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EXHIBIT 4.4
[FRONT OF NOTE]
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 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.
REGISTERED NO.: PRINCIPAL AMOUNT
CUSIP NO.:
ISIN NO.: US82567DA66
COMMON CODE.: 12512058
SHURGARD STORAGE CENTERS, INC.
7 3/4% NOTE DUE 2011
Shurgard Storage Centers, Inc., a Delaware corporation (the "COMPANY,"
which term shall include any successor under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, upon presentation, the principal sum of __________ Dollars ($) on
February 22, 2011, and to pay interest thereon from February 20, 2001, or from
the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, semiannually in arrears on February 22 and
August 22 of each year (each, an "Interest Payment Date"), commencing August 22,
2001, at the rate of 7-3/4% per annum, until the entire principal amount hereof
is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined herein), be paid to the Holder in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest, which shall be the 15th calendar day
preceding the applicable Interest Payment Date (whether or not a Business Day,
as defined below). 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 either be paid to the Holder in whose name this Note (or one or more
predecessor Notes) 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 Notes 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 Notes 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. Payment
of the principal of, and interest on, this Note will be made at the office or
agency of the Trustee (as defined herein) maintained for that purpose at LaSalle
Bank, N.A., Attn: Corporate Trust Operations, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or elsewhere as provided in the Indenture, in
United States Dollars; provided, however, that at the option of the Company
payment of interest may be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register kept for
the Notes pursuant to Section 305 of
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the Indenture or (ii) wire transfer to an account of the Person entitled thereto
located inside the United States. Payments of principal, premium, if any, and
interest in respect of this Note will be made by the Company in immediately
available funds.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal this ___ day of _______, 2001.
SHURGARD STORAGE CENTERS, INC.
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Treasurer
Attest:
By:
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 7 3/4% Notes due 2011 described in the
within-mentioned Indenture.
LaSalle Bank, N.A., as Trustee
By:
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Authorized Signatory
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[REVERSE OF NOTE]
1. GENERAL
This Note is one of a duly authorized issue of securities of the Company
issued as a series of securities under an indenture dated as of April 25, 1997,
as supplemented as of July 11, 1997 (the "Indenture"), between the Company and
LaSalle Bank, N.A., as trustee (the "Trustee," which term includes any successor
trustee under the Indenture with respect to the Notes, 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 Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the duly authorized series designated as the "7 3/4% Notes due 2011" (the
"Notes"), initially limited in aggregate principal amount to $200,000,000.00.
Capitalized terms used herein are used as defined in the Indenture unless
otherwise indicated.
2. REDEMPTION
The Notes may be redeemed at any time at the option of the Company, in
whole or from time to time in part, at a Redemption Price equal to the sum of
(i) the principal amount (or any portion thereof) of the Notes being redeemed
plus accrued interest thereon to the Redemption Date and (ii) the Make-Whole
Amount (as defined below) if any, with respect to such Notes (or any portion
thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the Redemption Date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
such Notes will be to receive payment of the Redemption Price.
Notice of any redemption of any Notes (or any portion thereof) will be
given to Holders at their addresses, as shown in the Security Register for the
Notes, not more than 60 nor less than 30 days prior to the date fixed for
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Notes held by such Holder to be
redeemed.
If less than all the Notes are to be redeemed, the Company will notify
the Trustee at least 45 days prior to giving notice of redemption (or such
shorter period as is satisfactory to the Trustee) of the aggregate principal
amount of Notes to be redeemed and their Redemption Date. The Trustee shall
select, in such manner as it shall deem fair and appropriate, Notes to be
redeemed in whole or in part.
As used herein, the following terms will have the meanings set forth
below:
"MAKE-WHOLE AMOUNT" means, in connection with any optional redemption or
accelerated payment of any Notes, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semiannual basis, such principal and interest at the Reinvestment Rate (as
defined below) (determined on the third Business Day preceding the date such
notice of redemption is given or declaration of acceleration is made) from the
respective dates on which such principal and interest would have been payable if
such redemption or accelerated payment had not been made to the date of
redemption or accelerated payment over (ii) the aggregate principal amount of
the Notes being redeemed or paid.
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"REINVESTMENT RATE" means 0.25% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical Release
(as defined below) under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"STATISTICAL RELEASE" means the statistical release designed "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which reports yields on actively traded U.S. government securities
adjusted to constant maturities, or, if such statistical release is not
published at the time of any determination under the Indenture, then such other
reasonable comparable index which shall be designated by the Company.
3. DEFEASANCE
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Note.
4. RESTRICTIVE COVENANTS
In addition to the covenants of the Company contained in the Indenture,
the Company makes the following covenants with respect to, and for the benefit
of the Holders of, the Notes:
LIMITATIONS ON INCURRENCE OF TOTAL DEBT
The Company will not, and will not permit any Subsidiary to, incur any
Debt (as defined below), other than Intercompany Debt (as defined below), if,
immediately after giving effect to the incurrence of such additional Debt and
the application of the proceeds therefrom, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries on a consolidated basis
determined in accordance with GAAP is greater than 60% of the sum of (i) the
Company's Total Assets (as defined below) as of the end of the fiscal quarter
covered in the Company's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission (or, if such
filing is not required under the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder (the "Exchange
Act"), with the Trustee) prior to the incurrence of such additional Debt and
(ii) the increase in Total Assets from the end of such quarter, including,
without limitation, any increase in Total Assets caused by the incurrence of
such additional Debt (such increase together with the Company's Total Assets is
referred to as the "Adjusted Total Assets").
LIMITATION ON INCURRENCE OF SECURED DEBT
The Company will not, and will not permit any Subsidiary to, incur any
Secured Debt (as defined below) if, immediately after giving effect to the
incurrence of such additional Secured Debt, the aggregate principal amount of
all outstanding Secured Debt of the Company and its Subsidiaries on a
consolidated basis determined in accordance with GAAP is greater than 40% of the
Company's Adjusted Total Assets.
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DEBT SERVICE COVERAGE
The Company will not, and will not permit any Subsidiary to, incur any
Debt, other than Intercompany Debt, if the ratio of Consolidated Income
Available for Debt Service (as defined below) to Annual Debt Service Charge (as
defined below) for the four consecutive fiscal quarters most recently ended
prior to the date on which such additional Debt is to be incurred is less than
1.5 to 1.0 on a pro forma basis after giving effect to the incurrence of such
Debt and the application of the proceeds therefrom, and calculated on the
assumption that (i) such Debt and any other Debt incurred by the Company or any
Subsidiary since the first day of such four-quarter period, which was
outstanding at the end of the period, had been incurred at the beginning of the
period and continued to be outstanding throughout the period, and the
application of the proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such four-quarter period, (ii) the repayment or
retirement of any other Debt by the Company or any Subsidiary since the first
day of the four-quarter period had been repaid or retired at the beginning of
such period (except that, in determining the amount of Debt so repaid or
retired, the amount of Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt during such period)
and (iii) in the case of any increase or decrease in Total Assets, or any other
acquisition or disposition by the Company or any Subsidiary of any asset or
group of assets, since the first day of such four-quarter period, including,
without limitation, by merger, stock purchase or sale, or asset purchase or
sale, such increase, decrease or other acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such period with the
appropriate adjustments to revenues, expenses and Debt levels with respect to
such increase, decrease or other acquisition or disposition being included in
such pro forma calculation. For purposes of the adjustments referred to in
clause (iii) of the preceding sentence, any income earned (or loss incurred) as
a result of any such increase, decrease or other acquisition or disposition
referred to in clause (iii) for a period less than such four-quarter period
shall be annualized for such four-quarter period.
MAINTENANCE OF TOTAL UNENCUMBERED ASSETS
The Company will maintain at all times Total Unencumbered Assets (as
defined below) of not less than 150% of the aggregate outstanding principal
amount of the Unsecured Debt (as defined below) of the Company and its
Subsidiaries.
As used herein, the following terms will have the meanings set forth
below:
"ANNUAL DEBT SERVICE CHARGE" as of any date means the amount which is
expensed in any 12-month period for interest on Debt of the Company and its
Subsidiaries.
"CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE" for any period means
Consolidated Net Income (as defined below) plus amounts which have been deducted
in determining Consolidated Net Income during such period for (i) Consolidated
Interest Expense (as defined below), (ii) provision for taxes of the Company and
its Subsidiaries based on income, (iii) amortization (other than amortization of
debt discount) and depreciation, (iv) provisions for losses from sales or joint
ventures, (v) increases in deferred taxes and other noncash charges, (vi)
charges resulting from a change in accounting principles and (vii) charges for
early extinguishment of debt, and less amounts which have been added in
determining Consolidated Net Income during such period for (a) provisions for
gains from sales or joint ventures and (b) decreases in deferred taxes and other
noncash items.
"CONSOLIDATED INTEREST EXPENSE" for any period, and without duplication,
means all interest (including the interest component of rentals on capitalized
leases, letter of credit fees, commitment fees and
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other like financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment-in-kind, zero coupon and other like
securities) but excluding legal fees, title insurance charges, other
out-of-pocket fees and expenses incurred in connection with the issuance of Debt
and the amortization of any such debt issuance costs that are capitalized, all
determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" for any period means the amount of
consolidated net income (or loss) of the Company and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"DEBT" means any indebtedness of the Company or any Subsidiary, whether
or not contingent, in respect of (i) money borrowed or evidenced by bonds,
notes, debentures or similar instruments, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest existing on
property owned by the Company or any Subsidiary, (iii) letters of credit or
amounts representing the balance deferred and unpaid of the purchase price of
any property except any such balance that constitutes an accrued expense or
trade payable or (iv) any lease of property by the Company or any Subsidiary as
lessee that is reflected on the Company's consolidated balance sheet as a
capitalized lease in accordance with GAAP, in the case of items of indebtedness
under (i) through (iii) above to the extent that any such items (other than
letters of credit) would appear as liabilities on the Company's consolidated
balance sheet in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation by the Company or any Subsidiary to be liable
for, or to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), indebtedness of another person
(other than the Company or any Subsidiary) (it being understood that Debt shall
be deemed to be incurred by the Company or any Subsidiary whenever the Company
or such Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
"INTERCOMPANY DEBT" means indebtedness owed by the Company or any
Subsidiary solely to the Company or any Subsidiary.
"SECURED DEBT" means Debt secured by any mortgage, lien, charge,
encumbrance, trust deed, deed of trust, deed to secure debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease
or other security interest or agreement granting or conveying security title to
or a security interest in real property or other tangible assets.
"SENIOR EXECUTIVE GROUP" means, collectively, those individuals holding
the offices of Chairman, President, Chief Executive Officer, Chief Operating
Officer or any Senior Vice President or Executive Vice President of the Company.
"SUBSIDIARY" means (i) any corporation, partnership, joint venture,
limited liability company or other entity the majority of the shares of the
non-voting capital stock or other equivalent ownership interests of which
(except directors' qualifying shares) are at the time directly or indirectly
owned by the Company and/or any other Subsidiary or Subsidiaries, and the
majority of the shares of the voting capital stock or other equivalent ownership
of which (except for disqualifying shares) are at the time directly or
indirectly owned by the Company, any Subsidiary and/or one or more individuals
of the Senior Executive Group (or, in the event of death or disability of any of
such individuals, his/her respective legal representative(s)), or such
individuals' successors in office as officers of the Company, and (ii) any other
entity the accounts of which are consolidated with the accounts of the Company.
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"TOTAL ASSETS" as of any date means the sum of (i) Undepreciated Real
Estate Assets (as defined below) and (ii) all other assets of the Company and
its Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"TOTAL UNENCUMBERED ASSETS" means Total Assets minus the value of any
properties of the Company and its Subsidiaries that are encumbered by any
mortgage, charge, pledge, lien, security interest or other encumbrance of any
kind, including the value of any stock of any Subsidiary that is so encumbered.
For purposes of this definition, the value of each property shall be equal to
the purchase price or cost of each such property and the value of any stock
subject to any encumbrance shall be determined by reference to the value of the
properties owned by the issuer of such stock as aforesaid.
"UNDEPRECIATED REAL ESTATE ASSETS" as of any date means the amount of
real estate assets of the Company and its Subsidiaries (original cost plus
capital improvements) on such date, before depreciation and amortization
determined on a consolidated basis in accordance with GAAP.
"UNSECURED DEBT" means Debt of the Company or any Subsidiary that is not
Secured Debt.
5. REMEDIES FOR EVENTS OF DEFAULT
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of the Notes at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Note for the enforcement of any payment of principal hereof or any interest
on or after the respective due dates expressed herein.
6. AMENDMENT, SUPPLEMENT AND WAIVER
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 Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes. The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the Notes at the time Outstanding, on behalf of
the Holders of all Notes, to waive compliance by the Company with certain
provisions of the Indenture and, in certain circumstances, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note 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 Note.
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No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and interest on, this Note
at the times, places and rate, and in the coin or currency, herein prescribed.
7. DENOMINATION; TRANSFER; EXCHANGE
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in any Place of Payment where the principal of, and interest on,
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar for
the Notes duly executed by, the Holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Notes 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
set forth, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series of different authorized denominations, as
requested by the Holder surrendering the same.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 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 the Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
8. NO RECOURSE
No recourse shall be had for the payment of the principal of or premium,
if any, or the interest on this Note, 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.
9. ▇▇▇▇▇ AND ISIN NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
or ISIN numbers as printed on the Notes, and reliance may be placed only on the
other identification numbers printed hereon.
10. GOVERNING LAW
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
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Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
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the within security and all rights thereunder, hereby irrevocably constituting
and appointing
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attorney to transfer such security on the books of the Company with full power
of substitution in the premises.
