FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
For Quarter Ended March 31, 1997 Commission file number 0-23466
SHURGARD STORAGE CENTERS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 91-1603837
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1201-3RD AVENUE, SUITE 2200, SEATTLE, WASHINGTON 98101
(Address of principal executive offices)
(Zip Code)
(Registrant's telephone number, including area code) 206-624-8100
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Shares outstanding at April 28, 1997:
Class A Common Stock, $.001 par value, 27,691,949 shares outstanding
Class B Common Stock, $.001 par value, 154,604 shares outstanding
Series B Cumulative Redeemable Preferred Stock, $.001 par value,
2,000,000 shares outstanding
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Consolidated Balance Sheets
(unaudited)
(Amounts in thousands except share data)
March 31, Dec. 31,
1997 1996
--------- ---------
Assets:
Storage centers:
Land $ 144,967 $ 142,127
Buildings and equipment, net 546,207 538,180
Construction in progress 37,076 32,531
--------- ---------
728,250 712,838
Other real estate investments 29,008 27,769
Cash and cash equivalents 5,345 3,239
Restricted cash 6,068 6,814
Other assets 49,484 53,823
--------- ---------
Total assets $ 818,155 $ 804,483
========= =========
Liabilities and Shareholders' Equity:
Accounts payable and other liabilities $ 23,290 $ 29,964
Lines of credit 98,337 140,997
Notes payable 131,744 131,794
--------- ---------
Total liabilities 253,371 302,755
--------- ---------
Minority interest in other real estate
investments 10,770 3,217
Shareholders' equity:
Class A common stock, $0.001 par value;
120,000,000 authorized; 27,690,799 and
25,663,952 shares issued and outstanding 576,153 516,796
Class B common stock, $0.001 par value;
500,000 shares authorized, 154,604
issued and outstanding; net of loans to
shareholders of $4,002 (1,086) (1,086)
Accumulative distributions in excess
of earnings (21,053) (17,199)
--------- ---------
Total shareholders' equity 554,014 498,511
--------- ---------
Total liabilities and
shareholders' equity $ 818,155 $ 804,483
========= =========
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Consolidated Statements of Net Income
(unaudited)
(Amounts in thousands except per share data)
For the three For the three
months ended months ended
March 31, 1997 March 31, 1996
-------------- --------------
Rental revenue $ 31,033 $ 23,531
Revenue from other
real estate investments 283 434
Property management revenue 419 854
--------- ---------
Total revenue 31,735 24,819
--------- ---------
Operating expense 8,976 6,926
Depreciation and amortization 6,363 5,085
Real estate taxes 2,777 2,081
General and administrative 1,064 1,082
--------- ---------
Total expenses 19,180 15,174
--------- ---------
Income from operations 12,555 9,645
--------- ---------
Interest and other income 537 95
Interest expense (3,894) (2,427)
--------- ---------
Total other income
(expense) (3,357) (2,332)
--------- ---------
Net income $ 9,198 $ 7,313
========= =========
Net income per share $ 0.34 $ 0.32
========= =========
Distribution per share $ 0.47 $ 0.46
========= =========
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Consolidated Statements of Cash Flows
(unaudited)
(Amounts in thousands)
Three months Three months
ended ended
March 31, March 31,
1997 1996
--------- -----------
Operating activities:
Net income $ 9,198 $7,313
Adjustments to reconcile earnings to net
cash provided by operating activities:
Depreciation and amortization 6,363 5,085
Minority interest in earnings
of joint ventures (324) 90
Changes in other accounts:
Restricted cash 746 (364)
Other assets 4,496 310
Accounts payable and
other liabilities (4,259) (1,452)
-------- -------
Net cash provided by
operating activities 16,220 10,982
------- -------
Investing activities:
Construction, acquisition and
improvement of storage centers (23,510) (12,647)
Purchase of other real estate
investments (2,914) (1,558)
Purchase of non-competition agreements (837) (304)
Distributions in excess of earnings from
investment in joint partnerships 332 82
------- -------
Net cash used in investing
activities (26,929) (14,427)
-------- -------
Financing activities:
Proceeds from notes payable 313
Proceeds(payments) on line
of credit (42,660) 14,108
Return of capital invested 9,272
Principal payments on notes payable (50) (1)
Proceeds from exercise of stock
options 154 18
Distributions paid (13,052) (10,669)
Proceeds from stock offering, net 59,203
Distributions to minority partners (52) (47)
-------- -------
Net cash provided by
financing activities 12,815 3,722
------- -------
Increase in cash and cash equivalents 2,106 277
Cash and cash equivalents at
beginning of year 3,239 5,683
------- -------
Cash and cash equivalents at
end of period $ 5,345 $5,960
======= =======
Supplemental schedule of cash flow information:
Cash paid during the period
for interest $ 4,656 $3,418
======= =======
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Notes to Consolidated Financial Statements
Three Months Ended March 31, 1997
(unaudited)
Note A _ Basis of Presentation
The consolidated financial statements include the accounts of
Shurgard Storage Centers, Inc. and its subsidiaries, including
U.S. and Belgian subsidiaries. All intercompany balances and
transactions have been eliminated upon consolidation.
The consolidated financial statements included in this report are
unaudited. In our opinion, all adjustments necessary for a fair
presentation of such financial statements have been included and
such adjustments consisted only of normal recurring items. The
interim financial statements should be read in conjunction with
our 1996 Annual Report. Interim results are not necessarily
indicative of results for a full year.
The preparation of financial statements in conformity with
generally accepted accounting principles requires us to make
estimates and assumptions that affect the reported amount of
assets and liabilities, disclosure of contingent assets and
liabilities at the date of the financial statements and the
reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those estimates.
Effective February 1, 1997, we adopted Statement of Financial
Accounting Standards No. 128 "Earnings per Share" We do not
believe adoption of this standard will have a material impact on
our financial statements.
Weighted average shares outstanding for the three months ended
March 31, 1997 and 1996 were 27,356,958 and 23,196,858,
respectively.
Certain amounts in the 1996 financial statements have been
reclassified to conform to the current presentation.
Note B _ Lines of Credit
We have an unsecured domestic line of credit to borrow up to $175
million at a spread over LIBOR, maturing September 1999. The
amount available and the spread vary based on the terms of the
agreement; as of March 31, 1997, the current available amount was
$175 million, of which approximately $90.8 million was
outstanding. On July 1, 1997 the maximum amount available under
this line of credit decreases to $100 million unless decreased
sooner at our option. In January 1997, we repaid $58.4 million
on this line with a portion of the proceeds from the issuance of
Class A common stock.
Note C _ European Operations
In March 1997, we entered into a joint venture agreement with two
unaffiliated entities. We have a minority interest in this joint
venture which borrowed $19 million to purchase a majority limited
partner interest in SSC Benelux & Co., SCS. This transaction
resulted in the return of $9.3 million of our cash contribution
and reduced our equity position from 85.6% to 12.5%. We,
together with one of our partners, have the right to increase our
participation in the joint venture through an equity
contribution.
Note D _ Subsequent Events
On April 16, 1997, we raised $50 million ($48.1 million in net
proceeds) through the sale of 2,000,000 shares of Series B
Cumulative Redeemable Preferred Stock at $25 per share. These
shares require quarterly distribution payments totaling 8.8% per
year and are callable at our option after five years.
On April 25, 1997, we issued $100 million in senior unsecured
notes, $50 million of which are seven year notes due April 2004
bearing interest at 7.5% and $50 million of which are ten year
notes due April 2007 bearing interest at 7.625%. The notes
require semi-annual interest due April 25th and October 25th.
Net proceeds totaled $98.8 million.
A portion of the proceeds from these offerings were used to pay
off the balance of our line of credit.
On May 13, 1997, our shareholders approved moving our state of
incorporation from Delaware to Washington.
Note E _ Contingent Liability
As one of three general partners in a joint venture, we are
contingently liable for $19 million in debt at March 31, 1997.
<PAGE>
Part I, Item 2: Management's Discussion and Analysis of Financial
Condition and Results of Operations
When used in this discussion and elsewhere in this Quarterly
Report on Form 10-Q, the words "believes," "anticipates," "projects"
and similar expressions are intended to identify forward-looking
statements regarding financial performance. Such statements are
subject to risks that could cause actual results to differ
materially including the risk that competition from new self storage
facilities or other storage alternatives may cause rent to decline
and may cause occupancy rates to drop. We are also at risk for
increases in labor, taxes, marketing and construction expenses.
Other factors which could affect our financial results are described
below and in Item 1 (Business) of our Annual Report on Form 10-K.
Forward-looking statements are based on estimates as of the date
hereof. We disclaim any obligation to publicly release the results
of any revisions to these forward-looking statements reflecting new
estimates, events or circumstances after the date hereof.
INTERNAL GROWTH
During the first quarter of 1997, we continued our focus on
increasing net operating income from our existing real estate
assets. One of the ways we analyze our performance is to measure
year over year improvements in same store operating results. We
define "same stores" each quarter as those stabilized storage
centers which were owned for the entire quarter of both comparison
years. Other storage companies may define same stores differently,
which will affect comparability. The following table summarizes
same store operating performance for the first quarter of 1997 and
1996:
Dollars in thousands Quarter Ended March 31,
except average rent ----------------------
1997 1996 % Change
---- ----
Rental revenue $25,084 $23,899 5.0%
Property operating 7,489 7,481 0.1%
expenses (1) ----- -----
Net operating income $17,595 $16,418 7.2%
Avg. annual rent per sq. $9.44 $9.03 4.6%
ft. (2)
Avg. sq. ft. occupancy 87% 86%
Total net rentable sq. ft. 11,100,000 11,100,000
# of properties (3) 169 169
_______________
(1)Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(2)Average annual rent per square foot is calculated by dividing
actual rent collected by the average number of square feet
occupied during the period.
(3)Includes 90% of the operating results one property in which the
Company owns a 90% interest (operating results for this property
are consolidated in the Company's financial statements).
Net operating income for these centers has risen over the same
quarter last year due to increases in revenue, which are a function
of changes in rental rates and occupancy. First quarter revenue
gains from 1996 to 1997 were driven primarily by rent increases due
to the revenue optimization program discussed in our annual report.
Operating expenses remained at 1996 levels as lower employee bonuses
and yellow page advertising expenses offset increases in real estate
taxes and utilities. Although first quarter results showed no
increase, we believe we will experience some operating expense
increases during the remaining three quarters of 1997. Real estate
taxes rose 3.5% or $74,000 due to both assessment and tax rate
increases at various properties throughout the portfolio. We
regularly review assessed values and appeal them when we believe it
is cost effective.
The following table is a geographical summary of the changes in
weighted average rents, rates and occupancies for the same store
storage centers as defined in the previous table:
% Change in % Change in
% Change in Rate per No. of Sq.
Rents Sq. Ft. Ft. Occupied
'95 to 96 '95 to 96 '95 to 96
----------- ----------- -----------
Arizona (1.2%) 1.8% (3.0%)
California 8.5 3.0 5.4
Florida 6.0 1.8 4.1
Illinois 7.1 4.0 2.9
Maryland 1.0 5.0 (3.8)
Michigan 1.8 5.5 (3.6)
New York 7.2 7.5 (0.3)
Oregon 5.2 11.1 (5.3)
Texas 1.6 (0.3) 1.9
Virginia 0.6 4.6 (3.8)
Washington 9.8 8.4 1.3
Other 3.2 4.1 (0.9)
----- ----- ------
Total 4.9% 4.6% 0.3%
We believe our diversified portfolio minimizes the impact of
individual market fluctuations that result from economic or
competitive changes within these markets. In general, rental rate
increases have driven the increase in revenues. Market conditions
in Portland, OR and Seattle, WA contributed to above average revenue
increases. The completion of significant building improvements at
our New York stores have improved our product quality and allowed
our managers to increase rates. New York and Portland, in
particular, demonstrate our use of revenue optimization; although
occupancy declined in both markets, revenues rose well above average
due to rate increases. During the past year, Arizona has
experienced new competition in certain trade areas and a leveling
off of demand. Demand had been high in this market due to the long
waiting periods for housing; as these waits have shortened, so has
the average length of storage in this market. The flat San Antonio,
TX market was offset by gains in the Houston, TX market. Although
new competition in the San Antonio market forced rate decreases
during 1996, our stores in this market have stabilized. Our results
in Houston, TX show the recovery from a fire in 1995 which impacted
1996 revenues.
ACQUISITIONS
During the first quarter of 1997, we purchased five storage
centers totaling 284,000 net rentable square feet for a total cost
of $11.2 million (including related non-competition agreements), one
in California, one in Washington and three in Texas. The three
Texas properties were purchased on March 27th and therefore made no
significant contribution to operating results in the first quarter.
During 1996, we purchased 40 storage centers (four in which we
already owned a 30% interest) at a total cost of $128.2 million.
All of these properties were purchased in the third and fourth
quarters and therefore had no effect on our operations in the first
quarter of 1996. The following table summarizes the operating
performance of these properties during the first quarter of 1997:
Quarter Ended March 31, 1997
-------------------------------
Dollars in Stores Acquired Stores Acquired
thousands except in 1997 in 1996
average rent -------- --------
Rental revenue $80 $4,838
Property operating
expenses (2) 43 1,424
------ ------
Net operating income $37 $3,414
======= ======
Avg. annual rent $5.71 $8.73
per sq. ft. (3)
Avg. sq. ft. occupancy 91% 87%
Total net 97,000 2,400,000
rentable sq. ft.
Number of properties 2 40
(1) Includes 70% of the operating results of the four properties
previously owned by Shurgard Joint Partners II through which
the Company owned a 30% interest.
(2) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as
off-site management personnel.
(3) Average annual rent per square foot is calculated by dividing
actual rents collected by the average number of square feet
occupied during the period.
DOMESTIC DEVELOPMENT
We opened three domestic storage centers in the first quarter
of 1997 (including two through joint ventures in Florida), thirteen
during 1996 (including one through a joint venture) and six during
1995 (including three through joint ventures). The three projects
opened in 1997 will total approximately 199,000 net rentable square
feet when all phases are complete, with an estimated total cost of
$10.5 million, but have not been open long enough to have
significant operations. The following table summarizes operating
performance for those projects opened in 1996 and 1995
<TABLE>
<CAPTION>
Estimated Total Net Total 3/31/97 Average Estimated
Number of Total Rentable Cost per Average Rental Rate Annual
Properties Cost Sq. Ft. Sq. Ft. Occupancy Per Sq. Ft. Yield
<S> <C> <C> <C> <C> <C> <C> <C>
Opened in 1996 13 $44.6 million 822,000 $54 52% $9.92 12%
Opened in 1995 6 $18.2 million 379,000 $48 71% $10.42 14%
</TABLE>
In total, the thirteen storage centers opened in 1996 are
renting up ahead of plan; the average occupancy of these stores as
of March 31, 1997 was 52%. The average rental rate of these stores
for March 1997 was $9.92 per square foot. Together, these stores
provided $441,000 in net operating income for the first quarter of
1997. For these 13 projects, total development costs, including
land, averaged $54 per net rentable square foot, which is 104% of
our original budgeted cost. The 1996 developments cost more per
square foot than the 1995 developments because of differences in
land costs. We currently expect these stores to take an average of
18 months to reach maturity (defined as 85% occupancy) compared to
our original projections of 21 months. The projected average annual
yield on estimated total cost of these nine projects is 12%,
assuming the projects reach 85% occupancy at current rates.
In total, the six storage centers opened in 1995 are also
renting up ahead of plan; the average occupancy of these stores as
of March 31, 1997 was 71%. The average rental rate of these stores
for March 1997 was $10.42 per square foot. These projects together
provided first quarter net operating income of $272,000 for 1997
compared to $16,000 for 1996. For these six stores, total
development costs, including land, averaged $48 per net rentable
square foot, which is 101% of the original budgeted cost. The
storage centers opened in 1995 are renting up faster than expected;
and we are estimating stabilization at 18 months. The projected
average annual yield on the estimated total cost of these six
projects is 14%, assuming the projects reach 85% occupancy at
current rates.
There is of course no assurance that these projections
regarding 1995 and 1996 development projects will come to fruition
as numerous factors affect the actual yields and rent up periods.
These factors include the possible inability to reach and maintain
assumed occupancy levels and rates due to increased competition from
newly developed self storage properties, existing self storage
properties and other storage alternatives, and possible increases in
expenses such as property taxes, labor, and marketing, among others.
In addition to the above completed developments, we have 14
storage centers currently under construction (four of these are
being developed in Tennessee and Florida through joint ventures).
As a general rule, to limit the risks of development, we do not
purchase land until the permitting process is complete.
Construction usually begins shortly after we obtain title to the
land. The following table summarizes domestic development projects
in progress at March 31, 1997:
Estimated
Number of Completed Cost
Projects of Projects
---------- -------------
New Domestic Developments:
Construction in progress 14 $39.7 million
Land purchased pending
construction 2 $8.8 million
Expansion of Existing
Properties:
Opened during 1997 1 $0.4 million
Construction in progress 2 $2.2 million
In the current real estate environment, we believe that a long-
term strategy of growth through development will result in superior
returns over the long-term. A development strategy, however,
creates a short-term dilution of earnings during the rent-up phase
of a project. For further discussion of the effect of this
dilution, see our Annual Report.
EUROPEAN OPERATIONS
During the first quarter, one new store was opened in Brussels,
Belgium. When all phases are complete it will contain approximately
70,000 net rentable square feet. One additional storage center is
currently under construction in Europe. Additionally, in March 1997,
we entered into a joint venture agreement with two unaffiliated
entities. We have a minority interest in this joint venture which
borrowed $19 million to purchase a majority limited partner interest
in SSC Benelux & Co., SCS. This transaction resulted in the return
of $9.3 million of our cash contribution and reduced our equity
position from 85.6% to 12.5%. We, together with one of our
partners, have the right to increase our participation in the joint
venture through an equity contribution.
OTHER OPERATIONS
Income from other real estate investments for the first quarter
of 1997 decreased $151,000 compared to the same quarter in 1996. As
discussed in our Annual Report, we invested in Shurgard's Storage To
Go, Inc., a start-up containerized storage business that opened its
first two warehouses during the first quarter of 1997. Our pro rata
share of first quarter losses were approximately $230,000.
Additionally, in November 1996, we acquired the remaining interest
(70%) in SJPII and the earnings from the properties previously owned
by SJPII are now consolidated. Our pro rata share of SJPII in the
first quarter of 1996 (30%) was $66,000. These decreases were
partially offset by increasing earnings from the Tennessee and
Florida development joint ventures.
Property management revenues decreased $435,000 primarily due
to the purchase of the three IDS partnerships in November 1996. We
previously received fees for managing the properties owned by these
partnerships.
Interest expense increased $1.5 million due to an increase in
the outstanding balance on the lines of credit from $25 million at
March 31, 1996 to $98 million at March 31, 1997. Additionally,
during the quarter, we capitalized $754,000 in interest related to
the construction of storage centers while $759,000 in interest was
capitalized in the first quarter of 1996.
FUNDS FROM OPERATIONS
Funds from operations (FFO), pursuant to the National
Association of Real Estate Investment Trusts' (NAREIT) March, 1995,
White Paper on Funds from Operations, is defined as net income
(calculated in accordance with GAAP) excluding gains or losses from
debt restructuring and sales of real estate, plus depreciation of
real estate and amortization of intangible assets exclusive of
deferred financing costs. Contributions to FFO from unconsolidated
entities in which the reporting entity holds an active interest are
to be reflected in FFO on the same basis. We believe FFO is a
meaningful disclosure as a supplement to net income because net
income implicitly assumes that the value of assets diminish
predictably over time while we believe that real estate values have
historically risen or fallen with market conditions. FFO is not a
substitute for net cash provided by operating activities or net
income computed in accordance with GAAP, nor should it be considered
an alternative indication of our operating performance or liquidity.
In addition, FFO is not comparable to "funds from operations"
reported by other REITs that do not define funds from operations in
accordance with the NAREIT definition. The following table sets
forth the calculation of FFO in accordance with the NAREIT
definition (in thousands):
Quarter ended March 31,
-------------------------
1997 1996
-------- ---------
Net income before
extraordinary item $9,198 $7,313
Depreciation/amortization 6,363 5,085
Adjustment for depreciation/
amortization from
unconsolidated joints ventures
and subsidiaries (84) 78
Deferred financing costs (280) (280)
-------- ---------
FFO as currently defined $15,197 $12,196
========= =========
FFO for the first quarter of 1997 rose $3 million over first
quarter 1996 FFO. As previously discussed, this growth rate
reflects the improved performance of the original portfolio of
properties as well as the addition of properties acquired during the
past year. We believe future growth rates will slow until
development levels off, as the rent-up period on development
projects partially offsets operating results from current properties
and acquisitions. The negative effect on FFO from development and
containerized storage totaled $785,000 for the first quarter of 1997
compared to only $294,000 for the first quarter of 1996.
Liquidity and Capital Resources
During the quarter, we invested $23.5 million in storage
centers including approximately $12.5 million in development
projects, $10.7 in acquisitions and $312,000 in capital improvements
to our existing portfolio. The $2.9 million investment in other
real estate investments consists primarily of $1.1 million invested
in our containerized storage operation and $1.8 million invested in
joint ventures. Additionally, we received a return of $9.3 million
of our cash contribution in Benelux SCS through the refinancing
discussed above.
In January and February 1997, we raised $59.3 million through
the sale of 2.2 million share of Class A common stock. Proceeds
were used primarily to pay down our line of credit. The balance on
the line of credit declined $42.7 million from December 31, 1996 to
March 31, 1997. At March 31, 1997, the Company's debt to total
assets was 28% and its debt to total market capitalization was 23%.
We anticipate that cash flow from operating activities,
available lines of credit and the proceeds from its equity offering
will continue to provide adequate capital for planned expansion,
principal payments and dividend payments in accordance with REIT
requirements. Cash provided by operating activities for the three
months of operations ended March 31, 1997 was $15.2 million compared
to $11 million for the same quarter of 1996. Capital available from
lines of credit at March 31, 1997 was approximately $102 million.
On April 28, 1997, we declared a dividend of $0.48 per share to be
paid on May 21, 1996. This dividend is approximately 88% of first
quarter FFO.
On April 16, 1997, we raised $50 million ($48.1 million in net
proceeds) through the sale of 2,000,000 shares of Series B
Cumulative Redeemable Preferred Stock at $25 per share. These
shares require quarterly distribution payments totaling 8.8% per
year and are callable at our option after five years.
On April 25, 1997, we issued $100 million in senior unsecured
notes, $50 million of which are seven year notes due April 2004
bearing interest at 7.5% and $50 million of which are ten year notes
due April 2007 bearing interest at 7.625%. The notes require semi-
annual interest due April 25th and October 25th. Net proceeds
totaled $98.8 million.
A portion of the proceeds from these offerings were used to pay
off the balance of our line of credit.
Part II, Item 6: Exhibits and Reports on Form 8-K
Exhibits:
Exhibit 10 - Indenture between Shurgard Storage Centers,
Inc. and LaSalle National Bank, as Trustee, dated April
24, 1997
Exhibit 11 - Calculation of Net Income per Share
Exhibit 27 - Financial Data Schedule
Reports on Form 8-K:
January 16, 1997 Exhibits related to the issuance of Class
A Common Shares
April 16, 1997 Exhibits related to the issuance of shares
of 8.80% Series B Cumulative Redeemable Preferred Stock
April 22, 1997 Exhibits related to the issuance of senior
unsecured notes
SIGNATURE
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.
SHURGARD STORAGE CENTERS, INC.
Date: May 14, 1997 By: /s/ Harrell Beck
Harrell Beck
Chief Financial Officer, Chief Accounting
Officer and Authorized Signatory
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 5,345
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 780,288
<DEPRECIATION> (52,038)
<TOTAL-ASSETS> 818,155
<CURRENT-LIABILITIES> 0
<BONDS> 131,744
0
0
<COMMON> 575,067
<OTHER-SE> (21,053)
<TOTAL-LIABILITY-AND-EQUITY> 818,155
<SALES> 0
<TOTAL-REVENUES> 31,735
<CGS> 0
<TOTAL-COSTS> 18,116
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,894
<INCOME-PRETAX> 9,198
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,198
<EPS-PRIMARY> .34
<EPS-DILUTED> .34
</TABLE>
[22020-0062/SB971110.015] -1- 4/29/97
SHURGARD STORAGE CENTERS, INC.
TO
LASALLE NATIONAL BANK,
TRUSTEE
______________________________
INDENTURE
Dated as of April 25, 1997
______________________________
Debt Securities
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION 1
SECTION 101. Definitions 1
SECTION 102. Compliance Certificates and Opinions 9
SECTION 103. Form of Documents Delivered to
Trustee 9
SECTION 104. Acts of Holders 10
SECTION 105. Notices, etc., to Trustee and
Company 12
SECTION 106. Notice to Holders; Waiver 12
SECTION 107. Counterparts; Effect of Headings and
Table of Contents 13
SECTION 108. Successors and Assigns 13
SECTION 109. Severability Clause 13
SECTION 110. Benefits of Indenture 13
SECTION 111. Governing Law 14
SECTION 112. Legal Holidays 14
SECTION 113. Immunity of Stockholders, Directors,
Officers and Agents of the Company 14
SECTION 114. Conflict With Trust Indenture Act 14
ARTICLE TWO SECURITIES FORMS 15
SECTION 201. Forms of Securities 15
SECTION 202. Form of Trustee's Certificate of
Authentication 15
SECTION 203. Securities Issuable in Global Form 16
ARTICLE THREE THE SECURITIES 17
SECTION 301. Amount Unlimited; Issuable in Series 17
SECTION 302. Denominations 20
SECTION 303. Execution, Authentication, Delivery
and Dating 20
SECTION 304. Temporary Securities 23
SECTION 305. Registration, Registration of
Transfer and Exchange 25
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 28
SECTION 307. Payment of Interest; Interest Rights
Preserved 29
SECTION 308. Persons Deemed Owners 31
SECTION 309. Cancellation 32
SECTION 310. Computation of Interest 32
ARTICLE FOUR SATISFACTION AND DISCHARGE 32
SECTION 401. Satisfaction and Discharge of
Indenture 32
SECTION 402. Application of Trust Funds 34
ARTICLE FIVE REMEDIES 34
SECTION 501. Events of Default 34
SECTION 502. Acceleration of Maturity; Rescission
and Annulment 36
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee 37
SECTION 504. Trustee May File Proofs of Claim 37
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons 38
SECTION 506. Application of Money Collected 39
SECTION 507. Limitation on Suits 39
SECTION 508. Unconditional Rights of Holders to
Receive Principal, Premium, if Any, Interest
and Additional Amounts 40
SECTION 509. Restoration of Rights and Remedies 40
SECTION 510. Rights and Remedies Cumulative 40
SECTION 511. Delay or Omission Not Waiver 40
SECTION 512. Control by Holders of Securities 41
SECTION 513. Waiver of Past Defaults 41
SECTION 514. Waiver of Usury, Stay or Extension
Laws 41
SECTION 515. Undertaking for Costs 42
ARTICLE SIX THE TRUSTEE 42
SECTION 601. Notice of Defaults 42
SECTION 602. Certain Rights of Trustee 42
SECTION 603. Not Responsible for Recitals or
Issuance of Securities 44
SECTION 604. May Hold Securities 44
SECTION 605. Money Held in Trust 44
SECTION 606. Compensation and Reimbursement 44
SECTION 607. Corporate Trustee Required;
Eligibility; Conflicting Interests 45
SECTION 608. Resignation and Removal; Appointment
of Successor 45
SECTION 609. Acceptance of Appointment by
Successor 47
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business 48
SECTION 611. Appointment of Authenticating Agent 48
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY 50
SECTION 701. Disclosure of Names and Addresses of
Holders 50
SECTION 702. Reports by Trustee 50
SECTION 703. Reports by Company 50
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders 51
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE 51
SECTION 801. Consolidations and Mergers of
Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions 51
SECTION 802. Rights and Duties of Successor
Corporation 52
SECTION 803. Officers' Certificate and Opinion of
Counsel 52
ARTICLE NINE SUPPLEMENTAL INDENTURES 53
SECTION 901. Supplemental Indentures Without
Consent of Holders 53
SECTION 902. Supplemental Indentures With Consent
of Holders 54
SECTION 903. Execution of Supplemental Indentures 55
SECTION 904. Effect of Supplemental Indentures 55
SECTION 905. Conformity With Trust Indenture Act 55
SECTION 906. Reference in Securities to
Supplemental Indentures 56
ARTICLE TEN COVENANTS 56
SECTION 1001. Payment of Principal, Premium, if
Any, Interest and Additional Amounts 56
SECTION 1002. Maintenance of Office or Agency 56
SECTION 1003. Money for Securities Payments to Be
Held in Trust 58
SECTION 1004. Existence 59
SECTION 1005. Maintenance of Properties 59
SECTION 1006. Insurance 60
SECTION 1007. Payment of Taxes and Other Claims 60
SECTION 1008. Provision of Financial Information 60
SECTION 1009. Statement as to Compliance 60
SECTION 1010. Additional Amounts 61
SECTION 1011. Waiver of Certain Covenants 62
ARTICLE ELEVEN REDEMPTION OF SECURITIES 62
SECTION 1101. Applicability of Article 62
SECTION 1102. Election to Redeem; Notice to
Trustee 62
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed 62
SECTION 1104. Notice of Redemption 63
SECTION 1105. Deposit of Redemption Price 64
SECTION 1106. Securities Payable on Redemption
Date 64
SECTION 1107. Securities Redeemed in Part 65
ARTICLE TWELVE SINKING FUNDS 66
SECTION 1201. Applicability of Article 66
SECTION 1202. Satisfaction of Sinking Fund
Payments With Securities 66
SECTION 1203. Redemption of Securities for
Sinking Fund 66
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS 67
SECTION 1301. Applicability of Article 67
SECTION 1302. Repayment of Securities 67
SECTION 1303. Exercise of Option 67
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable 68
SECTION 1305. Securities Repaid in Part 69
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE 69
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance 69
SECTION 1402. Defeasance and Discharge 70
SECTION 1403. Covenant Defeasance 70
SECTION 1404. Conditions to Defeasance or
Covenant Defeasance 71
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions 72
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES 73
SECTION 1501. Purposes for Which Meetings May Be
Called 73
SECTION 1502. Call, Notice and Place of Meetings 73
SECTION 1503. Persons Entitled to Vote at
Meetings 74
SECTION 1504. Quorum; Action 74
SECTION 1505. Determination of Voting Rights,
Conduct and Adjournment of Meetings 75
SECTION 1506. Counting Votes and Recording Action
of Meetings 76
SIGNATURES AND SEALS 77
Exhibit A Form
of Debt Security A-1
Exhibit B-1 Form
of Certification B-1
Exhibit B-2 Form
of Certification B-2
SHURGARD STORAGE CENTERS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of April 28, 1997.
Trust Indenture
Act Section Indenture Section
310(a)(1) 607
(a)(2) 607
(b) 607, 608
312(c) 701
313(a) 702
(c) 702
314(a) 703
(a)(4) 1009
(c)(1) 102
(c)(2) 102
(e) 102
315(b) 601
316(a) (last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
317(a)(1) 503
(a)(2) 504
318(a) 111
(c) 111
_______________
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the
1939 Act, which provides that the provisions of Sections 310 to
and including 317 of the 1939 Act are a part of and govern every
qualified indenture, whether or not physically contained therein.
THIS INDENTURE, dated as of April 25, 1997, between SHURGARD
STORAGE CENTERS, INC., a Delaware corporation (the "Company"),
having its principal office at 1201 Third Avenue, Suite 2200,
Seattle, Washington 98101, and LaSalle National Bank, a National
Banking Association, as Trustee hereunder (the "Trustee"), having
its Corporate Trust Office at 135 South LaSalle Street, Suite
1825, Chicago, Illinois 60603.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time
for its lawful purposes debt Securities (hereinafter called the
"Securities") evidencing its indebtedness, and has duly
authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of the Securities, to
be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be
incorporated into this Indenture and shall, to the extent
applicable, be governed by such provisions.
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 covenanted
and agreed, for the equal and proportionate benefit of all
Holders of the Securities, 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 One have the
meanings assigned to them in this Article One, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the TIA, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP; and
(4) 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 subdivision.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution,
under circumstances specified therein, to be paid by the Company
in respect of certain taxes imposed on certain Holders and which
are owing to such Holders.
"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.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611 to act on behalf
of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of
publication, customarily published on each Business Day, whether
or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the
term is used or in the financial community of each such place.
Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in
the same or in different Authorized Newspapers in the same city
meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the
Company, or any 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 Company 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 or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 301, any day,
other than a Saturday or Sunday, that is not a day on which
banking institutions in that Place of Payment or particular
location are authorized or required by law, regulation or
executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or, if at any time after
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 on such date.
"Common Stock" means, with respect to any Person, all shares
of capital stock issued by such Person other than Preferred
Stock.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its
Chairman of the Board, the President, any Senior Vice President
or Vice President and by its Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Conversion Event" means the cessation of use of (1) a
Foreign Currency both by the government of the country which
issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the
international banking community, (2) the ECU both within the
European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities, or
(3) any currency unit (or composite currency) other than the ECU
for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is
located at 135 South LaSalle Street, Suite 1825, Chicago,
Illinois 60603.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in
Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the
time shall be legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euroclear
System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Event of Default" has the meaning specified in Article
Five.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU,
issued by the government of one or more countries other than the
United States of America or by any recognized confederation or
association of such governments.
"GAAP" means generally accepted accounting principles, as in
effect from time to time, as used in the United States applied on
a consistent basis.
"Global Security" means a security evidencing all or a part
of a series of Securities issued to and registered in the name of
the depositary for such series, or its nominee, in accordance
with Section 305, and bearing the legend prescribed in
Section 203.
"Government Obligations" means Securities which are
(1) direct obligations of the United States or the government
which issued the Foreign Currency in which the Securities of a
particular series are payable, for the payment of which its full
faith and credit is pledged or (2) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States or such government which
issued the Foreign Currency in which the Securities of such
series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of
any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided, however,
that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security
Register and, in the case of a Bearer Security, the bearer
thereof and, when used with respect to any coupon, shall mean the
bearer thereof.
"Indenture" means this instrument as originally executed or
as it may be supplemented or amended from time to time by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of
particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as
originally executed or as it may be supplemented or amended from
time to time by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and
shall include the terms of the, or those, particular series of
Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of
Securities for which such Person is Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee,
was not a party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount
thereof at original issuance.
"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, and, when used
with respect to a Security which provides for the payment of
Additional Amounts pursuant to Section 1010, includes such
Additional Amounts.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Maturity," when used with respect to any Security, means
the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the President, any Senior
Vice President or Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or
other counsel for the Company and who shall be satisfactory 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 therefore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment
or redemption (including repayment at the option of the Holder)
money in the necessary amount has been theretofore been 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 and any coupons appertaining thereto; provided,
however, 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, except to the extent provided in
Sections 1402 and 1403, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in
Article Fourteen;
(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;
and
(5) Securities converted into Common Stock or
Preferred Stock pursuant to or in accordance with this Indenture
if the terms of such Securities provide for convertibility
pursuant to Section 301;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of
Holders for quorum purposes, and for the purpose of making the
calculation required by TIA Section 313, (i) the principal amount
of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed
to be Outstanding for such purpose shall be equal to the amount
of principal thereof that would be (or shall have been declared
to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to
Section 502, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making
such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar
equivalent, determined pursuant to Section 301 as of the date
such Security is originally issued by the Company, of the
principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent as or such date of original
issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and
(iv) Securities owned by the Company or of 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 making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities owned as provided in
clause (iv) above 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.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities
of or within any series, means the place or places where the
principal of (and premium, if any) and interest on such
Securities are payable as specified as contemplated by Sections
301 and 1001.
"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 or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains.
"Preferred Stock" means, with respect to any Person, all
capital stock issued by such Person that are entitled to a
preference or priority over any other capital stock issued by
such Person with respect to any distribution of such Person's
assets, whether by dividend or upon any voluntary or involuntary
liquidation, dissolution or winding up.
"Redemption Date," when used with respect to any Security to
be redeemed, in whole or in part, 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.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of or within
any series means the date specified for that purpose as
contemplated by Section 301, whether or not a Business Day.
"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.
"Responsible Officer," when used with respect to the
Trustee, means the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive
committee of the board of directors, the president, any vice
president (whether or not designated by a number or a word or
words added before or after the title "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 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 such officer's
knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of
this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture;
provided, however, that, if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities
of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, 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 on the Registered Securities of or within any series
means a date fixed by the Company pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means
the date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal
of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" means a corporation a majority of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries
of the Company. For the purposes of this definition, "voting
stock" means stock having 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.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this
Indenture was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture 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; provided, however, that
if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, the United
States of America (including the states and the District of
Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Person" means, unless otherwise specified
with respect to any Securities pursuant to Section 301, an
individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in
or under the laws of the United States or an estate or trust the
income of which is subject to United States federal income
taxation regardless of its source.
"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 an Officers' Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (including
certificates delivered pursuant to Section 1009) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant 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 condition or covenant 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 as 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.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or a certificate or representations by counsel,
unless such officer knows, or in the exercise or reasonable care
should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion
is based are erroneous. Any such Opinion of Counsel or
certificate or representations 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 stating
that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the
certificate, opinion or representations as 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
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders of the Outstanding Securities of all
series or one or more series, as the case may be, may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section 104. The record of
any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
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
reasonable manner which the Trustee deems sufficient.
The ownership of Registered Securities shall be proved by
the Security Register. As to any matter relating to beneficial
ownership interests in any Global Security, the appropriate
depositary's records shall be dispositive for purposes of this
Indenture.
The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced or (2) such Bearer
Security is produced to the Trustee by some other Person or
(3) such Bearer Security is surrendered in exchange for a
Registered Security or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be
proved in any other manner which the Trustee deems sufficient.
If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in
or pursuant to a Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the
Holders of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided,
however, that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this
Indenture not later then eleven months after the record date.
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, any Security
Registrar, any Paying Agent, any Authenticating Agent or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
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 135 South
LaSalle Street, Suite 1825, Chicago, Illinois 60603; 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
Indenture or at any other address previously furnished in writing
to the Trustee by the Company, Attention: Chief Financial
Officer (with a copy to the Company's general counsel); or
(3) either the Trustee or the Company, by the other
party shall be sufficient for every purpose hereunder if given by
facsimile transmission, receipt confirmed by telephone followed
by an original copy delivered by guaranteed overnight courier; if
to the Trustee at facsimile number (312) 904-2236; and if to the
Company at facsimile number (206) 623-0968.
SECTION 106. Notice to Holders; Waiver
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his
address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, if any,
prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities 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 of
Registered Securities or the sufficiency of any notice to Holders
of Bearer Securities given as provided herein. Any notice mailed
to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification
to Holders of Registered Securities as shall be made with the
approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301,
where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice shall be sufficiently given
if published in an Authorized Newspaper in the City of New York
and the City of Seattle and in such other city or cities as may
be specified in such Securities on a Business Day, such
publication to be not later than the latest date, and not earlier
than the earliest date, if any, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on
the date of such publication or, if published more than once, on
the date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to any particular Holder of
Bearer Securities as provided above, nor any defect in any notice
so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency
of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
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.
SECTION 107. Counterparts; Effect of Headings and Table of
Contents
This Indenture may be executed in any number of
counterparts, each of which when executed shall be deemed to be
an original, but all such counterparts shall together constitute
but one and the same Indenture. The Article and Section headings
herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. 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 109. Severability Clause
In case any provision in this Indenture or in any Security
or coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the
Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 111. Governing Law
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the law of the State
of New York. This Indenture is subject to the provisions of the
TIA that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays
In any case where any Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity of any Security or the last date on which a Holder
has the right to convert or exchange a Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or any Security or coupon other
than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu
hereof), payment of interest or any Additional Amounts or
principal (and premium, if any) or conversion or exchange of such
security need not be made at such Place of Payment on such date,
but (except as otherwise provided in the supplemental indenture
with respect to such Security) 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, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity, or on such last day of conversion or
exchange, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.
SECTION 113. Immunity of Stockholders, Directors, Officers
and Agents of the Company
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had
against any past, present or future stockholder, employee,
officer or director, as such, of the Company or of any successor,
either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the
Holders and as part of the consideration for the issue of the
Securities.
SECTION 114. Conflict With Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be
included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any
provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that 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.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons
shall be substantially in the form of Exhibit A hereto or in such
other form as shall be established in one or more indentures
supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301, shall have
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any
indenture supplemental hereto, and may have such letters, numbers
or other marks of identification or designation and such legends
or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Securities
may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
Subject to Section 304, the definitive Securities and
coupons shall be printed, lithographed or engraved, or produced
by any combination of these methods, on a steel engraved border
or steel engraved borders or mechanically reproduced on safety
paper or may be produced in any other manner, all as determined
by the officers of the Company executing such Securities or
coupons, as evidenced by their execution of such Securities or
coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
LaSalle National Bank
as Trustee
By:
Authorized Signatory
SECTION 203. Securities Issuable in Global Form
If Securities of or within a series are issuable in the form
of one or more Global Securities, then, notwithstanding clause
(8) of Section 301 and the provisions of Section 302, any such
Global Security or Securities may provide that it or they shall
represent the aggregate amount of all Outstanding Securities of
such series (or such lesser amount as is permitted by the terms
thereof) from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of any Global
Security to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders thereof, of
Outstanding Securities represented thereby shall be made by the
Trustee in such manner or by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Global Security in
permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable
Company Order. If a Company Order pursuant to Section 303 or 304
has been, or simultaneously is, delivered, any instructions by
the Company with respect to endorsement or delivery or redelivery
of a Global Security shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Global Security if such
Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with written
instructions (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Global Security
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities
represented by a permanent Global Security (1) in the case of a
permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form or (2) in the case
of a permanent Global Security in bearer form, Euroclear or
CEDEL.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
This Security is a Global Security within the
meaning set forth in the Indenture hereinafter
referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This
Security is exchangeable for Securities registered
in the name of a person other than the Depositary
or its nominee only in the limited circumstances
described in the Indenture, and may not be
transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or its nominee
to a successor Depositary or its nominee.
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 one or more Board Resolutions or pursuant
to authority granted by one or more Board Resolutions and,
subject to Section 303, set forth 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 such series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series that 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 1305);
(3) the date or dates, or the method by which such
date or dates will be determined, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from which
such interest shall accrue or the method by which such date or
dates shall be determined, the Interest Payment Dates on which
such interest will be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of (and
premium, if any), interest, if any, on, and Additional Amounts,
if any, payable in respect of, Securities of the series shall be
payable, any Registered Securities of the series may be
surrendered for registration of transfer, exchange or conversion
and notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or
prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other
terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if
the Company is to have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which or the date or
dates on which, the price or prices at which, the currency or
currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series that
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or, if applicable, the portion of
the principal amount of Securities of the series that is
convertible in accordance with the provisions of this Indenture,
or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium, if
any) and interest or Additional Amounts, if any, on the
Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the manner of
determining the equivalent thereof in Dollars for purposes of the
definition of "Outstanding" in Section 101;
(12) whether the amount of payments of principal of
(and premium, if any) or interest, if any, on the Securities of
the series may be determined with reference to an index, formula
or other method (which index, formula or method may be based,
without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium, if any) or
interest or Additional Amounts, if any, on the Securities of the
series are to be payable, at the election of the Company or a
Holder thereof, in a currency or currencies, currency unit or
units or composite currency or currencies other than that in
which such Securities are denominated or stated to be payable,
the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner
of, and identity of the exchange rate agent with responsibility
for, determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or stated to
be payable and the currency or currencies, currency unit or units
or composite currency or currencies in which such Securities are
to be so payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company with respect
to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(16) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with or
without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities and the terms upon
which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted
by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form
and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent Global
Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur,
if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a
Global Security, the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the
series and any temporary Global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(18) the Person to whom any interest on any Registered
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, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall
be payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest payable
on a temporary Global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or
1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen;
(20) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security of such series) only upon
receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of the series are to be issued
upon the exercise of warrants, the time, manner and place for
such Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1010 on
the Securities of the series to any Holder who is not a United
States Person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts
(and the terms of any such option);
(23) the obligation, if any, of the Company to permit
the conversion of the Securities of such series into the
Company's Common Stock or Preferred Stock, as the case may be,
and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion
price or rate, the conversion period, any adjustment of the
applicable conversion price and any requirements relative to the
reservation of such shares for purposes of conversion) and
applicable limitations on the ownership or transferability of the
Common Stock or Preferred Stock into which such Securities are
convertible; and
(24) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered
Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in
any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent
of the Holders, for issuances of additional Securities of such
series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board
Resolutions, a copy of an appropriate record of such action(s)
shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or before the
delivery of the Officers' Certificate setting forth the terms of
the Securities of such series.
SECTION 302. Denominations
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series
denominated in Dollars, in the absence of any such provisions
with respect to the Securities or any series, the Securities of
such series, other than Securities issued in global form (which
may be of any denomination), shall be issuable in denominations
of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman of the Board,
its President or one of its Senior Vice Presidents, under its
corporate seal reproduced thereon, and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of
these officers on the Securities and coupons may be manual or
facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons 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 before the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series, together with any coupon appertaining thereto,
executed by 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;
provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided
further that, unless otherwise specified with respect to any
series of Securities pursuant to Section 301, a Bearer Security
may be delivered in connection with its original issuance only if
the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or CEDEL, as the case may
be, in the form set forth in Exhibit B-1 to this Indenture or
such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier
than 15 days before the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary
Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent
global Bearer Security, then, for purposes of this Section 303
and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange
of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such
beneficial owner's interest in such permanent Global Security.
Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached
and cancelled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance
of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest
shall accrue. 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 TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon,
(1) an Opinion of Counsel stating that:
(A) the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(B) the terms of such Securities and any coupons
have been established in conformity with the provisions
of this Indenture; and
(C) such Securities, together with any coupons
appertaining thereto, when completed by appropriate
insertions and executed and delivered by the Company to
the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee
in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization and other similar laws of general
applicability relating to or affecting the enforcement
of creditors' rights generally and to general equitable
principles; and
(2) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to
the issuance of the Securities have been complied with and that,
to the best of the knowledge of the signers of such certificate,
no Event of Default with respect to any of the Securities shall
have occurred and be continuing.
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, obligations 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 the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver an
Officers' Certificate otherwise required pursuant to Section 301
or a Company Order, or an Opinion of Counsel or an Officers'
Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such
series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall
be delivered at or before the time of issuance of the first
Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the
date specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security or Security to which such coupon
appertains a certificate of authentication substantially in the
form provided for herein duly executed by the Trustee by manual
signature of an authorized signatory, and such certificate upon
any Security shall be conclusive evidence, and the only evidence,
that such security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security (including a
Global 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 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, 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.
SECTION 304. Temporary Securities
Pending the preparation of definitive Securities of any
series, the Company may execute, 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, in registered form, or, if authorized, in bearer form
with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities (which shall be
exchanged as otherwise provided herein or as otherwise provided
in or pursuant to a Board Resolution), 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 (accompanied by any nonmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary
Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth
in Section 303. 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.
Unless otherwise provided in or pursuant to a Board
Resolution, the following provisions of this Section 304 shall
govern the exchange of temporary Securities other than through
the facilities of The Depository Trust Company ("DTC"). If any
such temporary Security is issued in global form, then such
temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of,
any such temporary Global Security (the "Exchange Date"), the
Company shall deliver to the Trustee definitive Securities, in
aggregate principal amount equal to the principal amount of such
temporary Global Security, executed by the Company. On or after
the Exchange Date, such temporary Global Security shall be
surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without
charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary Global Security, an
equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the
portion of such temporary Global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, however,
that, unless otherwise specified in such temporary Global
Security, upon such presentation by the Common Depositary, such
temporary Global Security is accompanied by a certificate dated
the Exchange Date or a subsequent date and signed by Euroclear as
to the portion of such temporary global security held for its
account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion
of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B-2 to this
Indenture or in such other form as may be established pursuant to
Section 301; and provided further that definitive Bearer
Securities shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary Global
Security, the interest of a beneficial owner of Securities of a
series in a temporary Global Security shall be exchanged for
definitive Securities of the same series and of like tenor
following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange
on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit B-1 to this
Indenture (or in such other form as may be established pursuant
to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available
from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and
each Paying Agent. Unless otherwise specified in such temporary
Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security,
except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like
unless such Person takes delivery of such definitive Securities
in person at the offices of Euroclear or CEDEL. Definitive
Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 301, interest payable on a temporary
Global Security on an Interest Payment Date for Securities of
such series occurring prior to the applicable Exchange Date shall
be payable to Euroclear and CEDEL on such Interest Payment Date
upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit B-2
to this Indenture (or in such other forms as may be established
pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of
Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form
set forth in Exhibit B-1 to this Indenture (or in such other
forms as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs and of
the third paragraph or Section 303 and the interests of the
Persons who are the beneficial owners of the temporary Global
Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of
like tenor on the Exchange Date or the date of certification if
such date occurs after the Exchange Date, without further act or
deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing with
respect to a beneficial interest in a temporary Global Security
will be made unless and until such interest in such temporary
Global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and
CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee or in any office or agency of the Company
in a Place of Payment a register for each series of Securities
(the registers maintained in such office or in any such office or
agency of the Company in a Place of Payment being herein
sometimes referred to collectively 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 Security Register
shall be in written form or any other form capable of being
converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities on such Security Register
as herein provided. If the Trustee shall cease to be Security
Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Subject to the provisions of this Section 305, upon
surrender for registration of transfer of any Registered Security
of any series at any 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 a like
aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical term and
provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized
denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender
of the Securities to be exchanged at any such office or agency.
Whenever any such 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. Unless otherwise specified with respect to
any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Securities.
If (but only if) permitted by the applicable Board
Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301, at
the option of the Holder, Bearer Securities of any series may be
exchanged for Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor,
upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an
office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency in a permitted
exchange for a Registered Security of the same series and like
tenor after the close of business at such office or agency on
(1) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or
(2) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or
Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the
case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the
provisions of this Indenture. 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.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent Global Security
shall be exchangeable only as provided in this paragraph. If the
depositary for any permanent Global Security is DTC, then, unless
the terms of such Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive
Securities, a Global Security may be transferred, in whole but
not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such Global Security selected
or approved by the Company or to a nominee of such successor to
DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depositary for the applicable
Global Security or Securities or if at any time DTC ceases to be
a clearing agency registered under the Securities Exchange Act of
1934, as amended, if so required by applicable law or regulation,
the Company shall appoint a successor depositary with respect to
such Global Security or Securities. If (1) a successor
depositary for such Global Security or Securities is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (2) an Event of Default has occurred
and is continuing and the beneficial owners representing a
majority in principal amount of the applicable series of
Securities represented by such Global Security or Securities
advise DTC to cease acting as depositary for such Global Security
or Securities, or (3) the Company, in its sole discretion,
determines at any time that all Outstanding Securities (but not
less than all) of any series issued or issuable in the form of
one or more Global Securities shall no longer be represented by
such Global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver,
definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities. If any
beneficial owner of an interest in a permanent Global Security is
otherwise entitled to exchange such interest for Securities of
such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in
the permanent Global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest
date on which such interest may be so exchanged, the Company
shall execute, and the Trustee shall authenticate and deliver,
definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such
permanent Global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent Global
Security shall be surrendered for exchange by DTC or such other
depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on
the relevant Redemption Date if the Security for which exchange
is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange
for a portion of a permanent Global Security shall be mailed or
otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a
permanent Global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date or (ii) any Special
Record Date and the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent
Global Security is payable in accordance with the provisions of
this Indenture.
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.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if
so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer
(including evidence of title and identity) 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 1305 not
involving any transfer.
The Company or the Trustee, as applicable, shall not be
required to (1) issue, register the transfer of or exchange any
Security if such Security may be among those selected for
redemption during a period beginning at the opening of business
15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Securities, the day of the
mailing of the relevant notice of redemption and (B) if such
Securities are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if
such Securities are also issuable as Securities and there is no
publication, the mailing of the relevant notice of redemption, or
(2) register the transfer of or exchange any Registered Security
so selected for redemption in whole or in part, except, in the
case of any Registered Security to be redeemed in part, the
portion thereof not to be redeemed, or (3) exchange any Bearer
Security so selected for redemption, except that such Bearer
Security may be exchanged for a Registered Security of that
series and like tenor; provided, however, that such Registered
Security shall be simultaneously surrendered for redemption, or
(4) issue, register the transfer of or exchange any Security
which has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Security not to be so
repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee or the
Company, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the
surrendered Security.
If there shall be delivered to the Company and to the
Trustee (1) evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (2) 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 or coupon has
been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new security of the same series and principal
amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two
paragraphs, in case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that
payment of principal of (and premium, if any), any interest on
and any Additional Amounts with respect to Bearer Securities
shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301,
any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this
Section 306, 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 with its coupons, if any,
issued pursuant to this Section 306 in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon 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 and their coupons, if
any, duly issued hereunder.
The provisions of this Section 306 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 or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301,
interest on any Registered Security that 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 at the
office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the
Company's option be paid by (1) mailing a check for such
interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 308, to the address of such
Person as it appears on the Security Register or (2) transfer to
an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest
may be made, in the case of a Bearer Security, by transfer to an
account maintained by the payee with a bank located outside the
United States.
Unless otherwise provided as contemplated by Section 301,
every permanent Global Security will provide that interest, if
any, payable on any Interest Payment Date will be paid to DTC,
Euroclear and/or CEDEL, as the case may be, with respect to that
portion of such permanent Global Security held for its account by
Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received
by it in respect of such permanent Global Security to the
accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for
such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any
interest on any Registered Security of any series that 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 registered Holder thereof 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
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 Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such
notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) 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 on or 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 mailed, first-class
postage prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may, in
its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such
publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, 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). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of
such series after the close of business at such office or agency
on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this
Indenture.
(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 or 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 307 and
Section 305, 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 Registered 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 Registered Security is registered as the owner of such
Security for the purpose of receiving payment of principal of
(and premium, if any), and (subject to Sections 305 and 307)
interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered 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. All
such payments so made to any such Person, or upon such Person's
order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for money
payable upon any such Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Holder of any
Bearer Security and the Holder of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon 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.
No Holder of any beneficial interest in any Global Security
held on its behalf by a depositary shall have any rights under
this Indenture with respect to such Global Security and such
depositary shall be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee,
or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished
by any depositary, as a Holder, with respect to such Global
Security or impair, as between such depositary and owners of
beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration
of transfer or exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at 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. If the Company shall so
acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 309, except as expressly
permitted by this Indenture. Cancelled Securities and coupons
held by the Trustee shall be destroyed by the Trustee and the
Trustee shall deliver a certificate of such destruction to the
Company, unless the Trustee is otherwise directed by a Company
Order.
SECTION 310. Computation of Interest
Except as otherwise specified as contemplated by Section 301
with respect to Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-
day year consisting 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 with respect to any series of Securities specified
in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series
herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1010), and the Trustee, upon
receipt of a Company Order, and at the expense of the Company,
shall execute instruments in form and substance satisfactory to
the Trustee and the Company acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for
exchange for Securities and maturing after such
exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and
coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities
and coupons of such series 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 Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining
thereto 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) if redeemable at the option of the
Company, 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 irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for
such purpose an amount in the currency or currencies,
currency unit or units or composite currency or
currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest, and
any Additional Amounts with respect thereto, 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 as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company to any
Authenticating Agent under Section 611 and, if money shall have
been deposited with and held by the Trustee pursuant to subclause
(B) of clause (1) of this Section 401, the obligations of the
Trustee under Section 402 and the last paragraph or Section 1003
shall survive.
SECTION 402. Application of Trust Funds
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, the coupons 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 premium, if any) and any interest
and Additional Amounts for whose payment such money has been
deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required
by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
"Event of Default," wherever used herein with respect to any
particular series of Securities, means any one of the following
events (whatever the reason for such Event of Default and whether
or not 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 or any
Additional Amounts payable in respect of any Security of that
series or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon 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
premium, if any, on) any Security of that series when it becomes
due and payable at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture with
respect to any Security of that series (other than a covenant or
warranty a default in whose performance or whose breach is
elsewhere in this Section 501 specifically dealt with), 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) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any
of its Subsidiaries (including obligations under leases required
to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles, but not including any
indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess of
$10,000,000 or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or
any of its Subsidiaries (including such leases, but not including
such indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess of
$10,000,000, whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such
indebtedness becoming or being declared during and payable prior
to the date on which it would otherwise have become due and
payable or such obligations being accelerated, without such
acceleration having been rescinded or annulled; or
(6) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property; or
(D) makes a general assignment for the benefit of
its creditors; or
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all
of either of their property; or
(C) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree remains
unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
Title 11, U.S. Code or any similar federal or state law for the
relief of debtors and the term "Custodian" means any receiver,
Trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then and
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 (or, if Securities of
that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be specified in
the terms thereof) of all the Securities of that series to be due
and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall
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 Five 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 of
acceleration and its consequences if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay in the currency, currency unit or
composite currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301
for the Securities of such series):
(A) all overdue installments of interest on and
any Additional Amounts payable in respect of all
Outstanding Securities of that series and any related
coupons;
(B) the principal of (and premium, if any, on)
any Outstanding Securities of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities;
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for 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; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal of (or
premium, if any) or interest on 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 installment
of interest or Additional Amounts, if any, on any Security of any
series and any related coupon when such interest or Additional
Amount 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 of any series at its
Maturity,
then the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of
such series and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any)
and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon any
overdue installments of interest or Additional Amounts, if any,
at the rate or rates borne by or provided for 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 and its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as Trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree, and may enforce the same against the
Company or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities of such series, wherever
situated.
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 and any
related coupons 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 the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of
such series, of principal (and premium, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and
counsel) and of the Holders allowed in such judicial proceeding
and
(2) to collect and receive any money 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 of Securities of
such series and coupons to make such payments to the Trustee, and
if the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents
and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee
shall be held to represent all the Holders of the Securities, and
it shall not be necessary to make any Holders of the Securities
parties to any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons
All rights of action and claims under this Indenture or any
of the Securities or coupons may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or
coupons 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 and its agents and counsel, be for the
ratable benefit of the Holders of the Securities and coupons 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
Five 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 premium, if any) or
interest and any Additional Amounts, upon presentation of the
Securities or coupons, or both, as the case may be, 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
and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for the principal
(and premium, if any) and interest and any Additional
Amounts payable, 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
aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any), interest and
Additional Amounts, 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 or any related
coupon 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
indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with
such request;
(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 such Holders.
SECTION 508. Unconditional Rights of Holders to Receive
Principal, Premium, if Any, Interest and Additional
Amounts
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such
Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (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 of a Security or coupon 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, the
Company, the Trustee and the Holders of Securities and coupons
shall, subject to any determination in such proceeding, 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 or
coupons in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons 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
No delay or omission of the Trustee or of any Holder of any
Security or coupon 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 Five 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 of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities
The Holders of not less than 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;
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction; and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the
Holders of Securities of such series not joining therein.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by
Holders.
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 and any related
coupons 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 premium, if
any) or interest on or Additional Amounts payable in respect of
any Security of such series or any related coupons 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 Event
of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws
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.
SECTION 515. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, 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 or
omitted by it as Trustee, the filing by any party litigant in
such suit of any undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on
any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall
transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on
or any Additional Amounts with respect to any Security of such
series, or in the payment of any sinking fund installment with
respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as
Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders
of the Securities and coupons of such series; and provided
further that in the case of any default or breach of the
character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section 601, 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 the
Securities of such series.
SECTION 602. Certain Rights of Trustee
Subject to the provisions of TIA Section 315(a) through
315(d):
(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, coupon
or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order (other than delivery of any Security, together with
any coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which shall
be sufficiently evidenced as provided therein) and any resolution
of the Board of Directors may 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 power vested in it by this
Indenture at the request or direction of any of the Holders of
Securities of any series or any related coupons pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee
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, coupon
or other paper or document, unless requested in writing so to do
by the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series; provided
that, if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by the Holders or, if paid by the
Trustee, shall be repaid by the Holders upon demand. 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, relevant to the facts or matters
that are the subject of its inquiry, personally or by agent or
attorney;
(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 willful misconduct or gross negligence on the
part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion, rights
or power conferred upon it by this Indenture.
The Trustee shall not be required 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.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, and in any coupons
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 or coupons, 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 604. May Hold Securities
The Trustee, any Paying Agent, Security Registrar,
Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and coupons and subject to TIA Sections 310(b) and
311, and may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. 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 606. 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 each of the Trustee and any predecessor 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 reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its gross negligence or bad
faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad
faith on its own 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5)
or Section 501(6), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the
Company under this Section 606, the Trustee shall have a lien
prior to the Securities upon all property and money held or
collected by the Trustee as such, except money held in trust for
the payment of principal of (or premium, if any) or interest on
particular Securities or any coupons.
The provisions of this Section 606 shall survive the
termination of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests
There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and
shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or the requirements of
federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this
Section 607, the combined capital and surplus of such corporation
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 the Trustee shall cease to be eligible in accordance
with the provisions of this Section 607, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article Six. Neither the Company nor any
Person directly or indirectly controlling or controlled by, or
under common control with, the Company shall serve as Trustee.
SECTION 608. Resignation and Removal; Appointment of
Successor
No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article Six shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of
Section 609.
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 an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice or resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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 the
provisions of TIA Section 310(b) after written request therefor
by the Company or by any Holder of a Security 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 607 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months; 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, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee
with respect to all Securities or (ii) subject to TIA
Section 315(e), any Holder of a Security 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 or pursuant to 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). If, within one year after
such 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, 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 of
Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security 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 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 in the manner provided for
notices to the Holders of Securities 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 609. Acceptance of Appointment by Successor
In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee
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 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,
subject nevertheless to its claim, if any, provided for in
Section 606.
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,
pursuant to Article Nine, 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 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 this Section 609,
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 Six.
SECTION 610. 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 of 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 Six, without
the execution or filing of any paper or any further act on the
part of the parties hereto. In case any Securities or coupons
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 or coupons so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities or coupons. In case any
Securities or coupons shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate
and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent
At any time when any of the Securities remain Outstanding,
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 exchange, registration of
transfer or partial redemption or repayment thereof, 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. Any such
appointment shall be evidenced by an instrument in writing signed
by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. 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 bank or trust company or corporation
organized and doing business and in good standing under the laws
of the United States or of any state 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
authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements
of the aforesaid supervising or examining authority, then for the
purposes of this Section 611, 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. In case at any time an Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section 611, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in
this Section 611.
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 611, without the
execution or filing of any paper or further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the
Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination 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 611,
the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Holders of
Securities of the series with respect to which such
Authenticating Agent will serve in the manner set forth in
Section 106. 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 herein.
No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 611.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation, including reimbursement of
its reasonable expenses for its services under this Section 611.
If an appointment with respect to one or more series is made
pursuant to this Section 611, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
LaSalle National Bank, as Trustee
By:
as Authenticating Agent
By:
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Authenticating Agent
nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any information as to
the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee
Within 60 days after May 15 of each year commencing with
May 15, 1998, the Trustee shall transmit by mail to all Holders
of Securities as provided in TIA Section 313(c) a brief report
dated as of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company
The Company will:
(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, as amended; 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, as amended, 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 thereof with the Trustee, in the
manner and to the extent provided in TIA Section 313(c), such
summaries of any information, documents and reports required to
be filed by the Company pursuant to clauses (1) and (2) of this
Section 703 as may be required by rules and regulations
prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders
The Company will furnish or cause to be furnished to the
Trustee:
(1) semiannually, not later than 15 days after the
Regular Record Date for interest for each series of Securities, a
list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of such series
as of such Regular Record Date or, if there is no Regular Record
Date for interest for such series of Securities, semiannually,
upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, 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,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted Subject to
Certain Conditions
The Company may consolidate with, or sell, lease or convey
all or substantially all of its assets to, or merge with or into
any other entity, provided that in any such case (1) either the
Company shall be the continuing entity, or the successor entity
shall be an entity organized and existing under the laws of the
United States or a state thereof and such successor entity shall
expressly assume the due and punctual payment of the principal of
(and premium, if any) and any interest (including all Additional
Amounts, if any, payable pursuant to Section 1010) on all of the
Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Company by supplemental
indenture, complying with Article Nine, satisfactory to the
Trustee, executed and delivered to the Trustee by such entity and
(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 thereof 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 the lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation
In case of any such consolidation, merger, sale, lease or
conveyance and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the
predecessor corporation, except in the event of a lease, shall be
relieved of any further obligation under this Indenture and the
Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of
the Company, any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed,
the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued
as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel
Any consolidation, merger, sale, lease or conveyance
permitted under Section 801 is also subject to the condition that
the Trustee receive an Officers' Certificate and an Opinion of
Counsel to the effect that any such consolidation, merger, sale,
lease or conveyance, and the assumption by any successor
corporation, complies with the provisions of this Article Eight
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders
Without the consent of any Holders of Securities or coupons,
the Company, when authorized by or pursuant to 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 contained;
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 Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are
expressly being included solely for the benefit of such series);
provided, however, that in respect of any such additional Events
of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other
defaults), may provide for an immediate enforcement upon such
default, may limit the remedies available to the Trustee upon
such default or may limit the right of the Holders of a majority
in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to
waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange
for Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations
or to permit or facilitate the issuance of Securities in
uncertificated form; provided, however, that any such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections 201
and 301, including the provisions and procedures relating to
Securities convertible into Common Stock or Preferred Stock, as
the case may be; 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; 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
which shall not be inconsistent with the provisions of this
Indenture; provided, however, that such provisions shall not
adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided,
however, that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any
related coupons or any other series of Securities 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 all Outstanding Securities affected by
such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by or
pursuant to 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 and any related
coupons 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
premium, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof
or the rate or amount of interest thereon or any Additional
Amounts payable in respect thereof, or any premium payable upon
the redemption thereof, or change any obligation of the Company
to pay Additional Amounts pursuant to Section 1010 (except as
contemplated by Section 801(1) and permitted by Section 901(1)),
or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant
to Section 504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of
Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, any Security
or any premium or the 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 or repayment at the option of the Holder, on or after
the Redemption Date or the Repayment Date, as the case may be),
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 with respect
to such series (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section 902,
Section 513 or 1011, except to increase the required percentage
to effect such action 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.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
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.
SECTION 903. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article Nine or the
modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and 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 Nine, 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
that are theretofore or thereafter authenticated and delivered
hereunder and of any coupon appertaining thereto shall be bound
thereby.
SECTION 905. Conformity With Trust Indenture Act
Every supplemental indenture executed pursuant to this
Article Nine shall conform to the requirements of the Trust
Indenture Act as then in effect.
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 Nine 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, if Any,
Interest and Additional Amounts
The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium, if any) and
interest on and any Additional Amounts payable in respect of the
Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable as provided in Section 1010 in respect
of principal of (or premium, if any, on) such a Security, shall
be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby
as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at
the option of the Company, all payments of principal may be paid
by check to the registered Holder of the Registered Security or
other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency
If Securities of a series are issuable only as Registered
Securities, the Company shall 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 or
conversion, 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. If Securities of a
series are issuable as Bearer Securities, the Company will
maintain: (1) in the Borough of Manhattan, the City of New York,
an office or agency where any Securities of that series may be
presented or surrendered for payment or conversion, where any
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment or conversion
in the circumstances described in the following paragraph (and
not otherwise); (2) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities
of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to
Section 1010) or conversion; provided, however, that if the
Securities of that series are listed on any stock exchange
located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside
the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (3) subject to
any laws or regulations applicable thereto, in a Place of Payment
for that series located outside the United States an office or
agency where any Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
surrendered for 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 each 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, except
that Bearer Securities of that series and the related coupons may
be presented and surrendered for payment (including payment of
any Additional Amounts payable on Bearer Securities of that
series pursuant to Section 1010) or conversion at the offices
specified in the Security, in London, England, and the Company
hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or
interest on or Additional Amounts in respect of Bearer Securities
shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the
Securities of a series are payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security
(including any Additional Amounts payable on Securities of such
series pursuant to Section 1010) shall be made at the office of
the Company's Paying Agent in the Borough of Manhattan, the City
of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional
Amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may 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 of 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 accordance with the requirements set forth
above 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. Unless otherwise specified
with respect to any Securities pursuant to Section 301 with
respect to a series of Securities, the Company hereby designates
as a Place of Payment for each series of Securities the office or
agency of the Company in the Borough of Manhattan, the City of
New York, and initially appoints the Trustee at its Corporate
Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any
series (1) are denominated in a Foreign Currency or (2) may be
payable in a Foreign Currency, or so long as it is required under
any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
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 any Securities and any related
coupons, it will, on or before each due date of the principal of
(and premium, if any), or interest on or Additional Amounts in
respect of, any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay
the principal (and premium, if any) or interest or Additional
Amounts 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 and any related coupons, it will, on
or before each due date of the principal of (and premium, if
any), or interest on or Additional Amounts in respect of, any
Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) or interest
or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal,
premium or interest or Additional Amounts 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 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 1003, that such Paying Agent will
(1) hold all sums held by it for the payment of
principal of (and premium, if any) or interest or Additional
Amounts on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making
of any such payment of principal (and premium, if any) or
interest on the Securities of that series; and
(3) at any time during the continuance of any such
default upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
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
terms 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 sums.
Except as otherwise provided in the Securities of any
series, 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 (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and
premium, if any), interest or Additional Amounts has become due
and payable shall be paid to the Company upon 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
of such principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security, without interest
thereon, 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 an Authorized Newspaper,
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. 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 corporate existence, all material rights (by
certificate of incorporation, by-laws and statute) and material
franchises; provided, however, that the Company shall not be
required to preserve any 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.
SECTION 1005. Maintenance of Properties
The Company will cause all of its material 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
the Company and its Subsidiaries shall not be prevented from
selling or otherwise disposing for value of their properties in
the ordinary course of their business.
SECTION 1006. Insurance
The Company will, and will cause each of its Subsidiaries
to, keep in force upon all of its properties and operations
policies of insurance carried with responsible companies in such
amounts and covering all such risks as shall be customary in the
industry in accordance with prevailing market conditions and
availability.
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 it 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. Provision of Financial Information
Whether or not the Company is subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, the
Company will, within 15 days after each of the respective dates
by which the Company would have been required to file annual
reports, quarterly reports and other documents with the
Commission if the Company were so subject, (1) 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, quarterly reports and other documents which the
Company would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, if the Company were subject to such Sections,
and (2) file with the Trustee copies of the annual reports,
quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, if the Company were subject to such Sections, and
(3) promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents
to any prospective Holder.
SECTION 1009. Statement as to Compliance
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a brief certificate from the
principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of
this Section 1009, such compliance shall be determined without
regard to any period of grace or requirement of notice under this
Indenture.
SECTION 1010. Additional Amounts
If any Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of any
Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in
any context except in the case of Section 502(1), the payment of
the principal of or any premium or interest on, or in respect of,
any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such
series established pursuant to Section 301 to the extent that, in
such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by
Section 301, if the Securities of a series provide for the
payment of Additional Amounts, at least 10 days prior to the
first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or interest if
there has been any change with respect to the matters set forth
in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be
made to Holders of Securities of that series or any related
coupons who are not United States Persons without withholding for
or on account of any tax, assessment or other governmental charge
described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities of that
series or related coupons and the Company will pay to the Trustee
or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned Officers'
Certificate, then the Trustee or such Paying Agent shall be
entitled (1) to assume that no such withholding or deduction is
required with respect to any payment of principal or interest
with respect to any Securities of a series or related coupons
until it shall have received a certificate advising otherwise and
(2) to make all payments of principal and interest with respect
to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and
to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by
any of them or in reliance on any Officers' Certificate furnished
pursuant to this Section 1010 or in reliance on the Company's not
furnishing such an Officers' Certificate.
SECTION 1011. Waiver of Certain Covenants
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 1004
to 1008, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount
of all outstanding Securities of such series, by act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant 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 Securities of any series) in accordance with this
Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall
be evidenced by or pursuant to a Board Resolution. In case of
any redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series 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 issued on the
same day with the same terms are to be redeemed, 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 issued on such date with the same terms
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 portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the
Security Registrar (if other than itself) in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
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 Security redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption
Notice of redemption shall be given in the manner provided
in Section 106, not less than 30 days 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, 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.
Any notice that is mailed to the Holders of Securities in
the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and
Additional Amounts, if any;
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amount) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that
on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new
Security or Securities or authorized denominations for the
principal amount thereof remaining unredeemed;
(5) 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 the portion thereof, to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and
after said date;
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all
coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such
is the case;
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing subsequent
to the date fixed for redemption or the amount of any such
missing coupon or coupons will be deducted from the Redemption
Price, unless security or indemnity satisfactory to the Company,
the Trustee for such series and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be
redeemed and any Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Securities not subject to redemption on this Redemption Date
pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made;
(10) the CUSIP number of such Security, if any; and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the
then-existing conversion price or rate, the place or places where
such Securities may be surrendered for conversion, and the date
and time when the option to convert shall expire.
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.
SECTION 1105. Deposit of Redemption Price
On or before 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 in
the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) sufficient to pay on the
Redemption Date 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.
If any Securities called for redemption is converted, any
money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security
shall be paid to the Company upon Company Request or, if then
held by the Company, shall be discharged from such trust.
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
in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office
or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that, except
as otherwise provided with respect to Securities convertible into
Common Stock or Preferred Stock, installments of interest on
Securities whose Stated Maturity is on or prior to the Redemption
Date shall 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 Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all
such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and
premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part
Any Registered Security which is to be redeemed only in part
(pursuant to the provisions of this Article Eleven or of Article
Twelve) 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 or her attorney duly authorized in writing) and the
Company shall execute 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 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. If a Global Security
is so surrendered, the Company shall execute and the Trustee
shall authenticate and deliver to the depositary, without service
charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the
Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article
The provisions of this Article Twelve shall be applicable to
any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series 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
of any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory 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 of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments With
Securities
The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of
a series, (1) deliver Outstanding Securities of such series
(other than any previously called for redemption) together, in
the case of any Bearer Securities of such series, with all
unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such 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, as provided
for by the terms of such Securities, or which have otherwise been
acquired by the Company; provided, however, that such Securities
so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for
such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of
the sinking fund and the amount of such mandatory 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 Securities of any series, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of the
next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency
or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202, and the optional amount, if any,
to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to
be so delivered and credited. 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 before each such sinking fund payment date the
Trustee shall select the Securities 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
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. 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
Thirteen.
SECTION 1302. 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 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 in the currency or currencies,
currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of
such series) 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 1303. 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 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, telex, facsimile transmission or letter from a member
of a national securities exchange, or the National Association of
Securities Dealers, Inc., 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, and the
denomination or denominations of the Security or Securities to be
issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid
in part if, following such repayment, the unpaid principal amount
of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security
to be repaid is a part. Except as otherwise may be provided by
the terms of any Security providing for repayment at the option
of the Holder thereof, exercise or the repayment option by the
Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment
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 Thirteen 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 of such Securities on
such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid,
except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with
such provisions, together with all coupons, if any, appertaining
thereto maturing after the Repayment Date, 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 coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or
agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified
pursuant to Section 301, only upon presentation and surrender of
such coupons; and provided further that, in the case of
Securities, 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 any Bearer Security surrendered for repayment shall not
be accompanied by all appurtenant coupons maturing after the
Repayment Date, such Security may be paid after deducting from
the amount payable therefor as provided in Section 1302 an amount
equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder
shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable
only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
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 1305. 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 service charge and at the expense of the Company, a new
Registered 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.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance
If, pursuant to Section 301, provision is made for either or
both of (1) defeasance of the Securities of or within a series
under Section 1402 or (2) covenant defeasance of the Securities
of or within a series under Section 1403, then the provisions of
such Section or Sections, as the case may be, together with the
other provisions of this Article Fourteen (with such
modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Company
may at its option by Board Resolution, at any time, with respect
to such Securities and any coupons appertaining thereto, elect to
have Section 1402 (if applicable) or Section 1403 (if applicable)
be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set
forth below in this Article Fourteen.
SECTION 1402. Defeasance and Discharge
Upon the Company's exercise of the above option applicable
to this Section 1402 with respect to any Securities of or within
a series, the Company shall be deemed to have been discharged
from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions
set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to
be "Outstanding" only for the purposes of Section 1405 and the
other Sections of this Indenture referred to in clauses (1) and
(2) below, and to have satisfied all of its other obligations
under such Securities and any coupons appertaining thereto and
this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (2) the
Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment
of Additional Amounts, if any, on such Securities as contemplated
by Section 1010, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (4) this Article
Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance
Upon the Company's exercise of the above option applicable
to this Section with respect to any Securities of or within a
series, the Company shall be released from its obligations under
Sections 1004 to 1008, inclusive, and, if specified pursuant to
Section 301, its obligations under any other covenant, with
respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for
the purposes of any direction, waiver, consent or declaration or
Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1008, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding
Securities and any coupons appertaining thereto, 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 Section or
such other covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other
document, and such omission to comply shall not constitute a
default or an Event of Default under Section 501(4) or 501(8) or
otherwise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance
The following shall be the conditions to application of
Section 1402 or Section 1403 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another Trustee
satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Article Fourteen 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 benefit of the Holders of such
Securities and any coupons appertaining thereto, (A) an amount in
such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity, or (B) Government
Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated
Maturity) 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 of principal of (and premium, if any) and interest, if
any, on such Securities and any coupons appertaining thereto, or
(C) a combination thereof, in any case, in an amount sufficient,
without consideration of any reinvestment of such principal and
interest, 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 other
qualifying Trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and
any coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining
thereto.
(2) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(3) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any coupons appertaining thereto
shall have occurred and be continuing on the date of such deposit
or, insofar as Sections 501(6) and 501(7) are concerned, at any
time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since
the date of execution of this Indenture, there has been a change
in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that,
the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such defeasance had not occurred.
(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Outstanding Securities and
any coupons appertaining thereto will not recognize income, gain
or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred.
(6) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under
Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with and an Opinion of
Counsel to the effect that either (A) as a result of a deposit
pursuant to clause (1) above and the related exercise of the
Company's option under Section 1402 or 1403 (as the case may be),
registration is not required under the Investment Company Act of
1940, as amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust funds
or (B) all necessary registrations under said act have been
effected.
(7) Notwithstanding any other provisions of this
Section 1404, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company in
connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions
Subject to the provisions of the last paragraph of
Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including
the proceeds thereof) deposited with the Trustee (or other
qualifying Trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Section 1404 in respect
of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto 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 Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and
Additional Amounts, if any, but such money need not be segregated
from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in
Section 1404(1) has been made, (1) the Holder of a Security in
respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 301 or the terms of such Security to
receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(1) has been made in
respect of such Security or (2) a Conversion Event occurs in
respect of the currency or currency unit in which the deposit
pursuant to Section 1404(1) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium,
if any), and interest, if any, on such Security as the same
becomes due out of the proceeds yielded by converting (from time
to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security
into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on
the applicable market exchange rate for such currency or currency
unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such
currency or currency unit in effect (as nearly as feasible) at
the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 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 such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article Fourteen to the contrary
notwithstanding, subject to Section 606, the Trustee shall
deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in
Section 1404 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 a defeasance or covenant defeasance, as applicable, in
accordance with this Article Fourteen.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called
A meeting of Holders of Securities of any series may be
called at any time and from time to time pursuant to this Article
Fifteen to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings
(1) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose specified in
Section 1501, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in
Section 106, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(2) In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least [10]% in principal
amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice
of such meeting within 20 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be,
may determine the time and the place for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in clause (1) of this Section 1502.
SECTION 1503. Persons Entitled to Vote at Meetings
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one
or more Outstanding Securities of such series or (2) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Securities
of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action
The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence
of a quorum at the reconvening of any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of
not less than 10 days; at the reconvening of any meeting
adjourned or further adjourned for lack of a quorum, the persons
entitled to vote [25]% in aggregate principal amount of the then
Outstanding Securities shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting.
Notice of the reconvening of any adjourned meeting shall be given
as provided in Section 1502(2), except that such notice need be
given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in
principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with
this Section 1504 shall be binding on all the Holders of
Securities of such series and the related coupons, whether or not
present or represented at the meeting.
Notwithstanding the foregoing provisions of this
Section 1504, if any action is to be taken at a meeting of
Holders of Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or
other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in
principal amount of all Outstanding Securities affected thereby,
or of the Holders of such series and one or more additional
series:
(1) there shall be no minimum quorum requirement for
such meeting and
(2) the principal amount of the Outstanding Securities
of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights, Conduct and
Adjournment of Meetings
(1) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in
regard to proof of the holding of Securities of such series and
of the appointment of proxies and in regard to the appointment
and duties of inspector of elections, the submission and
examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securities
as provided in Section 1502(2), in which case the Company or the
Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(3) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000
principal amount of the Outstanding Securities of such series
held or represented by him; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such
series or proxy.
(4) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1502 at which a quorum is present
may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots
on which shall be subscribed the signatures of the Holders of
Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least
in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall
be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be
delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first
above written.
SHURGARD STORAGE CENTERS, INC.
By: /s/ Harrell L. Beck
Harrell L. Beck
Title:Senior Vice President, Chief
Financial Officer and
Treasurer
[SEAL]
Attest:
/s/ Kristin H. Stred
By: Kristin H. Stred
Title: Senior Vice President, General Counsel
and Secretary
LaSalle National Bank, as Trustee
By: /s/ Margaret M. Muir
Margaret M. Muir
Title: Assistant Vice President
[SEAL]
Attest:
/s/ Diane S. Swanson
Diane S. Swanson
Title: Assistant Secretary
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 24th day of April, 1997, before me, the undersigned,
a Notary Public in and for the State of Washington, duly
commissioned and sworn, personally appeared Harrell L. Beck and
Kristin H. Stred, to me known to be the persons who signed as
Senior Vice President, Chief Financial Officer and Treasurer and
Senior Vice President, General Counsel and Secretary,
respectively, of SHURGARD STORAGE CENTERS, INC., the corporation
that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and
deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that they were duly elected,
qualified and acting as said officers of the corporation, that
they were authorized to execute said instrument and that the seal
affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official
seal the day and year first above written.
[SEAL]
/s/ Suzanne C. Sendroy
(Signature of Notary)
Suzanne C. Sendroy
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at Seattle.
My Appointment Expires: 5/19/97.
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
On this 25th day of April, 1997, before me, the undersigned,
a Notary Public in and for the State of Illinois, duly
commissioned and sworn, personally appeared Margaret M. Muir and
Diane S. Swanson, to me known to be the persons who signed as
Assistant Vice President and Assistant Secretary, respectively,
of LaSalle National Bank, the national banking association that
executed the within and foregoing instrument, and acknowledged
said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on
oath stated that they were duly elected, qualified and acting as
said officers of the corporation, that they were authorized to
execute said instrument and that the seal affixed, if any, is the
corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official
seal the day and year first above written.
[SEAL]
/s/ Pamela S. Ristau
(Signature of Notary)
Pamela S. Ristau
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Illinois, residing at Cook
County.
My Appointment Expires: 8/20/97
EXHIBIT A
FORM OF REDEEMABLE OR NONREDEEMABLE SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below it) is The
Depository Trust Company ("DTC") or a nominee of DTC, this
Security is a Global Security and the following two legends
apply:
Unless this Security is presented by an authorized representative
of The Depository Trust Company ("DTC"), 55 Water Street, New
York, New York to the issuer or its agent for registration of
transfer, exchange or payment, and such Security issued is
registered in the name of CEDE & CO., or such other name as
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, since the registered owner hereof, CEDE &
CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part
for Securities in certificated form, this Security may not be
transferred except as a whole by DTC to a nominee thereof or by
as nominee thereof to DTC or another nominee of DTC or by DTC or
any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue Discount Security, insert
- -- FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES
INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON
THIS SECURITY IS ___% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS
______________, 19__ [AND] THE YIELD TO MATURITY IS ____%. [THE
METHOD USED TO DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
APPLICABLE TO THE SHORT ACCRUAL PERIOD OF _________, 19__ TO
____________, 19__, IS ____% OF THE PRINCIPAL AMOUNT OF THIS
SECURITY.]
SHURGARD STORAGE CENTERS, INC.
[Designation of Series]
No. _____ $______
SHURGARD STORAGE CENTERS, INC., a Delaware corporation (herein
referred to as the "Company," which term includes any successor
corporations under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
_______________________ ____________________ or registered
assigns the principal sum of _______ Dollars on
____________________ (the "Stated Maturity Date") [or insert date
fixed for earlier redemption (the "Redemption Date)" and,
together with the Stated Maturity Date with respect to principal
repayable on such date, the "Maturity Date")].
[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 (each, an "Interest Payment Date"),
commencing ________________, at the rate of ___% per annum, until
the principal hereof is paid or duly provided for. 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 Holder 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
defined below), as the case may be, next preceding such Interest
Payment Date [at the office or agency of the Company maintained
for such purpose; provided, however, that such interest may be
paid, at the Company's option, by mailing a check to such Holder
at his registered address or by transfer of funds to an account
maintained by such Holder within the United States]. Any such
interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Holder 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 may
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
the Indenture. Interest will be computed on the basis of a 360-
day year of twelve 30-day months.]
[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 the [Stated] Maturity Date
and in such case the overdue principal of this Security shall
bear interest at the rate of ___% per annum (to the extent that
the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date
payment of such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ___% per annum (to the
extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on
demand.]
The principal of this Security payable on the [Stated] Maturity
Date [or the principal of, premium, if any, and, if the
Redemption Date is not an Interest Payment Date, interest on this
Security payable on the Redemption Date] will be paid against
presentation of this Security at the office or agency of the
Company maintained for that purpose in ___________________, in
such coin or currency of the United States as at the time of
payment is legal tender for the payment of public and private
debts.
Interest payable on this Security on any Interest Payment Date
and on the [Stated] Maturity Date [or Redemption Date, as the
case may be,] will include interest accrued from and including
the next preceding Interest Payment Date in respect of which
interest has been paid or duly provided for (or from and
including ___________, if no interest has been paid on this
Security) to but excluding such Interest Payment Date or the
[Stated] Maturity Date [or Redemption Date, as the case may be].
If any Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date] falls on a day that is not a Business Day,
principal, premium, if any, and/or interest payable with respect
to such Interest Payment Date or [Stated] Maturity Date [or
Redemption Date, as the case may be,] will be paid on the next
succeeding Business Day with the same force and effect as if it
were paid on the date such payment was due, and no interest shall
accrue on the amount so payable for the period from and after
such Interest Payment Date or [Stated] Maturity Date [or
Redemption Date, as the case may be]. "Business Day" means any
day, other than a Saturday or Sunday, on which banks in New York
are not required or authorized by law or executive order to
close.
[If this Security is a Global Security, insert--All payments of
principal, premium, if any, and interest in respect of this
Security will be made by the Company in immediately available
funds.]
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 by manual signature of one of its authorized
signatories, 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 [facsimile] corporate seal.
Dated: SHURGARD STORAGE CENTERS, INC.
By:
Attest:
Secretary
[Reverse of Security]
SHURGARD STORAGE CENTERS, INC.
This Security is one of a duly authorized issue of securities of
the Company, issued and to be issued in one or more series under
an Indenture, dated as of ___________, 199__ (herein called the
"Indenture") between the Company and _______________________, as
Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture with respect to the series
of which this Security is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made 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 duly authorized series of Securities
designated on the face hereof (collectively, the "Securities"),
[if applicable, insert--and the aggregate principal amount of the
securities to be issued under such series is limited to
$_________ (except for Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of other
Securities).] All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to them in the
Indenture.
If an Event of Default 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 applicable, insert--The Securities may not be redeemed prior
to the [Stated] Maturity Date.]
[If applicable, insert--The Securities are subject to redemption
[(1) [If applicable, insert--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) ]
[If applicable, insert--at any time [on or after _____________],
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 on or before ______________, ___% and if redeemed
during the 12-month period beginning ___________ of the years
indicated, at the Redemption Prices indicated below.
Year Redemption Year Redemption
Price Price
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; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this Security, or one or
more Predecessor Securities, of record at the close of business
on the relevant Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[If applicable, insert--The Securities are subject to
redemption (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 [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 Redemption Price
for for
Redemption Through Redemption
Year Operation of the Otherwise
Sinking Fund Than Through
Operation
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; provided, however,
that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable
to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant
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 as
contemplated by [clause (2) of] the preceding paragraph as a part
of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of money borrowed having an
interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ___% per
annum.]
[If applicable, insert--The sinking fund for the Securities
provides for the redemption on _________ in each year, beginning
with the year ____ and ending with the year ____, of [not less
than] $_____] [("mandatory sinking fund") and not more than
$_____] aggregate principal amount of the Securities. [The
Securities acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required
to be made in the [describe order] order in which they become
due.]]
Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the
Redemption Date, all as provided in the Indenture.
In the event of redemption of the Security in part only, a
new Security or Securities for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the
cancellation hereof.
[If applicable, insert conversion provisions set forth in
any Board Resolution or indenture supplemental to 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 under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not
less than a majority of the aggregate principal amount of all
Securities issued under the Indenture at the time Outstanding and
affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority of the
aggregate principal amount of the Outstanding Securities, on
behalf of the Holders of all such Securities, to waive compliance
by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of
not less than a majority of the aggregate principal amount, in
certain instances, of the Outstanding Securities of any series to
waive, on behalf of all of the Holders of Securities of such
series, 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 other Securities
issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
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 premium, if any) and interest on
this Security at the tines, places and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, the transfer of this
Security is registrable in the Security Register of the Company
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 premium, if any) 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 by
his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, this Security is
exchangeable for a like aggregate principal amount of Securities
of different authorized denominations but otherwise having the
same terms and conditions, as requested by the Holder hereof
surrendering the same.
The Securities of this series are issuable only in
registered form [without coupons] in denominations of
$___________ and any integral multiple thereof.
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.
No recourse shall be had for the payment of the principal of
or premium, if any, or the interest on this Security, or for any
claim based hereon, or otherwise in respect hereof, or based on
or in respect of the Indenture or any indenture supplemental
thereto, against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any
successor, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly
waived and released.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of Washington
applicable to agreements made and to be performed entirely in
such State.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
By:
Authorized Signatory
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except
as set forth below, the above-captioned Securities held by you
for our account are owned by (i) person(s) that are not citizens
or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of
its source ("United States Person(s)"), (ii) United States
Person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(v), are
herein referred to as "financial institutions") purchasing for
their own account or for resale or (b) United States Person(s)
who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and
in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its
agent, that you may advise Shurgard Storage Centers, Inc. or its
agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if
the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States
Person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your
certification relating to the above-captioned Securities held by
you for our account in accordance with your Operating Procedures
if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not relate to [US$
____________] of such interest in the above-captioned Securities
in respect of which we are not able to certify and as to which we
understand an exchange for an interest in a permanent Global
Security or an exchange for and delivery of definitive Securities
(or, if relevant, collection of any interest) cannot be made
until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: ________________, _____
[To be dated no earlier than the 15th day prior to
(i) the Exchange Date or (ii) the relevant Interest
Payment Date occurring prior to the Exchange
Date, as applicable]
[Name of Person Making
Certification]
(Authorized Signator)
Name:
Title:
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [US$]
_________________________ principal amount of the above-captioned
Securities is owned by (i) person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is
subject to United States federal income taxation regardless of
its source ("United States Person(s)"), (ii) United States
Person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(v), are
herein referred to as "financial institutions") purchasing for
their own account or for resale or (b) United States Person(s)
who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and
in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may
advise Shurgard Storage Centers, Inc. or its agent that such
financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or
(iii) United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in
United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) (whether or not also
described in clause (i) or (ii)) have certified that they have
not acquired the Securities for purposes of resale directly or
indirectly to a United States Person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any
interest) any portion of the temporary Global Security
representing the above-captioned Securities excepted in the above-
referenced certificates of Member Organizations and (ii) as of
the date hereof we have not received any notification from any of
our Member Organizations to the effect that the statements made
by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, collection
of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: _____________ ____
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[CEDEL S.A.]
By:
Shurgard Storage Centers, Inc.
Exhibit (11.1) - Statement Re: Computation of Earnings per Share
Primary Net Income Per Quarter Ended
Common and Common March 31,
Equivalent Share -----------------
1997 1996
---------- ----------
Net income $9,198,000 $7,313,000
---------- ----------
Weighted average common
and common equivalent shares
outstanding:
Weighted average common
shares outstanding 27,356,958 23,196,858
Net effect of dilutive
stock options based on
treasury stock method using
average market price (1) 46,379
---------- ----------
Total 27,403,337 23,196,858
=========== ===========
Primary net income per
common and common equivalent
share $ .34 $ .32
=========== ===========
Fully-diluted Net Income Quarter Ended
Per Common and Common March 31,
Equivalent Share -------------
1997 1996
---------- ---------
Net income $9,198,000 $7,313,000
---------- ----------
Weighted average common
and common equivalent shares
outstanding:
Weighted average common
shares outstanding 27,356,958 23,196,858
Net effect of dilutive
stock options based on
treasury stock method using
average market price (1) 63,744
---------- ----------
Total 27,420,702 23,196,858
========== ==========
Fully-diluted net income
per common and common
equivalent share $ .34 $ .32
============ ===========
(1) No adjustment has been made in 1996 as the option price exceeded the market
price of our stock for substantially all of the first quarter of 1996.
