As filed with the Securities and Exchange Commission on January 21, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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STORAGE USA, INC. and
SUSA PARTNERSHIP, L.P.
(Exact name of each registrant as specified in its charter)
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<S> <C>
62-1251239
TENNESSEE 62-1554135
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
165 Madison Avenue, Mr. Dean Jernigan Copy to:
Suite 1300 165 Madison Avenue, Randall S. Parks
Memphis, Tennessee 38103 Suite 1300 Hunton & Williams
(901) 252-2000 Memphis, Tennessee 38103 Riverfront Plaza, East Tower
(Address, including zip code, and (901) 252-2000 951 E. Byrd Street
telephone number, including area code, (Name, address, including zip code, and Richmond, Virginia 23219-4074
of registrants' principal telephone number, including area code,
executive offices) of agent for service)
</TABLE>
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement in
light of market conditions and other factors.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.|_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.|_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.|_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.|_|
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Amount of
Title of Each Class of Aggregate Amount Proposed Maximum Aggregate Offering Registration
Securities to be Registered(1) to be Registered Offering Price Per Unit Price(2) Fee(3)(6)
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<S> <C>
Debt Securities
} $900,000,000 (5) } $900,000,000 $265,500
Preferred Stock
Depositary Shares (4)
Common Stock
Warrants
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</TABLE>
(1) This Registration Statement also covers delayed delivery
contracts that may be issued by the Registrants under which
the party purchasing such contracts may be required to
purchase Debt Securities, Preferred Stock, Depositary Shares,
Common Stock or Warrants. Such contracts may be issued
together with the specific securities to which they relate. In
addition, securities registered hereunder may be sold either
separately or as units comprising more than one type of
security registered hereunder.
(2) Estimated solely for purposes of calculating the registration
fee. No separate consideration will be received for Common
Stock or Preferred Stock as may from time to time be issued
upon conversion of Preferred Stock.
(3) The registration fee has been calculated in accordance with
Rule 457(o) under the Securities Act of 1933, as amended.
(4) Such indeterminate number of Depositary Shares to be evidenced
by Depositary Receipts issued pursuant to a Deposit Agreement.
In the event Storage USA, Inc. elects to offer to the public
fractional interests in shares of the Preferred Stock
registered hereunder, Depositary Receipts will be distributed
to those persons purchasing such fractional interests and such
shares will be issued to the Depositary under the Deposit
Agreement.
(5) Omitted pursuant to General Instruction II.D of Form S-3 under
the Securities Act of 1933, as amended.
(6) Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included in this Registration Statement also
relates to $50,000,000 aggregate offering price of SUSA
Partnership, L.P.'s Debt Securities and $150,000,000 aggregate
offering price of Preferred Stock, Depositary Shares, Common
Stock and Warrants of Storage USA, Inc. registered under its
Registration Statement on Form S-3 (File No. 333-21991). SUSA
Partnership, L.P. and Storage USA, Inc. previously paid a
registration fee of $136,364 in connection with such
Registration Statement, which originally covered $450,000,000
aggregate offering price of securities.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Pursuant to Rule 429 under the Securities Act, the combined Prospectus
included in this Registration Statement also relates to Securities covered by
the Registrants' Registration Statement on Form S-3 (File No. 333-21991).
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 21, 1998
Prospectus
$650,000,000
STORAGE USA, INC.
Preferred Stock, Depositary Shares,
Common Stock and Warrants
$450,000,000
SUSA PARTNERSHIP, L.P.
Debt Securities
Storage USA, Inc. (the "Company") may from time to time offer its (i)
shares of Preferred Stock, $.01 par value ("Preferred Stock"), (ii) depositary
shares representing entitlement to all rights and preferences of a fraction of a
share of Preferred Stock of a specified series and represented by depositary
receipts ("Depositary Shares"), (iii) shares of Common Stock, $.01 par value
("Common Stock"), and (iv) warrants exercisable for either Preferred Stock or
Common Stock ("Warrants"), having an aggregate initial public offering price not
to exceed $650,000,000, on terms to be determined at the time of offering.
SUSA Partnership, L.P. (the "Partnership") may from time to time offer
in one or more series unsecured, non-convertible debt securities ("Debt
Securities") having an aggregate initial public offering price not to exceed
$450,000,000, on terms to be determined at the time of offering. The Preferred
Stock, the Depositary Shares, the Common Stock, the Warrants and the Debt
Securities offered hereby (collectively, the "Offered Securities") may be
offered, separately or as units with other Offered Securities, in separate
series, in amounts, at prices and on terms to be determined at the time of sale
and to be set forth in a supplement to this Prospectus (a "Prospectus
Supplement").
The Debt Securities will be effectively subordinated to any secured
indebtedness of the Partnership and any indebtedness of the Partnership's
subsidiaries. At December 31, 1997, the Partnership and its subsidiaries had
$42.8 million in secured indebtedness outstanding. The Partnership's
subsidiaries had no unsecured indebtedness outstanding at December 31, 1997. The
Debt Securities will rank in pari passu with all other unsecured and
unsubordinated indebtedness of the Partnership. Subject to certain limitations
set forth in the indenture regarding the Debt Securities, the Partnership may
incur additional secured or unsecured indebtedness. See "Description of Debt
Securities - Certain Covenants - Limitations on Incurrence of Indebtedness."
Except as described under "Description of Debt Securities Merger, Consolidation
or Sale" or "Description of Debt Securities - Certain Covenants" or as may be
set forth in any Prospectus Supplement, the applicable indenture will not
contain any provisions that would limit the ability of the Partnership or its
subsidiaries to incur indebtedness or that would afford holders of the Debt
Securities protection in the event of a significant transaction involving the
Partnership that may adversely affect the holders of the Debt Securities.
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable, (i) in the case of Preferred
Stock, the series designation and number of shares, the dividend, liquidation,
redemption, conversion, voting and other rights, the initial public offering
price and whether interests in the Preferred Stock will be represented by
Depositary Shares; (ii) in the case of Depositary Shares, the fractional share
of Preferred Stock represented by each such Depositary Share; (iii) in the case
of Common Stock, the number of shares and initial public offering price; (iv) in
the case of Warrants, the specific title and aggregate number, the number of
shares purchasable upon exercise of the Warrants, the issue price and the
exercise price and in the case of Warrants for Preferred Stock, the designation,
aggregate number and terms of the series of Preferred Stock purchasable upon
exercise of such Warrants; (v) in the case of Debt Securities, the specific
title, aggregate principal amount, form (which may be certificated or global),
authorized denominations, maturity, rate (or manner of calculation thereof) and
time of payment of interest, terms for redemption at the option of the
Partnership or repayment at the option of the holder, terms for sinking fund
payments, covenants and any initial public offering price; and (vi) in the case
of all Offered Securities, whether such Offered Securities will be offered
separately or as a unit with other Offered Securities. In addition, such
specific terms may include limitations on direct or beneficial ownership and
restrictions on transfer of the Offered Securities, in each case as may be
appropriate to preserve the status of the Company as a real estate investment
trust ("REIT") for federal income tax purposes.
The applicable Prospectus Supplement will also contain information,
where applicable, concerning material United States federal income tax
considerations relating to, and any listing on a securities exchange of, the
Offered Securities covered thereby.
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The Offered Securities may be offered directly, through agents
designated from time to time by the Company or the Partnership or to or through
underwriters or dealers. If any designated agents or any underwriters are
involved in the sale of Offered Securities, they will be identified and their
compensation will be described in the applicable Prospectus Supplement. See
"Plan of Distribution." No Offered Securities may be sold without delivery of
the applicable Prospectus Supplement describing such Offered Securities and the
method and terms of the offering thereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _________ ___, 1998.
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AVAILABLE INFORMATION
The Partnership and the Company, its general partner, are subject to
the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and, in accordance therewith, the Company and the
Partnership file reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company and the Partnership with
the Commission can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at its Regional Offices at Suite 1400, Northwestern Atrium
Center, 500 West Madison Street, Chicago, Illinois 60661 and Suite 1300, 7 World
Trade Center, New York, New York 10048, can also be inspected and copied at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005. The Commission maintains a Web site that contains reports, proxy and
information statements and other information regarding the Company and the
Partnership and other registrants that have been filed electronically with the
Commission. The address of such site is http://www.sec.gov.
This Prospectus is part of a registration statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules of the Commission. For further information,
reference is made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company (File No. 001-12910) and
the Partnership (File No. 333-3344) with the Commission are incorporated herein
by reference:
(i) the Company's Annual Report on Form 10-K, for the year ended
December 31, 1996, as amended by the Annual Report on Form
10-K/A-1, filed on April 3, 1997;
(ii) the Company's Quarterly Reports on Form 10-Q, for the quarter
ended March 31, 1997, for the quarter ended June 30, 1997, and
for the quarter ended September 30, 1997;
(iii) the Company's Current Report on Form 8-K filed on February 18,
1997, the Company's Current Report on Form 8-K/A filed on
February 18, 1997, the Company's Current Report on Form 8-K
filed March 14, 1997, the Company's Current Report on Form 8-K
filed on March 27, 1997, the Company's Current Report on Form
8-K filed on May 28, 1997, the Company's Current Report on
Form 8-K filed on May 30, 1997, the Company's Current Report
on Form 8-K filed on September 17, 1997, the Company's Current
Report on Form 8-K/A filed on October 6, 1997, the Company's
Current Report on Form 8-K filed on November 21, 1997, and the
Company's Current Reports on Form 8-K/A filed on November 25,
1997, and January 20, 1998;
(iv) the Partnership's Annual Report on Form 10-K, for the year
ended December 31, 1996, as amended by the Annual Report on
Form 10-K/A-1, filed on April 3, 1997;
(v) the Partnership's Quarterly Reports on Form 10-Q, for the
quarters ended March 31, 1997, June 30, 1997 and September 30,
1997;
(vi) the Partnership's Current Report on Form 8-K filed on February
18, 1997, the Partnership's Current Report on Form 8-K/A filed
on February 18, 1997, the Partnership's Current Report on Form
8-K/A filed on February 28, 1997, the Partnership's Current
Report on Form 8-K filed on May 28, 1997, the Partnership's
Current Report on Form 8-K filed on May 30, 1997, the
Partnership's Current Report on Form 8-K filed on September
17, 1997, the Partnership's Current Report on Form 8-K/A filed
on October 8, 1997, the Partnership's Current Report on Form
8-K filed on November 21, 1997, the Partnership's Current
Report on Form 8-K/A filed on November 25, 1997, the
Partnership's Current Report on Form 8-K filed on December 8,
1997, and the Partnership's Current Report on Form 8-K/A filed
on January 20, 1998; and
(vii) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated March 15,
1994.
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All documents filed by the Company and the Partnership pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering of all of the Offered Securities shall
be deemed to be incorporated by reference herein. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein, in any accompanying Prospectus
Supplement relating to a specific offering of Offered Securities or in any other
subsequently filed document, as the case may be, which also is or is deemed to
be incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus or any
accompanying Prospectus Supplement.
The Company and the Partnership will provide on request and without
charge to each person to whom this Prospectus is delivered a copy (without
exhibits) of any or all documents incorporated by reference into this
Prospectus. Requests for such copies should be directed to Storage USA, Inc.,
165 Madison Avenue, Suite 1300, Memphis, Tennessee 38103, Attention: Secretary
(telephone (901) 252-2000.
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THE COMPANY AND THE PARTNERSHIP
The Company is a self-managed, self-advised real estate investment
trust ("REIT") engaged in the business of owning, managing, acquiring,
developing and franchising self-storage facilities. The Company operates through
the Partnership, in which it is the sole general partner and in which it owned
an approximately 90.7% partnership interest as of December 31, 1997. The
description of business, property information, policies with respect to certain
activities and management information for the Partnership are substantially
identical to that of the Company. Such information may be found in the Company's
Annual Report on Form 10-K for the year ended December 31, 1996, as amended.
At December 31, 1997, the Company, through the Partnership, owned 360
facilities containing 23.5 million net rentable square feet in 31 states and the
District of Columbia and managed for others 32 facilities containing an
additional 2.0 million net rentable square feet. Average physical and economic
occupancy for the facilities owned by the Partnership at December 31, 1997, were
84% and 76%, respectively. Average weighted annual rent per square foot for
these facilities was $9.90. At December 31, 1997, the Company, through the
Partnership, had under construction or in development approximately 2.0 million
net rentable square feet contained in 21 new facilities and in expansions to 18
existing facilities.
The Company is a Tennessee corporation and the Partnership is a
Tennessee limited partnership. Their executive offices are located at 165
Madison Avenue, Memphis, Tennessee 38103 and their telephone number is
901-252-2000.
USE OF PROCEEDS
The Company will contribute the net proceeds of any sale of Preferred
Stock, Depository Shares, Common Stock or Warrants to the Partnership in
exchange for additional units of general or limited partnership interest. Unless
otherwise set forth in the applicable Prospectus Supplement, the net proceeds
from the sale of any Offered Securities will be used by the Partnership for
general purposes, which may include repayment of indebtedness, making
improvements to properties and the acquisition and development of additional
properties.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for the nine months
ended September 30, 1997, was 4.39 and the Partnership's ratio of earnings to
fixed charges for the nine months ended September 30, 1997, was 4.68. The
Company's ratios of earnings for the years ended December 31, 1996 and 1995,
were 5.45 and 7.45, respectively, and the Partnership's ratios of earnings to
fixed charges were 5.73 and 7.73, respectively for the same periods.
The Company completed its initial public offering and commenced
business as a REIT on March 24, 1994. For the period January 1, 1994, through
March 23, 1994, fixed charges of the Company exceeded its earnings by $165,000.
The Company's ratio of earnings to fixed charges for the period March 24, 1994,
to December 31, 1994, was 9.18 and the Company's pro forma ratio of earnings to
fixed charges for the year ended December 31, 1994, was 8.54. For the period
January 1, 1994, through March 23, 1994, fixed charges of the Partnership
exceeded its earnings by $165,000. The Partnership's ratio of earnings to fixed
charges for the period March 24, 1994, to December 31, 1994, was 9.38 and the
Partnership's pro forma ratio of earnings to fixed charges for the year ended
December 31, 1994, was 8.63.
The pro forma results of operations from which the ratio of earnings to
fixed charges for 1994 is calculated reflect the Company's and the Partnership's
annual results of operations and assume that the Company's initial public
offering and related transactions, including the contribution of the net
proceeds from such offering to the Partnership, were completed on January 1,
1994. The Company's ratio of earnings to fixed charges for the year ended
December 31, 1993, was 1.10.
For the year ending December 31, 1992, fixed charges exceeded earnings by $3.0
million.
The ratios of earnings to fixed charges were computed by dividing
earnings by fixed charges. For purposes of computing these ratios, earnings
consist of income before extraordinary items plus fixed charges other than
capitalized interest, and fixed charges consist of interest on borrowed funds
(including capitalized interest) and amortization of debt discount and expense.
To date, the Company and the Partnership have not issued any preferred equity
interests; therefore,
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the ratios of earnings to combined fixed charges and preferred share dividends
are the same as the ratios of earnings to fixed charges.
DESCRIPTION OF CAPITAL STOCK
General
The Company is authorized to issue 150,000,000 shares of Common Stock,
$.01 par value, and 5,000,000 shares of Preferred Stock, $.01 par value. At
December 31, 1997, there were 27,634,790 shares of Common Stock outstanding and
no shares of Preferred Stock outstanding.
The following information with respect to the capital stock of the
Company is subject to the detailed provisions of the Company's Amended Charter
(the "Charter") and Amended and Restated Bylaws (the "Bylaws"), as currently in
effect. These statements do not purport to be complete, or to give full effect
to the provisions of statutory or common law, and are subject to, and are
qualified in their entirety by reference to, the terms of the Charter and
Bylaws, which are incorporated by reference herein.
Common Stock
The holders of Common Stock are entitled to one vote per share on all
matters voted on by shareholders, including elections of directors. Except as
otherwise required by law or provided in any resolution adopted by the Board of
Directors with respect to any series of Preferred Stock, the holders of such
shares of Common Stock exclusively possess all voting power. The Charter does
not provide for cumulative voting in the election of directors. Subject to any
preferential rights of any outstanding series of Preferred Stock, the holders of
Common Stock are entitled to such distributions as may be declared from time to
time by the Board of Directors from funds available therefor, and upon
liquidation are entitled to receive pro rata all assets of the Company available
for distribution to such holders. All shares of Common Stock issued will be
fully paid and nonassessable, and the holders thereof will not have preemptive
rights.
The Transfer Agent for the Common Stock is First Union National Bank of
North Carolina, Charlotte, North Carolina. The Common Stock is traded on the
NYSE under the symbol "SUS." The Company will apply to the NYSE to list the
additional shares of Common Stock to be sold pursuant to any Prospectus
Supplement, and the Company anticipates that such shares will be so listed.
Preferred Stock
The following description of the terms of the Preferred Stock sets
forth certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of Preferred
Stock offered by a Prospectus Supplement will be described in that Prospectus
Supplement. The description set forth below is subject to and qualified in its
entirety by reference to the Articles of Amendment to the Charter fixing the
preferences, limitations and relative rights of a particular series of Preferred
Stock.
General. Under the Charter, the Board of Directors of the Company is
authorized, without further shareholder action, to provide for the issuance of
up to 5,000,000 shares of Preferred Stock, in such series, with such
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications or other provisions, as may be fixed
by the Board of Directors.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the particular series
of Preferred Stock offered thereby for specific terms, including: (i) the title
and liquidation preference per share of such Preferred Stock and the number of
shares offered; (ii) the price at which such series will be issued; (iii) the
dividend rate (or method of calculation), the dates on which dividends shall be
payable and the dates from which dividends shall commence to accumulate; (iv)
any redemption or sinking fund provisions
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of such series; (v) any conversion provisions of such series; and (vi) any
additional dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions of such series.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of Preferred Stock, each series will rank on a parity as to dividends and
distributions in the event of a liquidation with each other series of Preferred
Stock and, in all cases, will be senior to the Common Stock.
Dividend Rights. Holders of Preferred Stock of each series will be
entitled to receive, when, as and if declared by the Board of Directors, out of
assets of the Company legally available therefor, cash dividends at such rates
and on such dates as are set forth in the Prospectus Supplement relating to such
series of Preferred Stock. Such rate may be fixed or variable or both and may be
cumulative, noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long as any
shares of Preferred Stock are outstanding, no dividends will be declared or paid
or any distributions be made on the Common Stock, other than a dividend payable
in Common Stock, unless the accrued dividends on each series of Preferred Stock
have been fully paid or declared and set apart for payment and the Company shall
have set apart all amounts, if any, required to be set apart for all sinking
funds, if any, for each series of Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends are
not paid in full upon any series of Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with such series of
Preferred Stock, all dividends declared upon such series of Preferred Stock and
any other series of Preferred Stock ranking on a parity as to dividends will be
declared pro rata so that the amount of dividends declared per share on such
series of Preferred Stock and such other series will in all cases bear to each
other the same ratio that accrued dividends per share on such series of
Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as
described in the Prospectus Supplement relating to such series, which may be
based upon one or more methods of determination. Different series of Preferred
Stock may be entitled to dividends at different dividend rates or based upon
different methods of determination. Except as provided in the applicable
Prospectus Supplement, no series of Preferred Stock will be entitled to
participate in the earnings or assets of the Company.
Rights Upon Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of the assets of the
Company available for distribution to shareholders the amount stated or
determined on the basis set forth in the Prospectus Supplement relating to such
series, which may include accrued dividends, if such liquidation, dissolution or
winding up is involuntary, or may equal the current redemption price per share
(otherwise than for the sinking fund, if any, provided for such series) provided
for such series set forth in such Prospectus Supplement, if such liquidation,
dissolution or winding up is voluntary, and on such preferential basis as is set
forth in such Prospectus Supplement. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to Preferred Stock of any series and any other shares of stock of the
Company ranking as to any such distribution on a parity with such series of
Preferred Stock are not paid in full, the holders of Preferred Stock of such
series and of such other shares will share ratably in any such distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled or on such other basis as is set forth in the
applicable Prospectus Supplement. The rights, if any, of the holders of any
series of Preferred Stock to participate in the assets of the Company remaining
after the holders of other series of Preferred Stock have been paid their
respective specified liquidation preferences upon any liquidation, dissolution
or winding up of the Company will be described in the Prospectus Supplement
relating to such series.
Redemption. A series of Preferred Stock may be redeemable, in whole or
in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund, in each case upon terms, at the times,
the redemption prices and for the types of consideration set forth in the
Prospectus Supplement relating to such series. The Prospectus Supplement
relating to a series of Preferred Stock which is subject to mandatory redemption
shall specify the number of shares of such series that shall be redeemed by the
Company in each year commencing after a date to be specified,
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at a redemption price per share to be specified, together with an amount equal
to any accrued and unpaid dividends thereon to the date of redemption.
If, after giving notice of redemption to the holders of a series of
Preferred Stock, the Company deposits with a designated bank funds sufficient to
redeem such Preferred Stock, then from and after such deposit, all shares called
for redemption will no longer be outstanding for any purpose, other than the
right to receive the redemption price and the right to convert such shares into
other classes of stock of the Company. The redemption price will be stated in
the Prospectus Supplement relating to a particular series of Preferred Stock.
Except as indicated in the applicable Prospectus Supplement, the
Preferred Stock is not subject to any mandatory redemption at the option of the
holder.
Sinking Fund. The Prospectus Supplement for any series of Preferred
Stock will state the terms, if any, of a sinking fund for the purchase or
redemption of that series.
Conversion Rights. The Prospectus Supplement for any series of Preferred
Stock will state the terms, if any, on which shares of that series are
convertible into shares of Common Stock or another series of Preferred Stock.
The Preferred Stock will have no preemptive rights.
Voting Rights. Except as indicated in the Prospectus Supplement
relating to a particular series of Preferred Stock, or except as expressly
required by Tennessee law, a holder of Preferred Stock will not be entitled to
vote. Except as indicated in the Prospectus Supplement relating to a particular
series of Preferred Stock, in the event the Company issues full shares of any
series of Preferred Stock, each such share will be entitled to one vote on
matters on which holders of such series of Preferred Stock are entitled to vote.
Under Tennessee law, the affirmative vote of the holders of a majority
of the outstanding shares of all series of Preferred Stock entitled to vote,
voting as a separate voting group, will be required for (i) the authorization of
any class of stock ranking prior to or on a parity with Preferred Stock or the
increase in the number of authorized shares of any such stock, (ii) any increase
in the number of authorized shares of Preferred Stock and (iii) certain
amendments to the Articles that may be adverse to the rights of Preferred Stock
outstanding.
Transfer Agent and Registrar. The transfer agent, registrar and
dividend disbursement agent for a series of Preferred Stock will be selected by
the Company and be described in the applicable Prospectus Supplement. The
registrar for shares of Preferred Stock will send notices to shareholders of any
meetings at which holders of Preferred Stock have the right to vote on any
matter.
DESCRIPTION OF DEPOSITARY SHARES
General
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In such event, the
Company will issue to the public receipts for Depositary Shares, each of which
will represent a fraction (to be set forth in the Prospectus Supplement relating
to a particular series of Preferred Stock) of a share of a particular series of
Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and the depositary named in the applicable Prospectus
Supplement (the "Depositary"). Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share will be entitled, in proportion to the
applicable fraction of a share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred Stock represented
thereby (including dividend, voting, redemption and liquidation rights).
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The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. If Depositary
Shares are issued, copies of the forms of Deposit Agreement and Depositary
Receipt will be incorporated by reference in the Registration Statement of which
this Prospectus is a part, and the following summary is qualified in its
entirety by reference to such documents.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
number of such Depositary Shares owned by such holders. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any holder of Depositary Shares a fraction of one cent, and the balance not
so distributed shall be added to and treated as part of the next sum received by
the Depositary for distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock shall be made available to the holders of
Depositary Shares.
Redemption of Depositary Shares
If a series of Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of Preferred Stock held by the Depositary. The redemption price
per Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of Preferred Stock. Whenever
the Company redeems shares of Preferred Stock held by the Depositary, the
Depositary will redeem as of the same redemption date the number of Depositary
Shares representing the shares of Preferred Stock so redeemed. If fewer than all
the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
will be selected by lot or pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be outstanding and all rights of the holders of
the Depositary Shares will cease, except the right to receive the money,
securities or other property payable upon such redemption and any money,
securities or other property to which the holders of such Depositary Shares were
entitled upon such redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the amount of Preferred Stock represented by
such holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the amount of Preferred Stock represented by such
Depositary Shares in accordance with such
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instructions, and the Company will agree to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary may abstain from voting shares of Preferred Stock to the extent it
does not receive specific instructions from the holders of Depositary Shares
representing such Preferred Stock.
Amendment and Termination of the Depositary Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment that materially
and adversely alters the rights of the holders of Depositary Shares will not be
effective unless such amendment has been approved by the holders of at least a
majority of the Depositary Shares then outstanding. The Deposit Agreement may be
terminated by the Company or the Depositary only if (i) all outstanding
Depositary Shares have been redeemed or (ii) there has been a final distribution
in respect of the Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of Depositary Receipts.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company will pay charges of the Depositary in connection with the initial
deposit of the Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Receipts will pay other transfer and other taxes and
governmental charges and such other charges, including a fee for the withdrawal
of shares of Preferred Stock upon surrender of Depositary Receipts, as are
expressly provided in the Deposit Agreement to be for their accounts.
Miscellaneous
The Depositary will forward to holders of Depository Receipts all
reports and communications from the Company that are delivered to the Depositary
and that the Company is required to furnish to holders of Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares or
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or upon information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Receipts
or other persons believed to be competent and on documents believed to be
genuine.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time remove the
Depositary, any such resignation or removal to take effect upon the appointment
of a successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal.
Restrictions on Ownership
In order to safeguard the Company against an inadvertent loss of REIT
status, the Deposit Agreement will contain provisions restricting the ownership
and transfer of Depositary Shares. Such restrictions will be described in the
applicable Prospectus Supplement and will be referenced on the applicable
Depositary Receipts.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Preferred Stock
("Preferred Stock Warrants") or Common Stock ("Common Stock Warrants"). Warrants
may be issued independently or together with any other Offered Securities
offered by any Prospectus Supplement and may be attached to or separate from
such Securities. Each series of Warrants
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will be issued under a separate warrant agreement (each, a "Warrant Agreement")
to be entered into between the Company and a warrant agent specified in the
applicable Prospectus Supplement (the "Warrant Agent"). The Warrant Agent will
act solely as an agent of the Company in connection with the Warrants of such
series and will not assume any obligation or relationship of agency or trust for
or with any holders or beneficial owners of Warrants. The following summaries of
certain provisions of the Warrant Agreement and the Warrants do not purport to
be complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Warrant Agreement and the Warrant certificates
relating to each series of Warrants that will be filed with the Commission and
incorporated by reference as an exhibit to the Registration Statement of which
this Prospectus is a part at or prior to the time of the issuance of such series
of Warrants.
The applicable Prospectus Supplement will describe the terms of such
Warrants, including the following where applicable: (i) the offering price; (ii)
the aggregate number of shares purchasable upon exercise of such Warrants, the
exercise price, and in the case of Warrants for Preferred Stock, the
designation, aggregate number and terms of the series of Preferred Stock
purchasable upon exercise of such Warrants; (iii) the designation and terms of
any series of Preferred Stock with which such Warrants are being offered and the
number of such Warrants being offered with such Preferred Stock; (iv) the date,
if any, on and after which such Warrants and the related series of Preferred
Stock or Common Stock will be transferable separately; (v) the date on which the
right to exercise such Warrants shall commence and the date on which such right
shall expire (the "Expiration Date"); (vi) any special United States federal
income tax consequences; and (vii) any other material terms of such Warrants.
Warrant certificates may be exchanged for new Warrant certificates of
different denominations, may (if in registered form) be presented for
registration of transfer and may be exercised at the corporate trust office of
the Warrant agent or any other office indicated in the applicable Prospectus
Supplement. Prior to the exercise of any Warrants, holders of such Warrants will
not have any rights of holders of such Preferred Stock or Common Stock,
including the right to receive payments of dividends, if any, on such Preferred
Stock or Common Stock, or to exercise any applicable right to vote.
Exercise of Warrants
Each Warrant will entitle the holder thereof to purchase such number of
shares of Preferred Stock or Common Stock, as the case may be, at such exercise
price as shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Warrants. After the close of business on the
Expiration Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Warrants will become void.
Warrants may be exercised by delivering to the Warrant Agent payment as
provided in the applicable Prospectus Supplement of the amount required to
purchase the Preferred Stock or Common Stock, as the case may be, purchasable
upon such exercise together with certain information set forth on the reverse
side of the Warrant certificate. Warrants will be deemed to have been exercised
upon receipt of payment of the exercise price, subject to the receipt within
five business days, of the Warrant certificate evidencing such Warrants. Upon
receipt of such payment and the Warrant certificate properly completed and duly
executed at the corporate trust office of the Warrant Agent or any other office
indicated in the applicable Prospectus Supplement, the Company will, as soon as
practicable, issue and deliver the Preferred Stock or Common Stock, as the case
may be, purchasable upon such exercise. If fewer than all of the Warrants
represented by such Warrant certificate are exercised, a new Warrant certificate
will be issued for the remaining amount of Warrants.
Amendments and Supplements to Warrant Agreements
The Warrant Agreements may be amended or supplemented without the
consent of the holders of the Warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the Warrants and that do not
adversely affect the interests of the holders of the Warrants.
Common Stock Warrant Adjustments
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant are subject to adjustment in certain events, including (i) payment
of a dividend on the Common Stock payable in capital stock and stock splits,
combinations or reclassification of the Common
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Stock; (ii) issuance to all holders of Common Stock of rights or warrants to
subscribe for or purchase shares of Common Stock at less than their current
market price (as defined in the Warrant Agreement for such series of Warrants);
and (iii) certain distributions of evidences of indebtedness or assets
(including securities but excluding cash dividends or distributions paid out of
consolidated earnings or retained earnings or dividends payable other than in
Common Stock) or of subscription rights and warrants (excluding those referred
to above).
No adjustment in the exercise price of, and the number of shares of
Common Stock covered by, a Common Stock Warrant will be made for regular
quarterly or other periodic or recurring cash dividends or distributions or for
cash dividends or distributions to the extent paid from consolidated earnings or
retained earnings. No adjustment will be required unless such adjustment would
require a change of at least 1% in the exercise price then in effect. Except as
stated above, the exercise price of, and the number of shares of Common Stock
covered by, a Common Stock Warrant will not be adjusted for the issuance of
Common Stock or any securities convertible into or exchangeable for Common
Stock, or carrying the right or option to purchase or otherwise acquire the
foregoing, in exchange for cash, other property or services.
In the event of any (i) consolidation or merger of the Company with or
into any entity (other than a consolidation or a merger that does not result in
any reclassification, conversion, exchange or cancellation of outstanding shares
of Common Stock); (ii) sale, transfer, lease or conveyance of all or
substantially all of the assets of the Company; or (iii) reclassification,
capital reorganization or change of the Common Stock (other than solely a change
in par value or from par value to no par value), then any holder of a Common
Stock Warrant will be entitled, on or after the occurrence of any such event, to
receive on exercise of such Common Stock Warrant the kind and amount of shares
of stock or other securities, cash or other property (or any combination
thereof) that the holder would have received had such holder exercised such
holder's Common Stock Warrant immediately prior to the occurrence of such event.
If the consideration to be received upon exercise of the Common Stock Warrant
following any such event consists of common stock of the surviving entity, then
from and after the occurrence of such event, the exercise price of such Common
Stock Warrant will be subject to the same anti-dilution and other adjustments
described in the second preceding paragraph, applied as if such common stock
were Common Stock.
RESTRICTIONS ON TRANSFER OF CAPITAL STOCK
For the Company to qualify as a REIT under the Internal Revenue Code of
1986, as amended (the "Code"), shares of capital stock must be held by a minimum
of 100 persons for at least 335 days in each taxable year or during a
proportionate part of a shorter taxable year. In addition, at all times during
the second half of each taxable year, no more than 50% in value of the shares of
beneficial interest of the Company may be owned, directly or indirectly, by
applying certain constructive ownership rules, by five or fewer individuals (the
"5/50 Rule"). Because the Board of Directors believes it is essential for the
Company to continue to qualify as a REIT, the Charter restricts the ownership
and transfer of shares of capital stock (the "Ownership Limitation").
The Ownership Limitation provides that, subject to certain exceptions
specified in the Charter, no shareholder may own, or be deemed to own by virtue
of the attribution provisions of the Code, more than 9.8% of the outstanding
shares of Common Stock or more than 9.8% of the outstanding shares of any series
of Preferred Stock. Pursuant to a Strategic Alliance Agreement, dated as of
March 19, 1996 (the "Strategic Alliance Agreement"), among the Company, Security
Capital U.S. Realty and Security Capital Holdings, S.A. (Security Capital U.S.
Realty and Security Capital Holdings, S.A. are collectively referred to herein
as "Security Capital"), the Board of Directors of the Company proposed, and the
shareholders approved, an amendment to the Charter that provides that Security
Capital and its affiliates may beneficially own, in the aggregate, up to 37.5%
of the common stock of the Company (the "Special Shareholder Limit"). The
Ownership Limitation prevents any non-U.S. holder (other than Security Capital
and its affiliates) from acquiring additional shares of the Company's capital
stock if, as a result of such acquisition, the Company would fail to qualify as
a "domesticallycontrolled" REIT (computed assuming that Security Capital owns
the maximum percentage of the Company's capital stock that it is permitted to
own under the Special Shareholder Limit). On November 5, 1997, the Company's
Board of Directors granted Security Capital a waiver from the Special
Shareholder Limit permitting Security Capital to acquire up to 42.5% of the
Company's oustanding Common Stock.
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The Ownership Limitation also provides that if any holder of capital
stock of the Company purports to transfer shares to a person or there is a
change in the capital structure of the Company, and either the purported
transfer or the change in capital structure would result in the Company failing
to qualify as a REIT, or such transfer or the change in capital structure would
cause the transferee to hold shares in excess of the applicable ownership limit,
then the capital stock being transferred (or in the case of an event other than
a transfer, the capital stock beneficially owned) that would cause one or more
of the restrictions on ownership or transfer to be violated shall be
automatically transferred to a trust for the benefit of a designated charitable
beneficiary. The purported transferee of such shares shall have no right to
receive dividends or other distributions with respect to such shares and shall
have no right to vote such shares. Any dividends or other distributions paid to
such purported transferee prior to the discovery by the Company that the shares
have been transferred to a trust shall be paid upon demand to the trustee of the
trust for the benefit of the charitable beneficiary. The trustee of the trust
will have all rights to dividends with respect to shares of capital stock held
in trust, which rights will be exercised for the exclusive benefit of the
charitable beneficiary. Any dividends or distributions paid over to the trustee
will be held in trust for the charitable beneficiary. The trustee shall
designate a transferee of such stock so long as the ownership of such shares of
stock by the transferee would not violate the restrictions on ownership or
transfer. Upon the sale of such shares, the purported transferee shall receive
the lesser of (A)(i) the price per share such purported transferee paid for the
capital stock in the purported transfer that resulted in the transfer of shares
of capital stock to the trust, or (ii) if the transfer or other event that
resulted in the transfer of shares of capital stock to the trust was not a
transaction in which the purported record transferee gave full value for such
shares, a price per share equal to the market price on the date of the purported
transfer or other event that resulted in the transfer of the shares to the
trust, and (B) the price per share received by the trustee from the sale or
other disposition of the shares held in the trust.
The Board of Directors may grant an exemption for the Ownership
Limitation to any person so requesting, so long as (A) the Board has determined
that such exemption will not result in the Company being "closely held" within
the meaning of Section 856(h) of the Code, and (B) such person provides to the
Board such representations and undertakings as the Board may require.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Debt Securities being offered and the extent to
which such general provisions may apply will be described in a Prospectus
Supplement relating to such Debt Securities.
The Debt Securities will be issued under an indenture dated as of
November 1, 1996, as amended or supplemented from time to time (the
"Indenture"), between the Partnership and The First National Bank of Chicago, as
trustee (the "Trustee"). The Indenture has been incorporated by reference to the
Registration Statement of which this Prospectus is a part and is available for
inspection at the corporate trust services office of the Trustee at One First
National Plaza - Suite 0126, Chicago, Illinois 60670 or as described above under
"Available Information." The Indenture is subject to, and governed by, the Trust
Indenture Act of 1939, as amended (the "TIA"). The statements made hereunder
relating to the Indenture and the Debt Securities to be issued thereunder are
summaries of certain provisions thereof and do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all
provisions of the Indenture and such Debt Securities. Capitalized terms used but
not defined herein shall have the respective meanings set forth in the
Indenture.
Wherever particular Sections or defined terms of the Indenture are
referred to herein or in a Prospectus Supplement, such Sections or defined terms
are incorporated by reference herein or therein, as the case may be.
General
The Debt Securities will be direct, unsecured obligations of the
Partnership and will rank in pari passu with all other unsecured and
unsubordinated indebtedness of the Partnership. The Debt Securities are
non-convertible and will be effectively subordinated to any secured indebtedness
of the Partnership and any indebtedness of the Partnership's subsidiaries. At
least one nationally-recognized statistical rating organization will have
assigned an investment grade rating to the Debt Securities at the time of sale.
At December 31, 1997, the Partnership and its subsidiaries had $42.8 million in
secured
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indebtedness outstanding. The Partnership's subsidiaries had no unsecured
indebtedness outstanding at December 31, 1997. The Debt Securities may be issued
without limit as to aggregate principal amount, in one or more series, in each
case as established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company as sole general partner of
the Partnership or as established in the Indenture or in one or more indentures
supplemental to the Indenture. All Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series (Section
301).
The Indenture provides that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt Securities. Any
Trustee under the Indenture may resign or be removed with respect to one or more
series of Debt Securities, and a successor Trustee may be appointed to act with
respect to such series (Section 610). In the event that two or more persons are
acting as Trustee with respect to different series of Debt Securities, each such
trustee shall be a Trustee of a trust under the applicable Indenture separate
and apart from the trust administered by any other Trustee (Section 609), and,
except as otherwise indicated herein, any action described herein to be taken by
a Trustee may be taken by each such Trustee with respect to, and only with
respect to, the one or more series of Debt Securities for which it is Trustee
under the applicable Indenture.
The applicable Prospectus Supplement will set forth the price or prices
at which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities: (i) the title of such Debt Securities;
(ii) any limit on the aggregate principal amount of such Debt Securities or the
series of which they are a part; (iii) the Person to whom any interest on a Debt
Security shall be payable, if other than the Person in whose name the Debt
Security is registered; (iv) the date or dates on which the principal of any of
such Debt Securities will be payable; (v) the rate or rates at which any of such
Debt Securities will bear interest, if any, the date or dates from which any
such interest will accrue, the Interest Payment Dates on which any such interest
will be payable and the Regular Record Date for any such interest payable on any
Interest Payment Date; (vi) the place or places where the principal of and any
premium and interest on any of such Debt Securities will be payable; (vii) the
period or periods within which, the price or prices at which and the terms and
conditions on which any of such Debt Securities may be redeemed, in whole or in
part, at the option of the Partnership; (viii) the obligation, if any, of the
Partnership to redeem or purchase any of such Debt Securities pursuant to any
sinking fund or analogous provision or at the option of the Holder thereof, and
the period or periods within which, the price or prices at which, and the terms
and conditions on which, any of such Debt Securities will be redeemed or
purchased, in whole or in part, pursuant to any such obligation; (ix) the
denominations in which any of such Debt Securities will be issuable, if other
than denominations of $1,000 and any integral multiple thereof; (x) if the
amount of principal of or any premium or interest on any of such Debt Securities
may be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined; (xi) if other than the entire
principal amount thereof, the portion of the principal amount of any of such
Debt Securities which will be payable upon declaration of acceleration of the
Maturity thereof; (xii) if the principal amount payable at the Stated Maturity
of any of such Debt Securities will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any Maturity other than the
Stated Maturity or which will be deemed to be Outstanding as of any such date
(or, in any such case, the manner in which such deemed principal amount is to be
determined); (xiii) if applicable, that such Debt Securities, in whole or any
specified part, are defeasible pursuant to the provisions of the Indenture
described under "-- Defeasance and Covenant Defeasance -Defeasance and
Discharge" or "-- Defeasance and Covenant Defeasance -- Covenant Defeasance," or
under both such captions; (xiv) whether any of such Debt Securities will be
issuable in whole or in part in the form of one or more Global Debt Securities
and, if so, the respective Depositaries for such Global Debt Securities, the
form of any legend or legends to be borne by any such Global Debt Security in
addition to or in lieu of the legend referred to under "-- Form, Exchange and
Transfer -- Global Debt Securities" and, if different from those described under
such caption, any circumstances under which any such Global Debt Security may be
exchanged in whole or in part for Debt Securities registered, and any transfer
of such Global Debt Security in whole or in part may be registered, in the names
of Persons other than the Depositary for such Global Debt Security or its
nominee; (xv) any addition to or change in the Events of Default applicable to
any of such Debt Securities and any change in the right of the Trustee or the
Holders thereof to declare the principal amount of any of such Debt Securities
due and payable; (xvi) any addition to or change in the covenants in the
Indenture described under "-Certain Covenants" applicable to any of such Debt
Securities; and (xvii) any other terms of such Debt Securities not inconsistent
with the provisions of the Indenture. (Section 301)
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Debt Securities, including Original Issue Discount Debt Securities, may
be sold at a substantial discount below their principal amount. Certain special
United States federal income tax considerations (if any) applicable to Debt
Securities sold at an original issue discount may be described in the applicable
Prospectus Supplement.
Except as described under " - Merger, Consolidation or Sale" or "-
Certain Covenants" or as may be set forth in any Prospectus Supplement, the
Indenture does not contain any provisions that would limit the ability of the
Partnership to incur indebtedness or that would afford holders of the Debt
Securities protection in the event of (i) a highly leveraged or similar
transaction involving the Partnership, the management of the Partnership or any
affiliate of any such party, (ii) a change of control or (iii) a reorganization,
restructuring, merger or similar transaction involving the Partnership that may
adversely affect the holders of the Debt Securities. In addition, subject to the
limitations set forth under " - Merger, Consolidation or Sale," the Partnership
may, in the future, enter into certain transactions, such as the sale of all or
substantially all of its assets or the merger or consolidation of the
Partnership, that would increase the amount of the Partnership's indebtedness or
substantially reduce or eliminate the Partnership's assets, which may have an
adverse effect on the Partnership's ability to service its indebtedness,
including the Debt Securities. However, restrictions on ownership and transfers
of the Company's Common Stock designed to preserve its status as a REIT may act
to prevent or hinder a change of control. Reference is made to the applicable
Prospectus Supplement for information with respect to any deletions from,
modifications of or additions to the events of default or covenants that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection.
Denominations, Registration and Transfer
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable Prospectus Supplement, only in denominations of $1,000 and integral
multiples thereof.
(Section 302)
At the option of the Holder, subject to the terms of the Indenture and
the limitations applicable to Global Debt Securities, Debt Securities of each
series will be exchangeable for other Debt Securities of the same series of any
authorized denomination and of a like tenor and aggregate principal amount.
(Section 305)
Subject to the terms of the Indenture and the limitations applicable to
Global Debt Securities, Debt Securities may be presented for exchange as
provided above or for registration of transfer (duly endorsed or with the form
of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by the Partnership
for such purpose. No service charge will be made for any registration of
transfer or exchange of Debt Securities, but the Partnership may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Such transfer or exchange will be effected upon the
Security Registrar or such transfer agent, as the case may be, being satisfied
with the documents of title and identity of the person making the request. The
Partnership has appointed the Trustee as Security Registrar. Any transfer agent
(in addition to the Security Registrar) initially designated by the Partnership
for any Debt Securities will be named in the applicable Prospectus Supplement.
(Section 305) The Partnership may at any time designate additional transfer
agents or rescind the designation of any transfer agent or approve a change in
the office through which any transfer agent acts, except that the Partnership
will be required to maintain a transfer agent in each Place of Payment for the
Debt Securities of each series. (Section 1002)
If the Debt Securities of any series (or of any series and specified
terms) are to be redeemed in part, the Partnership will not be required to (i)
issue, register the transfer of or exchange any Debt Security of that series (or
of that series and specified terms, as the case may be) during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of any such Debt Security that may be selected for
redemption and ending at the close of business on the day of such mailing, (ii)
register the transfer of or exchange any Debt Security so selected for
redemption, in whole or in part, except the unredeemed portion of any such Debt
Security being redeemed in part or (iii) to issue, register the transfer of or
exchange any Debt Security that has been surrendered for payment at the option
of the Holder, except the portion, if any, of such Debt Security not to be so
repaid. (Section 305)
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Global Debt Securities
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Debt Securities which will have an
aggregate principal amount equal to that of the Debt Securities represented
thereby. Each Global Debt Security will be registered in the name of a
Depositary or a nominee thereof identified in the applicable Prospectus
Supplement, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the Indenture. (Section 305)
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Debt Security may be exchanged in whole or in part
for Debt Securities registered, and no transfer of a Global Debt Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Debt Security or any nominee of such Depositary
unless (i) the Depositary has notified the Partnership that it is unwilling or
unable to continue as Depositary for such Global Debt Security or has ceased to
be qualified to act as such as required by the Indenture, (ii) there shall have
occurred and be continuing an Event of Default with respect to the Debt
Securities represented by such Global Debt Security or (iii) there shall exist
such circumstances, if any, in addition to or in lieu of those described above
as may be described in the applicable Prospectus Supplement (Section 305). All
securities issued in exchange for a Global Debt Security or any portion thereof
will be registered in such names as the Depositary may direct. (Sections 204 and
305)
As long as the Depositary, or its nominee, is the registered Holder of
a Global Debt Security, the Depositary or such nominee, as the case may be, will
be considered the sole owner and Holder of such Global Debt Security and the
Debt Securities represented thereby for all purposes under the Debt Securities
and the Indenture (Section 308). Except in the limited circumstances referred to
above, owners of beneficial interests in a Global Debt Security will not be
entitled to have such Global Debt Security or any Debt Securities represented
thereby registered in their names, will not receive or be entitled to receive
physical delivery of certificated Debt Securities in exchange therefor and will
not be considered to be the owners or Holders of such Global Debt Security or
any Debt Securities represented thereby for any purpose under the Debt
Securities or the Indenture. All payments of principal of and any premium and
interest on a Global Debt Security will be made to the Depositary or its
nominee, as the case may be, as the Holder thereof. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Debt Security.
Ownership of beneficial interests in a Global Debt Security will be
limited to institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Debt Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global Debt
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Debt Security will be shown only on, and the transfer of those
ownership interests will be effected only through, records maintained by the
Depositary (with respect to participants' interests) or any such participant
(with respect to interests of persons held by such participants on their
behalf). Payments, transfers, exchanges and others matters relating to
beneficial interests in a Global Debt Security may be subject to various
policies and procedures adopted by the Depositary from time to time. None of the
Partnership, the Trustee or any agent of the Partnership or the Trustee will
have any responsibility or liability for any aspect of the Depositary's or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Global Debt Security, or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
Secondary trading in notes and debentures of corporate issuers is
generally settled in clearing-house or next-day funds. In contrast, beneficial
interests in a Global Debt Security, in some cases, may trade in the
Depositary's same-day funds settlement system, in which secondary market trading
activity in those beneficial interests would be required by the Depositary to
settle in immediately available funds. The Partnership cannot predict the
effect, if any, that settlement in immediately available funds would have on
trading activity in such beneficial interests. Also, settlement for purchases of
beneficial interests in a Global Debt Security upon the original issuance
thereof may be required to be made in immediately available funds.
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Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on a Debt Security on any Interest Payment Date will be made
to the Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Partnership may designate for such purpose from time to time, except that at
the option of the Partnership payment of any interest may be made by check
mailed to the address of the Person entitled thereto as such address appears in
the Security Register. Unless otherwise indicated in the applicable Prospectus
Supplement, the corporate trust office of the Trustee in the City of New York
will be designated as the Partnership's sole Paying Agent for payments with
respect to Debt Securities of each series. Any other Paying Agents initially
designated by the Partnership for the Debt Securities of a particular series
will be named in the applicable Prospectus Supplement. The Partnership may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that the Partnership will be required to maintain a Paying Agent in
each Place of Payment for the Debt Securities of a particular series. (Section
1002)
All moneys paid by the Partnership to a Paying Agent for the payment of
the principal of, or any premium or interest on, any Debt Security that remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Partnership, and the Holder of such
Debt Security thereafter may look only to the Partnership for payment thereof.
(Section 1003)
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the holder on the applicable regular record
date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the applicable
supplement (Section 307).
Merger, Consolidation or Sale
The Partnership may not consolidate with or merge into, or convey,
transfer or lease its properties and assets substantially as an entirety to, any
Person (a "successor Person"), and may not permit any Person to merge into, or
convey, transfer or lease its properties and assets substantially as an entirety
to, the Partnership, unless (i) the successor Person (if any) is a corporation,
partnership or trust organized and validly existing under the laws of any
domestic jurisdiction and assumes, by a supplemental indenture, the
Partnership's obligations on the Debt Securities and under the Indenture, (ii)
immediately after giving effect to the transaction, and treating any
indebtedness which becomes an obligation of the Partnership or any Subsidiary as
a result of the transaction as having been incurred by it at the time of the
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing and (iii) certain other conditions are met. (Section 801)
Certain Covenants
Existence. Except as permitted under " - Merger, Consolidation or
Sale," the Partnership will be required to do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
and franchises; provided, however, that the Partnership shall not be required to
preserve any right or franchise if it determines that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the holders of the Debt
Securities (Section 1005).
Maintenance of Properties. The Partnership will be required to cause
all properties used or useful in the conduct of its business or the business of
any subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and to cause to be made all
necessary repairs, renewals, replacements, betterments
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and improvements thereof, all as in the judgment of the Partnership may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that the
Partnership shall not be prevented from discontinuing the operation or
maintenance of any of its properties if such discontinuance is, in the judgment
of the Partnership, desirable in the conduct of its business or the business of
any Subsidiary and not disadvantageous in any material respect to the Holders.
(Section 1006).
Insurance. The Partnership will be required to, and to cause each of
its subsidiaries to, keep all of its insurable properties insured against loss
or damage with insurers of recognized responsibility in commercially reasonable
amounts and types (Section 1008).
Payment of Taxes and Other Claims. The Partnership will be required to
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Partnership or any subsidiary or upon the income, profits or
property of the Partnership or any subsidiary, and (ii) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Partnership or any subsidiary; provided, however, that the
Partnership shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
(Section 1007).
Provision of Financial Information. Whether or not the Partnership is
subject to Section 13 or Section 15(d) of the Exchange Act and for so long as
any Debt Securities are outstanding, the Partnership will, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Partnership would have been
required to file with the Commission pursuant to such Section 13 or Section
15(d) (the "Financial Statements") if the Partnership were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Partnership would have been required
so to file such documents if the Partnership were so subject. The Partnership
will also in any event (x) within 15 days of each Required Filing Date (i)
transmit by mail to all holders of Debt Securities whose names appear in the
security register for such Debt Securities (the "Holders"), as their names and
addresses appear in the security register for such Debt Securities, without cost
to such Holders, copies of the annual reports and quarterly reports which the
Partnership would have been required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act if the Partnership were subject
to such Sections and (ii) file with any Trustee copies of the annual reports,
quarterly reports and other documents which the Partnership would have been
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act if the Partnership were subject to such Sections and (y) if
filing such documents by the Partnership with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder. (Section 1010).
Limitations on Incurrence of Indebtedness. The Partnership will not,
and will not permit any Subsidiary to, incur any Indebtedness (as defined
below), other than inter-company debt representing Indebtedness to which the
only parties are the Company, the Partnership and any of their Subsidiaries (but
only so long as such Indebtedness is held solely by any of the Company, the
Partnership and any Subsidiary) that is subordinate in right of payment to
Outstanding Debt Securities if, immediately after giving effect to the
incurrence of such additional Indebtedness, the aggregate principal amount of
all outstanding Indebtedness of the Partnership and its Subsidiaries on a
consolidated basis is greater than 60% of the sum of (i) Total Assets (as
defined below) as of the end of the calendar quarter covered in the
Partnership's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Trustee (or such reports of the
Company if filed by the Partnership with the Trustee in lieu of filing its own
reports) prior to the incurrence of such additional Indebtedness and (ii) the
increase in Total Assets from the end of such quarter including, without
limitation, any increase in Total Assets resulting from the incurrence of such
additional Indebtedness (such increase, together with the Total Assets, is
referred to as "Adjusted Total Assets"). (Section 1009)
In addition to the foregoing limitation on the incurrence of
Indebtedness, the Partnership will not, and will not permit any Subsidiary to,
incur any Indebtedness if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge (in each case as defined below) for the
four consecutive fiscal quarters most recently ended prior to the date on which
such additional Indebtedness is to be incurred shall have been less than 1.5 to
1, on a pro forma basis, after giving effect to the incurrence of such
Indebtedness and to the application of the proceeds therefrom and calculated on
the
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assumption that (i) such Indebtedness and any other Indebtedness incurred by the
Partnership or its Subsidiaries since the first day of such four-quarter period
and the application of the proceeds therefrom, including to refinance other
Indebtedness, had occurred at the beginning of such period, (ii) the repayment
or retirement of any other Indebtedness by the Partnership or its Subsidiaries
since the first day of such four-quarter period and had been incurred, repaid or
retired at the beginning of such period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such period), (iii) the income earned on any increase in Adjusted Total
Assets since the end of such four-quarter period had been earned on an
annualized basis, during such period, and (iv) in the case of any acquisition or
disposition by the Partnership or any Subsidiary of any asset or group of assets
since the first day of such four-quarter period, including, without limitation,
by merger, stock purchase or sale, or asset purchase or sale, such acquisition
or disposition or any related repayment Indebtedness had occurred as of the
first day of such period with appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma calculation.
(Section 1009)
For purposes of the foregoing provisions regarding the limitation on
the incurrence of Indebtedness, Indebtedness shall be deemed to be "incurred" by
the Partnership or a Subsidiary whenever the Partnership and its Subsidiary
shall create, assume, guarantee or otherwise become liable in respect thereof.
(Section 1009)
In addition to the foregoing limitations on the incurrence of
indebtedness, the Partnership will not, and will not permit any Subsidiary to,
incur any Secured Indebtedness of the Partnership or any Subsidiary if,
immediately after giving effect to the incurrence of such additional Secured
Indebtedness, the aggregate principal amount of all outstanding Secured
Indebtedness of the Partnership and its Subsidiaries on a consolidated basis
would be greater than 40% of Adjusted Total Assets. As used herein, "Secured
Indebtedness" means indebtedness secured by any mortgage, trust, deed, deed of
trust, deed to secure debt, security agreement, pledge, conditional sale or
other title retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in real property
or other tangible assets.
Maintenance of Total Unencumbered Assets. For so long as there are
Outstanding any Debt Securities (other than Debt Securities that are not, by
their terms, entitled to the benefit of this covenant), the Partnership is
required to maintain Total Unencumbered Assets of not less than 150% of the
aggregate outstanding principal amount of all outstanding Unsecured
Indebtedness. (Section 1009)
As used herein:
"Annual Service Charge" as of any date means the maximum
amount which is payable in any 12-month period from such date for
interest and required amortization (including amounts payable to
sinking funds or similar arrangements for the retirement of debt which
matures serially, but excluding principal payable at final maturity of
such debt) on Indebtedness of the Partnership and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (i) interest on Indebtedness of the Partnership and its
Subsidiaries, (ii) provision for taxes of the Partnership and its
Subsidiaries based on income, (iii) amortization of Indebtedness
discount, (iv) provisions for gains and losses on properties, (v)
depreciation and amortization, (vi) the effect of any noncash charge
resulting from a change in accounting principles in determining
Consolidated Net Income for such period, (vii) amortization of deferred
charges and (viii) the effect of net income (or loss) of joint ventures
in which the Partnership or any Subsidiary owns an interest to the
extent not providing a source of, or requiring a use of, cash,
respectively.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Partnership and its
Subsidiaries for such period determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Indebtedness" of the Partnership or any Subsidiary means any
indebtedness of the Partnership or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money evidenced
by bonds, notes, debentures or similar instruments, (ii) indebtedness
secured by a mortgage, pledge, lien, charge, encumbrance of any
security interest existing on property owned by the Partnership or such
Subsidiary, (iii) the reimbursement
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obligations, contingent or otherwise, in connection with any letters of
credit actually issued or amounts representing the balance that
constitutes an accrued expense or trade payable or (iv) any lease of
property by the Partnership or such Subsidiary as lessee which is
reflected in the Partnership's consolidated balance sheet as a
capitalized lease in accordance with generally accepted accounting
principles, in the case of items of indebtedness under (i) through
(iii) above to the extent that any such items (other than letters of
credit) would appear as a liability on the Partnership's consolidated
balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included,
any obligation by the Partnership or such Subsidiary to be liable for,
or to pay, as obligor, guarantor or otherwise (other than for purposes
of collection in the ordinary course of business), indebtedness of
another person (other than the Partnership or any Subsidiary).
"Subsidiary" means a corporation, partnership or limited
liability company more than 50% of the outstanding voting stock,
partnership interests or membership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the
Partnership or by one or more other Subsidiaries, or by the Partnership
and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting
power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but excluding
intangibles and accounts receivable).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets which have not been pledged, mortgaged
or otherwise encumbered by the owner thereof to secure Indebtedness,
excluding infrastructure assessment bonds and (ii) all other assets of
the Partnership and its Subsidiaries determined in accordance with
generally accepted accounting principles (but excluding intangibles and
accounts receivable) which have not been pledged, mortgaged or
otherwise encumbered by the owner thereof to secure Indebtedness.
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of
the Partnership and its Subsidiaries on such date, before depreciation
and amortization, determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unsecured Indebtedness" means Indebtedness which is (i) not
subordinated to any other Indebtedness and (ii) not secured by any
mortgage, lien, charge, pledge, encumbrance or security interest of any
kind upon any of the properties of the Partnership or any Subsidiary.
Additional Covenants. Any additional or different covenants of the
Partnership with respect to any series of Debt Securities will be set forth in
the applicable Prospectus Supplement.
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (i) failure to pay any
interest on any Debt Securities of that series when due, that has continued for
30 days; (ii) failure to pay principal of or any premium on any Debt Security of
that series when due; (iii) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series; (iv) failure to perform any
other covenant of the Partnership in the Indenture (other than a covenant
included in the Indenture solely for the benefit of a series other than that
series), that has continued for 60 days after written notice has been given by
the Trustee, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series, as provided in the Indenture; (v)
failure to pay when due (subject to any applicable grace period) the principal
of, or acceleration of, any indebtedness for money borrowed by the Partnership,
if, in the case of any such failure, such indebtedness has not been discharged
or, in the case of any such acceleration, such indebtedness has not been
discharged or such acceleration has not been rescinded or annulled, in each case
within 10 days after written notice has been given by the Trustee, or the
Holders of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series, as provided in the Indenture, if the aggregate
outstanding principal amount of indebtedness under the instrument with respect
to which such default or acceleration has occurred exceeds $10 million; (vi)
certain events of bankruptcy, insolvency or reorganization of the Partnership or
any Significant Subsidiary or
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any of their respective property; and (vii) any other event of default provided
with respect to a particular series of Debt Securities. (Section 501)
If an Event of Default (other than an Event of Default described in
clause (vi) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series by notice as provided in the Indenture may declare the principal
amount of the Debt Securities of that series (or, in the case of any Debt
Security that is an Original Issue Discount Debt Security or the principal
amount of which is not then determinable, such portion of the principal amount
of such Debt Security, or such other amount in lieu of such principal amount, as
may be specified in the terms of such Debt Security) to be due and payable
immediately. If an Event of Default described in clause (vi) above with respect
to the Debt Securities of any series at the time Outstanding shall occur, the
principal amount of all the Debt Securities of that series (or, in the case of
any such Original Issue Discount Debt Security or other Debt Security, such
specified amount) will automatically, and without any action by the Trustee or
any Holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal (or other
specified amount), have been cured or waived as provided in the Indenture.
(Section 502) For information as to waiver of defaults, see "-- Modification and
Waiver."
Subject to the provisions of the Indenture relating to the duties of
the Trustee in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable indemnity. (Section
603) Subject to such provisions for the indemnification of the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series have made written request, and such Holder or Holders have
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee and (iii) the Trustee has failed to institute such proceeding, and has
not received from the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and offer. (Section 507)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal of or any premium
or interest on such Debt Security on or after the applicable due date specified
in such Debt Security. (Section 508)
Within 120 days after the close of each fiscal year, the Partnership
will be required to furnish to the Trustee a statement by certain of the
Company's officers as to whether the Partnership, to their knowledge, is in
default in the performance or observance of any of the terms, provisions and
conditions of the Indenture and, if so, specifying all such known defaults.
(Section 1004)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the
Partnership and the Trustee with the consent of the Holders of a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (i) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Debt Security, (ii)
reduce the principal amount of, or any premium or interest on, any Debt
Security, (iii) reduce the amount of principal of an Original Issue Discount
Debt Security or any other Debt Security payable upon acceleration of the
Maturity thereof, (iv) change the place or currency of payment of principal of,
or any premium or interest on, any Debt Security, (v) impair the right to
institute suit for the enforcement of any payment on or with respect to any Debt
Security, (vi) reduce the percentage in principal amount of Outstanding Debt
Securities of any
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series, the consent of whose Holders is required for modification or amendment
of the Indenture, (vii) reduce the percentage in principal amount of Outstanding
Debt Securities of any series necessary for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults or (viii) modify
such provisions with respect to modification and waiver.
(Section 902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive compliance by the Partnership with certain
restrictive provisions of the Indenture. (Section 1011) The Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
may waive any past default under the Indenture, except a default in the payment
of principal, premium or interest and certain covenants and provisions of the
Indenture that cannot be amended without the consent of the Holder of each
Outstanding Debt Security of such series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under the Indenture
as of any date (i) the principal amount of an Original Issue Discount Debt
Security that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date and (ii) if, as of such date,
the principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security. Certain Debt
Securities, including those for whose payment or redemption money has been
deposited or set aside in trust for the Holders and those that have been fully
defeased pursuant to Section 1302, will not be deemed to be Outstanding.
(Section 101)
Except in certain limited circumstances, the Partnership will be
entitled to set any day as a record date for the purpose of determining the
Holders of Outstanding Debt Securities of any series entitled to give or take
any direction, notice, consent, waiver or other action under the Indenture, in
the manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such
shorter period as may be specified by the Partnership (or the Trustee, if it set
the record date), and may be shortened or lengthened (but not beyond 180 days)
from time to time. (Section 104)
Modifications and amendments of the Indenture may be made by the
Partnership and the Trustee without the consent of any holders of Debt
Securities for any of the following purposes: (i) to evidence the succession of
another person to the Partnership and the assumption by such successor of the
covenants of the Partnership in the Indenture and the Debt Securities; (ii) to
add to the covenants of the Partnership for the benefit of the holders of all or
any series of Debt Securities or to surrender any right or power conferred upon
the Partnership in the Indenture; (iii) to add events of default for the benefit
of the holders of all or any series of Debt Securities; (iv) to add to or change
any provisions of the Indenture as necessary to permit or facilitate the
issuance of Debt Securities in uncertificated form; (v) to add to, change or
eliminate any of the provisions of the Indenture with respect to one or more
series of Debt Securities, so long as the changes (A) do not (1) apply to any
Debt Securities of any series created prior to such modification or amendment
and entitled to the benefit of such provision or (2) modify the rights of the
holder of any such Debt Security with respect to such provision, or (B) will
only become effective when there is no such Debt Security Outstanding; (vi) to
secure the Debt Securities; (vii) to establish the form or terms of Debt
Securities of any series as permitted in the Indenture; or (viii) to provide for
the acceptance of appointment by a successor Trustee. (Section 901)
Defeasance and Covenant Defeasance
If and to the extent indicated in the applicable Prospectus Supplement,
the Partnership may elect, at its option at any time, to have the provisions of
Section 1302 of the Indenture, relating to defeasance and discharge of
indebtedness, or Section 1303, relating to defeasance of certain restrictive
covenants in the Indenture, applied to the Debt Securities of any series, or to
any specified part of a series. (Section 1301)
Defeasance and Discharge. The Indenture provides that, upon the
Partnership's exercise of its option (if any) to have Section 1302 applied to
any Debt Securities, the Partnership will be discharged from all its obligations
with respect to
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such Debt Securities (except for certain obligations to exchange or register the
transfer of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies and to hold moneys for payment in trust)
upon the deposit in trust for the benefit of the Holders of such Debt Securities
of money or U.S. Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. Such
defeasance or discharge may occur only if, among other things, the Partnership
has delivered to the Trustee an Opinion of Counsel to the effect that the
Partnership has received from, or there has been published by, the United States
Internal Revenue Service a ruling, or there has been a change in tax law, in
either case to the effect that Holders of such Debt Securities will not
recognize gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge were not to occur. (Sections 1302
and 1304)
Defeasance of Certain Covenants. The Indenture provides that, upon the
Partnership's exercise of its option (if any) to have Section 1303 applied to
any Debt Securities, the Partnership may omit to comply with certain restrictive
covenants, including those described under "Certain Covenants," in the last
sentence under "Merger, Consolidation or Sale" and any that may be described in
the applicable Prospectus Supplement, and the occurrence of certain Events of
Default, which are described above in clause (iv) (with respect to such
restrictive covenants) and clauses (v) and (vii) under "Events of Default" and
any that may be described in the applicable Prospectus Supplement, will be
deemed not to be or result in an Event of Default, in each case with respect to
such Debt Securities. The Partnership, in order to exercise such option, will be
required to deposit, in trust for the benefit of the Holders of such Debt
Securities, money or U.S. Government Obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
any premium and interest on such Debt Securities on the respective Stated
Maturities in accordance with the terms of the Indenture and such Debt
Securities. The Partnership will also be required, among other things, to
deliver to the Trustee an Opinion of Counsel to the effect that Holders of such
Debt Securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and defeasance were not
to occur. In the event the Partnership exercised this option with respect to any
Debt Securities and such Debt Securities were declared due and payable because
of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations so deposited in trust would be sufficient to pay amounts
due on such Debt Securities at the time of their respective Stated Maturities
but may not be sufficient to pay amounts due on such Debt Securities upon any
acceleration resulting from such Event of Default. In such case, the Partnership
would remain liable for such payments. (Sections 1303 and 1304) "U.S. Government
Obligations" means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged
or (ii) obligations of a person controlled or supervised by and acting as a
agency or instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian of the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt. (Section 1304)
Notices
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
Title
The Partnership, the Trustee and any agent of the Partnership or the
Trustee may treat the Person in whose name a Debt Security is registered as the
absolute owner thereof (whether or not such Debt Security may be overdue) for
the purpose of making payment and for all other purposes. (Section 308)
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No Conversion Rights
The Debt Securities will not be convertible into or exchangeable for
any capital stock of the Company or equity interest in the Partnership.
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of material federal income tax considerations
that may be relevant to a prospective holder of the Offered Securities is based
on current law, is for general information only, and is not tax advice. The
discussion contained herein does not purport to deal with all aspects of
taxation that may be relevant to particular investors in light of their personal
investment or tax circumstances, or to certain types of investors (including
insurance companies, tax exempt organizations, financial institutions or
broker-dealers, foreign corporations and persons who are not citizens or
residents of the United States) subject to special treatment under the federal
income tax laws.
The statements in this discussion are based on current provisions of
the Code, existing, temporary and currently proposed Treasury regulations
promulgated under the Code (the "Treasury Regulations"), the legislative history
of the Code, existing administrative rulings and practices of the Internal
Revenue Service (the "Service"), and judicial decisions. No assurance can be
given that future legislative, judicial or administrative actions or decisions,
which may be retroactive in effect, will not affect the accuracy of any
statements in this Prospectus with respect to the transactions entered into or
contemplated prior to the effective date of such changes.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT HIS OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OF THE PURCHASE, OWNERSHIP AND
SALE OF THE OFFERED SECURITIES AND OF THE COMPANY'S ELECTION TO BE TAXED AS A
REIT, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF
SUCH PURCHASE, OWNERSHIP, SALE AND ELECTION, AND OF POTENTIAL CHANGES IN
APPLICABLE TAX LAWS.
Taxation of the Company
The Company made an election to be taxed as a REIT under sections 856
through 860 of the Code, effective for its taxable year ended December 31, 1994.
The Company believes that, commencing with such taxable year, it has been
organized and has operated in such a manner as to qualify for taxation as a REIT
under the Code, and the Company intends to continue to operate in such a manner,
but no assurance can be given that the Company will operate in a manner so as to
qualify or remain qualified as a REIT.
The sections of the Code relating to qualification and operation as a
REIT are highly technical and complex. The following discussion sets forth the
material aspects of the Code sections that govern the federal income tax
treatment of a REIT. The discussion is qualified in its entirety by the
applicable Code provisions, Treasury Regulations and administrative and judicial
interpretations thereof, all of which are subject to change prospectively or
retrospectively.
If the Company qualifies for taxation as a REIT, it generally will not
be subject to federal corporate income tax on its net income that is distributed
currently to its shareholders. That treatment substantially eliminates the
"double taxation" (i.e., taxation at both the corporate and shareholder levels)
that generally results from an investment in a corporation. However, the Company
will be subject to federal income tax in the following circumstances. First, the
Company will be taxed at regular corporate rates on any undistributed REIT
taxable income, including undistributed net capital gains. Second, under certain
circumstances, the Company may be subject to the "alternative minimum tax" on
its undistributed items of tax preference. Third, if the Company has (i) net
income from the sale or other disposition of "foreclosure property" that is held
primarily for sale to customers in the ordinary course of business or (ii) other
nonqualifying income from foreclosure property, it will be subject to tax at the
highest corporate rate on such income. Fourth, if the Company has net income
from prohibited transactions (which are, in general, certain sales or other
dispositions of property (other than foreclosure property) held primarily for
sale to customers in the ordinary course of business), such income will be
subject to a 100% tax. Fifth, if the Company should fail to satisfy the 75%
gross income test or the 95% gross income test (as discussed below), and has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on an amount equal
to the gross income attributable to the greater of the amounts by which the
Company fails the 75% and 95% gross income tests, multiplied by a fraction
intended to reflect the Company's profitablity. Sixth, if the Company should
fail to distribute during each calendar year at least the sum of (i) 85% of its
REIT ordinary income for such year, (ii) 95% of its REIT capital gain net income
for such year and (iii) any undistributed taxable income from prior
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periods, the Company would be subject to a 4% excise tax on the excess of such
required distribution over the amounts actually distributed. For taxable years
after 1997, the Company may elect to retain and pay income tax on its net
capital gain. Any such retained amounts will be treated as distributed for
purposes of the 4% excise tax. Seventh, if the Company acquires any asset from a
C corporation (i.e., a corporation generally subject to full corporate-level
tax) in a transaction in which the basis of the asset in the Company's hands is
determined by reference to the basis of the asset (or any other asset) in the
hands of the C corporation and the Company recognizes gain on the disposition of
such asset during the 10-year period beginning on the date on which such asset
was acquired by the Company, then to the extent of such asset's "built-in gain"
(i.e., the excess of the fair market value of such asset at the time of
acquisition by the Company over the adjusted basis in such asset at such time),
the Company will be subject to tax at the highest regular corporate rate
applicable (as provided in Treasury Regulations that have not yet been
promulgated). The results described above with respect to the recognition of
"built-in gain" assume that the Company would make an election pursuant to IRS
Notice 88-19 if it were to make any such acquisition.
Requirements for Qualification
The Code defines a REIT as a corporation, trust or association (i) that
is managed by one or more trustees or directors; (ii) the beneficial ownership
of which is evidenced by transferable shares, or by transferable certificates of
beneficial interest; (iii) that would be taxable as a domestic corporation, but
for sections 856 through 860 of the Code; (iv) that is neither a financial
institution nor an insurance company subject to certain provisions of the Code;
(v) the beneficial ownership of which is held by 100 or more persons; (vi) not
more than 50% in value of the outstanding stock of which is owned, directly or
indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of each taxable year (the "5/50 Rule");
(vii) that makes an election to be a REIT (or has made such election for a
previous taxable year) and satisfies all relevant filing and other
administrative requirements established by the Service that must be met in order
to elect and to maintain REIT status; (viii) that uses a calendar year for
federal income tax purposes and complies with the recordkeeping requirements of
the Code and Treasury Regulations; and (ix) that meets certain other tests,
described below, regarding the nature of its income and assets. The Code
provides that conditions (i) to (iv), inclusive, must be met during the entire
taxable year and that condition (v) must be met during at least 335 days of a
taxable year of 12 months, or during a proportionate part of a taxable year of
less than 12 months. Conditions (v) and (vi) will not apply until after the
first taxable year for which an election is made by the Company to be taxed as a
REIT. The Company believes that it has issued sufficient shares of Common Stock
with sufficient diversity of ownership to allow it to satisfy requirements (v)
and (vi). In addition, the Company's Charter provides for restrictions regarding
transfer of the Common Stock that are intended to assist the Company in
continuing to satisfy the stock ownership requirements described in (v) and (vi)
above. Such transfer restrictions are described above under "Restrictions on
Transfer of Capital Stock."
For purposes of determining stock ownership under the 5/50 Rule, a
supplemental unemployment compensation benefits plan, a private foundation or a
portion of a trust permanently set aside or used exclusively for charitable
purposes generally is considered an individual. A trust that is a qualified
trust under Code section 401(a), however, generally is not considered an
individual and the beneficiaries of such trust are treated as holding shares of
a REIT in proportion to their actuarial interests in the trust for purposes of
the 5/50 Rule.
The Company currently has one direct corporate subsidiary, Storage USA
Trust, a Maryland real estate investment trust (the "Trust"), and may have
additional corporate subsidiaries in the future. Code section 856(i) provides
that a corporation that is a "qualified REIT subsidiary" is not treated as a
separate corporation, and all assets, liabilities, and items of income,
deduction, and credit of a qualified REIT subsidiary are treated as assets,
liabilities and items of income, deduction and credit of the REIT. For taxable
years after 1997, a "qualified REIT subsidiary" is a corporation, all of the
capital stock of which is held by the REIT. Thus, in applying the requirements
described herein, any qualified REIT subsidiaries of the Company are ignored,
and all assets, liabilities and items of income, deduction and credit of such
subsidiaries are treated as assets, liabilities, and items of income, deduction,
and credit of the Company. The Trust is a qualified REIT subsidiary. The Trust,
therefore, is not subject to federal corporate income taxation, although it may
be subject to state and local taxation.
In the case of a REIT that is a partner in a partnership, Treasury
Regulations provide that the REIT is deemed to own its proportionate share of
the assets of the partnership and is deemed to be entitled to the gross income
of the partnership attributable to such share. In addition, the assets and gross
income of the partnership will retain the same character in the hands of the
REIT for purposes of section 856 of the Code, including satisfying the gross
income and asset tests described below. Thus, the Company's proportionate share
of the assets, liabilities and items of income of the Partnership and the
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subsidiary partnerships of the Partnership (each, a "Subsidiary Partnership"),
are treated as assets and gross income of the Company for purposes of applying
the requirements described herein.
Income Tests
In order for the Company to maintain its qualification as a REIT, for
taxable years after 1997, there are two requirements relating to the Company's
gross income that must be satisfied annually. First, at least 75% of the
Company's gross income (excluding gross income from prohibited transactions) for
each taxable year must consist of defined types of income derived directly or
indirectly from investments relating to real property or mortgages on real
property (including "rents from real property" and, in certain circumstances,
interest) or temporary investment income. Second, at least 95% of the Company's
gross income (excluding gross income from prohibited transactions) for each
taxable year must be derived from such real property or temporary investments,
and from dividends, other types of interest and gain from the sale or
disposition of stock or securities, or from any combination of the foregoing.
Rents received by the Company will qualify as "rents from real
property" in satisfying the gross income requirements for a REIT described above
only if several conditions are met. First, the amount of rent must not be based
in whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term "rents from
real property" solely by reason of being based on a fixed percentage or
percentages of receipts or sales. Second, the Code provides that rents received
from a tenant will not qualify as "rents from real property" in satisfying the
gross income tests if the Company, or an owner of 10% or more of the Company,
directly or constructively owns 10% or more of such tenant (a "Related Party
Tenant"). Third, if rent attributable to personal property leased in connection
with a lease of real property is greater than 15% of the total rent received
under the lease, then the portion of rent attributable to such personal property
will not qualify as "rents from real property." Finally, for rents received to
qualify as "rents from real property," the Company generally must not operate or
manage the property or furnish or render services to the tenants of such
property, other than through an "independent contractor" who is adequately
compensated and from whom the Company derives no revenue. The "independent
contractor" requirement, however, does not apply to the extent the services
provided by the Company are customarily furnished or rendered in connection with
the rental of real property for occupancy only and are not otherwise considered
"rendered to the occupant." In addition, in taxable years after 1997, the
Company may provide noncustomary services other than through an "independent
contractor" if the value of such services does not exceed 1% of the Company's
gross income from the property where such services are provided. For that
purpose, such services may not be valued at less than 150% of the Company's
direct cost of providing the services.
The Company, through the Partnership, derives the bulk of its revenues
from rent from storage unit leases, additional first month rent and late charges
attributable to such rents (collectively, the "Primary Revenues"). The Company
derives additional revenues from ancillary services such as moving truck rental
commissions, packing and shipping commissions, rent from leasing space utilized
for sales of locks and packing supplies to SUSA Management, Inc., a Tennessee
corporation ("Management"), 5% of whose voting stock and 94% of whose nonvoting
stock (which together constitute 99% of the beneficial economic interest
therein) are owned by the Partnership, rent from vehicle and boat storage leases
(including additional first month rent and late charges attributable thereto),
and similar items (collectively, the "Ancillary Revenues"). The Company also
receives dividends from Management, Storage USA Franchise Corp., a Tennessee
corporation ("Franchise"), and Storage USA Construction, Inc., a Tennessee
corporation ("Construction"). The Partnership owns 100% of the nonvoting stock
of each of Franchise and Construction, representing 97.5% of the beneficial
economic interest of each of Franchise and Construction. The Company believes
that, other than the late charges attributable to rent, which are treated as
interest that qualifies for the 95% gross income test, but not the 75% gross
income test, the Primary Revenues qualify as rents from real property and that
dividends from Management, Franchise and Construction (the "Nonqualified
Subsidiaries") are qualifying income for purposes of the 95% gross income test.
Furthermore, the Company believes that the Ancillary Revenues and other types of
potentially nonqualifying gross income earned by the Company in each taxable
year are equal to, and will continue to be equal to, less than 5% of the
Company's total gross income and, thus, that such items of income do not
adversely affect the Company's qualification as a REIT.
The Company does not receive any rent that is based on the income or
profits of any person. In addition, other than with respect to its leasing
arrangement with Management with respect to the sale of lock and packing
supplies (the revenue from which the Company treats as nonqualifying income for
purposes of the 75% and 95% gross income tests), the Company does not own,
directly or indirectly, 10% or more of any tenant or receive any rent based on
the income or profits of any tenant. Furthermore, the Company believes that any
personal property leased in connection with its storage facilities is well
within the 15% restriction. However, in order for the Primary Revenues to
constitute "rents from real property," the Company must not provide services
(other than services that qualify for the 1% de minimis exception) to its
tenants that
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are not customarily furnished or rendered in connection with the rental of the
self-storage units, other than through an independent contractor.
The Company, through the Partnership and the Subsidiary Partnerships
(each, a "Partnership") (which are not independent contractors), provides
certain services with respect to the facilities. Such services include (i)
common area services, such as cleaning and maintaining public entrances, exits,
stairways, walkways, lobbies and rest rooms, removing snow and debris,
collecting trash and painting the exteriors of the facilities and common areas,
(ii) providing general security for the facilities, (iii) cleaning and repairing
of units at the facilities as tenants move in and out, (iv) at the request of
the tenant, and without additional charge, accepting delivery of goods from
carriers or unlocking a particular unit when goods are delivered to a facility
(however, the Partnerships do not otherwise assist tenants in the storage or
removal of goods or belongings from the units), (v) permitting tenants to use
the facsimile machine at a facility for sending occasional local facsimiles
without additional charge and for sending occasional long-distance facsimiles
for a nominal charge, (vi) maintaining underground utilities and structural
elements of the facilities, (vii) paying real and personal property taxes or the
cost of replacing or refurbishing personal property with respect to real and
personal property owned by a Partnership at a facility, (viii) for a fee, acting
as an agent for moving truck rental companies for tenants of certain facilities
and walk-in customers, (ix) for a fee, providing packing and shipping services
to tenants of certain facilities and walk-in customers and (x) at a few
facilities, allowing tenants to use trucks owned by the Company or a Partnership
to move their goods and belongings into and out of the units without additional
charge. The Company believes that the services provided by the Partnerships are
customarily furnished or rendered in connection with the rental of space for
occupancy only by self-storage facilities in the geographic areas in which its
facilities are located.
The Company's investment, through the Partnerships, in the facilities
in major part gives rise to rental income that is qualifying income for purposes
of the 75% and 95% gross income tests. Gains on sales of the facilities (other
than from prohibited transactions, as described below) or of the Company's
interests in the Partnerships generally will be qualifying income for purposes
of the 75% and 95% gross income tests. The Company anticipates that income on
its other investments, including its indirect investments in the Nonqualified
Subsidiaries, will not result in the Company failing the 75% or 95% gross income
test for any year.
The term "interest" generally does not include any amount received or
accrued (directly or indirectly) if the determination of such amount depends in
whole or in part on the income or profits of any person. However, an amount
received or accrued generally will not be excluded from the term "interest"
solely by reason of being based on a fixed percentage or percentages of receipts
or sales.
The net income derived from any prohibited transaction is subject to a
100% tax. The term "prohibited transaction" generally includes a sale or other
disposition of property (other than foreclosure property) that is held primarily
for sale to customers in the ordinary course of a trade or business. The Company
believes that no asset owned by the Company or a Partnership is held for sale to
customers and that a sale of any such asset will not be in the ordinary course
of business of the Company or a Partnership. Whether property is held "primarily
for sale to customers in the ordinary course of a trade or business" depends,
however, on the facts and circumstances in effect from time to time, including
those related to a particular property. Nevertheless, the Company and the
Partnerships have complied, and will continue to comply, with the terms of
safe-harbor provisions in the Code prescribing when asset sales will not be
characterized as prohibited transactions. Complete assurance cannot be given,
however, that the Company or the Partnerships can comply with the safe-harbor
provisions of the Code or avoid owning property that may be characterized as
property held "primarily for sale to customers in the ordinary course of a trade
or business."
It is possible that, from time to time, the Company or a Partnership
will enter into hedging transactions with respect to one or more of its assets
or liabilities. Any such hedging transactions could take a variety of forms,
including interest rate swap contracts, interest rate cap or floor contracts,
futures or forward contracts, and options. In taxable years after 1997, the
extent that the Company or a Partnership enters into an interest rate swap or
cap contract, option, futures contract, forward rate agreement, or similar
financial instrument to hedge the interest rate risk with respect to
indebtedness incurred or to be incurred to acquire or carry real estate assets,
any periodic income or gain from the disposition of such contract will be
qualifying or to be incurred income for purposes of the 95% gross income test,
but not the 75% gross income test. To the extent that the Company or a
Partnership hedges with other types of financial instruments or in other
situations, it may not be entirely clear how the income from those transactions
will be treated for purposes of the gross income tests that apply to REITs under
the Code. The Company intends to structure any hedging transactions in a manner
that does not jeopardize its status as a REIT.
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If the Company fails to satisfy one or both of the 75% or 95% gross
income tests for any taxable year, it may nevertheless qualify as a REIT for
such year if it is entitled to relief under certain provisions of the Code.
Those relief provisions generally will be available if (i) the Company's failure
to meet such tests is due to reasonable cause and not due to willful neglect,
(ii) the Company attaches a schedule of the sources of its income to its return
and (iii) any incorrect information on the schedule was not due to fraud with
intent to evade tax. It is not possible, however, to state whether in all
circumstances the Company would be entitled to the benefit of those relief
provisions. As discussed above in "Federal Income Tax Considerations-Taxation of
the Company," even if those relief provisions apply, a 100% tax would be imposed
with respect to an amount equal to the gross income attributable to the greater
of the amounts by which the Company fails the 75% and 95% income tests,
multiplied by a fraction intended to reflect the Company's profitability.
Asset Tests
The Company, at the close of each quarter of each taxable year, also
must satisfy two tests relating to the nature of its assets. First, at least 75%
of the value of the Company's total assets must be represented by cash or cash
items (including certain receivables), government securities, or "real estate
assets," including, in cases where the Company raises new capital through stock
or long-term (at least five-year) debt offerings, stock or debt instruments
attributable to the temporary investment of such new capital during the one-year
period following the Company's receipt of such capital. The term "real estate
assets" also includes real property (including interests in real property and
interests in mortgages on real property) and shares of other REITs. For purposes
of the 75% asset test, the term "interest in real property" includes an interest
of land or improvements thereon, such as buildings or other inherently permanent
structures (including items that are structural components of such buildings or
structures), a leasehold of land or improvements thereon, and an option to
acquire land or improvements thereon (or a leasehold of land or improvements
thereon). Second, of the investments not included in the 75% asset class, the
value of any one issuer's securities owned by the Company (other than its
ownership interest in the Partnerships, the Trust and any other qualified REIT
subsidiary) may not exceed 5% of the value of the Company's total assets, and
the Company may not own more than 10% of any one issuer's outstanding voting
securities (except for its ownership interest in the Partnerships, the Trust and
any other qualified REIT subsidiary).
The Partnership owns 5% of the voting stock and 94% of the nonvoting
stock of Management (which together constitute 99% of the beneficial economic
interest therein). In addition, the Partnership owns 100% of the nonvoting stock
of each of Franchise and Construction, which represents 97.5% of the beneficial
economic interest in each of Franchise and Construction. By virtue of its
partnership interest in the Partnership, the Company is deemed to own its pro
rata share of the assets of the Partnership, including the stock of the
Nonqualified Subsidiaries held by the Partnership.
The Company does not own more than 10% of the voting securities of any
Nonqualified Subsidiary. In addition, based upon its analysis of the estimated
value of the stock of each Nonqualified Subsidiary owned by the Company relative
to the estimated value of the other assets owned by the Company, the Company
believes that its pro rata share of the stock of each Nonqualified Subsidiary
owned by the Partnership does not exceed 5% of the total value of the Company's
assets. No independent appraisals have been obtained to support this conclusion.
This 5% limitation must be satisfied at the end of each quarter in which the
Company or the Partnership increases its interest in a Nonqualified Subsidiary
(including as a result of the Company increasing its interest in the Partnership
in connection with a stock offering or as limited partners of the Partnership
exercise their rights to redeem their limited partnership interests). Although
the Company plans to take steps to ensure that it satisfies the 5% asset test
for any quarter with respect to which retesting is to occur, there can be no
assurance that such steps will always be successful or will not require a
reduction in the Partnership's overall interest in a Nonqualified Subsidiary.
The Company does not expect to own securities of any other issuer in excess of
the restrictions set forth above.
If the Company should fail to satisfy the asset tests at the end of a
calendar quarter, such a failure would not cause it to lose its REIT status if
(i) it satisfied all of the asset tests at the close of the preceding calendar
quarter and (ii) the discrepancy between the value of the Company's assets and
the asset test requirements arose from changes in the market values of its
assets and was not wholly or partly caused by an acquisition of one or more
nonqualifying assets. If the condition described in clause (ii) of the preceding
sentence were not satisfied, the Company still could avoid disqualification by
eliminating any discrepancy within 30 days after the close of the quarter in
which it arose.
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Distribution Requirements
The Company, in order to avoid corporate income taxation of the
earnings that it distributes, is required to distribute dividends (other than
capital gain dividends and retained capital gain) to its shareholders in an
amount at least equal to (i) the sum of (A) 95% of its "REIT taxable income"
(computed without regard to the dividends paid deduction and its net capital
gain) and (B) 95% of the net income (after tax), if any, from foreclosure
property, minus (ii) the sum of certain items of noncash income. Such
distributions must be paid in the taxable year to which they relate, or in the
following taxable year if declared before the Company timely files its tax
return for such year and if paid on or before the first regular dividend payment
date after such declaration. To the extent that the Company does not distribute
all of its net capital gain or distributes at least 95%, but less than 100%, of
its REIT taxable income, as adjusted, it will be subject to tax thereon at
regular ordinary and capital gains corporate tax rates. Furthermore, if the
Company should fail to distribute during each calendar year at least the sum of
(i) 85% of its REIT ordinary income for such year, (ii) 95% of its REIT capital
gain income for such year and (iii) any undistributed taxable income from prior
periods, the Company would be subject to a 4% nondeductible excise tax on the
excess of such required distribution over the amounts actually distributed. The
Company has made, and will continue to make, timely distributions sufficient to
satisfy the annual distribution requirement. Beginning with its 1998 taxable
year, the Company may elect to retain and pay income tax on its net long-term
capital gains. In that case, the Company's shareholders would include in income
their proportionate share of the Company's undistributed long-term capital gain.
In addition, the shareholders would be deemed to have paid their proportionate
share of the tax paid by the Company, which would be credited or refunded to the
shareholders. Each shareholder's basis in his shares would be increased by the
amount of the undistributed long-term capital gain included in the shareholder's
income, less the shareholder's share of the tax paid by the Company. Such amount
would be treated as having been distributed by the Company for purposes of the
4% excise tax described above.
It is possible that, from time to time, the Company may experience
timing differences between (i) the actual receipt of income and actual payment
of deductible expenses and (ii) the inclusion of that income and deduction of
such expenses in arriving at its REIT taxable income. Further, it is possible
that, from time to time, the Company may be allocated a share of net capital
gain attributable to the sale of depreciated property that exceeds its allocable
share of cash attributable to that sale. Therefore, the Company may have less
cash available for distribution than is necessary to meet its annual 95%
distribution requirement or to avoid corporate income tax or the excise tax
imposed on certain undistributed income. In such a situation, the Company may
find it necessary to arrange for short-term (or possibly long-term) borrowings
or to raise funds through the issuance of additional Offered Securities.
Under certain circumstances, the Company may be able to rectify a
failure to meet the distribution requirement for a year by paying "deficiency
dividends" to its shareholders in a later year, which may be included in the
Company's deduction for dividends paid for the earlier year. Although the
Company may be able to avoid being taxed on amounts distributed as deficiency
dividends, it will be required to pay to the Service interest based upon the
amount of any deduction taken for deficiency dividends.
Recordkeeping Requirement
Pursuant to applicable Treasury Regulations, in order to be taxed as a
REIT, the Company must maintain certain records and request on an annual basis
certain information from its shareholders designed to disclose the actual
ownership of its outstanding stock. The Company has complied, and will continue
to comply, with such requirements.
Partnership Anti-Abuse Rule
A final regulation (the "Anti-Abuse Rule") under the partnership
provisions of the Code (the "Partnership Provisions") authorizes the Service, in
certain abusive transactions involving partnerships, to disregard the form of
the transaction and recast it for federal tax purposes as the Service deems
appropriate. The Anti-Abuse Rule applies where a partnership is formed or
utilized in connection with a transaction (or series of related transactions)
with a principal purpose of substantially reducing the present value of the
partners' aggregate federal tax liability in a manner inconsistent with the
intent of the Partnership Provisions. The Anti-Abuse Rule states that the
Partnership Provisions are intended to permit taxpayers to conduct joint
business (including investment) activities through a flexible arrangement that
accurately reflects the partners' economic agreement and clearly reflects the
partners' income without incurring any entity-level tax. The purposes for
structuring a transaction involving a partnership are determined based on all of
the facts and circumstances, including a comparison of the purported business
purpose for a transaction and the claimed tax benefits resulting from the
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transaction. A reduction in the present value of the partners' aggregate federal
tax liability through the use of a partnership does not, by itself, establish
inconsistency with the intent of the Partnership Provisions.
The Anti-Abuse Rule contains an example in which a corporation that
elects to be taxed as a REIT contributes substantially all of the proceeds from
a public offering to a partnership in exchange for a general partnership
interest. The limited partners of the partnership contribute real property
assets to the partnership, subject to liabilities that exceed their respective
aggregate bases in such property. In addition, some of the limited partners have
the right, beginning two years after the formation of the partnership, to
require the redemption of their limited partnership interests in exchange for
cash or REIT stock (at the REIT's option) equal to the fair market value of
their respective interests in the partnership at the time of the redemption. The
example concludes that the use of the partnership is not inconsistent with the
intent of the Partnership Provisions and, thus, cannot be recast by the Service.
However, because the Anti-Abuse Rule is extraordinarily broad in scope and is
applied based on an analysis of all of the facts and circumstances, there can be
no assurance that the Service will not attempt to apply the Anti-Abuse Rule to
the Company. If the conditions of the Anti-Abuse Rule are met, the Service is
authorized to take appropriate enforcement action, including disregarding a
Partnership for federal tax purposes or treating one or more of the partners as
nonpartners. Any such action could jeopardize the Company's status as a REIT.
Failure to Qualify
If the Company fails to qualify for taxation as a REIT in any taxable
year and the relief provisions do not apply, the Company will be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to the shareholders in any year in which
the Company fails to qualify will not be deductible by the Company nor will they
be required to be made. In such event, to the extent of current and accumulated
earnings and profits, all distributions to shareholders will be taxable as
ordinary income and, subject to certain limitations of the Code, corporate
distributees may be eligible for the dividends received deduction. Unless
entitled to relief under specific statutory provisions, the Company also will be
disqualified from taxation as a REIT for the four taxable years following the
year during which the Company ceased to qualify as a REIT. It is not possible to
state whether in all circumstances the Company would be entitled to such
statutory relief.
Other Tax Consequences
State and Local Taxes
The Company, the Trust, the Partnerships or the investors in the
Company may be subject to state or local taxation in various state or local
jurisdictions, including those in which it or they own property, transact
business or reside. Such state and local tax treatment may not conform to the
federal income tax consequences discussed above. In addition, the Company, the
Trust or the Partnerships may be subject to certain state and local taxes
imposed on owners of property, such as ad valorem property taxes, transfer taxes
and rent taxes. CONSEQUENTLY, PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN TAX
ADVISORS REGARDING THE EFFECT OF STATE AND LOCAL TAX LAWS ON AN INVESTMENT IN
THE COMPANY.
Tax Aspects of the Company's Investments in the Partnerships
The following discussion summarizes certain federal income tax
considerations applicable to the Company's direct or indirect investments in the
Partnership. The discussion does not cover state or local tax laws or any
federal tax laws other than income tax laws.
Classification as Partnerships
The Company is entitled to include in its income its distributive share
of each Partnership's income and to deduct its distributive share of each
Partnership's losses only if the Partnerships are classified for federal income
tax purposes as partnerships rather than as corporations or associations taxable
as corporations. An entity will be classified as a partnership rather than as a
corporation for federal income tax purposes if the entity (i) is treated as a
partnership under Treasury regulations, effective January 1, 1997, relating to
entity classification (the "Check-the-Box Regulations") and (ii) is not a
"publicly traded" partnership. Pursuant to the Check-the-Box Regulations, an
unincorporated entity with at least two members may elect to be classified
either as an association or as a partnership. If such an entity fails to make an
election, it generally will be treated as a partnership for federal income tax
purposes. The federal income tax classification of an entity that was in
existence prior to January 1, 1997, such as the Partnerships, will be respected
for all periods prior to
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January 1, 1997, if (i) the entity had a reasonable basis for its claimed
classification, (ii) the entity and all members of the entity recognized the
federal tax consequences of any changes in the entity's classification within
the 60 months prior to January 1, 1997, and (iii) neither the entity nor any
member of the entity was notified in writing on or before May 8, 1996, that the
classification of the entity was under examination. The Company believes that
each Partnership will be treated as a partnership under the Check-the-Box
Regulations.
A publicly traded partnership is a partnership whose interests are
traded on an established securities market or are readily tradable on a
secondary market (or the substantial equivalent thereof). A publicly traded
partnership will not, however, be treated as a corporation for any taxable year
if 90% or more of the partnership's gross income for such year consists of
certain passive-type income, including (as may be relevant here) real property
rents, gains from the sale or other disposition of real property, interest and
dividends (the "90% Passive Income Exception").
The U.S. Department of the Treasury has issued regulations effective
for taxable years beginning after December 31, 1995 (the "PTP Regulations"),
that provide limited safe harbors from the definition of a publicly traded
partnership. Pursuant to one of those safe harbors (the "Private Placement
Exclusion"), interests in a partnership will not be treated as readily tradable
on a secondary market or the substantial equivalent thereof if (i) all interests
in the partnership were issued in a transaction (or transactions) that was not
required to be registered under the Securities Act and (ii) the partnership does
not have more than 100 partners at any time during the partnership's taxable
year. In determining the number of partners in a partnership, a person owning an
interest in a flow-through entity (i.e., a partnership, grantor trust or S
corporation) that owns an interest in the partnership is treated as a partner in
such partnership only if (i) substantially all of the value of the owner's
interest in the flow-through entity is attributable to the flow-through entity's
interest (direct or indirect) in the partnership and (ii) a principal purpose of
the use of the flow-through entity is to permit the partnership to satisfy the
100- partner limitation. Each Partnership qualifies for the Private Placement
Exclusion.
If a Partnership is considered a publicly traded partnership under the
PTP Regulations because it is deemed to have more than 100 partners, such
Partnership should not be treated as a corporation because it should be eligible
for the 90% Passive Income Exception. If, however, for any reason a Partnership
were taxable as a corporation, rather than as a partnership, for federal income
tax purposes, the Company would not be able to qualify as a REIT. See "Federal
Income Tax Considerations -- Requirements for Qualification -- Income Tests" and
"-- Requirements for Qualification -- Asset Tests." In addition, any change in a
Partnership's status for tax purposes might be treated as a taxable event, in
which case the Company might incur tax liability without any related cash
distribution. See "Federal Income Tax Considerations -Requirements for
Qualification -- Distribution Requirements." Further, items of income and
deduction of such Partnership would not pass through to its partners, and its
partners would be treated as stockholders for tax purposes. Consequently, such
Partnership would be required to pay income tax at corporate tax rates on its
net income, and distributions to its partners would constitute dividends that
would not be deductible in computing such Partnership's taxable income.
Income Taxation of the Partnerships and their Partners
Partners, Not the Partnerships, Subject to Tax. A partnership is not a
taxable entity for federal income tax purposes. Rather, the Company is required
to take into account its allocable share of each Partnership's income, gains,
losses, deductions and credits for any taxable year of such Partnership ending
within or with the taxable year of the Company, without regard to whether the
Company has received or will receive any distribution from such Partnership.
Partnership Allocations. Although a partnership agreement generally
will determine the allocation of income and losses among partners, such
allocations will be disregarded for tax purposes under section 704(b) of the
Code if they do not comply with the provisions of section 704(b) of the Code and
the Treasury Regulations promulgated thereunder. If an allocation is not
recognized for federal income tax purposes, the item subject to the allocation
will be reallocated in accordance with the partners' interests in the
partnership, which will be determined by taking into account all of the facts
and circumstances relating to the economic arrangement of the partners with
respect to such item. Each Partnership's allocations of taxable income, gain and
loss are intended to comply with the requirements of section 704(b) of the Code
and the Treasury Regulations promulgated thereunder.
Tax Allocations With Respect to Contributed Properties. Pursuant to
section 704(c) of the Code, income, gain, loss and deduction attributable to
appreciated or depreciated property that is contributed to a partnership in
exchange for an interest in the partnership must be allocated in a manner such
that the contributing partner is charged with, or benefits from, respectively,
the unrealized gain or unrealized loss associated with the property at the time
of the contribution. The amount of such unrealized gain or unrealized loss is
generally equal to the difference between the fair market value of the
contributed
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property at the time of contribution, and the adjusted tax basis of such
property at the time of contribution (a "Book-Tax Difference"). The Treasury
Department recently issued regulations requiring partnerships to use a
"reasonable method" for allocating items affected by section 704(c) of the Code
and outlining several reasonable allocation methods.
Under the partnership agreements governing the Partnerships,
depreciation or amortization deductions of the Partnership generally are
allocated among the partners in accordance with their respective interests in
the Partnership, except to the extent that Code section 704(c) requires
otherwise. In addition, gain on the sale of a contributed property will be
specially allocated to the contributing partner (including the Company) to the
extent of any "built-in" gain with respect to such property for federal income
tax purposes. The application of section 704(c) to the Partnerships is not
entirely clear, however, and may be affected by Treasury Regulations promulgated
in the future.
Basis in Partnership Interest. The Company's adjusted tax basis in its
partnership interest in a Partnership generally is equal to (i) the amount of
cash and the basis of any other property contributed to the Partnership by the
Company, (ii) increased by (A) its allocable share of the Partnership's income
and (B) its allocable share of indebtedness of the Partnership and (iii)
reduced, but not below zero, by (A) the Company's allocable share of the
Partnership's loss and (B) the amount of cash distributed to the Company, and by
constructive distributions resulting from a reduction in the Company's share of
indebtedness of the Partnership.
If the allocation of the Company's distributive share of a
Partnership's loss would reduce the adjusted tax basis of the Company's
partnership interest in the Partnership below zero, the recognition of such loss
will be deferred until such time as the recognition of such loss would not
reduce the Company's adjusted tax basis below zero. To the extent that the
Partnership's distributions, or any decrease in the Company's share of the
indebtedness of the Partnership (such decrease being considered a constructive
cash distribution to the partners), would reduce the Company's adjusted tax
basis below zero, such distributions (including such constructive distributions)
constitute taxable income to the Company. Such distributions and constructive
distributions normally will be characterized as capital gain, and, if the
Company's partnership interest in the Partnership has been held for longer than
the long-term capital gain holding period (currently one year), the
distributions and constructive distributions will constitute long-term capital
gain.
Depreciation Deductions Available to the Partnerships. The Partnerships
have acquired equity interests in certain facilities, and expect to acquire
additional facilities in the future, for cash. To that extent, a Partnership's
initial basis in such a facility for federal income tax purpose generally equals
the purchase price paid by the Partnership. The Partnerships depreciate such
depreciable property for federal income tax purposes under the alternative
depreciation system of depreciation ("ADS"). Under ADS, the Partnerships
generally depreciate furnishings and equipment over a 10-year recovery period
using a straight-line method and a half-year convention. If, however, a
Partnership places more than 40% of its furnishings and equipment in service
during the last three months of a taxable year, a mid-quarter depreciation
convention must be used for the furnishings and equipment placed in service
during that year. Under ADS, the Partnerships generally depreciate buildings and
improvements over a 40-year recovery period using a straight-line method and a
mid-month convention. However, to the extent that a Partnership has acquired or
will acquire equity interests in facilities in exchange for partnership
interests in the Partnership, the Partnership's initial basis in each such
facility for federal income tax purposes should be the same as the transferor's
basis in that facility on the date of acquisition. The Partnerships depreciate
such depreciable property for federal income tax purposes under ADS. Although
the law is not entirely clear, the Partnerships depreciate such depreciable
property for federal income tax purposes over the same remaining useful lives
and under the same methods used by the transferors. A Partnership's tax
depreciation deductions will be allocated among the partners in accordance with
their respective interests in the Partnership (except to the extent that the
Partnership is required under Code section 704(c) to use a method of allocating
depreciation deductions attributable to the contributed properties that results
in the Company receiving a disproportionate share of such deductions).
Sale of a Partnership's Property
Generally, any gain realized by a Partnership on the sale of property
held by the Partnership for more than one year will be long-term capital gain,
except for any portion of such gain that is treated as depreciation or cost
recovery recapture. Any gain recognized by a Partnership on the disposition of
contributed properties will be allocated first to the partners of the
Partnership under section 704(c) of the Code to the extent of their "built-in
gain" on those properties for federal income tax purposes. The partners'
"built-in gain" on the contributed properties sold will equal the excess of the
partners' proportionate share of the book value of those properties over the
partners' tax basis allocable to those properties at the time of the sale. Any
remaining gain recognized by the Partnership on the disposition of the
contributed properties, and any gain recognized by the Partnership or the
disposition of the other properties, will be allocated among the partners in
accordance with their respective percentage interests in the Partnership.
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The Company's share of any gain realized by a Partnership on the sale
of any property held by the Partnership as inventory or other property held
primarily for sale to customers in the ordinary course of the Partnership's
trade or business will be treated as income from a prohibited transaction that
is subject to a 100% penalty tax. Such prohibited transaction income also may
have an adverse effect upon the Company's ability to satisfy the income tests
for REIT status. See "Federal Income Tax Considerations -- Requirements for
Qualification -- Income Tests." The Company, however, does not presently intend
to allow any Partnership to acquire or hold any property that represents
inventory or other property held primarily for sale to customers in the ordinary
course of the Company's or such Partnership's trade or business.
Nonqualified Subsidiaries
The Partnership owns 94% of the nonvoting stock, and 5% of the voting
stock, of Management, representing in the aggregate a 99% economic interest
therein. In addition, the Partnership owns 100% of the nonvoting stock of each
of Franchise and Construction, representing a 97.5% economic interest therein.
By virtue of its ownership of the Partnership, the Company is considered to own
its pro rata share of the stock of the Nonqualified Subsidiaries held by the
Partnership.
As noted above, for the Company to qualify as a REIT the Company's
proportionate share of the value of the securities of each Nonqualified
Subsidiary held by the Partnership may not exceed 5% of the total value of the
Company's assets. In addition, the Company's proportionate share of each
Nonqualified Subsidiary's equity securities may not constitute more than 10% of
the voting securities of such Nonqualified Subsidiary. The Partnership owns 5%
of the voting securities of Management, but does not own any of the voting
securities of Franchise or Construction. In addition, the Company believes that
its proportionate share of the value of the securities of each Nonqualified
Subsidiary owned by the Partnership does not exceed 5% of the total value of the
Company's assets. If the Service were to challenge successfully those
determinations, however, the Company likely would fail to qualify as a REIT.
Each Nonqualified Subsidiary is organized as a corporation and pays
federal, state and local income taxes on its taxable income at normal corporate
rates. Any such taxes reduce amounts available for distribution by such
Nonqualified Subsidiary, which in turn reduce amounts available for distribution
to the Company's shareholders.
PLAN OF DISTRIBUTION
The Company and the Partnership may sell Offered Securities to or
through underwriters and also may sell Offered Securities directly to other
purchasers or through agents.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
In connection with the sale of Offered Securities, underwriters may
receive compensation from the Company, the Partnership or from purchasers of
Offered Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Offered Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters, dealers and
agents that participate in the distribution of Offered Securities may be deemed
to be underwriters, and any discounts or commissions received by them from the
Company or the Partnership and any profit on the resale of Offered Securities by
them may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company or the Partnership will be described, in
the Prospectus Supplement.
Under agreements which may be entered into by the Company or the
Partnership, underwriters and agents who participate in the distribution of Debt
Securities may be entitled to indemnification by the Company or the Partnership
against certain liabilities, including liabilities under the Securities Act.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and the
Partnership in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company or
the Partnership will authorize dealers acting as the Company's or the
Partnership's agents to solicit offers by certain institutions to purchase
Offered Securities from the Company or the Partnership at the public offering
price set forth in such Prospectus Supplement pursuant to Delayed Delivery
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Contracts (the "Contracts") providing for payment and delivery on the date or
dates stated in such Prospectus Supplement. Each Contract will be for an amount
not less than, and the principal amount of Offered Securities sold pursuant to
Contracts shall not be less nor more than, the respective amounts stated in such
Prospectus Supplement. Institutions with which Contracts, when authorized, may
be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of the Company or
the Partnership. Contracts will not be subject to any conditions except (i) the
purchase by an institution of the Offered Securities covered by its Contract
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject and (ii)
the Company or the Partnership shall have sold to such underwriters the total
principal amount of the Offered Securities less the principal amount thereof
covered by Contracts. A commission indicated in the Prospectus Supplement will
be paid to agents and underwriters soliciting purchases of Offered Securities
pursuant to Contracts accepted by the Company or the Partnership. Agents and
underwriters shall have no responsibility in respect of the delivery or
performance of Contracts.
VALIDITY OF OFFERED SECURITIES
The validity of the Offered Securities will be passed upon for the
Company and the Partnership by Hunton & Williams, Richmond, Virginia.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1996
and 1995 and the consolidated statements of operations, shareholders' equity and
cash flows for each of the two years in the period ended December 31, 1996 and
for the period from March 24, 1994 (inception) through December 31, 1994, and
the combined results of Storage USA, Inc. (the "Predecessor") for the period
from January 1, 1994 through March 23, 1994, the financial statement schedule of
the Company as of December 31, 1996, the historical summaries of combined gross
revenue and direct operating expenses for certain self-storage facilities for
the year ended December 31, 1995 included in the Company's Current Report on
Form 8- K/A dated February 18, 1997, the historical summaries of combined gross
revenue and direct operating expenses for certain self-storage facilities for
the year ended December 31, 1996 included in the Company's Current Report on
Form 8-K dated May 28, 1997, the historical summaries of combined gross revenues
and direct operating expenses for certain self-storage facilities for the year
ended December 31, 1996 included in the Company's Current Report on Form 8-K/A
dated October 6, 1997, the historical summaries of combined gross revenue and
direct operating expenses for certain self-storage facilities for the year ended
December 31, 1996 included in the Company's Current Report on Form 8-K/A dated
November 25, 1997, and the historical summaries of combined gross revenue and
direct operating expenses for certain self-storage facilities for the year ended
December 31, 1996 included in the Company's Current Report on Form 8-K/A dated
January 20, 1998, all incorporated by reference in this Registration Statement,
have been incorporated herein in reliance on the reports of Coopers & Lybrand
L.L.P., independent accountants, given on the authority of that firm as experts
in accounting and auditing.
The consolidated balance sheets of the Partnership as of December 31,
1996 and 1995 and the consolidated statements of operations, shareholders'
equity and cash flows for each of the two years in the period ended December 31,
1996 and for the period from March 24, 1994 (inception) through December 31,
1994, and the combined results of Storage USA, Inc. (the "Predecessor") for the
period from January 1, 1994 through March 23, 1994, the financial statement
schedule of the partnership as of December 31, 1996, the historical summaries of
combined gross revenue and direct operating expenses for certain self-storage
facilities for the year ended December 31, 1995 included in the Partnership's
Current Report on Form 8-K/A, dated February 18, 1997, the historical summaries
of combined gross revenue and direct operating expenses for certain self-storage
facilities for the year ended December 31, 1996 included in the Partnership's
Current Report on Form 8-K dated May 28, 1997, the historical summaries of
combined gross revenue and direct operating expenses for certain self-storage
facilities for the year ended December 31, 1996 included in the Partnership's
Current Report on Form 8-K/A dated October 6, 1997, the historical summaries of
combined gross revenue and direct operating expenses for certain self-storage
facilities for the year ended December 31, 1996 included in the Partnership's
Current Report on Form 8-K/A dated November 25, 1997, and the historical
summaries of combined gross revenue and direct operating expenses for certain
self-storage facilities for the year ended December 31, 1996 included in the
Partnership's Current Report on Form 8-K/A dated January 20, 1998, all
incorporated by reference in this Registration Statement, have been incorporated
herein in reliance on the reports of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee.. $265,500
Accounting fees and expenses......................... 200,000
Blue Sky fees and expenses........................... 30,000
Legal fees and expenses.............................. 300,000
Listing fees ........................................ 25,000
Printing ............................................ 125,000
Miscellaneous........................................ 4,500
-----------
TOTAL....................................... $950,000
===========
Item 15. Indemnification of Officers and Directors
The Company's Charter obligates it to indemnify and advance expenses to
present and former directors and officers to the maximum extent permitted by
Tennessee law. The Tennessee Business Corporation Act ("TBCA") permits a
corporation to indemnify its present and former directors and officers, among
others, against judgments, settlements, penalties, fines or reasonable expenses
incurred with respect to a proceeding to which they may be made a party by
reason of their service in those or other capacities if (i) such persons
conducted themselves in good faith, (ii) they reasonably believed, in the case
of conduct in their official capacities with the corporation, that their conduct
was in its best interests and, in all other cases, that their conduct was at
least not opposed to its best interests and (iii) in the case of any criminal
proceeding, they had no reasonable cause to believe that their conduct was
unlawful.
Any indemnification by the Company pursuant to the provisions of the
Charter described above shall be paid out of the assets of the Company and shall
not be recoverable from the shareholders. To the extent that the foregoing
indemnification provisions purport to include indemnification for liabilities
arising under the Securities Act of 1933, in the opinion of the Securities and
Exchange Commission such indemnification is contrary to public policy and,
therefore, unenforceable. The Company has purchased director and officer
liability insurance for the purpose of providing a source of funds to pay any
indemnification described above.
The TBCA permits the charter of a Tennessee corporation to include a
provision eliminating or limiting the personal liability of its directors to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except that such provision cannot eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of the law
or (iii) for unlawful distributions that exceed what could have been distributed
without violating the TBCA or the corporation's charter. The Company's Charter
contains a provision eliminating the personal liability of its directors or
officers to the Company or its shareholders for money damages to the maximum
extent permitted by Tennessee law from time to time.
The Second Amended and Restated Agreement of Limited Partnership, dated
as of September 21, 1994, as amended (the "Partnership Agreement"), of the
Partnership provides, generally, for the indemnification of an "indemnitee"
against losses, claims, damages, liabilities, judgments, fines, settlements and
other amounts (including reasonable expenses) that relate to the operations of
the Partnership unless it is established that (i) the act or omission of the
Indemnitee was material and either was committed in bad faith or pursuant to
active and deliberate dishonesty, (ii) the Indemnitee actually received an
improper personal benefit in money, property or services or (iii) in the case of
any criminal proceeding, the Indemnitee had reasonable cause to believe that the
act or omission was unlawful. For this purpose, the term "Indemnitee" includes
any person made a party to a proceeding by reason of his status as a director or
officer of the Partnership, SUSA Management, Inc. or the Company, and such other
persons (including affiliates of the Company or the Partnership) as the Company,
may
II-1
<PAGE>
designate from time to time in its discretion. Any such indemnification will be
made only out of assets of the Partnership, and in no event may an Indemnitee
subject the limited partners of the Partnership to personal liability by reason
of the indemnification provisions in the Partnership Agreement. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted pursuant to the foregoing provisions or otherwise, the Partnership has
been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy and, therefore, unenforceable. The
Partnership has purchased liability insurance for the purpose of providing a
source of funds to pay the indemnification described above.
Item 16. Exhibits
1 Form of Underwriting, Agency and Distribution Agreements*
3.1 Amended and Restated Charter
4.1 Specimen Common Stock Certificate**
4.2 Form of Indenture***
4.3 Form of Debt Security (included in Exhibit 4.2)
4.4 Form of Deposit Agreement*
4.5 Form of Warrant Certificate*
4.6 Form of Warrant Agreement*
4.8 Restated and Amended Bylaws**
5 Opinion of Hunton & Williams
8 Opinion of Hunton & Williams regarding certain tax matters*
12.1 Statement regarding computation of ratios of the Company
12.2 Statement regarding computation of ratios of the Partnership
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Hunton & Williams (included in Exhibit 5)
24 Power of Attorney (located on the signature page of this
Registration Statement)
25 Statement of Eligibility of Trustee on Form T-1****
- ---------------------
* To be filed as an Exhibit to Form 8-K in connection with the offering
of Offered Securities, as applicable.
** Filed as an Exhibit to the Company's Registration Statement on Form
S-11, File No. 33-74072, as amended, and incorporated by reference
herein.
*** Filed as Exhibit 4.1 to the Partnership's Current Report on Form 8-K
filed on November 7, 1996.
**** Filed as Exhibit 25.1 to Partnership's Registration Statement on
Form S-11, File No. 333-3344 and incorporated by reference herein.
<PAGE>
Item 17. Undertakings
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement (Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement); and (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided,
however, that the undertakings set forth in subparagraphs (i) and (ii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by either of the registrants pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrants hereby further undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrants' annual reports pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
either of the registrants pursuant to the foregoing provisions or otherwise, the
registrants have been advised that the in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by either of
the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against either of the registrants by such
director, officer or controlling person in connection with the securities being
registered, the relevant registrant or registrants will, unless in the opinion
of its or their counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrants further hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrants certify that they have reasonable grounds to believe that they meet
all of the requirements for filing on Form S-3 and have duly caused this
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Columbia, State of Maryland on the
21st day of January, 1998.
SUSA PARTNERSHIP, L.P.
By: STORAGE USA, INC., as
general partner
/s/ Dennis A. Reeve
-------------------------------
By: Dennis A. Reeve
Chief Financial Officer
STORAGE USA, INC.
/s/ Dennis A. Reeve
-------------------------------
By: Dennis A. Reeve
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 21, 1998. Each of the undersigned officers and
directors of Storage USA, Inc. hereby constitutes Dean Jernigan, Dennis A. Reeve
and Randall S. Parks, any of whom may act, his true and lawful attorneys-in-fact
with full power to sign for him and in his name in the capacities indicated
below and to file any and all amendments to this registration statement,
including any registration statement filed pursuant to Rule 462 under the
Securities Act of 1933, making such changes in the registration statement as
Storage USA, Inc. deems appropriate, and generally to do all such things in his
name and behalf in his capacity as an officer and director to enable Storage
USA, Inc. and SUSA Partnership, L.P. to comply with the provisions of the
Securities Act of 1933 and all requirements of the Securities and Exchange
Commission.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
<S> <C>
/s/ Dean Jernigan
-------------------------------------
Dean Jernigan Chairman of the Board, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Dennis A. Reeve
--------------------------------------
Dennis A. Reeve Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ William J. Razzouk
-------------------------------------
William J. Razzouk President and Chief Operating Officer and Director
/s/ C. Ronald Blakenship
-------------------------------------
C. Ronald Blakenship Director
/s/ Howard P. Colhoun
-------------------------------------
Howard P. Colhoun Director
/s/ Alan Graf, Jr.
-------------------------------------
Alan Graf, Jr. Director
/s/ Mark Jorgensen
-------------------------------------
Mark Jorgensen Director
/s/ John P. McCann
-------------------------------------
John P. McCann Director
/s/ Caroline S. McBride
-------------------------------------
Caroline S. McBride Director
/s/ William D. Sanders
-------------------------------------
William D. Sanders Director
/s/ Harry J. Thie
-------------------------------------
Harry J. Thie Director
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
1 Form of Underwriting, Agency and Distribution Agreements*
3.1 Amended and Restated Charter
4.1 Specimen Common Stock Certificate**
4.2 Form of Indenture***
4.3 Form of Debt Security (included in Exhibit 4.2)
4.4 Form of Deposit Agreement*
4.5 Form of Warrant Certificate*
4.6 Form of Warrant Agreement*
4.8 Restated and Amended Bylaws**
5 Opinion of Hunton & Williams
8 Opinion of Hunton & Williams regarding certain tax matters*
12.1 Statement regarding computation of ratios of the Company
12.2 Statement regarding computation of ratios of the Partnership
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Hunton & Williams (included in Exhibit 5)
24 Power of Attorney (located on the signature page of this
Registration Statement)
25 Statement of Eligibility of Trustee on Form T-1****
- ---------------------
* To be filed as an Exhibit to Form 8-K in connection with the offering
of Offered Securities, as applicable.
** Filed as an Exhibit to the Company's Registration Statement on
Form S-11, File No. 33-74072, as amended, and incorporated by
reference herein.
*** Filed as Exhibit 4.1 to the Partnership's Current Report on Form 8-K
filed on November 7, 1996.
**** Filed as Exhibit 25.1 to Partnership's Registration Statement on
Form S-11, File No. 333-3344 and incorporated by reference herein.
Exhibit 3.1
Note: This Amended and Restated Charter reflects all separate amendments on file
with the Secretary of State of Tennessee.
AMENDED AND RESTATED CHARTER
OF STORAGE USA, INC.
Pursuant to the provisions of Section 48-20-106 of the
Tennessee Business Corporation Act, the undersigned corporation hereby adopts
the following Amended and Restated Charter:
1. Name. The name of the Corporation is Storage USA, Inc. (the
"Corporation").
2. Perpetual Existence. The duration of the Corporation is perpetual.
3. Principal Office. The address of the Corporation's principal office is
10 Corporate Center, Suite 400, Columbia, Maryland 21044.
4. For Profit. The Corporation is for profit.
5. Corporate Purposes. The purposes for which the Corporation is
organized are to carry on any business permitted corporations and to have an
exercise all powers conferred upon corporations by the laws of the State of
Tennessee, including, without limitation, the rental of self-service storage
units to the public.
6. Authorized Capital Stock. The total number of shares of stock which
the Corporation has authority to issue is one hundred fifty million
(150,000,000) shares of common stock, one-cent ($0.01) par value per share,
which shall be designated "Common Stock", and five million (5,000,000) shares of
preferred stock, one-cent ($0.01) par value per share, which shall be designated
"Preferred Stock".
6.1. Preferred Stock. The Preferred Stock may be issued from
time to time by the Board of Directors of the Corporation, in such series and
with such preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications or other provisions as may be fixed
by the Board of Directors.
6.2. Common Stock. The following is a description of the
preferences, conversion and other rights, voting rights, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption of the Common Stock of the Corporation:
(a) Voting Rights. Subject to the provisions of
Paragraph 12.5 hereof regarding Excess Shares (as defined herein), each share of
Common Stock shall have one (1) vote and, except as otherwise provided in
respect of any class or series of Preferred Stock hereafter classified or
reclassified, the exclusive voting power for all purposes shall be vested in the
holders of the Common Stock on all matters permitted or required by the
Tennessee Business Corporation Act.
(b) Payment of Dividends. Subject to the
provisions of law and any preferences of any class or series of Preferred Stock
hereafter classified or reclassified, dividends, including dividends payable in
shares of another class of the Corporation's stock, may be paid on the Common
Stock of the Corporation at such times and in such amounts as the Board of
Directors may deem advisable out of the assets of the Corporation legally
available therefor.
(c) Rights Upon Dissolution of Corporation. In the
event of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of Common Stock then outstanding shall be
entitled, after payment or provision for payment of the debts and other
liabilities of the Corporation and the amount to which the holders of any class
or series of Preferred Stock hereafter classified or reclassified shall be
entitled, to share ratably in the net assets of the Corporation.
7. Registered Office and Registered Agent. The address of the
Corporation's registered office is 880 Ridge Lake Blvd., Suite 105, Memphis,
Shelby County, Tennessee 38120, and the name of its registered agent at that
office is Dean Jernigan.
8. Directors.
8.1. Number and Qualification. The Corporation shall have a
Board of Directors consisting of not less than three (3) nor more than nine (9)
members unless otherwise determined from time to time by resolution adopted by
the affirmative vote of at least eighty percent (80%) of the members of the
Board of Directors. However, the number of directors shall never be less than
the minimum number required by the Tennessee Business Corporation Act. A
director need not be a shareholder of the Corporation or a resident of the State
of Tennessee.
8.2. Election of Directors. Directors shall be elected at the
annual meeting of shareholders to succeed those Directors whose terms have
expired and to fill any vacancies thus existing. Directors shall hold their
offices for terms of one year and until their successors are elected and
qualified. Any Director may be removed from office at a meeting called expressly
for that purpose by the vote of shareholders holding not less than a majority of
the shares entitled to vote at an election of Directors. Any vacancy occurring
in the Board of Directors may be filled by the affirmative vote of the majority
of the remaining Directors though less than a quorum of the Board of Directors.
8.3. Independent Directors. Notwithstanding anything herein to
the contrary, at all times (except during a period not to exceed sixty (60) days
following the death, resignation, incapacity or removal from office of a
director prior to the expiration of such director's term of office) a majority
of the Board of Directors shall be comprised of persons who are not officers or
employees of the Corporation or Affiliates (as defined below) of i)" (i) any
advisor to the Corporation under an advisory agreement, ii)" (ii) any lessee of
any property of the Corporation, iii)" (iii) any subsidiary of the Corporation,
or iv)" (iv) any partnership which is an Affiliate of the Corporation. For
purposes of this Paragraph 8.3, a)" (a) an "Affiliate" of a person shall mean
i)" (i) any person that, directly or indirectly, controls or is controlled by or
is under common control with such person, ii)" (ii) any other person that owns,
beneficially, directly or indirectly, five percent (5%) or more of the
outstanding capital stock, shares or equity interests of such person, or iii)"
(iii) any officer, director, employee, partner or trustee of such person or any
person controlling, controlled by or under common control with such person
(excluding trustees and persons serving in similar capacities who are not
otherwise an Affiliate of such person), b)" (b) the term "person" shall mean and
include individuals, corporations, general and limited partnerships, stock
companies or associations, joint ventures, associations, trusts, banks, trust
companies, land trusts, business trusts, or other entities and governments and
agencies and political subdivisions thereof, and c)" (c) "control" (including
the correlative meanings of the terms "controlled by" and "under common control
with"), as used with respect to any person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such person, through the ownership of voting securities,
partnership interests or other equity interests.
8.4. Amendment of Paragraph. Notwithstanding any other
provisions of this Charter or the Bylaws of the Corporation (and notwithstanding
that some lesser percentage may be specified by law, this Charter or the Bylaws
of the Corporation), the provisions of this Paragraph 8 shall not be amended,
altered, changed or repealed without the affirmative vote of at least eighty
percent (80%) of the members of the Board of Directors or the affirmative vote
of the holders of not less than seventy-five percent (75%) of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting separately as a class.
9. Limitation on Liability to Shareholders. To the maximum extent that
Tennessee law in effect from time to time permits limitation of the liability of
directors and officers, no director or officer of the Corporation shall be
liable to the Corporation or its shareholders for money damages. Neither the
amendment nor repeal of this provision, nor the adoption or amendment of any
other provision of the Charter or Bylaws inconsistent with this provision, shall
apply to or affect in any respect the applicability of the preceding sentence
with respect to any act or failure to act which occurred prior to such
amendment, repeal or adoption.
10. Indemnification; Insurance. The Corporation shall indemnify and
advance expenses to a director, officer, employee or agent of the Corporation in
connection with a proceeding to the fullest extent permitted by and in
accordance with Tennessee Code Annotated ss.ss. 48-18-501 et seq., as amended.
The Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Corporation or who,
while a director, officer, employee or agent of the Corporation is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against liability asserted against or incurred by such person in that capacity
or arising from such person's status as a director, officer, employee or agent,
whether or not the Corporation would have power to indemnify such person against
the same liability under the provisions of Tennessee Code Annotated ss.ss.
48-18-501 et seq., as amended.
11. REIT Status. The Corporation shall seek to elect and maintain status
as a real estate investment trust ("REIT") under Sections 856-860 of the
Internal Revenue Code of 1986, as amended (the "Code"). It shall be the duty of
the Board of Directors to ensure that the Corporation satisfies the requirements
for qualification as a REIT under the Code, including, but not limited to, the
ownership of its outstanding stock, the nature of its assets, the sources of its
income, and the amount and timing of its distributions to its shareholders.
12. Restrictions on Transfer.
12.1. Definitions. For the purposes of this Paragraph 12 the
following terms shall have the following means:
"Affiliate" shall have the meaning ascribed thereto in Rule
12b-2 promulgated under the Securities Exchange Act of 1934, as in
effect on March 19, 1996.
"Beneficial Ownership" shall mean, except as provided below in
the following sentence, ownership of Shares by a Person who would be
treated as an owner of such Shares either directly or constructively
through the application of Section 544 of the Code, as modified by
Section 856(h)(1)(B) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns," "Beneficially Own" and "Beneficially Owned" shall
have the correlative meanings.
"Charitable Beneficiary" shall mean an organization or
organizations described in Sections 170(b)(1)(A) and 170(c) of the Code
and identified by the Board of Directors as the beneficiary or
beneficiaries of the Excess Share Trust.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Common Stock" shall mean the Corporation's Common Stock as
may be authorized and issued from time to time pursuant to Paragraph 6.
"Excess Shares" shall mean Shares resulting from an exchange
described in Section 12.3 of this Paragraph 12.
"Excess Share Trust" shall mean the trust created pursuant
to Section 12.3 and Section 12.15 of
this Paragraph 12.
"Excess Share Trustee" shall mean a person, who shall be
unaffiliated with the Corporation, any Purported Beneficial Transferee
and any Purported Record Transferee, identified by the Board of
Directors as the trustee of the Excess Share Trust.
"Market Price" shall mean the last reported sales price,
regular way, reported on the New York Stock Exchange for Shares on the
trading day immediately preceding the relevant date, or if not then
traded on the New York Stock Exchange, the last reported sales price,
regular way, for Shares on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system over or
through which such Shares may be traded, or if not then traded over or
through any exchange or quotation system, then the market price of such
Shares on the relevant date as determined in good faith by the Board of
Directors.
"Non-U.S. Person" shall mean any Person who is not a)" (a) a
citizen or resident of the United States, b)" (b) a partnership created
or organized in the United States or under the laws of the United
States or any state therein (including the District of Columbia), c)"
(c) a corporation created or organized in the United States or under
the laws of the United States or any state therein (including the
District of Columbia), or d)" (d) any estate or trust (other than a
foreign state or foreign trust, within the meaning of Section
7701(a)(31) of the Code).
"Ownership Limit" shall initially mean 9.8%, in number of
Shares or value, of any class of the outstanding Shares, after any
adjustment as set forth in Section 12.10 of this Paragraph 12, shall
mean such greater percentage of the outstanding Shares as so adjusted.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), portion of a trust permanently set aside for
or to be used exclusively for the purposes described in Section 642(c)
of the Code, association, private foundation within the meaning of
Section 509(a) of the Code, joint stock company or other entity.
"Preferred Stock" shall mean the Corporation's Preferred Stock
as may be authorized and issued from time to time pursuant to Paragraph
6.
"Purported Beneficial Transferee" shall mean, with respect to
any purported Transfer which results in Excess Shares, as defined below
in Section 12.3 of this Paragraph 12, the beneficial holder of the
Excess Shares, if such Transfer had been valid under Section 12.2 of
this Paragraph 12.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Excess Shares, as defined below in
Section 12.3 of this Paragraph 12, the record holder of the Excess
Shares, if such Transfer had been valid under Section 12.2 of this
Paragraph 12.
"REIT" shall mean a real estate investment trust under Section
856 of the Code.
"REIT Provisions of the Code" means Sections 856 and 860 of
the Code and any successor or other provisions of the Code relating to
real estate investment trusts (including provisions as to the
attribution of ownership of beneficial interests therein) and the
regulations promulgated thereunder.
"Restriction Termination Date" shall mean the first day on
which the Board of Directors determines that it is no longer in the
best interests of the Corporation to attempt to, or continue to,
qualify as a REIT.
"Shares" shall mean the shares of either the Common Stock or
the Preferred Stock.
"Special Shareholder" shall mean Security Capital U.S.
Realty, Security Capital Holdings S.A. and any Affiliate of Security
Capital U.S. Realty and/or Security Capital Holdings S.A., or to
the extent permitted by Section 5.2 of the Strategic Alliance
Agreement, any bona fide financial institution.
"Special Shareholder Limit" shall mean 37.5% of the
outstanding Shares of the Corporation; provided, however, that if any
Person shall be given the right to Beneficially Own more than 37.5% of
the outstanding Shares of the Corporation, the definition of "Special
Shareholder Limit" shall be revised in accordance with Section 5.8 of
the Strategic Alliance Agreement; provided, further, that if, as the
result of any Special Shareholder's Beneficial Ownership Shares, any
Person who is an individual within the meaning of Section 542(a)(2) of
the Code (taking into account the ownership attribution rules under
Section 544 of the Code, as modified by Section 856(h) of the Code) and
who is the Beneficial Owner of any interest in a Special Shareholder
would be considered to Beneficially Own more than 9.8% of the
outstanding Shares, the Special Shareholder Limit shall be reduced to
such percentage as would result in such Person not being considered to
Beneficially Own more than 9.8% of the outstanding Shares.
Notwithstanding anything contained herein to the contrary, in no event
shall the Special Shareholder Limit be reduced below the Ownership
Limit.
"Stock Purchase Agreement" shall mean the Stock Purchase
Agreement dated as of March 1, 1996, by and among the Corporation,
Security Capital Holdings S.A., and Security Capital U.S. Realty, as
the same may be amended from time to time.
"Strategic Alliance Agreement" shall mean that Strategic
Alliance Agreement dated as of March 19, 1996, by and among the
Corporation, Guardian Partnership, L.P., Security Capital Holdings
S.A., and Security Capital U.S. Realty, as the same may be amended from
time to time.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Shares (including a)" (a) the granting
of any options or entering into any agreement for the sale, transfer or
other disposition of Shares, b)" (b) the sale, transfer, assignment or
other disposition of any securities or rights convertible into or
exchangeable for Shares, but excluding the exchange of Units, debt or
any security of the Corporation for Shares and c)" (c) any transfer or
other disposition of any interest in Shares as a result of a change in
the marital status of the holder thereof), whether voluntary or
involuntary, whether of record, constructively or beneficially and
whether by operation of law or otherwise. The terms "Transfers" and
"Transferred" shall have the correlative meanings.
"Units" shall mean units of any partnership that are
convertible into Shares.
12.2 Ownership Limitation.
(a) Except as provided in Section 12.12 and 12.20 of
this Paragraph 12 and subject to clause (f) of this Section 12.2, no Person
or Persons acting as a "group," as that term is used for purposes of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as in effect on March 19,
1996 (other than a Special Shareholder), shall Beneficially Own Shares in excess
of the Ownership Limit.
(b) Except as provided in Section 12.12 and Section
12.20 of this Paragraph 12 and subject to clause (f) of this Section 12.2, any
Transfer that, if effective, would result in any Person (other than a Special
Shareholder) Beneficially Owning Shares in excess of the Ownership Limit shall
be void ab initio as to the Transfer of such Shares which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit; and the
intended transferee shall acquire no rights in such Shares.
(c) Except as provided in Section 12.12 and Section
12.20 of this Paragraph 12 and subject to clause (f) of this Section 12.2,
until the Restriction Termination Date, any Transfer that, if effective, would
result in any Special Shareholder Beneficially Owning Shares in excess of the
applicable Special Shareholder Limit shall be void ab initio as to the Transfer
of such Shares which would be otherwise Beneficially Owned by such Special
Shareholder in excess of the applicable Special Shareholder Limit; and such
Special Shareholder shall acquire no rights in such Shares.
(d) Except as provided in Section 12.12 and Section
12.20 of this Paragraph 12 and subject to Clause (f) of this Section 12.2,
until the Restriction Termination Date, any Transfer that, if effective, would
result in the Shares being Beneficially Owned (as provided in Section 856(a) of
the Code) by less than 100 Persons (determined without reference to any rules of
attribution) shall be void ab initio as to the Transfer of such Shares which
would be otherwise Beneficially Owned (as provided in Section 856(a) of the
Code) by the Transferee; and the intended Transferee shall acquire no rights in
such Shares.
(e) Subject to Section 12.12 of this Paragraph 12,
until the Restriction Termination Date, any Transfer that, if effective, would
result in the Corporation being "closely held" within the meaning of Section
856(h) of the Code shall be void ab initio as to the Transfer of the Shares
which would cause the Corporation to be "closely held" within the meaning of
Section 856(h) of the Code; and the intended transferee shall acquire no rights
in such Shares.
(f) Nothing contained in this Paragraph 12
shall preclude the settlement of any transaction entered into through the
facilities of the New York Stock Exchange. The fact that the settlement of any
transaction is permitted shall not negate the effect of any other provision of
this Paragraph 12 and any transferee in such a transaction shall be subject to
all of the provisions and limitations set forth in this Paragraph 12.
12.3. Excess Shares.
(a) If, notwithstanding the other provisions
contained in this Paragraph 12, at any time prior to the Restriction Termination
Date, there is a purported Transfer such that i)" (i) any Person (other than a
Special Shareholder) would Beneficially Own Shares in excess of the applicable
Ownership Limit or ii)" (ii) any Special Shareholder would Beneficially Own
Shares in excess of the applicable Special Shareholder Limit, then, except as
otherwise provided in Section 12.12 of this Paragraph 12, Shares directly owned
by such Person or Special Shareholder, as the case may be, shall be
automatically exchanged for an equal number of Excess Shares until such Person
or Special Shareholder, as the case may be, does not own Shares in excess of the
applicable Ownership Limit or Special Shareholder Limit, and such Excess Shares
shall be automatically transferred to the Excess Share Trust described in
Section 12.15 of this Paragraph 12. Such exchange and transfer shall be
effective as of the close of business on the business day prior to the date of
the purported Transfer. If, after exchanging all of the Shares owned directly by
a Person or Special Shareholder such Person or Special Shareholder still owns
Shares in excess of the applicable Ownership Limit or Special Shareholder Limit,
Shares Beneficially Owned by such Person or Special Shareholder shall be
exchanged for an equal number of Excess Shares until such Person or Special
Shareholder, as the case may be, does not own Shares in excess of the applicable
Ownership Limit or Special Shareholder Limit, and such Excess Shares shall be
automatically transferred to the Excess Share Trust described in Section 12.15
of this Paragraph 12. Where such Person or Special Shareholder owns Shares
constructively or beneficially through one or more Persons and the Shares held
by such other Persons must be exchanged for an equal number of Excess Shares,
the exchange of Shares by such other Persons shall be pro rata.
(b) If, notwithstanding the other provisions
contained in this Paragraph 12, at any time prior to the Restriction Termination
Date, there is a purported Transfer of Shares or any sale, transfer, gift,
assignment, devise or other disposition of shares or other interests of a direct
or indirect shareholder of the Corporation which, if effective, would cause the
Corporation to become "closely held" within the meaning of Section 856(h) of the
Code, then any Shares being Transferred which would cause the Corporation to be
"closely held" within the meaning of Section 856(h) of the Code (rounded up to
the nearest whole Share) shall be automatically exchanged for an equal number of
Excess Shares, and such Excess Shares will be automatically transferred to the
Excess Share Trust described in Section 12.15 of this Paragraph 12. Such
designation and transfer shall be effective as of the close of business on the
business day prior to the date of the purported Transfer. If, after the exchange
of any such Shares, the Corporation is still "closely held" within the meaning
of Section 856(h) of the Code, any individual whose Beneficial Ownership of
Shares in the Corporation increased as a result of the sale, transfer, gift,
assignment, devise or other disposition of shares or other interests of a direct
or indirect shareholder of the Corporation and is one of the five individuals
who caused the Corporation to be "closely held" within the meaning of Section
856(h) of the Code, shall exchange Shares owned directly for an equal number of
Excess Shares until the Corporation is not "closely held" within the meaning of
Section 856(h) of the Code, and such Excess Shares will be automatically
transferred to the Excess Share Trust described in Section 12.15 of this
Paragraph 12. Where several similarly situated individuals exist, the exchange
shall be pro rata. If, after applying the foregoing provisions, the Corporation
is still "closely held" within the meaning of Section 856(h) of the Code, any
Shares constructively owned by such individuals shall be exchanged for Excess
Shares, on a pro rata basis among similarly situated individuals, until the
Corporation is not "closely held" within the meaning of Section 856(h) of the
Code, and such Excess Shares will be automatically transferred to the Excess
Share Trust described in Section 12.15 of this Paragraph 12.
(c) If, at any time prior to the Restriction
Termination Date, an event other than a purported Transfer (an "Event")
occurs which would (i) cause any Person (other than a Special Shareholder)
to Beneficially Own Shares in excess of the Ownership Limit or ii)" (ii) cause a
Special Shareholder to Beneficially Own Shares in excess of the Special
Shareholder Limit, then, except as otherwise provided in Section 12.12 of this
Paragraph 12, Shares Beneficially Owned by such Person or Special Shareholder,
as the case may be, shall be automatically exchanged for an equal number of
Excess Shares to the extent necessary to eliminate such excess ownership, and
such Excess Shares will be automatically transferred to the Excess Share Trust
described in Section 12.15 of this Paragraph 12. Such exchange and transfer
shall be effective as of the close of business on the business day prior to the
date of the Event. In determining which Shares are exchanged, Shares
Beneficially Owned by any Person who caused the Event to occur shall be
exchanged before any Shares not so held are exchanged. Where several similarly
situated Persons exist, the exchange shall be pro rata. If any Person is
required to exchange Shares pursuant to this Clause (c) of this Section 12.3 of
this Paragraph 12, such Person shall first exchange Shares, directly held by
such Person before exchanging Shares Beneficially Owned. Where such Person or
Special Shareholder owns Shares constructively through one or more Persons and
the Shares held by such other Persons must be exchanged for an equal number of
Excess Shares, the exchange of Shares by such other Persons shall be pro rata.
12.4. Prevention of Transfer. If the Board of Directors or its
designee shall at any time determine in good faith that a Transfer has taken
place in violation of Section 12.2 of this Paragraph 12 or that a Person intends
to acquire or has attempted to acquire Beneficial Ownership (determined without
reference to any rules of attribution) of any Shares in violation of Section
12.2 of this Paragraph 12, the Board of Directors or its designee shall take
such action as it deems advisable to refuse to give effect to or to prevent such
Transfer, including, but not limited to, refusing to give effect to such
Transfer on the books of the Corporation or instituting proceedings to enjoin
such Transfer; provided, however, that any Transfers or attempted Transfers in
violation of Section 12.2 of this Paragraph 12 shall automatically result in the
designation and treatment described in Section 12.3 of this Paragraph 12,
irrespective of any action (or non-action) by the Board of Directors.
12.5. Affidavits of Proposed Transferees; Notice to
Corporation.
(a) Whenever the Board of Directors deems it to be
prudent in protecting the tax status of the Corporation as a REIT under the
Code and regulations issued under the Code, the Board of Directors may require
to be filed with the Corporation a statement or affidavit from each proposed
transferee of shares of capital stock of the Corporation setting forth the
number of such shares already owned by the transferee and any related Person(s)
specified in the form prescribed by the Board of Directors for that purpose. Any
contract for the sale or other transfer of shares of capital stock of the
Corporation shall be subject to this provision.
(b) Any Person who acquires or attempts to acquire
Shares in violation of Section 12.2 of this Paragraph 12, or any Person who is
a transferee such that Excess Shares result under Section 12.3 of this Paragraph
12, shall immediately give written notice or, in the event of a proposed or
attempted Transfer, give at least 30 days prior written notice to the
Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer or attempted Transfer on the Corporation's status as a
REIT.
12.6. Information for Corporation. Prior to the Restriction
Termination Date:
(a) every Beneficial Owner of more than 5% (or such
other percentage, between 1/2 of 1% and 5%, as provided in the income tax
regulations promulgated under the Code) of the number or value of outstanding
Shares of the Corporation shall, within 30 days after January 1 of each year,
give written notice to the Corporation stating the name and address of such
Beneficial Owner, the number of Shares Beneficially Owned, and a description of
how such Shares are held. Each such Beneficial Owner shall provide to the
Corporation such additional information as the Corporation may reasonably
request in order to determine the effect, if any, of such Beneficial Ownership
on the Corporation's status of REIT.
(b) each Person who is a Beneficial Owner of
Shares and each Person (including the shareholder of record) who is holding
Shares for a Beneficial Owner shall provide to the Corporation in writing such
information with respect to direct, indirect and constructive ownership of
Shares as the Board of Directors deems reasonably necessary to comply with the
provisions of the Code applicable to a REIT, to determine the Corporation's
status as a REIT, to comply with the requirements of any taxing authority or
governmental agency or to determine any such compliance.
12.7. Other Action by Board. Subject to Section 12.2 of this
Paragraph 12, nothing contained in this Paragraph 12 shall limit the authority
of the Board of Directors to take such other action as it deems necessary or
advisable to protect the Corporation and the interests of its shareholders by
preservation of the Corporation's status as a REIT, provided, however, that no
provision of this Section 12.7 shall preclude the settlement of any transaction
entered into through the facilities of the New York Stock Exchange.
12.8. Ambiguities. In the case of an ambiguity in the
application of any of the provisions of this Paragraph 12, including any
definition contained in Section 12.1, the Board of Directors shall have the
power to determine the application of the provisions of this Paragraph 12 with
respect to any situation based on the facts known to it.
12.9. Modification of Special Shareholder Limits. The
Special Shareholder Limit may be modified as follows:
(a) The Special Shareholder Limit shall be increased,
from time to time, whenever there is an increase in the percentage Beneficial
Ownership of the Shares (or any other capital stock) of the Corporation by a
Special Shareholder due to any event other than the purchase of Shares (or any
other capital stock) of the Corporation by such Special Shareholder, by an
amount equal to such percentage increase multiplied by the Special Shareholder
Limit.
(b) Subject to the limitations provided in Section
12.11 of this Paragraph 12, the Board of Directors may grant options which
result in Beneficial Ownership of Shares by a Special Shareholder pursuant to an
option plan approved by the Board of Directors and/or the shareholders. Any such
grant shall increase the Special Shareholder Limit for the affected Special
Shareholder to the maximum extent possible under Section 12.11 to permit the
Beneficial Ownership of the Shares issuable upon the exercise of such option.
(c) Subject to the limitations provided in Section
12.11 of this Paragraph 12, a Special Shareholder may elect to participate in a
dividend reinvestment plan approved by the Board of Directors which results in
Beneficial Ownership of Shares by such participating Special Shareholder and any
comparable reinvestment plan of any partnership, wherein those Special
Shareholders holding Units are entitled to purchase additional Units. Any such
participation shall increase the Special Shareholder Limit for the affected
Special Shareholder to the maximum extent possible under Section 12.11 of this
Paragraph 12 to permit Beneficial Ownership of the Shares acquired as a result
of such participation.
(d) The Board of Directors will reduce the Special
Shareholder Limit for any Special Shareholder after any Transfer permitted in
this Paragraph 12 by such Special Shareholder by the percentage of the
outstanding Shares so Transferred or after the lapse (without exercise) of an
option described in Clause (b) of this Section 12.9 of this Paragraph 12 by the
percentage of the Shares that the option, if exercise, would have represented,
but in either case no Special Shareholder Limit shall be reduced to a percentage
which is less than the Ownership Limit.
(e) The Board of Directors may reduce the Special
Shareholder Limit pursuant to Section 5.8 of the Strategic Alliance Agreement.
12.10. Increase or Decrease in Ownership Limit. Subject to the
limitations provided in Section 12.11 of this Paragraph 12, the Board of
Directors may from time to time increase or decrease the Ownership Limit;
provided, however, that any decrease may only be made prospectively as to
subsequent holders (other than a decrease as a result of a retroactive change in
existing law that would require a decrease to retain REIT status, in which case
such decrease shall be effective immediately).
12.11. Limitations on Changes on Special Shareholder and
Ownership Limits.
(a) Neither the Ownership Limit nor the Special
Shareholder Limit may be increased (nor may any additional Special Shareholder
Limit be created) if, after giving effect to such increase (or creation), five
Beneficial Owners of Shares (including all of the then Special Shareholders) who
are individuals within the meaning of Section 542(a)(2) of the Code could
Beneficially Own, in the aggregate, more than 49.9% in number or value of the
outstanding Shares.
(b) Prior to the modification of any Special
Shareholder Limit or Ownership Limit pursuant to Sections 12.9 or 12.10 of this
Paragraph 12, the Board of Directors may require such opinions of counsel,
affidavits, undertakings or agreements as it may deem necessary or advisable in
order to determine or ensure the Corporation's status as a REIT.
(c) No Ownership Limit may be increased to a
percentage which is greater than 9.8%.
12.12. Waivers by the Board. The Board of Directors, with a
ruling from the Internal Revenue Service, an opinion of counsel to the effect
that such exemption will not result in the Corporation being "closely held"
within the meaning of Section 856(h) of the Code, or such other evidence as the
Board of Directors deems necessary in its sole discretion, may exempt, on such
conditions and terms as the Board of Directors deems necessary in its sole
discretion, a Person from the Ownership Limit or the Special Shareholder Limit,
as the case may be, if the Board of Directors obtains such representations and
undertakings from such Person as the Board of Directors may deem appropriate and
such Person agrees that any violation or attempted violation will result in, to
the extent necessary, the exchange of Shares held by such Person for Excess
Shares in accordance with Section 12.3 of this Paragraph 12.
12.13. Legend. Each certificate for Shares in the Board of
Directors' discretion, may bear substantially the following legend:
The securities represented by this certificate are subject to
restrictions on ownership and transfer for the purpose of the
Corporation's maintenance of its status as a real estate
investment trust under the Internal Revenue Code of 1986, as
amended. No person may 1)" (1) except as otherwise provided
pursuant to the Articles of Amendment to the Charter of the
Corporation, Beneficially Own Shares in excess of 9.8% (or
such greater or lesser percentage as may be determined by the
Board of Directors of the Corporation) of the number or value
of any class of the outstanding Shares of the Corporation
(unless such Person is a Special Shareholder), 2)" (2)
Beneficially Own Shares that would result in the Corporation's
being "closely held" (within the meaning of Section 856(h) of
the Code) or the Corporation's having less than 100
shareholders (as determined for purposes of Section 856(a)(5)
of the Code), or 3)" (3) unless such Person is a Special
Shareholder, Beneficially Owns Shares if as a result thereof
the Corporation would fail to qualify as a "domestically
controlled REIT" (within the meaning of Section 897(h)(4) of
the Code) (determined assuming that the Special Shareholders
are Non-U.S. Persons and own a percentage (by value) of the
Corporation's Shares corresponding to 37.5%). Separate
restrictions set forth in Paragraph 12 of the Amended and
Restated Charter apply to Special Shareholders. Any Person who
attempts or proposes to Beneficially Own Shares in excess of
the above limitations must notify the Corporation in writing
at least 30 days prior to such proposed or attempted Transfer.
All capitalized terms in this legend have the meanings defined
in the Amended and Restated Charter of the Corporations, a
copy of which, including the restrictions on transfer, will be
furnished to each shareholder on request and without charge.
If the restrictions on transfer are violated, transfers
causing such violations may be void ab initio and the
securities represented hereby will be designated and treated
as Excess Shares which will be held in trust by the Excess
Share Trustee for the benefit of the Charitable Beneficiary.
12.14. Severability. If any provision of this Paragraph 12 or
any application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity and
enforceability of the remaining provisions shall be affected only to the extent
necessary to comply with the determination of such court.
12.15. Transfer of Excess Shares. Upon any purported Transfer
that results in Excess Shares pursuant to Section 12.3 of this Paragraph 12,
such Excess Shares shall be deemed to have been transferred to the Excess Share
Trustee, as trustee of a special trust for the exclusive benefit of the
Charitable Beneficiary or Charitable Beneficiaries to whom an interest in such
Excess Shares may later be transferred pursuant to Section 12.3 of this
Paragraph 12. Excess Shares so held in trust shall be issued and outstanding
Shares of the Corporation. The Purported Record Transferee or Purported Record
Holder shall have no rights in such Excess Shares except as provided in Section
12.18 of this Paragraph 12.
12.16. Distributions on Excess Shares. Any dividends (whether
taxable as a dividend, return of capital or otherwise) on Excess Shares shall be
paid to the Excess Share trust for the benefit of the Charitable Beneficiary.
Upon liquidation, dissolution or winding up, the Purported Record Transferee
shall receive the lesser of 1)" (1) the amount of any distribution made upon
liquidation, dissolution or winding up or 2)" (2) the price paid by the
Purported Record Transferee for the Shares, or if the Purported Record
Transferee did not give value for the Shares, the Market Price of the Shares on
the day of the event causing the Shares to be held in trust. Any such dividend
paid or distribution paid to the Purported Record Transferee in excess of the
amount provided in the preceding sentence prior to the discovery by the
Corporation that the Shares with respect to which the dividend or distribution
was made had been exchanged for Excess Shares shall be repaid to the Excess
Share Trust for the benefit of the Charitable Beneficiary.
12.17. Voting of Excess Shares. The Excess Share Trustee shall
be entitled to vote the Excess Share for the benefit of the Charitable
Beneficiary on any matter. Any vote taken by a Purported Record Transferee prior
to the discovery by the Corporation that the Excess were held in trust will be
rescinded ab initio. The owner of the Excess Shares will be deemed to have given
an irrevocable proxy to the Excess Share Trustee to vote the Excess Shares for
the benefit of the Charitable Beneficiary.
12.18. Non-Transferability of Excess Shares. Excess Shares
shall be transferable only as provided in this Section 12.18. At the direction
of the Corporation, the Excess Share Trustee shall transfer the Shares held in
the Excess Share Trust to a Person whose ownership of the Shares will not
violate the Ownership Limit or Special Shareholder Limit. If such a transfer is
made to a Person, the interest of the Charitable Beneficiary shall terminate and
proceeds of the sale shall be payable to the Purported Record Transferee and to
the Charitable Beneficiary. The Purported Record Transferee shall receive the
lesser of 1)" (1) the price paid by the Purported Record Transferee for the
Shares or, if the Purported Record Transferee did not give value for the Shares,
the Market Price of the Shares on the day of the event causing the Shares to be
held in trust, and 2)" (2) the price received by the Excess Share trust from the
sale or other disposition of the Shares. Any proceeds in excess of the amount
payable to the Purported Record Transferee will be paid to the Charitable
Beneficiary. Prior to any transfer of any Excess Shares by the Excess Share
Trustee, the Corporation must have waived in writing its purchase rights under
Section 12.19. It is expressly understood that the Purported Record Transferee
may enforce the provisions of this Section against the Charitable Beneficiary.
If any of the foregoing restrictions on transfer of
Excess Shares is determined to be void, invalid or unenforceable by any court of
competent jurisdiction, then the Purported Record Transferee may be deemed, at
the option of the Corporation, to have acted as an agent of the Corporation in
acquiring such Excess Shares and to hold such Excess Shares on behalf of the
Corporation.
12.19. Call by Corporation on Excess Shares. Excess Shares
shall be deemed to have been offered for sale to the Corporation, or its
designee, at a price per Share equal to the lesser of a)" (a) the price per
Share in the transaction that created such Excess Shares (or, in the case of a
devise, gift or other transaction in which no value was given for such Excess
Shares, the Market Price at the time of such devise, gift or other transaction)
and b)" (b) the Market Price of the Shares to which such Excess Shares relates
on the date the Corporation, or its designee, accepts such offer (the
"Redemption Price"). The Corporation shall have the right to accept such offer
for a period of ninety days after the late of (x) the date of the Transfer which
resulted in such Excess Shares and (y) the date the Board of Directors
determines in good faith that a Transfer resulting in Excess Shares has
occurred, if the Corporation does not receive a notice of such Transfer pursuant
to Section 12.5 of this Paragraph 12, but in no event later than a permitted
Transfer pursuant to and in compliance with the terms of Section 12.18 of this
Paragraph 12. Unless the Board of Directors determines that it is in the
interests of the Corporation to make earlier payments of all of the amount
determined as the Redemption Price per Share in accordance with the preceding
sentence, the Redemption Price may be payable at the option of the Board of
Directors at any time up to but not later than the five years after the date the
Corporation accepts the offer to purchase the Excess Shares. In no event shall
the Corporation have an obligation to pay interest to the Purported Record
Transferee.
12.20. Underwritten Offerings. The Ownership Limit shall not
apply to the acquisition of Shares or rights, options or warrants for, or
securities convertible into, Shares by an underwriter in a public offering;
provided that the underwriter makes a timely distribution of such Shares or
rights, options or warrants for, or securities convertible into, Shares.
12.21. Certain Transfers to Non-U.S. Persons Void. Any
Transfer of shares of capital stock of the Corporation to any Person (other than
a Special Shareholder) that results in the fair market value of the shares of
capital stock of the Corporation owned directly or indirectly (within the
meaning of Section 897(h)(4) of the Code) by Non-U.S. Persons to comprise 50% or
more of the fair market value of the issued and outstanding shares of capital
stock of the Corporation (determined assuming that the Special Shareholders are
Non-U.S. Persons and own a percentage of the outstanding shares of capital stock
of the Corporation (by value) equal to 37.5%), shall be void ab initio to the
fullest extent permitted under applicable law and the intended Transferee shall
be deemed never to have had an interest therein. If the foregoing provision is
determined to be void or invalid by virtue of any legal decision, statute, rule
or regulation, then the shares held or purported to be held by the Transferee
shall, automatically and without the necessity of any action by the Board of
Directors or otherwise, i)" (i) be prohibited from being voted at any time such
securities result in the fair market value of the shares of capital stock of the
Corporation owned directly or indirectly (within the meaning of Section
897(h)(4) of the Code) by Non-U.S. Persons to comprise 50% or more of the fair
market value of the issued and outstanding shares of capital stock of the
Corporation (determined assuming that the Special Shareholders are Non-U.S.
Persons and own a percentage of the outstanding shares of capital stock of the
Corporation (by value) equal to 37.5%), ii)" (ii) not be entitled to dividends
with respect thereto, iii)" (iii) be considered held in trust by the Transferee
for the benefit of the Corporation and shall be subject to purchase by the
Corporation as set forth in Paragraph 12.19 hereof as though such Shares were
Excess Shares, and iv)" (iv) not be considered outstanding for the purpose of
determining a quorum at any meeting of stockholders.
12.22. Interpretation of REIT Qualifications. In applying the
provisions of this Paragraph 12, the Board of Directors may take into account
the lack of certainty in the REIT provisions of the Code relating to the
ownership of stock that may prevent a corporation from qualifying as a REIT and
may make interpretations concerning the Ownership Limit, Special Shareholder
Limit and Excess Shares and attributed ownership and related matters on as
conservative a basis as the Board of Directors may deem advisable to minimize or
eliminate uncertainty as to the Corporation's qualification or continued
qualification as a REIT. In the case of ambiguities in the application of any of
the provisions of this Paragraph 12, including any definition contained in
Paragraph 12 hereof, the Board of Directors shall have the power to determine
the application of the provisions of this Paragraph 12 with respect to any
situations based on the facts known to it.
12.23. Application of Paragraph. Nothing contained in this
Paragraph 12 or in any other provision here shall limit the authority of the
Board of Directors to take any and all other action as it, in its sole
discretion, deems necessary or advisable to protect the Corporation and the
interests of its shareholders by maintaining the Corporation's eligibility to
be, and preserving the Corporation's status as, a REIT under the Code.
Exhibit 5
January 21, 1998
Board of Directors
Storage USA, Inc.
10440 Little Patuxent Parkway, Suite 1100
Columbia, Maryland 21044
Registration Statement on Form S-3
$900,000,000 of Securities of Storage USA, Inc. and SUSA Partnership, L.P.
Gentlemen:
We are acting as counsel for Storage USA, Inc. (the "Company") in
connection with the registration under the Securities Act of 1933, as amended
(the "1933 Act"), of (i) shares of Preferred Stock, $.01 par value, of the
Company ("Preferred Stock"), (ii) depositary shares representing entitlement to
all rights and preferences of a fraction of a share of Preferred Stock of a
specified series and represented by depositary receipts ("Depositary Shares"),
(iii) shares of Common Stock, $.01 par value, of the Company ("Common Stock"),
and (iv) warrants exercisable for either Preferred Stock or Common Stock
("Warrants," and together with the Preferred Stock, Depositary Shares and Common
Stock, the "Company Securities") to be offered from time to time by the Company,
having an aggregate maximum public offering price not to exceed $650,000,000 on
terms to be determined at the time of offering.
We are also acting as counsel for SUSA Partnership, L.P. (the
"Partnership") in connection with the registration under the 1933 Act of
unsecured, non-convertible debt securities ("Debt Securities," and together with
the Company Securities, the "Offered Securities") to be offered from time to
time by the Partnership, having an aggregate maximum public offering price not
to exceed $450,000,000 on terms to be determined at the time of offering. The
Offered Securities are described in the Registration Statement on Form S-3 filed
jointly by the Company and the Partnership (the "Registration Statement"), and
the Prospectus included therein (the "Prospectus"), to be filed with the
Securities and Exchange Commission (the "Commission") on January 21, 1997.
In connection with the filing of the Registration Statement you have
requested our opinion concerning certain corporate matters.
We are of the opinion that:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Tennessee. The Partnership is a limited
partnership duly organized and validly existing under the laws of the State of
Tennessee.
2. When the terms of any class or series of the Offered Securities have
been authorized by appropriate action of the Company or the Partnership and have
been issued and
<PAGE>
sold as described in the Registration Statement, the Prospectus and the
applicable Prospectus Supplement and, with respect to the Debt Securities, such
Debt Securities have been duly executed, authenticated and delivered in
accordance with the applicable indenture, then (i) the Company Securities will
be legally issued and, with respect to shares of Common Stock and Preferred
Stock, fully paid and nonassessable and (ii) the Debt Securities will be validly
authorized and issued and binding obligations of the Partnership.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the reference to us in the
Prospectus included therein.
Very truly yours,
Ex-12.1
Computation of ratios of the Company
9 months 1997 Actual 1996 Actual 1995
Earnings:
Net income $46,790 $43,526 $29,153
Interest expense $11,604 $8,244 $3,004
Amortization of debt expense $466 $361 $903
Total earnings $58,860 $52,131 $33,060
Fixed Charges
Interest expense $11,604 $8,244 $3,004
Capitalized interest $1,331 $965 $532
Amortization of debt expense $466 $361 $903
Total fixed charges $13,401 $9,570 $4,439
Ratio 4.39 5.45 7.45
Computation of ratios of the Partnership
9 months 1997 Actual 1996 Actual 1995
Earnings:
Net income $50,655 $46,211 $30,420
Interest expense $11,604 $8,244 $3,004
Amortization of debt expense $466 $361 $903
Total earnings $62,725 $54,816 $34,327
Fixed Charges
Interest expense $11,604 $8,244 $3,004
Capitalized interest $1,331 $965 $532
Amortization of debt expense $466 $361 $903
Total fixed charges $13,401 $9,570 $4,439
Ratio 4.68 5.73 7.73
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
[Coopers & Lybrand letterhead]
We consent to the incorporation by reference in this Registration
Statement of Storage USA, Inc. (the "Company") and SUSA Partnership, L.P. (the
"Partnership") on Form S-3, of: (A) (1) our report dated January 29, 1997,
except for Note 14, as to which the date is March 17, 1997, on our audits of the
consolidated financial statements of the Company as of December 31, 1996 and
1995, and for each of the two years in the period ended December 31, 1996 and
for the period from March 24, 1994 (inception) through December 31, 1994, and
the combined results of Storage USA, Inc. (the "Predecessor") for the period
from January 1, 1994 through March 23, 1994, which report is incorporated by
reference in the Company's 1996 Form 10-K, as amended by Form 10-K/A; (2) our
report dated January 29, 1997, on our audit of the financial statement schedule
of the Company as of December 31, 1996, which report is included in the
Company's 1996 Form 10-K, as amended by Form 10-K/A; (3) our report dated
February 13, 1997, on our audits of the Historical Summaries of Combined Gross
Revenue and Direct Operating Expenses for certain self-storage facilities for
the year ended December 31, 1995, which report is included in the Company's Form
8-K/A dated February 18, 1997; (4) our report dated May 28, 1997, on our audits
of the Historical Summaries of Combined Gross Revenue and Direct Operating
Expenses for certain self-storage facilities for the year ended December 31,
1996, which report is included in the Company's Form 8-K dated May 28, 1997; (5)
our report dated October 1, 1997, on our audits of the Historical Summaries of
Combined Gross Revenue and Direct Operating Expenses for certain self-storage
facilities for the year ended December 31, 1996, which report is included in the
Company's Form 8-K/A dated October , 1997; (6) our report dated November 24,
1997, on our audits of the Historical Summaries of Combined Gross Revenue and
Direct Operating Expenses for certain self-storage facilities for the year ended
December 31, 1996, which report is included in the Company's Form 8-K/A dated
November 25, 1997; and (7) our report dated January 20, 1998, on our audits of
the Historical Summaries of Combined Gross Revenue and Direct Operating Expenses
for certain self-storage facilities for the year ended December 31, 1996, which
report is included in the Company's Form 8-K/A dated January 20, 1998; and (B)
(1) our report dated January 29, 1997, except for Note 14, as to which the date
is March 17, 1997, on our audits of the consolidated financial statements of the
Partnership as of December 31, 1996 and 1995, and for each of the two years in
the period ended December 31, 1996 and for the period from March 24, 1994
(inception) through December 31, 1994, and the combined results of Storage USA,
Inc. (the "Predecessor") for the period from January 1, 1994 through March 23,
1994, which report is incorporated by reference in the Company's 1996 Form 10-K,
as amended by Form 10-K/A; (2) our report dated January 29, 1997, on our audit
of the financial statement schedule of the Partnership as of December 31, 1996,
which report is included in the Partnership's 1996 Form 10-K as amended by Form
10- K/A; (3) our report dated February 13, 1997, on our audits of the Historical
Summaries of Combined Gross Revenue and Direct Operating Expenses for certain
self-storage facilities for the year ended December 31,1995, which report is
included in the Partnership's Form 8-K/A dated February 18, 1997; (4) our report
dated May 28, 1997, on our audits of the Historical Summaries of Combined Gross
Revenue and Direct Operating Expenses for certain self-storage
<PAGE>
facilities for the year ended December 31, 1996, which report is included in the
Partnership's Form 8-K dated May 28, 1997; (5) our report dated October 1, 1997,
on our audits of the Historical Summaries of Combined Gross Revenue and Direct
Operating Expenses for certain self-storage facilities for the year ended
December 31, 1996, which report is included in the Partnership's Form 8-K/A
dated October 6, 1997; (6) our report dated November 24, 1997, on our audits of
the Historical Summaries of Combined Gross Revenue and Direct Operating Expenses
for certain self-storage facilities for the year ended December 31, 1996, which
report is included in the Partnership's Form 8-K/A dated November 25, 1997; and
(7) our report dated January 20, 1998, on our audits of the Historical Summaries
of Combined Gross Revenue and Direct Operating Expenses for certain self-storage
facilities for the year ended December 31, 1996, which report is included in the
Partnership's Form 8-K/A dated January 20, 1998. We also consent to the
reference to our firm under the caption "Experts".
COOPERS & LYBRAND L.L.P.
Baltimore, Maryland
January 20, 1998
