DATED , 20__ NATIONAL STORAGE AFFILIATES TRUST AS ISSUER AND U.S. Bank National Association, AS TRUSTEE INDENTURE
Exhibit 4.3
DATED , 20__
NATIONAL STORAGE AFFILIATES TRUST
AS ISSUER
AND
U.S. Bank National Association,
AS TRUSTEE
Table of Contents
Page | ||
Article I DEFINITIONS AND INCORPORATION BY REFERENCE | 1 | |
Section 1.01. | Definitions | 1 |
Section 1.02. | Incorporation by Reference of Trust Indenture Act | 3 |
Section 1.03. | Rules of Construction | 4 |
Article II THE SECURITIES | 4 | |
Section 2.01. | Form and Dating | 4 |
Section 2.02. | Amount Unlimited; Issuable in Series | 4 |
Section 2.03. | Denominations | 5 |
Section 2.04. | Execution and Authentication | 5 |
Section 2.05. | Registrar and Paying Agent | 5 |
Section 2.06. | Paying Agent to Hold Money in Trust | 6 |
Section 2.07. | Securityholder Lists | 6 |
Section 2.08. | Transfer and Exchange | 6 |
Section 2.09. | Replacement Securities | 7 |
Section 2.10. | Outstanding Securities | 7 |
Section 2.11. | Temporary Securities | 7 |
Section 2.12. | Cancellation | 8 |
Section 2.13. | Defaulted Interest | 8 |
Section 2.14. | CUSIP Numbers | 8 |
Article III REDEMPTION | 8 | |
Section 3.01. | Company's Option to Redeem | 8 |
Section 3.02. | Notices to Trustee | 8 |
Section 3.03. | Selection of Securities to be Redeemed | 9 |
Section 3.04. | Notice of Redemption at the Company's Option | 9 |
Section 3.05. | Effect of Notice of Redemption | 10 |
Section 3.06. | Deposit of Redemption Price | 10 |
Section 3.07. | Holder's Right to Require Redemption | 10 |
Section 3.08. | Procedure for Requiring Redemption | 10 |
Section 3.09. | Securities Redeemed in Part | 10 |
Article IV COVENANTS | 11 | |
Section 4.01. | Payment of Securities | 11 |
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Section 4.02. | Reporting | 11 |
Section 4.03. | Corporate Existence | 11 |
Section 4.04. | Compliance Certificate | 11 |
Section 4.05. | Further Instruments and Acts | 11 |
Article V SUCCESSOR CORPORATION | 12 | |
Section 5.01. | Company may Consolidate, etc., only on Certain Terms | 12 |
Section 5.02. | Successor Corporation Substituted | 12 |
Article VI DEFAULTS AND REMEDIES | 12 | |
Section 6.01. | Events of Default | 12 |
Section 6.02. | Acceleration | 14 |
Section 6.03. | Other Remedies | 14 |
Section 6.04. | Waiver of Existing Defaults | 14 |
Section 6.05. | Control by Majority | 15 |
Section 6.06. | Payments of Securities on Default; Suit Therefor | 15 |
Section 6.07. | Limitation on Suits | 15 |
Section 6.08. | Rights of Holders to Receive Payment and to Demand Conversion | 16 |
Section 6.09. | Collection Suit by Trustee | 16 |
Section 6.10. | Trustee May File Proofs of Claim | 16 |
Section 6.11. | Restoration of Positions | 16 |
Section 6.12. | Priorities | 16 |
Section 6.13. | Undertaking for Costs | 17 |
Section 6.14. | Stay, Extension or Usury Laws | 17 |
Section 6.15. | Liability of Shareholders, Officers, Member of the Board of Trustees and Incorporators | 17 |
Article VII TRUSTEE | 18 | |
Section 7.01. | Duties of Trustee | 18 |
Section 7.02. | Rights of Trustee | 19 |
Section 7.03. | Individual Rights of Trustee | 20 |
Section 7.04. | Trustee's Disclaimer | 20 |
Section 7.05. | Notice of Defaults | 20 |
Section 7.06. | Reports by Trustee | 20 |
Section 7.07. | Compensation and Indemnity | 21 |
Section 7.08. | Replacement of Trustee | 21 |
Section 7.09. | Successor Trustee by Merger, Etc | 22 |
Section 7.10. | Eligibility; Disqualification | 23 |
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Section 7.11. | Preferential Collection of Claims | 23 |
Article VIII DISCHARGE OF INDENTURE | 23 | |
Section 8.01. | Termination of the Company's Obligations | 23 |
Section 8.02. | Application of Trust Money | 24 |
Section 8.03. | Repayment to the Company | 24 |
Article IX AMENDMENTS, SUPPLEMENTS AND WAIVERS | 24 | |
Section 9.01. | Without Consent of Holders | 24 |
Section 9.02. | With Consent of Holders | 25 |
Section 9.03. | Compliance with Trust Indenture Act | 26 |
Section 9.04. | Revocation and Effect of Consents | 26 |
Section 9.05. | Notation on or Exchange of Securities | 26 |
Section 9.06. | Trustee to Sign Amendments, Etc | 26 |
Article X CONVERSION OR EXCHANGE OF SECURITIES | 26 | |
Section 10.01. | Provisions Relating to Conversion or Exchange of Securities | 26 |
Article XI SINKING OR PURCHASE FUNDS | 27 | |
Article XII MISCELLANEOUS | 27 | |
Section 12.01. | Trust Indenture Act Controls | 27 |
Section 12.02. | Supplemental Indentures Contract | 27 |
Section 12.03. | Notices | 27 |
Section 12.04. | Communication by Holders with Other Holders | 28 |
Section 12.05. | Certificate and Opinion as to Conditions Precedent | 28 |
Section 12.06. | When Treasury Securities Disregarded | 29 |
Section 12.07. | Rules by Trustee, Paying Agent, Xxxxxxxxx | 00 |
Section 12.08. | Legal Holidays | 29 |
Section 12.09. | Governing Law and Submission to Jurisdiction; Waiver of Jury Trial | 29 |
Section 12.10. | Actions by the Company | 30 |
Section 12.11. | No Adverse Interpretation of Other Agreements | 30 |
Section 12.12. | Successors | 30 |
Section 12.13. | Duplicate Originals | 30 |
Section 12.14. | Table of Contents, Headings, Etc | 30 |
Section 12.15. | U.S.A. PATRIOT Act | 30 |
Section 12.16. | Force Majeure | 30 |
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CROSS-REFERENCE TABLE
Trust Indenture Act Section |
Indenture |
310(a)(1) | 7.10 |
(a)(2) | 7.10 |
(a)(3) | N.A. |
(a)(4) | N.A. |
(a)(5) | 7.10 |
(b) | 7.08; 7.10 |
311(a) | 7.11 |
(b) | 7.11 |
312(a) | 2.07 |
(b) | 12.04 |
(c) | 12.04 |
313(a) | 7.06 |
(b) | 7.06 |
(c) | 7.06; 12.03 |
(d) | 7.06 |
314(a) | 4.02; 12.05 |
(b) | N.A. |
(c)(1) | 12.05 |
(c)(2) | 12.05 |
(c)(3) | N.A. |
(d) | N.A. |
(e) | 12.05 |
(f) | 12.05 |
315(a) | 7.01(b) |
(b) | 7.05; 12.03 |
(c) | 7.01(a) |
(d) | 7.01(c) |
(e) | 6.13 |
316(a) (last sentence) | 12.06 |
(a)(1)(A) | 6.05 |
(a)(1)(B) | 6.04 |
(a)(2) | N.A. |
(b) | 6.08 |
(c) | 12.03 |
317(a)(1) | 6.09 |
(a)(2) | 6.10 |
(b) | 2.06 |
318(a) | 12.01 |
N.A. means Not Applicable
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INDENTURE, dated as of , 20 between NATIONAL STORAGE AFFILIATES TRUST (the "Company"), a Maryland real estate investment trust having its principal office at 0000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx Xxxxxxx, XX 00000, and U.S. Bank National Association (the "Trustee"), a national banking association organized under the laws of the United States of America which has its corporate trust office at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
Each party agrees as follows for the benefit of each other party and for the equal and ratable benefit of the Holders of the Company's debentures, notes or other evidences of unsecured indebtedness to be issued in one or more series ("Securities"):
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
"Board Resolution" means a resolution by the Board of Trustees, or other body with analogous authority with respect to the Company or any duly authorized Committee of the Board of Trustees or such body, certified by its Secretary or an Assistant Secretary as being duly adopted and in full force and effect.
"Board of Trustees" means the board of trustees of the Company as so constituted from time to time.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a Legal Holiday.
"Capital Shares" means common or preferred shares entitled to share in the equity or profits of a Corporation.
"Common Shares" means the common shares, par value $0.01 per share, of the Company, as may be reconstituted from time to time.
"Company" means the Person named as such in this Indenture until a successor replaces it and after that means the successor.
"Corporate Trust Office" means the principal office of the Trustee at which at any particular time its corporate trust business is principally administered (which at the date of this Indenture is at the location set forth in the first paragraph of this Indenture).
"Corporation" includes corporations, associations, companies and business trusts.
"Custodian" has the meaning provided in Section 6.01.
"Default" means any event which, upon the giving of notice or passage of time, or both, would be an Event of Default.
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"$" means the lawful currency of the United States.
"Event of Default" has the meaning provided in Section 6.01.
"Fiscal Year" means the period commencing on January 1 of a year and ending on the next December 31 or such other period (not to exceed 12 months or 53 weeks) as the Company may from time to time adopt as its fiscal year.
"Holder" or "Securityholder" means a Person in whose name a Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to time and will include the form and terms of the Securities of each series established as contemplated by Section 2.01.
"Interest Payment Date" means the date on which an installment of interest on the Securities is due and payable.
"Legal Holiday" has the meaning provided in Section 12.08.
"Maturity Date" means the date the principal of Securities is due and payable.
"Officer" means the Chairman of the Board, any Vice Chairman of the Board, the President, the Chief Executive Officer, the Chief Financial Officer, any Vice President, the Treasurer, the Secretary, the Controller or any Assistant Secretary of a Person.
"Officers' Certificate" when used with respect to the Company means a certificate signed by two Officers. Each such certificate will comply with Section 314 of the TIA and include the statements described in Section 12.05.
"Opinion of Counsel" means a written opinion from legal counsel which is reasonably acceptable to the Trustee. That counsel may be an employee of or counsel to the Company. Each such opinion will include the statements described in Section 12.05 if and to the extent required by that Section.
"Paying Agent" has the meaning provided in Section 2.05.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, joint-stock company, trust, unincorporated organization or government or any government agency or political subdivision.
"Registrar" has the meaning provided in Section 2.05.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning provided in the recitals to this Indenture.
"Securities Act of 1933" means the Securities Act of 1933, as amended.
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"Securities Exchange Act of 1934" means the Securities Exchange Act of 1934, as amended.
"State" means any state of the United States or the District of Columbia.
"Subsidiary" means a corporation of which a majority of the voting stock is owned by the Company, by a Subsidiary of the Company or by the Company and one or more Subsidiaries of the Company.
"Supplemental Indenture" means an indenture between the Company and the Trustee which supplements this Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect on the date of this Indenture.
"Trustee" means the Person named as such in this Indenture and, subject to the provisions of Article VII, any successor to that person.
"Trust Officer" means any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
"United States" means the United States of America.
The following TIA terms mean the following when used in this Indenture:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined in the TIA, defined in the TIA by reference to another statute or defined by SEC rule have the meanings assigned to them.
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Section 1.03. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in the United States;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the plural include the singular.
Section 2.01. Form and Dating.
(a) The Securities of each series will be substantially in the form established by a Supplemental Indenture relating to the Securities of that series. The Securities may have notations, legends or endorsements required by law, stock exchange rules or usage. The Company will approve the form of the Securities and any notation, legend or endorsement on them. Each Security will be dated the date of its authentication.
(b) The Trustee's certificate of authentication will be substantially in the form of Exhibit A.
The Securities may be issued in one or more series. Prior to the issuance of Securities of a series, the Company and the Trustee will execute a Supplemental Indenture which will set forth as to the Securities of that series, to the extent applicable:
(1) the title of the Securities;
(2) any limit upon the aggregate principal amount of Securities which may be issued;
(3) the date or dates on which the Securities will mature and the amounts to be paid upon maturity of the Securities;
(4) the rate or rates (which may be fixed or variable) at which the Securities will bear interest, if any, the dates from which interest will accrue, the dates on which interest will be payable and the record date for the interest payable on any interest payment date;
(5) the currency or currencies in which principal, premium, if any, and interest, if any, will be payable;
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(6) the place or places where principal of, premium, if any, and interest, if any, on the Securities will be payable;
(7) any provisions regarding the right of the Company to redeem Securities or of holders to require the Company to redeem Securities;
(8) the right, if any, of holders of the Securities to convert them into shares or other securities of the Company, including any provisions intended to prevent dilution of those conversion rights;
(9) any provisions by which the Company will be required or permitted to make payments to a sinking fund which will be used to redeem Securities or a purchase fund which will be used to purchase Securities;
(10) the percentage of the principal amount of the Securities which is payable if maturity of the Securities is accelerated because of a default; and
(11) any other terms of the Securities.
A Security will not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature will be conclusive evidence that the Security has been authenticated under this Indenture.
The Company will enter into an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture which will incorporate the terms of the TIA. The agreement will implement the provisions of this Indenture that relate to that agent. The Company will notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee will act as such. The Company or any Subsidiary may act as Paying Agent, Registrar, co-registrar or transfer agent.
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The Company initially appoints the Trustee to act as Registrar and Paying Agent in connection with the Securities of each series, except in instances in which the Supplemental Indenture relating to a series of Securities appoints a different Registrar or Paying Agent.
Section 2.08. Transfer and Exchange. Unless otherwise provided in the Supplemental Indenture relating to Securities of a series, Securities which are issued in registered form will be transferred only upon the surrender of the Securities for registration of transfer. When a Security is presented to the Registrar or a co-registrar with a request to register a transfer, the Registrar will register the transfer as requested if the requirements of Article VIII of the New York Uniform Commercial Code are met. When Securities are presented to the Registrar or a co-registrar with a request to exchange them for an equal principal amount of Securities of the same series of other denominations, the Registrar will make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Company will execute and the Trustee will authenticate Securities at the Registrar's or co-registrar's request. The Company will not charge a fee for transfers or exchanges.
The Company will not be required to make, and the Registrar need not register, transfers or exchanges of (i) Securities selected for redemption (except, in the case of Securities to be redeemed in part, transfers or exchanges of the portion of the Securities not to be redeemed) or (ii) any Securities of a series for a period of 15 days before the first mailing of a notice of the Securities of that series which are to be redeemed.
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Prior to the due presentation for registration or transfer of any Security which was issued in registered form, the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat the person in whose name the Security is registered as the absolute owner of the Security for all purposes, and none of the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar will be affected by notice to the contrary.
Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depository.
Section 2.09. Replacement Securities. If a mutilated Security which had been issued in registered form is surrendered to the Registrar or if the Holder presents evidence to the satisfaction of the Company and the Trustee that a Security which had been issued in registered form has been lost or destroyed, the Company will issue and the Trustee will authenticate a replacement Security of the same series if the requirements of Section 8-405 of the New York Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee. The replacement Security will not be issued until the Holder furnishes an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent and the Registrar or any co-registrar from any loss which any of them may suffer if the Security is replaced. The Company may charge the Holder for its expenses in replacing a Security.
Every replacement Security will be an obligation of the Company, even if the replaced Security is subsequently found.
If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a protected purchaser (in which case the replaced Security, but not the replacement Security, will be treated as outstanding to the extent permitted by Section 8-210 of the New York Uniform Commercial Code).
If the Paying Agent (other than the Company or a Subsidiary) segregates and holds in trust, in accordance with this Indenture, on a redemption date or Maturity Date money sufficient to pay all principal, premium, if any, and interest, if any, payable on that date with respect to the Securities to be redeemed or maturing, as the case may be, then on that date those Securities will cease to be outstanding and interest on them will cease to accrue.
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The notice will identify the principal amount and series of each Security (including the CUSIP number) to be redeemed and will state:
(1) the redemption date;
(2) the redemption price plus accrued interest, if any;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption in whole or in part must be surrendered to the Paying Agent to collect the redemption price plus accrued interest, if any;
(5) that, unless the Company defaults in making the redemption payment, interest on Securities (or portions of Securities) called for redemption will cease to accrue on the redemption date and, if applicable, that those Securities (or the portions of then called for redemption) will cease on the redemption date (or such other date as is provided in the Supplemental Indenture relating to the Securities) to be convertible into, or exchangeable for, other securities or assets;
(6) if applicable, the current conversion or exchange price; and
(7) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities.
At the Company's request, pursuant to an Officers' Certificate delivered to the Trustee at least 35 days prior to the redemption date, the Trustee will give the notice of redemption in the Company's name and at the Company's expense. In such event, the Company will provide the Trustee with the information required by clauses (1) through (3) and (6).
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The Company's determination of all questions regarding the validity, eligibility (including time of receipt) and acceptance of any Security for redemption will be final and binding.
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The Company will pay or cause to be paid interest on overdue principal at the rate specified in the Securities; it will also pay interest on overdue installments of interest at the same rate (or such other rate as is provided in the applicable Supplemental Indenture), to the extent lawful.
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Article V
SUCCESSOR CORPORATION
(1) the corporation formed by the consolidation or into which the Company is merged or the person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety will be a corporation organized and existing under the laws of the United States of America, a State of the United States of America or the District of Columbia and expressly assumes, by a one or more supplemental indentures, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest, if any, on all the Securities of each series and the performance of every covenant of this Indenture and of all Supplemental Indentures to be performed or observed by the Company;
(2) immediately after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, will have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that the consolidation, merger, conveyance, transfer or lease and the supplemental indenture (or the supplemental indentures together) comply with this Article and that all the conditions precedent relating to the transaction set forth in this Section have been fulfilled.
Article VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(1) The Company defaults in the payment of interest on any Security of any series when it becomes due and payable and the default continues for a period of 30 days or such other period as is specified in the Supplemental Indenture relating to the series;
(2) The Company defaults in the payment of the principal of, or premium, if any, on any Security of any series as and when it becomes due and payable at its stated maturity or upon redemption, acceleration or otherwise and, if provided in the Supplemental Indenture relating to a series, the default continues for a period specified in the Supplemental Indenture;
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(3) The Company fails to comply with any of its other covenants or agreements with regard to Securities of a series or this Indenture (other than a covenant or agreement, a default in whose performance or whose breach is dealt with specifically elsewhere in this Section) and that failure continues for a period of 60 days after the date of the notice specified below;
(4) the Company, pursuant to any Bankruptcy Law applicable to the Company:
(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 any substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any applicable Bankruptcy Law:
(A) for relief in an involuntary case;
(B) appointing a Custodian of the Company or for any substantial part of its property; or
(C) ordering its winding up or liquidation;
and the order or decree remains unstayed and in effect for 90 days.
Each of the occurrences described in clauses (1) through (5) will constitute an Event of Default whatever the reason for the occurrence and whether it is voluntary or involuntary or is 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.
The term "Bankruptcy Law" means Title 11 of the United States Code or any similar United States Federal or State law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
A Default under clause (3) of this Section is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in principal amount of the then outstanding Securities of a series with regard to which the Company has failed to comply with a covenant or agreement notify the Company and the Trustee, of the Default and the Company does not cure the Default within 45 days after the giving of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a "Notice of Default."
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A Default under clause (1), (2) or (3) with regard to Securities of a series will not constitute a Default with regard to Securities of any other series except to the extent, if any, provided in the Supplemental Indenture relating to the other series.
The Company will deliver to the Trustee, within 20 Business Days after it occurs, written notice in the form of an Officers' Certificate of any event of which the Company is aware which with the giving of notice and the lapse of time would become an Event of Default under clause (3), its status and what action the Company is taking or proposes to take with respect to it.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default will not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
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(1) the Holder gives to the Trustee written notice stating that an Event of Default as to a series is continuing;
(2) the Holders of at least 25% in principal amount of the Securities of the series then outstanding make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity, and the Event of Default has not been waived; and
(5) the Trustee has received no contrary direction from the Holders of a majority in principal amount of the Securities of the series then outstanding during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of another Holder of the same series of Securities or to obtain a preference or priority over another Holder of the same series of Securities (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
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FIRST: to the Trustee and its attorneys and agents for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the Securities of the series for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities of the series for principal and interest, respectively; and
THIRD: to the Company.
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The Trustee may fix a record date and payment date for any payment to Holders of Securities of a series pursuant to this Section. At least 15 days before the record date, the Company will mail to each Holder of Securities of the series and the Trustee a notice that states the record date, the payment date and the amount to be paid.
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Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee will exercise the rights and powers vested in it by this Indenture and any applicable Supplemental Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and any Supplemental Indentures and no implied covenants or obligations will be read into this Indenture or any Supplemental Indenture against the Trustee; and
(ii) the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed in them, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture in the absence of willful misconduct on the Trustee's part; provided, however, that the Trustee will examine the certificates and opinions to determine whether or not they substantially conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05; and
(4) the Trustee will not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Indenture or any Supplemental Indenture or in the exercise of any of its rights or powers, if it has reasonable grounds to believe repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee is subject to the provisions of this Section 7.01 and to the provisions of the TIA.
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(e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received by it except as the Trustee may agree with the Company. Money and Government Obligations held in trust by the Trustee need not be segregated from other funds or items except to the extent required by law.
(g) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in principal amount of the Securities at the time outstanding given pursuant to Section 6.05 of this Indenture, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture or any Supplemental Indenture.
Section 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both which conforms to Section 12.05. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such an Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents or attorneys and will not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee will not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, except conduct which constitutes willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the Trustee will not be liable for any action it takes or omits in reliance on, and in accordance with, the advice of counsel and in good faith.
(f) The Trustee will not be required to investigate any facts or matters stated in any document, but if it decides to investigate any matters or facts, the Trustee or its agents or attorneys will be entitled to examine the books, records and premises of the Company at the expense of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
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(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(i) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(j) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
A copy of each report will at the time of its mailing to Securityholders be filed with each stock exchange on which Securities are listed, if any, and also with the SEC. The Company will promptly notify the Trustee in writing when the Securities of any series are listed on any stock exchange and of any delisting of Securities of any series.
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To secure the Company's obligation to make payments to the Trustee under this Section 7.07, the Trustee will have a lien prior to the Securities on all money or property held or collected by the Trustee, other than money or property held in trust to pay principal or interest on particular Securities. Those obligations of the Company will survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of Default specified in clause (4) or (5) of Section 6.01 occurs, the expenses and the compensation for the services of the Trustee are intended to constitute expenses of administration under any Bankruptcy Law.
For purposes of this Section 7.07, "Trustee" will include any predecessor Trustee, but the willful misconduct, negligence or bad faith of any Trustee will not affect the rights of any other Trustee under this Section 7.07.
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any bankruptcy law;
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(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of Securities of all series then outstanding may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
No removal or appointment of a Trustee will be valid if that removal or appointment would conflict with any law applicable to the Company.
A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee will, subject to the lien provided for in Section 7.07, transfer all property held by it as a Trustee to the successor Trustee, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture and all Supplemental Indentures. A successor Trustee will mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate principal amount of Securities of all series then outstanding may petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section, the Company's obligations under Section 7.07 will continue for the benefit of the retiring Trustee.
If at the time a successor by merger, conversion or consolidation to the Trustee succeeds to the trusts created by this Indenture any of the Securities have been authenticated but not delivered, the successor to the Trustee may adopt the certificate of authentication of the predecessor Trustee, and deliver the Securities which were authenticated by the predecessor Trustee; and if at that time any of the Securities have not been authenticated, the successor to the Trustee may authenticate those Securities in its own name as the successor to the Trustee; and in either case the certificates of authentication will have the full force provided in this Indenture for certificates of authentication.
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Article VIII
DISCHARGE OF INDENTURE
Notwithstanding the foregoing, the Company's obligations to pay principal, premium, if any, and interest, if any, on the Securities and the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in Article X will survive until all the Securities of all series are no longer outstanding. Thereafter, the Company's obligations in Section 7.07 will survive.
Before or after a deposit the Company may make arrangements satisfactory to the Trustee for the redemption of Securities of a series at a future date to the extent the Securities are redeemable in accordance with Article III and the applicable Supplemental Indenture.
After a deposit pursuant to this Section 8.01 or after all outstanding Securities of all series have been delivered to the Trustee for cancellation, the Trustee upon request from the Company, accompanied by an Officers' Certificate and an Opinion of Counsel which complies with Section 12.05, and at the cost of the Company, will acknowledge in writing the satisfaction and discharge of the Company's obligations under the Securities of all series and this Indenture except for those surviving obligations specified above.
In order to have money available on payment dates to pay principal, premium, if any, or interest, if any, on the Securities of a series, the U.S. Government Obligations will be payable as to principal, premium, if any, or interest on or before those payment dates in amounts sufficient to provide the necessary money. U.S. Government Obligations used for this purpose may not be callable at the issuer's option.
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"U.S. Government Obligations" means:
(1) direct obligations of the United States 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 the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States.
Article IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
(1) to cure any ambiguity, defect or inconsistency as evidenced in an Officers' Certificate;
(2) to comply with Article V;
(3) to establish the form and terms of the Securities of any series as contemplated in Article II of this Indenture;
(4) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(5) to make any change that does not materially adversely affect the rights of any Securityholder; or
(6) to conform this Indenture or the Securities of any series to any description thereof contained in any prospectus or other offering document relating to a series of Securities, to the extent that such description is intended to be a verbatim recitation of a provision of this Indenture or such series of Securities.
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After an amendment under this Section becomes effective, the Company will mail to the Securityholders a notice briefly describing the amendment. The failure to give such notice to all Securityholders, or any defect in a notice, will not impair or affect the validity of an amendment under this Section.
(1) extend the fixed maturity of any Security, reduce the rate or extend the time for payment of interest on any Security, reduce the principal amount of any Security or premium, if any, on any Security;
(2) impair or affect the right of a Holder to institute suit for the payment of interest, if any, principal or premium, if any, on the Securities;
(3) change the currency in which the Securities are payable from that specified in the Securities or in a Supplemental Indenture applicable to the Securities;
(4) impair the right, if any, to convert the Securities into, or exchange the Securities for, other securities or assets;
(5) reduce the percentage of Securities required to consent to an amendment, supplement or waiver;
(6) reduce the amount payable upon the redemption of any Security or change the time at which any Security may or will be redeemed;
(7) modify the provisions of any Supplemental Indenture with respect to subordination of the Securities of a series in a manner adverse to the Securityholders; or
(8) make any change in Section 6.04 or 6.08 or this fourth sentence of this Section.
It will not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver, but it will be sufficient if the consent approves the substance of the amendment, supplement or waiver.
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Article X
CONVERSION OR EXCHANGE OF SECURITIES
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Article XI
SINKING OR PURCHASE FUNDS
Section 11.01. Provisions Relating to Sinking or Purchase Funds. Any requirements that the Company make, or rights of the Company to make at its option, payments prior to maturity of the Securities of a series which will be used as a fund with which to redeem or to purchase Securities of that series, including but not limited to provisions regarding the amount of the payments, when the Company will be required, or will have the option, to make the payments and when the payments will be applied, will be set forth in a Supplemental Indenture relating to the series of Securities. In the absence of provisions in a Supplemental Indenture relating to a series of Securities setting forth requirements that the Company make, or rights of the Company to make at its option, payments to be used as a fund with which to redeem or purchase Securities of the series, the Company will not be subject to any such requirements and will not have any such rights. However, unless otherwise specifically provided in a Supplemental Indenture relating to a series of Securities, the Company will at all times have the right to purchase Securities from Holders in market transactions or otherwise.
if to the Company: | National Storage Affiliates Trust 0000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx Xxxxxxx, XX 00000 Attention: Chief Executive Officer | |
if to the Trustee: | U.S. Bank National Association 000 Xxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxx |
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Either the Company or the Trustee by a notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder will be mailed to the Securityholder at the Securityholder's address as it appears on the registration books of the Registrar and will be sufficiently given to the Securityholder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect in it will not affect its sufficiency with respect to other Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
If by reason of the suspension of regular mail service, or by reason of any other cause, it is impossible to mail any notice as required by this Indenture or any Supplemental Indenture, then any method of notification which is approved by the Trustee will constitute a sufficient mailing of the notice.
The Company may set a record date for purposes of determining the identity of Securityholders entitled to vote or consent to any action by vote or consent authorized or permitted by Sections 6.04 and 6.05. The record date will be the later of 30 days prior to the first solicitation of consents or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 2.07 prior to the solicitation.
(1) an Officers' Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture or any Supplemental Indenture relating to the proposed action have been complied with;
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all those conditions precedent have been complied with; and
(3) such other opinions and certificates as may be required by applicable provisions of this Indenture or the Supplemental Indenture.
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(4) Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture or a Supplemental Indenture will include (i) a statement that the person making the certificate or opinion has read the covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in the certificate or opinion are based; (iii) a statement that, in the opinion of the person giving the certificate or opinion, that person has made such examination or investigation as is necessary to enable that person to express an informed opinion as to whether or not the covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of that person, the condition or covenant has been complied with. Nothing in this Section 12.05 will be construed as requiring that the Company furnish to the Trustee any evidence of compliance with the conditions and covenants provided for in this Indenture or any Supplemental Indenture other than the evidence specified in this Section 12.05.
Section 12.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday, or a day on which banking institutions are not required to be open in the State of New York. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest on the sum being paid will accrue for the intervening period.
Section 12.09. Governing Law and Submission to Jurisdiction; Waiver of Jury Trial. The laws of the State of New York will govern this Indenture, each Supplemental Indenture and the Securities. The Company submits to the jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan, City of New York, and of the United States District Court for the Southern District of New York, in any action or proceeding to enforce any of its obligations under this Indenture or any Supplemental Indenture or with regard to the Securities, and agrees not to seek a transfer of any such action or proceeding on the basis of inconvenience of the forum or otherwise (but the Company will not be prevented from removing any such action or proceeding from a state court to the United States District Court for the Southern District of New York). The Company agrees that process in any such action or proceeding may be served upon it by registered mail or in any other manner permitted by the rules of the court in which the action or proceeding is brought.
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EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 12.10. Actions by the Company. Any action or proceeding brought by the Company to enforce any right, assert any claim or obtain any relief in connection with this Indenture, any Supplemental Indenture or the Securities will be brought by the Company exclusively in the courts of the State of New York sitting in the Borough of Manhattan, City of New York or in the United States District Court for the Southern District of New York.
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NATIONAL STORAGE AFFILIATES TRUST | ||
By: | ||
Name: Xxxxxx X. Xxxxxxx | ||
Title: President and Chief Executive Officer | ||
U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
By: | ||
Name: | ||
Title: |
EXHIBIT A
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series described in the within-mentioned Indenture and Supplemental Indenture.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE | ||
By: | ||
Authorized Signatory | ||
Dated |
A-1