AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP OF
SOVRAN ACQUISITION LIMITED PARTNERSHIP
THIS
AMENDMENT OF THE LIMITED PARTNERSHIP AGREEMENT OF SOVRAN
ACQUISITION LIMITED PARTNERSHIP (the “Partnership”),
dated as of July 30, 1999, is authorized by SOVRAN HOLDINGS,
INC. (the “General Partner”), a Delaware corporation,
as the General Partner (the “Amendment”).
WHEREAS,
pursuant to Sections 4.2 and 14.1.B.(3) of the Agreement of
Limited Partnership of the Partnership (the “Partnership
Agreement”), the General Partner desires to amend the
Partnership Agreement to authorize Series B Units as set forth
below and to issue such Series B Units to Sovran Self Storage,
Inc. (“Sovran”) in connection with the issuance of
1,200,000 shares 9.85% Series B Cumulative Redeemable
Preferred Stock (the “Preferred Stock”) by
Sovran.
The
Partnership Agreement is hereby amended as follows effective
July 30, 1999:
1.
Article I of the Partnership Agreement is hereby amended to
add the following additional defined term thereto:
“
Series B Units ” shall mean the Units of
Partnership Interests issued pursuant to Section 4.2.C.
hereof.
2.
Article 4 of the Partnership Agreement is hereby amended to
add a new Section 4.2.C. as follows:
The Partnership
is authorized to issue Series B Units in connection with the
issuance of the Preferred Stock by Sovran. The Partnership shall
issue to Sovran Series B Units with the terms as set forth
below corresponding to the number of shares of Preferred Stock
issued by Sovran and Sovran shall make a Capital Contribution to
the Partnership equal to the net amount of proceeds raised in
connection with such issuance of the Preferred Stock. The terms of
the Series B Units are as follows:
(1) Designation
and Amount . A series of Series B Units is hereby
established. The number of authorized units of Series B Units
shall be 1,700,000.
(2) Ranking
. In respect of rights to the payment of distributions of Available
Cash and the distribution of assets in the event of any
liquidation, dissolution or winding up of the Partnership, the
Series B Units shall rank senior to the Partnership
Units.
(3)
Distribution of Available Cash
(a)
The holders of the outstanding units of Series B Units shall
be entitled to receive, when, as and if declared by the General
Partner, out of funds legally available for the payment of
distributions of Available Cash, cumulative cash distributions of
Available Cash at the rate of 9.85% per annum of the $25.00 per
unit liquidation preference of the Series B Units (equivalent
to an annual rate of $2.4625 per unit). Such distributions of
Available Cash shall accrue daily, shall accrue and be cumulative
from (but excluding) July 30, 1999 (the “Original Issue
Date”) and shall be payable quarterly in arrears in cash on
March 31, June 30, September 30 and December 31
(each, a “Distribution Payment Date”) of each year,
commencing September 30, 1999; provided that if any
Distribution Payment Date is not a Business Day (as hereinafter
defined), then the distributions which would otherwise have been
payable on such Distribution Payment Date may be paid on the next
succeeding Business Day with the same force and effect as if paid
on such Distribution Payment Date and no interest or additional
distribution of Available Cash or other sum shall accrue on the
amount so payable for the period from and after such Distribution
Payment Date to such next succeeding Business Day. The period from
and including the Original Issue Date to but excluding the first
Distribution Payment Date, and each subsequent period from and
including a Distribution Payment Date to but excluding the next
succeeding Distribution Payment Date, is hereinafter called a
“Distribution Period”. Distributions of Available Cash
shall be payable to holders of record as they appear in the
Partnership Agreement at the close of business on the applicable
record date (each, a “Record Date”), which shall be the
15 th
day of the calendar month in which
the applicable Distribution Payment Date falls or such other date
designated by the General Partner for the payment of distributions
of Available Cash that is not more than 30 nor less than ten days
prior to such Distribution Payment Date. The amount of any
distribution of Available Cash payable for any Distribution Period,
or portion thereof, shall be computed on the basis of a 360-day
year consisting of twelve 30-day months. The
distributions
of Available Cash payable on any Distribution Payment Date or any
other date shall include distributions of Available Cash accrued to
but excluding such Distribution Payment Date or other date, as the
case may be.
“Business
Day” shall mean any day, other than a Saturday or Sunday,
that is not a day on which banking institutions in Buffalo, New
York are authorized or required by law, regulation or executive
order to close. All references herein to “accrued and
unpaid” distributions of Available Cash on the Series B
Units (and all references of like import) shall include, unless
otherwise expressly stated or the context otherwise requires,
accumulated distributions of Available Cash, if any, on the
Series B Units.
(b) If any unit of
Series B Units is outstanding, no full distributions of
Available Cash will be declared or paid or set apart for payment on
any Partnership Units unless full cumulative distributions of
Available Cash have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart
for such payment on the Series B Units for all past
Distribution Periods and the then current Distribution
Period.
Except as provided
in the immediately preceding paragraph, unless full cumulative
distributions of Available Cash on the Series B Units have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on
the Series B Units for all past Distribution Periods and the
then current Distribution Period, no distributions of Available
Cash shall be declared or paid or set apart for payment nor shall
any other distribution be declared or made upon the Partnership
Units nor shall any Partnership Units be redeemed, purchased or
otherwise acquired for any consideration by the Partnership except
for a redemption pursuant to Section 8.6 if the Partnership
pays the REIT Shares Amount for such redemption.
(c) No
distributions of Available Cash on the Series B Units shall be
declared by the General Partner or paid or set apart for payment by
the Partnership at such time as any agreement of the Partnership,
including any agreement relating to its indebtedness, prohibits
such declaration, payment or setting apart for payment or provides
that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default
thereunder, or
if such declaration, payment or setting apart for payment shall be
restricted or prohibited by applicable law.
Anything in this
Section 4.2.C to the contrary notwithstanding, distributions
of Available Cash on the Series B Units will accrue and be
cumulative from (but excluding) the Original Issue Date whether or
not the Partnership has earnings, whether or not there are funds
legally available for the payment of such distributions of
Available Cash and whether or not such distributions of Available
Cash is authorized.
(d) No interest,
or sum of money in lieu of interest, shall be payable in respect of
any distributions of Available Cash payment or payments on the
Series B Units which may be in arrears, and holders of the
Series B Units will not be entitled to any distributions of
Available Cash, whether payable in cash, securities or other
property, in excess of the full cumulative distributions of
Available Cash described herein.
(e) Any
distributions of Available Cash payment made on the Series B
Units shall first be credited against the earliest accrued but
unpaid distributions of Available Cash due with respect to such
units.
(f) No
distribution of Available Cash may be paid on the Series B
Units if after giving effect to such distribution of Available Cash
the Partnership’s total assets would be less than the sum of
the Partnership’s total liabilities.
(4) Liquidation
Preference .
(a) Upon any
voluntary or involuntary liquidation, dissolution or winding up of
the Partnership, then, before any distribution or payment shall be
made to the holders of any Partnership Units, the holders of the
Series B Units then outstanding shall be entitled to receive
and to be paid out of the assets of the Partnership legally
available for distribution to its Partners liquidating
distributions in cash or property at its fair market value as
determined by the General Partner in the amount of $25.00 per unit,
plus an amount equal to all accrued and unpaid distributions of
Available Cash thereon through and including the date of
payment.
(b) After payment
to the holders of the Series B Units of the full amount of the
liquidating distributions (including accrued and unpaid
distributions of Available Cash) to which they are entitled, the
holders of Series B Units, as such, shall have no right or
claim to any of the remaining assets of the Partnership.
(c) If liquidating
distributions shall have been made in full to all holders of
Series B Units, the remaining assets of the Partnership shall
be distributed among the holders of Partnership Units according to
their respective rights and preferences.
(d) For purposes
of this Section 4.2.C.(4), neither the consolidation or merger
of the Partnership with or into any other Partnership, trust or
other entity, the sale, lease or conveyance of all or substantially
all of the property or business of the Partnership, nor the
engagement in a statutory unit exchange by the Partnership, shall
be deemed to constitute a liquidation, dissolution or winding up of
the Partnership.
(e) Written notice
of any such liquidation, dissolution or winding up of the
Partnership stating the payment date or dates when, and the place
or places where, the amounts distributable in such circumstances
shall be payable, shall be given by first class mail, postage
pre-paid, not less than 30 nor more than 60 days prior to the
payment date stated therein, to each record holder of Series B
Units at the respective address of such holder as the same shall
appear on the unit transfer records of the Partnership.
(a) The
Series B Units are not redeemable prior to July 30, 2004,
except as otherwise provided in paragraph (c) of this
Section 4.2.C.(5).
(b) On and after
July 30, 2004, the Partnership may, at its option, upon not
less than 30 nor more than 60 days’ prior written notice
to the holders of record of the Series B Units to be redeemed,
redeem the Series B Units, in whole or from time to time in
part, for a cash redemption price equal to $25.00 per unit together
with (except as provided in Section 4.2.C.(6)(f) below) all
accrued and unpaid distributions of Available Cash to the date
fixed for redemption (the “Redemption
Price”).
(c) The
Series B Units may also be purchased by the Partnership, in
whole or from time to time in part, on the terms and subject to the
conditions set forth herein, provided, however, that if the General
Partner shall call for purchase of any units of Series B Units
pursuant to this Section 4.2.C.(5)(c), the purchase price for
such units shall be an amount in cash equal to $25.00 per unit
together with (except as provided in Section 4.2.C.(6)(f)
below) all accrued and unpaid distributions of Available Cash to
the date fixed for redemption.
(d) Any redemption
of units of Series B Units pursuant to
Section 4.2.C.(5)(b), shall be made in accordance with the
applicable provisions set forth in Section 4.2.C.(6) below.
Any date fixed for the redemption of units of Series B Units
pursuant to Section 4.2.C.(5)(b) is hereinafter called a
“Redemption Date”.
(6) Procedures
for Redemption, Limitations on Redemption .
(a) If fewer than
all of the outstanding units of Series B Units are to be
redeemed at the option of the General Partner pursuant to
Section 4.2.C.(5)(b) above, the number of units to be redeemed
will be determined by the General Partner and the units to be so
redeemed shall be selected pro rata from the holders of record of
such units in proportion to the number of such units held by such
holders (as nearly as may be practicable without creating
fractional units) or by lot or by any other equitable manner
determined by the General Partner.
(b) Notice of any
redemption pursuant to Section 4.2.C.(5)(b) will be mailed by
or on behalf of the Partnership, first class postage prepaid, not
less than 30 nor more than 60 days prior to the
applicable Redemption Date, addressed to each holder of record of
units of Series B Units to be redeemed at the address set
forth in the unit transfer records of the Partnership. Any notice
which has been mailed in the manner provided for in the preceding
sentence shall be conclusively presumed to have been duly given on
the date mailed whether or not the applicable holder receives such
notice. In addition to any information required by law, such notice
shall state: (1) the Redemption Date; (2) the Redemption
Price; (3) the aggregate number of units of Series B
Units to be redeemed; (4) the place or places where
certificates for such units are to be surrendered for payment of
the Redemption Price; and (5) that distributions of Available
Cash on
the units of
Series B Units to be redeemed will cease to accrue on such
Redemption Date. If fewer than all of the outstanding units of
Series B Units are to be redeemed, the notice mailed to each
holder of units to be redeemed shall also specify the number of
units of Series B Units to be redeemed from such holder. No
failure to mail or defect in such mailed notice or in the mailing
thereof shall affect the validity of the proceedings for the
redemption of any units of Series B Units except as to the
holder to whom notice was defective or not given.
(c) If notice has
been mailed in accordance with Section 4.2.C.(6)(b) above and
provided that on or before the Redemption Date specified in such
notice all funds necessary for such redemption have been
irrevocably set aside by the Partnership, separate and apart from
its other funds, in trust for the benefit of the holders of the
Series B Units so called for redemption, so as to be, and to
continue to be, available therefor, then, from and after the
Redemption Date, distributions of Available Cash on the units of
Series B Units so called for redemption shall cease to accrue,
such units shall no longer be deemed to be outstanding, and all
rights of the holders thereof as holders of such units (except the
right to receive the Redemption Price together with, if applicable,
accrued and unpaid distributions of Available Cash thereon to the
Redemption Date) shall terminate. In the event any Redemption Date
shall not be a Business Day, then payment of the Redemption Price
need not be made on such Redemption Date but may be made on the
next succeeding Business Day with the same force and effect as if
made on such Redemption Date and no interest, additional
distributions of Available Cash and other sum shall accrue on the
amount payable for the period from and after such Redemption Date
to such next succeeding Business Day.
(d) Upon
surrender, in accordance with such notice, of the certificates for
any units of Series B Units to be so redeemed (properly
endorsed or assigned for transfer, if the Partnership shall so
require and the notice shall so state), such units of Series B
Units shall be redeemed by the Partnership at the Redemption Price.
In case fewer than all the units of Series B Units represented
by any such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed units of
Series B Units without cost to the holder thereof.
(e) Any deposit of
monies with a bank or trust company for the purpose of redeeming
Series B Units shall be irrevocable and such monies shall be
held in trust for the benefit of the holders of Series B Units
entitled thereto, except that (1) the Partnership shall be
entitled to receive from such bank or trust company the interest or
other earnings, if any, earned on the monies so deposited in trust;
and (2) any balance of the monies so deposited by the
Partnership and unclaimed by the holders of the Series B Units
entitled thereto at the expiration of two years from the applicable
Redemption Date shall be repaid, together with any interest or
other earnings earned thereon, to the Partnership and, after any
such repayment, the holders of the units entitled to the funds so
repaid to the Partnership shall look only to the Partnership for
payment without interest or other earnings thereon.
(f) Anything in
this Section 4.2.C to the contrary notwithstanding, the
holders of record of units of Series B Units at the close of
business on a Record Date will be entitled to receive the
distributions of Available Cash payable with respect to such units
on the corresponding Distribution Payment Date notwithstanding the
redemption of such units after such Record Date and on or prior to
such Distribution Payment Date or the Partnership’s default
in the payment of the distributions of Available Cash due on such
Distribution Payment Date, in which case the amount payable upon
redemption of such units of Series B Units will not include
such distributions of Available Cash (and the full amount of the
distributions of Available Cash payable for the applicable
Distribution Period shall instead be paid on such Distribution
Payment Date to the holders of record on such Record Date as
aforesaid). Except as provided in this Section 4.2.C.(6)(b)
and except to the extent that accrued and unpaid distribution of
Available Cash are payable as part of the Redemption Price pursuant
to Section 4.2.C.(6), the Partnership will make no payment or
allowance for unpaid distributions of Available Cash, regardless of
whether or not in arrears, on units of Series B Units called
for redemption.
(g) Unless full
cumulative distributions of Available Cash on all outstanding units
of Series B Units shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment
thereof set apart for payment for all past Distribution Periods and
the then current Distribution Period, no units of Series B
Units shall be redeemed unless all outstanding Series B Units
are simultaneously redeemed; provided, however,
that the
foregoing shall not prevent the Partnership’s purchase of
Series B Units pursuant to a purchase or exchange offer made on the
same terms to the holders of all outstanding Series B Units.
In addition, unless full cumulative distributions of Available Cash
on all outstanding units of Series B Units have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all
past Distribution Periods and the then current Distribution Period,
the Partnership shall not purchase or otherwise acquire, directly
or indirectly, any Series B Units; provided, however, that the
foregoing shall not prevent the Partnership’s purchase of
Series B Units pursuant to a purchase or exchange offer made
on the terms to holders of all outstanding Series B
Units.
(7) Voting
Rights . Except as required by law, the holders of the
Series B Units shall not have any voting rights.
(8)
Conversion . The Series B Units are not convertible
into or exchangeable for any other property or securities of the
Partnership.
(9) Preemptive
Rights . Series B Units shall have no preemptive
rights.
(10) Status of
Redeemed and Reacquired Series B Units . In the event any
units of Series B Units shall be redeemed pursuant to
Section 4.2.C.(5) and (6) hereof or otherwise reacquired
by the Partnership, the units so redeemed or reacquired shall
become authorized but unissued units of Series B Units,
available for future issuance and reclassification by the
Partnership.
11.
Severability . If any preference, right, voting power,
restriction, limitation as to distributions of Available Cash,
qualification, term or condition of redemption or other term of the
Series B Units is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, then, to
the extent permitted by law, all other preferences, rights, voting
powers, restrictions, limitations as to distributions of Available
Cash, qualifications, terms or conditions of redemption and other
terms of the Series B Units which can be given effect without
the invalid, unlawful or unenforceable preference, right, voting
power, restriction, limitation as to distributions of Available
Cash, qualification, term or condition of redemption or other term
of the
Series B
Units shall remain in full force and effect and shall not be deemed
dependent upon any other such preference, right, voting power,
restriction, limitation as to distributions of Available Cash
qualification, term or condition of redemption or other term of the
Series B Units unless so expressed herein.
3.
Exhibit A of the Partnership Agreement is amended to read as
set forth on the attachment hereto.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the 30 th
day of July, 1999.
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/s/ David L.
Rogers
David L.
Rogers, Chief Financial Officer
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