. Certain Duties and Responsibilities. 40
Section 602. Notice of Defaults . . . . . . . . . 41
Section 603. Certain Rights of Trustee. . . . . . 41
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . 42
Section 605. May Hold Securities. . . . . . . . . 42
Section 606. Money Held in Trust. . . . . . . . . 42
Section 607. Compensation and Reimbursement . . . 42
Section 608. Conflicting Interests. . . . . . . . 43
Section 609. Corporate Trustee Required;
Eligibility. . . . . . . . . . . . . 43
Section 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . 43
Section 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . 45
Section 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . 46
Section 613. Preferential Collection of Claims
Against Company. . . . . . . . . . . 46
Section 614. Appointment of Authenticating Agent. 46
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company. 48
Section 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . 48
Section 702. Preservation of Information;
Communications to Holders . . . . . 49
Section 703. Reports by Trustee . . . . . . . . . 49
Section 704. Reports by Company . . . . . . . . . 49
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or
Lease . . . . . . . . . . . . . . . . . . . . 50
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . 50
Section 802. Successor Substituted. . . . . . . . 51
ARTICLE NINE
Supplemental Indentures . . . . . . . 51
Section 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . 51
Section 902. Supplemental Indentures With
Consent of Holders. . . . . . . . . 52
Section 903. Execution of Supplemental
Indentures . . . . . . . . . . . . 53
Section 904. Effect of Supplemental Indentures. 54
Section 905. Conformity with Trust Indenture
Act. . . . . . . . . . . . . . . . 54
Section 906. Reference in Securities to
Supplemental Indentures . . . . . . 54
ARTICLE TEN
Covenants. . . . . . . . . . 54
Section 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . 54
Section 1002. Maintenance of Office or Agency . 54
Section 1003. Money for Securities Payments to
Be Held in Trust . . . . . . . . . 55
Section 1004. Statement by Officers as to
Default . . . . . . . . . . . . . 56
Section 1005. Existence . . . . . . . . . . . . 56
Section 1006. Maintenance of Properties . . . . 57
Section 1007. Payment of Taxes and Other Claims. 57
Section 1008. Insurance.. . . . . . . . . . . . 57
Section 1009. Restrictions on Indebtedness. . . 57
Section 1010. Provision of Financial Information. 59
Section 1011. Waiver of Certain Covenants . . . . 59
ARTICLE ELEVEN
Redemption of Securities . . . . . 60
Section 1101. Applicability of Article. . . . . 60
Section 1102. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . 60
Section 1103. Selection by Trustee of
Securities to Be Redeemed . . . . 60
Section 1104. Notice of Redemption. . . . . . . 61
Section 1105. Deposit of Redemption Price . . . 62
Section 1106. Securities Payable on
Redemption Date . . . . . . . . . 62
Section 1107. Securities Redeemed in Part . . . 62
ARTICLE TWELVE
Sinking Funds. . . . . . . . . . . 63
Section 1201. Applicability of Article. . . . . 63
Section 1202. Satisfaction of Sinking Fund
Payments with Securities. . . . . 63
Section 1203. Redemption of Securities for
Sinking Fund . . . . . . . . . . . 64
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance. . . . . . 64
Section 1301. Company's Option to Effect
Defeasance or Covenant Defeasance. 64
Section 1302. Defeasance and Discharge. . . . . 64
Section 1303. Covenant Defeasance . . . . . . . 65
Section 1304. Conditions to Defeasance or
Covenant Defeasance . . . . . . . 65
Section 1305. Deposited Money and U.S.
Government Obligations to Be
Held in Trust; Miscellaneous
Provisions . . . . . . . . . . . 67
Section 1306. Reinstatement . . . . . . . . . . 68
ARTICLE FOURTEEN
Repayment At The Option Of Holders . . . . 68
Section 1401. Applicability of Article . . . . 68
Section 1402. Repayment of Securities . . . . . 68
Section 1403. Exercise of Option . . . . . . . 69
Section 1404. When Securities Presented for
Recipient Become Due and
Payable . . . . . . . . . . . . . 69
Section 1405. Securities Repaid in Part . . . . 70
<PAGE>
INDENTURE, dated as of November 1, 1996, between SUSA
Partnership, L.P., a limited partnership duly organized and
existing under the laws of the State of Tennessee (herein called
the "Company") having its principal office at 10 Columbia
Corporate Center, Suite 400, Columbia, Maryland 21044, and The
First National Bank of Chicago, a national banking association
duly organized and existing under the laws of the United States
of America, as Trustee (herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation
applied on a consistent basis;
(4) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a Section,
as the case may be, of this Indenture; and
-1-
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other sub-division.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Adjusted Total Assets" has the meaning specified in Section
1009(1).
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Annual Service Charge" as of any date means the maximum
amount which is payable in any 12-month period from such date for
interest and required amortization (including amounts payable to
sinking funds or similar arrangements for the retirement of debt
which matures serially, but excluding principal payable at final
maturity of such debt) on Indebtedness of the Company and its
Subsidiaries.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee
to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of
the General Partner, the executive committee thereof or any other
committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the General Partner to
have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission,
from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
-2-
"Company Order" or "Company Request" means a written request
or order signed by the General Partner, on behalf of the Company,
by its Chairman of the Board, its Vice Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Income Available for Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Indebtedness of the Company and its
Subsidiaries, (b) provision for taxes of the Company and its
Subsidiaries based on income, (c) amortization of Indebtedness
discount, (d) provisions for gains and losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period, (g)
amortization of deferred charges and (h) the effect of net income
(or loss) of joint ventures in which the Company or any
Subsidiary owns an interest to the extent not providing a source
of, or requiring a use of, cash, respectively.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Company and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof
is located at One National Plaza, Suite 0126, Chicago, Illinois
60670-0126, Attention: Corporate Trust Services Division, except
that for purposes of Section 1002, "Corporate Trust Office" shall
mean the office or agency of the Trustee in the Borough of
Manhattan, the City of New York, which office at the date hereof
is located at 14 Wall Street, Eighth Floor, Window 2, New York,
New York 10005.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities as
contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time
to time.
"Expiration Date" has the meaning specified in Section 104.
"Financial Statements" has the meaning specified in Section
1010.
"General Partner" means Storage USA, Inc., a Tennessee
corporation, as general partner of the Company, or any successor
thereto.
"Global Security" means a Security that evidences all or part
of the Securities of any series and bears the legend set forth in
Section 204 (or such legend as may be specified as contemplated
by Section 301 for such Securities).
-3-
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness" of the Company or any Subsidiary means any
indebtedness of the Company or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by a mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Company or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Company or such Subsidiary as
lessee which is reflected in the Company's consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a
liability on the Company's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Company or such Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any
Subsidiary).
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of
the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated
by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest
on such Security.
"Investment Company Act" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended
from time to time.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"NASD" has the meaning specified in Section 1403.
"Notice of Default" means a written notice of the kind
specified in Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
General Partner, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
-4-
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or the General Partner, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as
of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall
be the amount of the principal thereof which would be due and
payable as of such date upon acceleration of the Maturity thereof
to such date pursuant to Section 502, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Security
is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
-5-
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
and any premium and interest on the Securities of that series are
payable as specified in Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen
Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any
Security to be repaid at the option of the Holder, the date fixed
for such repayment by or pursuant to this Indenture.
"Required Filing Dates" has the meaning specified in Section
1010.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Secured Indebtedness" has the meaning specified in Section
1009(3).
"Securities" has the meaning specified in the first recital
of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to
time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
-6-
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated under the Securities Act of 1933, as
amended) of the Company.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or
any instalment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which
the principal of such Security or such instalment of principal or
interest is due and payable.
"Subsidiary" means a corporation, partnership or limited
liability company more than 50% of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of
this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Company and its Subsidiaries on a consolidated basis determined
in accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets which have not been pledged,
mortgaged or otherwise encumbered by the owner thereof to secure
Indebtedness, excluding infrastructure assessment bonds, and (ii)
all other assets of the Company and its Subsidiaries determined
in accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable) which have not
been pledged, mortgaged or otherwise encumbered by the owner
thereof to secure Indebtedness.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in
Section 1304.
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate
assets of the Company and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis
in accordance with generally accepted accounting principles.
-7-
"Unsecured Indebtedness" means Indebtedness which is (i) not
subordinated to any other Indebtedness and (ii) not secured by
any mortgage, lien, charge, pledge, encumbrance or security
interest of any kind upon any of the properties of the Company or
any Subsidiary.
"Vice President", when used with respect to the Company, the
General Partner or the Trustee, means any vice president, whether
or not designated by a number or a word or words added before or
after the title "vice president".
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the
most recent redetermination of interest on such Security) and as
set forth in such Security in accordance with generally accepted
United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
-8-
Any certificate or opinion of an officer of the Company or
the General Partner may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or the
General Partner stating that the information with respect to such
factual matters is in the possession of the Company or the
General Partner, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this
-9-
Indenture to be given, made or taken by Holders of Securities of
such series, provided that the Company may not set a record date
for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration,
request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record
date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after
such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration
Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting
a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of
such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing
and to each Holder of Securities of the relevant series in the
manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any Notice
of Default, (ii) any declaration of acceleration referred to in
Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record dates may designate any
day as the "Expiration Date" and from time to time may change the
Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new
Expiration Date is given to the other party hereto in writing,
and to each Holder of Securities of the relevant series in the
manner set forth in Section 106, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly
appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
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Section 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in
writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
-11-
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under such
Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or
not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of such
instrument or instruments shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of
any Security which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
-12-
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities as evidenced
by their execution thereof. If the form of Securities of any
series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
.....................................
............................................
No. ......... $........
CUSIP No. 869049 AA4
SUSA Partnership, L.P., a limited partnership duly organized
and existing under the laws of Tennessee (herein called the
"Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to...................................., or
registered assigns, the principal sum of Dollars on
.................................................. [if the
Security is to bear interest prior to Maturity, insert - , and to
pay interest thereon from ............. or from the most recent
Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ............ and ............ in
each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment
[if applicable, insert - , provided that any principal and
premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of ...% per annum (to the extent
that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest,
which shall be the ....... or ....... (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
-13-
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert - The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such
case the overdue principal and any overdue premium shall bear
interest at the rate of ....% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available
for payment. Interest on any overdue principal or premium shall
be payable on demand. [Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the
rate of ......% per annum (to the extent that the payment of such
interest on interest shall be legally enforceable), from the date
of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be
pay- able on demand.]]
Payment of the principal of (and premium, if any) and [if
applicable, insert - any such] interest on this Security will be
made at the office or agency of the Company maintained for that
purpose in ............, in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert - ;
provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
-14-
In Witness Whereof, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
SUSA PARTNERSHIP, L.P.
By: Storage USA, Inc., its
general partner
Attest: By:........................
Name:
Title:
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to
be issued in one or more series under an Indenture, dated as of
November 1, 1996 (herein called the "Indenture", which term shall
have the meaning assigned to it in such instrument), between the
Company and The First National Bank of Chicago, as Trustee
(herein called the "Trustee", which term includes any successor
trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the
face hereof [if applicable, insert - , limited in aggregate
principal amount to $...........].
[If applicable, insert - The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
[if applicable, insert - (1) on ........... in any year
commencing with the year ...... and ending with the year ......
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)]
at any time [if applicable, insert - on or after ..........,
19..], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [if applicable, insert - on or
before ..............., ...%, and if redeemed] during the
12-month period beginning ............. of the years indicated:
Redemption Redemption
Year Price Year Price
-15-
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption [if
applicable, insert - (whether through operation of the sinking
fund or otherwise)] with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Regular Record Dates or
Special Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert - The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
(1) on ............ in any year commencing with the year .... and
ending with the year .... through operation of the sinking fund
for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any
time [if applicable, insert - on or after ............], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the
12-month period beginning ............ of the years indicated:
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Regular Record Dates or
Special Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the
Company may not, prior to ............., redeem any Securities of
this series as contemplated by [if applicable, insert - Clause
(2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the
-16-
Company (calculated in accordance with generally accepted
financial practice) of less than .....% per annum.]
[If applicable, insert - The sinking fund for this series
provides for the redemption on ............ in each year
beginning with the year ....... and ending with the year ......
of [if applicable, insert - not less than $.......... ("mandatory
sinking fund") and not more than] $......... aggregate principal
amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if
applicable, insert - mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert - mandatory]
sinking fund payments otherwise required to be made [if
applicable, insert - , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert
- - In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If applicable, insert paragraph regarding subordination of
the Security.]
[If applicable, insert - The Indenture contains provisions
for defeasance at any time of [the entire indebtedness of this
Security] [or] [certain restrictive covenants and Events of
Default with respect to this Security] [, in each case] upon
compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert - If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,
insert - If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal
of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture. Such
amount shall be equal to [- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the
Company's obligations in respect of the payment of the principal
of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected
by such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer
-17-
hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than 25% in aggregate principal amount of the Securities of this
series at the time Outstanding shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of Securities of this
series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding,
for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment
of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $....... and any
integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
-18-
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for
the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no
transfer of this Security in whole or in part may be registered,
in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the
Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
-19-
This is one of the Securities of the series designated
therein referred to in the within- mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By..................................
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of
any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906, 1107 or 1405 and except for any Securities
which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any
such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record Date
for any such interest payable on any Interest Payment Date;
-20-
(6) the place or places where the principal of and any
premium and interest on any Securities of the series shall be
payable;
(7) the period or periods within which, the price or prices
at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part,
at the option of the Company and, if other than by a Board
Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem, repay
or purchase any Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of the
Holder thereof upon the occurrence of specified circumstances or
otherwise, and the period or periods within which or the date
or dates on which, the price or prices at which the other
terms and conditions upon which any Securities of the series
shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Articles Eleven, Twelve or Fourteen;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities
of the series shall be issuable;
(10) if the amount of principal of or any premium or
interest on any Securities of the series may be determined
with reference to an index or pursuant to a formula, the manner
in which such amounts shall be determined;
(11) the percentage of the principal amount at which
Securities of such series will be issued and, if other than
the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(12) if the principal amount payable at the Stated Maturity
of any Securities of the series will not be determinable as
of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount
shall be determined);
(13) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to
Section 1302 or Section 1303 or both such Sections and, if other
than by a Board Resolution, the manner in which any election by
the Company to defease such Securities shall be evidenced;
(14) if applicable, that any Securities of the series shall
be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in
Clause (2) of the last paragraph of Section 305 in which any
such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security
in whole or in part may be
-21-
registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(15) any addition to or change in the Events of Default
which applies to any Securities of the series and any change
in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 502;
(16) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in
the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
All Securities of one series need not be issued at the same
time and, unless otherwise provided in the Board Resolution or
the Officer's Certificate establishing the terms of a series, any
series may be reopened, without the consent of the holders of
Securities of such series, for issuance of additional Securities
of such series.
Section 302. Denominations.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as
shall be specified as contemplated by Section 301. In the absence
of any such specified denomination with respect to the Securities
of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
the General Partner's Chairman of the Board, its Vice Chairman of
the Board, its President or one of its Vice Presidents, under the
General Partner's corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may
be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
-22-
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed on behalf of the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securities
of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301,
that such terms have been established in conformity with the
provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
-23-
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may cause to be executed, and upon Company
Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such
series upon surrender of the temporary Securities of such series
at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305. Registration; Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
of a series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
-24-
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1405 not
involving any transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall
not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated
for such Global Security or a nominee thereof and delivered to
such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security
for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have
occurred and be continuing an Event of Default with respect to
such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing
as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of,
a Global Security or any portion thereof, whether pursuant to
this Section, Section 304, 306, 906, 1107 or 1405 or otherwise,
shall be authenticated and delivered in the form of, and shall
be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global
Security or a nominee thereof.
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
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registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities
of such series in the manner set forth in Section 106, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant
to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at
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any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to
the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount
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sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
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Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section
401 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including a default with respect to Securities of any series
other than that series) having an aggregate principal amount
outstanding of in excess of Ten Million Dollars ($10,000,000), or
under any mortgage, indenture or other instrument (including this
Indenture) under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by
the Company (or by any Subsidiary, the repayment of which the
Company has guaranteed or for which the Company is directly
responsible or liable as obligor or guarantor) having an
aggregate principal amount outstanding of in excess of Ten
Million Dollars ($10,000,000), whether such indebtedness now
exists or shall hereafter be created, which default (A) shall
constitute a failure to pay any portion of the principal of
such indebtedness when due and payable after the expiration of
any applicable grace period with respect thereto or (B) shall
have resulted in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise
have become due and payable, without, in the case of Clause (A),
such indebtedness having been discharged or without, in the
case of Clause (B), such indebtedness having been discharged or
such acceleration having been rescinded or annulled, in each such
case within a period of 10 days after there shall have been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged
or cause such acceleration to be rescinded or annulled, as the
case may be, and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company
or any Significant Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or any Significant Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Significant Subsidiary
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Significant Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(7) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition
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or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company
or any Significant Subsidiary or of any substantial part of its
property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or any Significant
Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(6) or 501(7)) with respect to Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of
that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series
are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(6) or 501(7) with respect to
Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without
any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
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and
(2) all Events of Default with respect to Securities of
that series, other than the nonpayment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal
and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
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adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar
committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon
presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities for principal and any premium and interest,
respectively; and
Third: To the payment of the remainder, if any, to the
Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on
the respective Stated Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
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No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit
instituted by the Company.
Section 515. Waiver of Usury, Stay or Extension Laws.
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The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of
such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 501(4) with
respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities
of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
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(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities,
except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company
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with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Securities of each series, which
may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority,
then for the purposes of this Section and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of
such Person shall be
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deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the
Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section
611.
Subject to the foregoing paragraph, the Trustee may resign at
any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six
months; or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject
to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or
Trustees.
If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after
such
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resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the
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retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the first or second
preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any
such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the
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Company and shall give notice of such appointment in the manner
provided in Section 106 to all Holders of Securities of the
series with respect to which such Authenticating Agent will
serve. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series designated
therein referred to in the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
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By...............................
As Authenticating Agent
By...............................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(1) semi-annually, not later than ............... and
................... in each year, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of the preceding
.............. or .............., as the case may be, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Holders.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust
Indenture Act.
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Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in
the manner provided pursuant thereto.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of
the annual reports and of the information documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee
and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within
30 days after the filing hereof with the Trustee, in the
manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and the
Company shall
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not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership
or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and
interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as
having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be
permitted by this Indenture, the Company or such successor
Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby;
and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or
lease of the properties and assets of the Company substantially
as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the
Company herein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
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ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such
additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without
interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to
the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities
of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant
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to this Clause (9) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue
Discount Security or any other Security which would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment
where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1011, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1011, or
the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
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Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of and any premium and interest on the Securities of
that series in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
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The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before
each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the
principal of or any premium or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during
the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
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Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of or any premium or interest on any Security of any
series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to
the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its existence, rights (partnership and statutory) and
franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
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Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
Section 1008. Insurance.
The Company will cause each of its properties and each of the
properties of its Subsidiaries which are of an insurable nature
to be insured against loss of damage with insurers of recognized
responsibility, in commercially reasonable amounts and types.
Section 1009. Restrictions on Indebtedness.
(1) The Company will not, and will not permit any Subsidiary
to, incur any Indebtedness other than inter-company debt
representing Indebtedness to which the only parties are the
Company and any of its Subsidiaries (but only so long as such
Indebtedness is held solely by any of the Company and any
Subsidiary) that is subordinate in right of payment to any
Outstanding Securities if, immediately after giving effect to the
incurrence of such additional Indebtedness, the aggregate
principal amount of all outstanding Indebtedness of the Company
and its Subsidiaries on a consolidated basis is greater than 60%
of the sum of (i) Total Assets as of the end of the calendar
quarter covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently
filed with the Trustee prior to the incurrence of such additional
Indebtedness and (ii) the increase in Total Assets from the end
of such quarter including, without limitation, any increase in
Total Assets resulting from the incurrence of such additional
Indebtedness (such increase, together with the Total Assets,
being referred to herein as "Adjusted Total Assets").
(2) In addition to the foregoing limitation on the
incurrence of Indebtedness, the Company will not, and will not
permit any Subsidiary to, incur any Indebtedness if the ratio of
Consolidated Income Available for Debt Service to the Annual
Service Charge for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than 1.5 to
1, on a pro forma basis, after giving effect to the incurrence of
such Indebtedness and to the application of the proceeds
therefrom and calculated on the assumption that (i) such
Indebtedness and any other Indebtedness incurred by the Company
or its Subsidiaries since the first day of such four-quarter
period and the application of the proceeds therefrom, including
to refinance other Indebtedness, had occurred at the beginning of
such period, (ii) the repayment or retirement of any other
Indebtedness by the Company or its Subsidiaries since the first
day of such four-quarter period had been incurred, repaid or
retired at the beginning of such period (except that, in making
such computation, the amount of Indebtedness under any revolving
credit facility shall be computed based upon the average daily
balance of such Indebtedness during such period), (iii) the
income earned on any increase in Adjusted Total Assets since the
end of such four-quarter period had been earned, on an annualized
basis, during such period, and (iv) in the case of any
acquisition or disposition by the Company
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or any Subsidiary of any asset or group of assets since the first
day of such four-quarter period, including, without limitation,
by merger, stock purchase or sale, or asset purchase or sale,
such acquisition or disposition or any related repayment of
Indebtedness had occurred as of the first day of such period with
the appropriate adjustments with respect to such acquisition or
disposition being included in such pro forma calculation.
(3) In addition to the foregoing limitations on the
incurrence of Indebtedness, the Company will not, and will not
permit any Subsidiary to, incur any Indebtedness secured by any
mortgage, lien, charge, pledge, encumbrance or security interest
of any kind upon any of the property of the Company or any
Subsidiary ("Secured Indebtedness"), whether owned at the date of
the Indenture or thereafter acquired, if, immediately after
giving effect to the incurrence of such additional Secured
Indebtedness, the aggregate principal amount of all outstanding
Secured Indebtedness is greater than 40% of Adjusted Total
Assets.
For purposes of the foregoing provisions regarding the
limitations on the incurrence of Indebtedness, Indebtedness shall
be deemed to be "incurred" by the Company or a Subsidiary
whenever the Company or its Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof.
(4) For so long as there are Outstanding any Securities
entitled to the benefit of this Section 1009(4), the Company will
maintain Total Unencumbered Assets of not less than 150% of the
aggregate outstanding principal amount of all outstanding
Unsecured Indebtedness.
Section 1010. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or
Section 15(d) of the Exchange Act, the Company will, to the
extent permitted under the Exchange Act, file with the Commission
the annual reports, quarterly reports and other documents that
the Company would have been required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act (the
"Financial Statements") if the Company were so subject, such
documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the
Company were so subject.
The Company will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as
their names and addresses appear in the Security Register,
without cost to such Holders, copies of the annual reports and
quarterly reports that the Company would have been required to
file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act if the Company were subject to such Sections,
and (ii) file with the Trustee copies of the annual reports,
quarterly reports and other documents that the Company would have
been required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act if the Company were subject
to such Sections and (y) if filing such documents by the Company
with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost
of duplication and delivery, supply copies of such documents to
any prospective Holder.
Section 1011. Waiver of Certain Covenants.
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Except as otherwise specified as contemplated by Section 301
for Securities of such series, the Company may, with respect to
the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(16), 901(2) or 901(7)
for the benefit of the Holders of such series or in any of
Sections 1006 to 1010, inclusive, if before the time for such
compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
Section 301 for such Securities) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the
Securities of any series (including any such redemption affecting
only a single Security), the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the
principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less
than the minimum
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authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security),
the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid,
the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to
Section 301, to each Holder of Securities to be redeemed at the
address for such Holder appearing in the Security Register, but
failure to give such notice in the manner herein provided to the
Holder of any Security designated for redemption as a whole or in
part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any
other such Security or portion thereof.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed,
the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular
Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to
be redeemed, the principal amount of the particular Security to
be redeemed,
(4) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each
such Security, or portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
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(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense
of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, which it may not do in the case of a
sinking fund payment under Article Twelve, segregate and hold in
trust as provided in Section 1003) an amount of money sufficient
to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any
premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall cause to be
executed on its behalf, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a
new Security or Securities of the same series and of like tenor,
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of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 301 for
such Securities.
The minimum amount of any sinking fund payment provided for
by the terms of any Securities is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of such Securities
is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities as provided for by the terms of such
Securities.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2)
may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such
series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at
the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of
such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities
pursuant to Section 1202, and will also deliver to the Trustee
any Securities to be so delivered. If such Officers' Certificate
shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not
less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities
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to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 1106
and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have
Section 1302 or Section 1303 applied to any Securities or any
series of Securities, as the case may be, designated pursuant to
Section 301 as being defeasible pursuant to such Section 1302 or
1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released
from its obligations under Section 801(3), Sections 1006 through
1010, inclusive, and any covenants provided pursuant to Section
301(16), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in
Sections 501(4) (with respect to any
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of Section 801(3), Sections 1006 through 1010, inclusive, and any
such covenants provided pursuant to Section 301(16), 901(2) or
901(7)), 501(5) and 501(8) shall be deemed not to be or result in
an Event of Default, in each case with respect to such Securities
as provided in this Section on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the
Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of
Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of
any reference in any such Section to any other provision herein
or in any other document, but the remainder of this Indenture and
such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application
of Section 1302 or Section 1303 to any Securities or any series
of Securities, as the case may be:
(1)The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and
agrees to comply with the provisions of this Article applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal
of and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms of
this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case
(i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which
is specified in Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or
the specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the event of an election to have Section 1302 apply
to any Securities or any series of Securities, as the case may
be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been
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published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to
the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit,
Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply
to any Securities or any series of Securities, as the case may
be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as
a result of the deposit and Covenant Defeasance to be effected
with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such
Securities nor any other Securities of the same series, if then
listed on any securities exchange, will be delisted as a
result of such deposit.
(5) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any
such event specified in Sections 501(6) and (7), at any time
on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest within the meaning
of the Trust Indenture Act (assuming all Securities are in
default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company
is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment
Company Act unless such trust shall be registered under such Act
or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance
or Covenant Defeasance have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other
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qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred
to collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 1304 or
the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account
of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect the Defeasance or Covenant Defeasance, as the case may
be, with respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1305 with respect to such
Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any
premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FOURTEEN
Repayment At The Option Of Holders
Section 1401. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities, if any, and (except
as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
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Section 1402. Repayment of Securities.
Securities of any series subject to repayment in whole or
in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at
a price equal to the principal amount thereof, together with
interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company
covenants that on or before the day prior to the Repayment Date
it will deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money
sufficient to pay the principal (or, if so provided by the terms
of the Securities of any series, a percentage of the principal)
of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
Section 1403. Exercise of Option.
Securities of any series subject to repayment at the
option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the
Trustee must receive at the Place of Payment therefor specified
in the terms of such Security (or at such other place or places
of which the Company shall from time to time notify the Holders
of such Securities) not earlier than 60 days nor later than 30
days prior to the Repayment Date (1) the Security so providing
for any such repayment together with the "Option to Elect
Repayment" form on the reverse thereof duly completed by the
Holder or by the Holder's attorney duly authorized in writing or
(2) a telegram, facsimile transmission or a letter from a member
of a national securities exchange, or the National Association of
Securities Dealers, Inc. ("NASD"), or a commercial bank or trust
company in the United States setting forth the name of the Holder
of the Security, the principal amount of the Security, the
principal amount of the security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect Repayment"
on the reverse of the Security, will be received by the Trustee
not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided,
however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly
completed are received by the Trustee by such fifth Business Day.
If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, shall be
stated in a writing accompanying such Security. Except as
otherwise may be provided by the terms of any Security providing
for repayment at the option of the Holder thereof, exercise of
the repayment option by the Holder shall be irrevocable unless
waived by the Company.
Section 1404. When Securities Presented for Recipient Become Due
and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as
provided in this Article and as provided by or pursuant to the
terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless
the Company shall default in the payment
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of such Securities on such Repayment Date) such Securities shall,
if the same were interest- bearing, cease to bear interest. Upon
surrender of any such Security for repayment in accordance with
such provisions, the principal amount of such Security so to be
repaid shall be paid by the Company, together with accrued
interest, if any, to the Repayment Date; provided, however, that
installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date, shall be payable (but without
interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more
predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such
principal amount (together with interest, if any, thereon accrued
to such Repayment Date) shall, until paid, bear interest from the
Repayment Date at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) set forth in such
Security.
Section 1405. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security,
without charge and at the expense of the Company, a new Security
or Securities of the same series, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
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In Witness Whereof, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
SUSA PARTNERSHIP, L.P.
By: Storage USA, Inc.,
its general partner
By............................
Name:
Title:
Attest:
.........................
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By.......................
Name:
Title:
Attest:
.........................
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State of New York )
) ss.:
County of New York)
On the ....... day of ..........................., 199_,
before me personally came
.........................................., to me known, who,
being by me duly sworn, did depose and say that he is
......................................... of Storage USA, Inc.,
the general partner of SUSA Partnership, L.P., the partnership
described in and which executed the foregoing instrument; that he
knows the seal of said partnership; that the seal affixed to said
instrument is such seal; that it was so affixed by authority of
the Board of Directors of the general partner of such
partnership; and that he signed his name thereto by like
authority.
........................
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State of Illinois)
) ss.:
County of Cook)
On the ...... day of ...................................,
199_, before me personally came
............................................., to me known, who,
being by me duly sworn, did depose and say that he is
.............................................. of The First
National Bank of Chicago, the national banking association
described in and which executed the foregoing instrument; that he
knows the seal of said banking association; that the seal affixed
to said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said banking association;
and that he signed his name thereto by like authority.
.........................
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Exhibit 4.2
This Security Is a Global Security Within the Meaning of the
Indenture Hereinafter Referred to and Is Registered in the Name
of Cede & Co as Nominee for the Depository Trust Company, a New
York Corporation ("DTC"). Unless this Security Is presented by an
Authorized Representative of DTC to SUSA Partnership, L.P. or Its
Agent for Registration of Transfer, Exchange, or Payment, and any
Security Issued Is Registered in the Name of Cede & Co. or in
Such Other Name as Is Requested by an Authorized Representative
of DTC (and any Payment Is Made to Cede & Co. or to Such Other
Entity as Is Requested by an Authorized Representative of DTC),
any Transfer, Pledge, or Other Use Hereof for Value or Otherwise
by or to any Person Is Wrongful Inasmuch as the Registered Owner
Hereof, Cede & Co., Has an Interest Herein.
SUSA PARTNERSHIP, L.P.
7.125% Notes due November 1, 2003
No. 1 $100,000,000
CUSIP No. 869049 AA4
SUSA Partnership, L.P., a limited partnership duly
organized and existing under the laws of Tennessee (herein called
the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on
November 1, 2003, and to pay interest thereon from November 1,
1996, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in
arrears on May 1 and November 1 in each year, commencing May 1,
1997, at the rate of 7.125% per annum, until the principal hereof
is paid or made available for payment, provided that any
principal and premium, and any such instalment of interest, which
is overdue shall bear interest at the rate of 7.125% per annum
(to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be
payable on demand. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is regis-
tered at the close of business on the Regular Record Date for
such interest, which shall be the April 15 or October 15 (whether
or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid
or duly provided for on any Interest Payment Date shall forthwith
cease to be payable to the Holder on the applicable Regular
Record Date and may either be paid to the Person in whose name
this Security (or one or more predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in said Indenture.
This Security is a "book-entry" security and is being
registered in the name of Cede & Co. as nominee of DTC, a
clearing agency. Subject to the terms of the Indenture, this
Security will be held by a clearing agency or its nominee, and
beneficial interests will be held by beneficial owners through
the book-entry facilities of such clearing agency or its nominee
in minimun denominations of $1,000 and increments of $1,000 in
excess thereof.
Payment of the principal of (and premium, if any) and any
such interest on this Security will be made at the Corporate
Trust Office of the Trustee maintained for that purpose at 14
Wall Street, Eighth Floor, Window 2, New York, New York 10005, in
such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts.
As long as this Security is registered in the name of DTC
or its nominee, the Trustee will make payments of principal of
and interest on this Security by wire transfer of immediately
available funds to DTC or its nominee. Notwithstanding the above,
the final payment on this Security will be made after due notice
by the Trustee of the pendency of such payment and only upon
presentation and surrender of this Security at the Trustee's
Corporate Trust Office or such other offices or agencies
appointed by the Trustee for that purpose and such other
locations provided pursuant to the Indenture.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of November 1, 1996 (herein called the "Indenture",
which term shall have the meaning assigned to it in such
instrument), between the Company and The First National Bank of
Chicago, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of
the series designated on the face hereof limited in aggregate
principal amount to $100,000,000.
The Securities of this series may be redeemed at any time
at the option of the Company, in whole or from time to time in
part, at a redemption price (the "Redemption Price") equal to the
sum of (i) the principal amount of the Securities of this series
(or portion thereof being redeemed) plus accrued interest thereon
to the redemption date and (ii) the Make-Whole Amount (as defined
below), if any, with respect to such Securities of this series
(or portion thereof).
If notice has been given as provided in the Indenture and
funds for the redemption of any Securities of this series (or any
portion thereof) called for redemption shall have been made
available on the redemption date referred to in such notice, such
Securities of this series (or any portion thereof) will cease to
bear interest on the date fixed for such redemption specified in
such notice and the only right of the Holders of the Securities
of this series will be to receive payment of the Redemption
Price.
Notice of any optional redemption of any Securities of
this series (or any portion thereof) will be given to Holders at
their addresses, as shown in the Security Register, not more than
60 nor less than 30 days prior to the date fixed for redemption.
The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Securities of
this series held by such Holder to be redeemed.
The Company will notify the Trustee at least 60 days prior
to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee) of the aggregate principal amount of
Securities of this series to be redeemed and their redemption
date. If less than all the Securities of this series are to be
redeemed at the option of the Company, the Trustee shall select,
in such
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manner as it shall deem fair and appropriate, the
Securities of this series to be redeemed in whole or in part.
In the event of redemption of the Securities of this
series in part only, a new Security of this series for the amount
of the unredeemed portion hereof shall be issued in the name of
the Holder hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Security of this series,
the excess, if any, of (i) the aggregate present value as of the
date of such redemption or accelerated payment of each dollar of
principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of
each such dollar if such redemption or accelerated payment had
not been made, determined by discounting, on a semi- annual
basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such
notice of redemption is given or declaration of acceleration is
made) from the respective dates on which such principal and
interest would have been payable if such redemption or
accelerated payment had not been made, over (ii) the aggregate
principal amount of the Securities of this series being redeemed
or paid.
"Reinvestment Rate" means .20% plus the arithmetic mean of
the yields under the respective heading "Week Ending" published
in the most recent Statistical Release under the caption
"Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the remaining life to maturity,
as of the payment date of the principal being redeemed or paid.
If no maturity exactly corresponds to such maturity, yields for
the two published maturities most closely corresponding to such
maturity shall be calculated pursuant to the immediately
preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest
month. For the purpose of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve System and which
establishes yields on actively traded United States government
securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any
determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Company.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected
by such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the
-3-
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than 25% in aggregate principal amount of the Securities of this
series at the time Outstanding shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of Securities of this
series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding,
within 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment
of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and none of the Company,
the Trustee or any such agent shall be affected by notice to the
contrary.
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All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated: November 7, 1996
[Seal]
SUSA PARTNERSHIP, L.P.
By: Storage USA, Inc., its
general partner
Attest:_______________________ By:___________________________
Christopher P. Marr Thomas E. Robinson
Secretary President and Chief
Financial Officer
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO
By________________________
Authorized Officer
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