SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 12, 1998
SUSA PARTNERSHIP, L.P.
(Exact name of registrant as specified in charter)
Tennessee 333-03344 62-1554135
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
165 Madison Avenue, Suite 1300
Memphis, Tennessee 38103
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (901) 252-2000
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Not Applicable
(Former name or former address, if changed since last report)
Exhibit Index appears on Page 4
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INFORMATION TO BE INCLUDED IN REPORT
Item 5. Other Events.
On November 12, 1998, SUSA Partnership, L.P. (the "Registrant"),
privately placed $65 million of its 8 7/8% Series A Cumulative Redeemable
Preferred Partnership Units (the "Units"). The Registrant has the right to
redeem the Units after November 1, 2003 at the original capital contribution
plus the cumulative priority return to the redemption date, to the extent not
previously distributed. The Units are exchangeable, on a one-for-one basis, for
shares of 8 7/8% Series A Cumulative Redeemable Preferred Stock of Storage USA,
Inc., the Registrant's parent corporation, on or after November 1, 2008 (or
earlier upon the occurrence of certain events) at the option of 51% of the
holders of the Units.
Additional information with respect to the transaction described herein
is set forth in the exhibits hereto, which are incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
a) Financial Statements.
None
b) Pro Forma Financial Information.
None
c) Exhibits.
Number Exhibit
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10.1 Fourth Amendment to the Second
Amended and Restated Agreement of
Limited Partnership of SUSA
Partnership, L.P., dated November
12, 1998, establishing the 8 7/8%
Series A Cumulative Redeemable
Preferred Units of Partnership
Interest and fixing distribution and
other preferences and
rights of such units.
2
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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.
SUSA PARTNERSHIP, L.P.
By: STORAGE USA, INC.
General Partner
Date: November 20, 1998 By: /s/ John W. McConomy
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John W. McConomy
Executive Vice President and General
Counsel
3
<PAGE>
EXHIBIT INDEX
Number Exhibit
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10.1 Fourth Amendment to the Second Amended and
Restated Agreement of Limited Partnership of
SUSA Partnership, L.P., dated November 12,
1998, establishing the 8 7/8% Series A
Cumulative Redeemable Preferred Units of
Partnership Interest and fixing distribution
and other preferences and rights of such units.
4
Exhibit 10.1
SUSA PARTNERSHIP, L.P.
Fourth Amendment to the Second Amended and
Restated Agreement of Limited Partnership of
SUSA Partnership, L.P.
Establishing the 8 7/8% Series A Cumulative
Redeemable Preferred Units of Partnership
Interest and Fixing Distribution and
Other Preferences and Rights of Such Units
RECITALS
WHEREAS, The Board of Directors of Storage USA, Inc., a Tennessee
corporation and sole general partner (the "General Partner") of SUSA
Partnership, L.P. (the "Partnership") has adopted a resolution designating and
classifying 650,000 unissued and unclassified shares of preferred stock of the
General Partner as 8 7/8% Series A Cumulative Redeemable Preferred Stock (the
"Series A Preferred Stock"); and
WHEREAS, Pursuant to Section 4.02 and Article XI of the Second Amended
and Restated Agreement of Limited Partnership (the "Agreement") of the
Partnership, the General Partner desires to amend the Agreement to establish the
8 7/8% Series A Cumulative Redeemable Preferred Units of Partnership Interest
(the "Series A Preferred Units") with economic interests substantially similar
to those of the Series A Preferred Stock.
NOW, THEREFORE, the General Partner hereby adopts the following
amendment to the Agreement:
Article I of the Agreement is hereby amended by inserting in the
logical alphabetical locations the following definitions of Common Units, Greene
Street, Non-Greene Street Partners, Preferred Units and Series A Preferred Units
as follows:
"Common Units" shall mean all Partnership Interests that are not
specifically designated as Preferred Units pursuant to Section 4.02(a).
"Greene Street" shall mean Greene Street 1998 Exchange Fund, L.P., a
Delaware limited partnership.
"Non-Greene Street Partners" shall mean all of the Partners other than
Greene Street.
"Preferred Units" shall mean all Preferred Partnership Interests
designated and issued by the General Partner from time to time in accordance
with the provisions of Section 4.02(a).
"Series A Preferred Units" shall mean the 8 7/8% Series A Cumulative
Redeemable
Preferred Units of Partnership Interests with the designations,
preferences, privileges, limitations and relative rights set forth in Section
4.02(e) hereof.
Article I, Section (vii) of the definition of "Profits" and "Losses" is
hereby restated in its entirety as follows:
(vii) Notwithstanding any other provision herein, any items which are specially
allocated pursuant to Sections 5.01(a)(i), 5.01(b) or 5.01(c) shall not be taken
into account in computing Profits or Losses.
Article IV of the Agreement is hereby amended by adding Section 4.02(e), as
follows:
(e) Series A Cumulative Redeemable Preferred Units of Partnership Interest.
(i) Designation and Number. A series of Partnership Units in the
Partnership designated as the 8 7/8% Series A Cumulative Redeemable Preferred
Units (the "Series A Preferred Units") is hereby established. The number of
Series A Preferred Units shall be 650,000.
(ii) Definitions. For purposes of the Series A Preferred Units, the
following terms shall have the meanings indicated:
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which
banking institutions in New York City, New York are authorized
or required by law, regulation or executive order to close.
"Contributor" shall mean Greene Street 1998 Exchange Fund, L.P.,
a Delaware limited partnership.
"Priority Return" shall mean the cumulative preferential cash
distributions with respect to the Series A Preferred Units set
forth in Section 4.02(e)(iii).
(iii) Distributions.
A. Payment of Distributions. Holders of Series A Preferred Units will
be entitled to receive, when, as and if declared by the Partnership acting
through the General Partner, out of Distributable Cash, cumulative preferential
cash distributions at the rate per annum of 8 7/8% of the original Capital
Contribution per Series A Preferred Unit. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
(1) quarterly in arrears, on or before January 15, April 15, July 15 and October
15 of each year and, (2), in the event of (a) an exchange of Series A Preferred
Units into Series A Preferred Stock, or (b) a redemption of Series A Preferred
Units, on the exchange date or redemption date, as applicable (each a "Series A
Preferred Unit Distribution Payment Date"), commencing on the first of such
payment dates to occur following their original date of issuance. The amount of
the distribution payable for any period will be computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of the
distribution payable will be computed on the basis of the actual number of days
elapsed in such a 30-day month. If any date on which distributions are to be
made on the Series A Preferred Units is not a Business Day (as defined herein),
then payment of the distribution to be made on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. Distributions on the Series A Preferred Units will be made to the
holders of record of the Series A Preferred Units on the relevant record dates,
which will be fifteen (15) days prior to the relevant Series A Preferred Unit
Distribution Payment Date.
B. Distributions Cumulative. Notwithstanding the foregoing,
distributions on the Series A Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized. Accrued
but unpaid distributions on the Series A Preferred Units will accumulate as of
the Series A Preferred Unit Distribution Payment Date on which they first become
payable. Accumulated and unpaid distributions will not bear interest.
C. Priority as to Distributions.
1. So long as any Series A Preferred Units are outstanding, no
distribution of cash or other property shall be authorized, declared, paid or
set apart for payment on or with respect to any class or series of Partnership
Interest of the Partnership ranking junior as to the payment of distributions to
the Series A Preferred Units (collectively, "Junior Units"), nor shall any cash
or other property (other than capital stock of the General Partner which
corresponds in ranking to the Partnership Interests being acquired) be set aside
for or applied to the purchase, redemption or other acquisition for
consideration of any Series A Preferred Units or any Junior Units, unless, in
each case, all distributions accumulated on all Series A Preferred Units have
been paid in full.
2. So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series A
Preferred Units, all distributions authorized and declared on the Series A
Preferred Units shall be authorized and declared so that the amount of
distributions authorized and declared per Series A Preferred Unit shall in all
cases bear to each other the same ratio that accrued distributions per Series A
Preferred Unit bear to each other.
3. Notwithstanding anything to the contrary set forth herein,
distributions on Partnership Interests held by the General Partner ranking
junior to or on parity with the Series A Preferred Units may be made, without
preserving the priority of distributions described in Sections (iii).C.(1) and
(2), but only to the extent such distributions are required to preserve the real
estate investment trust status of the General Partner.
D. No Further Rights. Holders of Series A Preferred Units shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
(iv). Liquidation Proceeds
A. Distribution. Upon voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership, distributions on the Series A Preferred Units
shall be made in accordance with Section 5.03 of the Agreement, provided, that
the remaining assets of the Partnership shall be distributed to the holders of
Series A Preferred Units until their Capital Account balances are reduced to
zero before any distribution is made to the holders of any series of Junior
Units or to the holders of Common Units.
B. Notice. Written notice of any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by (1) fax and (2) first
class mail, postage pre-paid, not less than 30 and not more that 60 days prior
to the payment date stated therein, to each record holder of the Series A
Preferred Units at the respective addresses of such holders as the same shall
appear on the transfer records of the Partnership.
C. No Further Rights. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series A
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions. The
consolidation or merger or other business combination of the Partnership with or
into any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Partnership) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Partnership.
(v). Optional Redemption.
A. Right of Optional Redemption. The Series A Preferred Units may not
be redeemed prior to November 1, 2003. On or after such date, the Partnership
shall have the right to redeem the Series A Preferred Units, in whole or in
part, at any time or from time to time out of funds legally available therefor,
upon not less than 30 nor more than 60 days' written notice, at a redemption
price, payable in cash, equal to the Capital Account balance of the holder of
Series A Preferred Units (the "Redemption Price"); provided, however, that no
redemption pursuant to this Section 4.02(e)(v) will be permitted if the
Redemption Price does not equal or exceed the original Capital Contribution of
such holder plus the cumulative Priority Return to the redemption date to the
extent not previously distributed. If fewer than all of the outstanding Series A
Preferred Units are to be redeemed, the Series A Preferred Units to be redeemed
shall be selected pro rata (as nearly as practicable without creating fractional
units).
B. Limitation on Redemption. The Partnership may not redeem fewer than
all of the outstanding Series A Preferred Units unless all accumulated and
unpaid distributions have been paid on all Series A Preferred Units for all
quarterly distribution periods terminating on or prior to the date of
redemption, unless such redemption is pursuant to a purchase or exchange offer
made on the same terms to all holders of Series A Preferred Units.
C. Procedures for Redemption.
1. Notice of redemption will be (a) faxed, and (b) mailed by the
Partnership, by certified mail, postage prepaid, not less than 30 nor more than
60 days prior to the redemption date, addressed to the respective holders of
record of the Series A Preferred Units at their respective addresses as they
appear on the records of the Partnership. No failure to give or defect in such
notice shall affect the validity of the proceedings for the redemption of any
Series A Preferred Units except as to the holder to whom such notice was
defective or not given. In addition to any information required by law, each
such notice shall state: (u) the redemption date, (v) the Redemption Price, (w)
the aggregate number of Series A Preferred Units to be redeemed and if fewer
than all of the outstanding Series A Preferred Units are to be redeemed, the
number of Series A Preferred Units to be redeemed held by such holder, which
number shall equal such holder's pro rata share (based on the percentage of the
aggregate number of outstanding Series A Preferred Units that the total number
of Series A Preferred Units held by such holder represents) of the aggregate
number of Series A Preferred Units to be redeemed, (x) the place or places where
such Series A Preferred Units are to be surrendered for payment of the
Redemption Price, (y) that distributions on the Series A Preferred Units to be
redeemed will cease to accumulate on such redemption date and (z) that payment
of the Redemption Price will be made upon presentation and surrender of such
Series A Preferred Units.
2. If the Partnership gives a notice of redemption in respect of
Series A Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the Series A Preferred Units being
redeemed funds sufficient to pay the applicable Redemption Price and will give
irrevocable instructions and authority to pay such Redemption Price to the
holders of the Series A Preferred Units upon surrender of the Series A Preferred
Units by such holders at the place designated in the notice of redemption. On
and after the date of redemption, distributions will cease to accumulate on the
Series A Preferred Units or portions thereof called for redemption, unless the
Partnership defaults in the payment thereof. If any date fixed for redemption of
Series A Preferred Units is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price is improperly withheld or refused and not paid
by the Partnership, distributions on such Series A Preferred Units will continue
to accumulate from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the applicable Redemption Price.
(vi). Voting Rights.
A. General. Holders of the Series A Preferred Units will not have any
voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below.
B. Certain Voting Rights. So long as any Series A Preferred Units
remain outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series A Preferred Units outstanding
at the time (1) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking prior to the Series A
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up, or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (2) authorize or create, or increase
the authorized or issued amount of any Partnership Interests on a parity with
the Series A Preferred Units or reclassify any Partnership Interest of the
Partnership into any such Partnership Interest or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such Partnership Interest but only to the extent such Partnership Interests are
issued to an affiliate of the Partnership, other than (i) the General Partner to
the extent the issuance of such interests was to allow the General Partner to
issue corresponding preferred stock to persons who are not affiliates of the
Partnership, (ii) Security Capital U.S. Realty, Security Capital Holdings, S.A.
Realty or any of their affiliates or (iii) to any other affiliate, provided that
a majority of Independent Directors (as defined in the Charter) of the General
Partner have approved such issuance, or (3) either consolidate, merge into or
with, or convey, transfer or lease its assets substantially as an entirety to,
any corporation or other entity, or amend, alter or repeal the provisions of the
Agreement (including, without limitation, this Section), whether by merger,
consolidation or otherwise, in each case in a manner that would materially and
adversely affect the powers, special rights, preferences, privileges or voting
power of the Series A Preferred Units or the holders thereof; provided, however,
that with respect to the occurrence of any event set forth in (3) above, so long
as (a) the Partnership is the surviving entity and the Series A Preferred Units
remain outstanding with the terms thereof unchanged, or (b) the resulting,
surviving or transferee entity is a partnership, limited liability company or
other pass-through entity organized under the laws of any state and substitutes
the Series A Preferred Units for other interests in such entity having
substantially the same terms and rights as the Series A Preferred Units,
including with respect to distributions, redemptions, transfers, voting rights
and rights upon liquidation, dissolution or winding-up, then the occurrence of
any such event shall not be deemed to materially and adversely affect such
rights, privileges or voting powers of the holders of the Series A Preferred
Units; and provided further, that any increase in the amount of Partnership
Interests or the creation or issuance of any other class or series of
Partnership Interests, in each case ranking (y) junior to the Series A Preferred
Units with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (z) on a parity to the Series A
Preferred Units with respect to payment of distributions or the distribution of
assets upon liquidation, dissolution or winding-up to the extent such
Partnership Interests are not issued to an affiliate of the Partnership, other
than (i) the General Partner or any wholly-owned subsidiary thereof, to the
extent the issuance of such interests was to allow the General Partner to issue
corresponding preferred stock to persons who are not affiliates of the
Partnership, (ii) Security Capital U.S. Realty, Security Capital Holdings, S.A.
Realty or any of their affiliates or (iii) any other affiliate, provided that a
majority of Independent Directors of the General Partner have approved such
issuance, shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
(vii). Certain Transfer Provisions. If Contributor concludes based on
results or projected results that there exists (in the reasonable judgment of
Contributor) an imminent and substantial risk that the Contributor's interest in
the Partnership represents or will represent more than 19.5% of the total
profits or capital interests in the Partnership for a taxable year (the "19.5%
Limit") (determined in accordance with Treasury Regulations Section
1.731-2(e)(4)), then Contributor shall be permitted to transfer so much of its
Series A Preferred Units as may be appropriate to alleviate the risk of not
satisfying the 19.5% Limit.
(viii). Exchange Rights.
A. Right to Exchange.
1. Series A Preferred Units will be exchangeable with the
General Partner in whole but not in part unless expressly otherwise provided
herein at any time on or after November 1, 2008, at the option of 51% of the
holders of all outstanding Series A Preferred Units, for authorized but
previously unissued shares of Series A Preferred Stock at an exchange rate of
one share of Series A Preferred Stock from the General Partner for one Series A
Preferred Unit, subject to adjustment as described below, provided that the
Series A Preferred Units will become exchangeable at any time, in whole but not
in part unless expressly otherwise provided herein, at the option of 51% of the
holders of all outstanding Series A Preferred Units for Series A Preferred Stock
if (a) at any time full distributions shall not have been timely made on any
Series A Preferred Unit with respect to six (6) prior quarterly distribution
periods, whether or not consecutive; provided, however, that a distribution in
respect of Series A Preferred Units shall be considered timely made if made
within two (2) Business Days after the applicable Series A Preferred Unit
Distribution Payment Date if at the time of such late payment there shall not be
any prior quarterly distribution periods in respect of which full distributions
were not timely made, or (b) upon receipt by a holder or holders of Series A
Preferred Units of (y) notice from the General Partner that the General Partner
or a subsidiary of the General Partner has taken the position that the
Partnership is, or upon the consummation of an identified event in the immediate
future will be, a "Publicly Traded Partnership" (a "PTP") within the meaning of
Section 7704 of the Internal Revenue Code (the "Code") and (z) an opinion
rendered by counsel familiar with such matters addressed to a holder or holders
of Series A Preferred Units, that the Partnership is or likely is, or upon the
occurrence of a defined event in the immediate future will be or likely will be,
a PTP. In addition, the Series A Preferred Units may be exchanged for Series A
Preferred Stock, in whole but not in part unless expressly otherwise provided
herein, at the option of 51% of the holders of all outstanding Series A
Preferred Units after November 1, 2001 and prior to November 1, 2008 if such
holders of Series A Preferred Units shall deliver to the General Partner either
(c) a private letter ruling addressed to such holder of Series A Preferred Units
or (d) an opinion of counsel based on the enactment of temporary or final
Treasury Regulations or the publication of a Revenue Ruling, in either case to
the effect that such exchange of the Series A Preferred Units at such earlier
time would not cause the Series A Preferred Units to be considered "stock and
securities" within the meaning of Section 351(e) of the Code for purposes of
determining whether the holder of such Series A Preferred Units is an
"investment company" under Section 721(b) of the Code if an exchange is
permitted at such earlier date. Furthermore, the Series A Preferred Units, if
Contributor so determines, may be exchanged in whole but not in part (regardless
of whether held by Contributor) for Series A Preferred Stock if Contributor
concludes based on results or projected results that there exists (in the
reasonable judgment of Contributor) an imminent and substantial risk that the
Contributor's interest in the Partnership represents or will exceed the 19.5%
Limit.
2. Notwithstanding anything to the contrary set forth in Section
4.02(e)(viii).A.1., if an Exchange Notice (as defined herein) has been delivered
to the General Partner, then the General Partner may, at its option, within ten
(10) Business Days after receipt of the Exchange Notice, elect to cause the
Partnership to redeem all or a portion of the outstanding Series A Preferred
Units for cash in an amount equal to the original Capital Contribution per
Series A Preferred Unit and all accrued and unpaid distributions thereon to the
date of redemption. If the General Partner elects to redeem fewer than all of
the outstanding Series A Preferred Units, the number of Series A Preferred Units
held by each holder to be redeemed shall equal such holder's pro rata share
(based on the percentage of the aggregate number of outstanding Series A
Preferred Units that the total number of Series A Preferred Units held by such
holder represents) of the aggregate number of Series A Preferred Units being
redeemed.
3. In the event an exchange of all Series A Preferred Units
pursuant to Section 4.02(e)(viii).A. would violate the provisions on ownership
limitation of the General Partner set forth in Section 12 of the General
Partner's Amended Charter, each holder of Series A Preferred Units shall be
entitled to exchange, pursuant to the provisions of Section 4.02(e)(viii).B, a
number of Series A Preferred Units which would comply with the provisions on the
ownership limitation of the General Partner and any Series A Preferred Units not
so exchanged (the "Excess Units") shall be redeemed by the Partnership for cash
in an amount equal to the original Capital Contribution per Excess Unit, plus
any accrued and unpaid distributions thereon to the date of redemption, subject
to any restriction thereon contained in any debt instrument or agreement of the
Partnership.
B. Procedure for Exchange and/or Redemption of Series A Preferred
Units.
1. Any exchange shall be exercised pursuant to a notice of
exchange (the "Exchange Notice") delivered to the General Partner by the holders
representing at least 51% of the outstanding Series A Preferred Units (or by
Contributor in the case of an exchange pursuant to the last sentence of Section
4.02(e)(viii).A.1. hereof) by (a) fax and (b) certified mail postage prepaid.
The General Partner may effect any exchange of Series A Preferred Units, or
exercise its option to cause the Partnership to redeem any portion of the Series
A Preferred Units for cash pursuant to Section 4.02(e)(viii).A.2. or redeem
Excess Units pursuant to Section 4.02(e)(viii).A.3, by delivering to each holder
of record of Series A Preferred Units, within ten (10) Business Days following
receipt of the Exchange Notice, (a) if the General Partner elects to cause the
Partnership to exchange any of the Series A Preferred Units then outstanding, a
written notice stating (A) the redemption date, which may be the date of such
written notice or any other date which is not later than sixty (60) days
following the receipt of the Exchange Notice, (B) the redemption price, (C) the
place or places where the Series A Preferred Units are to be surrendered and (D)
that distributions on the Series A Preferred Units will cease to accrue on such
redemption date, or (b) if the General Partner elects to cause the Partnership
to redeem all of the Series A Preferred Units then outstanding in exchange for
cash, a Redemption Notice. If the General Partner elects to cause the
Partnership to exchange any of the Series A Preferred Units then outstanding, at
the time and place specified in the redemption notice, the General Partner shall
deliver certificates representing shares of the Series A Preferred Stock being
issued in exchange for the Series A Preferred Units of such holder being
exchanged. Series A Preferred Units shall be deemed canceled (and any
corresponding Partnership Interest represented thereby deemed terminated)
simultaneously with the delivery of shares of Series A Preferred Stock (with
respect to Series A Preferred Units exchanged) or simultaneously with the
redemption date (with respect to Series A Preferred Units redeemed). Holders of
Series A Preferred Units shall deliver any canceled certificates representing
Series A Preferred Units which have been exchanged or redeemed to the office of
the General Partner within ten (10) Business Days of the exchange or redemption
with respect thereto. Notwithstanding anything to the contrary contained herein,
any and all Series A Preferred Units to be exchanged for Series A Preferred
Stock pursuant to this Section 4.02(e)(viii) shall be so exchanged in a single
transaction at one time. As a condition to exchange, the General Partner may
require the holders of Series A Preferred Units to make such representations as
may be reasonably necessary for the General Partner to establish that the
issuance of Series A Preferred Stock pursuant to the exchange shall not be
required to be registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws. Any shares of Series A
Preferred Stock issued pursuant to this Section 4.02(e)(viii) shall be delivered
as shares which are duly authorized, validly issued, fully paid and
nonassessable, free of any pledge, lien, encumbrance or restriction other than
those provided in the Charter or the By-Laws of the General Partner, the
Securities Act and relevant state securities or blue sky laws. The certificates
representing the Series A Preferred Stock issued upon exchange of the Series A
Preferred Units shall contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
(A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS
THEREUNDER.
2. In the event of an exchange of Series A Preferred Units for
Series A Preferred Stock, an amount equal to the accrued and unpaid
distributions to the date of exchange on any Series A Preferred Units tendered
for exchange shall (a) accrue on the Series A Preferred Stock into which such
Series A Preferred Units are exchanged, and (b) continue to accrue on such
Series A Preferred Units, which shall remain outstanding following such
exchange, with the General Partner as the holder of such Series A Preferred
Units. Fractional shares of Series A Preferred Stock are not to be issued upon
exchange but, in lieu thereof, the General Partner will pay a cash adjustment
based upon the fair market value of the Series A Preferred Stock on the day
prior to the exchange date as determined in good faith by the Board of Directors
of the General Partner.
C. Adjustment of Exchange Price. In case the General Partner shall be a
party to any transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all or substantially
all of the General Partner's capital stock or sale of all or substantially all
of the General Partner's assets), in each case as a result of which the Series A
Preferred Stock will be converted into the right to receive shares of capital
stock, other securities or other property (including cash or any combination
thereof), each Series A Preferred Unit will thereafter be exchangeable into the
kind and amount of shares of capital stock and other securities and property
receivable (including cash or any combination thereof) upon the consummation of
such transaction by a holder of that number of Series A Preferred Stock or
fraction thereof into which one Series A Preferred Unit was exchangeable
immediately prior to such transaction. The General Partner may not become a
party to any such transaction unless the terms thereof are consistent with the
foregoing.
(ix). Registration Rights. If the holders of the Series A Preferred
Units exercise their right to exchange such Series A Preferred Units for Series
A Preferred Stock pursuant to Section 4.02(e)(viii).A., such holders shall be
entitled to certain rights with respect to the registration of such shares for
sale under the Securities Act of 1933, as amended (the "Act"). Such holders may
request that the issuer of such shares file a registration statement under the
Act with respect to such shares, after which the issuer of such shares shall use
its best efforts to effect such registration.
(x). No Other Conversion Rights. Except as provided above, the holders
of the Series A Preferred Units shall not have any rights to convert such Series
A Preferred Units into any other securities of, or interest in, the Partnership
or the General Partner.
(xi). No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series A Preferred Units.
Article V, Section 5.01(a) is hereby amended and restated in its
entirety as follows:
(a) General Allocations.
(i) Depreciation and Amortization Deductions. Except
as otherwise provided in this Section 5.01,
depreciation and amortization deductions for
each fiscal year of the Partnership shall be
allocated among the Non-Greene Street Partners
pro-rata based on their respective Percentage
Interests.
(ii) Profits. Except as otherwise provided in this
Section 5.01, Profits, including profits from a
disposition of all or any portion of Property,
shall be allocated at the end of each fiscal
year to the Partners as follows:
(1) First, to Greene Street until the
aggregate amount of Profits allocated to
Greene Street for the current and all
prior years equals the aggregate amount
of cash distributed to Greene Street
under Section 4.02(e)(iii) for the
current and all prior years; and
(2) Thereafter, to the Non-Greene Street
Partners pro rata based on their
respective Percentage Interests.
(iii) Losses. Except as otherwise provided in this
Section 5.01, Losses, including losses from a
disposition of all or any portion of Property,
shall be allocated at the end of each fiscal
year as follows:
(1) First, pro rata to the Non-Greene Street
Partners until their Capital Accounts
have been reduced to zero;
(2) Second, to the General Partner to the
extent permitted under applicable
Regulations; and
(3) Thereafter, to Greene Street.
Article VIII of the Agreement is hereby amended by adding Section
8.05(e), as follows:
(e) For purposes of this Section 8.05, "Partnership
Units" shall mean "Common Units."
IN WITNESS WHEREOF, the General Partner has caused this Amendment to be
duly executed by its Chief Financial Officer as of this 12th day of November,
1998.
STORAGE USA, INC.
as General Partner
By: /s/ Christopher P. Marr
Its: Chief Financial Officer
