AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF SOVRAN ACQUISITION LIMITED PARTNERSHIP
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Exhibit 3.2
AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP OF
SOVRAN ACQUISITION LIMITED PARTNERSHIP
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.
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(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 15th 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
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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
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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.
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(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.
(5) Redemption.
(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”).
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(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
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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.
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(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,
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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
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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 30th
day of July, 1999.
General Partner:
SOVRAN HOLDINGS, INC.
By
|
/s/ Xxxxx X. Xxxxxx
|
EXHIBIT A
| Number of | Percentage Interest | |||||||
| Partners’ Names and Addresses | Units | in the Partnership | ||||||
Series B Units |
||||||||
Sovran Self Storage, Inc. |
1,200,000 | |||||||
0000 Xxxx Xxxxxx Xxxxxxxxxxxxx, XX 00000 |
||||||||
Partnership Units |
||||||||
1. General Partner: |
||||||||
Sovran Holdings, Inc. |
219,566.71 | 1.6437 | % | |||||
0000 Xxxx Xxxxxx Xxxxxxxxxxxxx, XX 00000 |
||||||||
2. Limited Partner(s): |
||||||||
Sovran Self Storage, Inc. |
12,285,761.29 | 91.9706 | ||||||
0000 Xxxx Xxxxxx Xxxxxxxxxxxxx, XX 00000 |
||||||||
3. Xxxxxx X. Xxxxxx |
6327.8 | 0.0474 | ||||||
000 Xxxxx Xxxxx Xxxxxxxxx, XX 00000 |
||||||||
4. Xxxxxx Investment Limited |
12,459.37 | 0.0933 | ||||||
000 Xxxxx Xxxxx Xxxxxxxxx, XX 00000 |
||||||||
5. Xxxxxx Xxxxxxx |
60,571.425 | 0.4534 | ||||||
000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
||||||||
6. Xxxxxxxx X. Xxxxxx |
60,571.425 | 0.4534 | ||||||
000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
||||||||
7. Xxxxxxxx-Xxxxx Company |
214,974.5 | 1.6093 | ||||||
X.X. Xxx 00000 Xxxxxxxxx, XX 00000 |
||||||||
8. D.W.B. Associates |
28,953.02 | 0.2167 | ||||||
X.X. Xxx 00000 Xxxxxxxxx, XX 00000 |
||||||||
| Number of | Percentage Interest | |||||||
| Partners’ Names and Addresses | Units | in the Partnership | ||||||
9. D. Xxxxxx Xxxxxx & Xxxxxxx X. Xxxxxx |
19,917.01 | 0.1491 | ||||||
as tenants in common 0000 Xxxxx Xxxxx Xxx Xxxx, XX 00000 |
||||||||
10. Xxxxx X. Xxxxxxx |
19,917.01 | 0.1491 | ||||||
000 Xxxxxxxxxx Xxxx Xxxx Xxxx, XX 00000 |
||||||||
11. Xxxxxx X. Xxxxxxxx |
9,958.50 | 0.0745 | ||||||
00000 Xxxxx Xxxxx Xxxxxxx, XX 00000 |
||||||||
12. Xxxxxxx Xxxxxxxx |
9,958.50 | 0.0745 | ||||||
00000 Xxxxx Xxxxx Xxxxxxx, XX 00000 |
||||||||
13. Xxxxxxx X. Xxxxxxx, Xx. and |
323,454.67 | 2.4214 | ||||||
Xxxxxxxx X. Xxxxxxx 0000 Xxxxx Xxxxx Xxxxxxx #0X Xxxx Xxxxx, XX 00000 |
||||||||
14. R. Xxxxx Xxxxxxxx, Jr. Trust |
40,859.03 | 0.3059 | ||||||
000 X.X. Xxxxx Xxxxxx Xxxxxx Xxxxx, XX 00000 |
||||||||
15. Xxxxxxx X. Xxxxxxx, Xx. |
36,948.33 | 0.2765 | ||||||
X.X. Xxx 0000 Xxxx Xxxxx, XX 00000-0000 |
||||||||
16. Xxxxxxxx Xxxxxxx |
4,255.70 | 0.319 | ||||||
0000 Xxxxx Xxxx Xxxxx Xxxx Xxxxx, XX 00000 |
||||||||
17. Xxxxxxx & Xxxxxx Xxxxxxxxxxx |
3,910.70 | 0.0293 | ||||||
0000 Xxxxx Xxxx Xxx Xxxx Xxxxx, XX 00000-0000 |
||||||||
AMENDMENT TO AGREEMENT OF
LIMITED PARTNERSHIP OF
SOVRAN ACQUISITION LIMITED PARTNERSHIP
LIMITED PARTNERSHIP OF
SOVRAN ACQUISITION LIMITED PARTNERSHIP
This AMENDMENT OF THE AGREEMENT OF LIMITED PARTNERSHIP OF SOVRAN ACQUISITION LIMITED
PARTNERSHIP, dated as of July 3, 2002 (this “Amendment”), is being executed by Sovran
Holdings, Inc., a Delaware corporation (the “General Partner”), as the general partner of Sovran
Acquisition Limited Partnership, a Delaware limited partnership (the “Partnership”), pursuant to
the authority conferred on the General Partner by Section 4.2 and 14.1.B.3 of the Agreement of
Limited Partnership of Sovran Acquisition Limited Partnership, dated as of June 1, 1995, as amended
(the “Agreement”). Capitalized terms used, but not otherwise defined herein, shall have the
respective meanings ascribed thereto in the Agreement.
WHEREAS, on July 3, 2002, Sovran Self Storage, Inc., a Maryland corporation (“Sovran”) filed
Articles Supplementary amending its Charter to designate and classify 2,800,000 shares of
authorized but unissued shares of its preferred stock, par value $.01 per share, as shares of its
Series C Convertible Cumulative Preferred Stock, par value $.01 per share (the “Series C Preferred
Stock”);
WHEREAS, in accordance with Section 4.2 of the Agreement, upon the issuance of any such shares
of Series C Preferred Stock, Sovran will contribute the net cash proceeds from such issuance to the
Partnership in exchange for a number of Partnership Preferred Units equal to the number of shares
of Series C Preferred Stock so issued, which Partnership Preferred Units shall have designations,
preferences and other rights, terms and provisions that are substantially the same as the
designations, preferences and other rights, terms and provisions of the Series C Preferred Stock,
except as otherwise set forth herein; and
WHEREAS, pursuant to Section 4.2.A of the Agreement, the General Partner is authorized to
determine the relative rights and powers of such Partnership Preferred Units in its sole
discretion.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged:
I. The Agreement is hereby amended by the addition of a new exhibit, entitled
“Exhibit F”, in the form attached hereto, which shall be attached to and made a part of the
Agreement.
II. Except as specifically amended hereby, the terms, covenants, provisions and conditions of
the Agreement shall remain unmodified and continue in full force and effect and, except as amended
hereby, all of the terms, covenants, provisions and conditions of the Agreement are hereby ratified
and confirmed in all respects.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.
| SOVRAN HOLDINGS, INC. | ||||||
| GENERAL PARTNER | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | President and Chief Operating Officer | |||||
EXHIBIT F
PARTNERSHIP UNIT DESIGNATION OF THE SERIES C
PARTNERSHIP PREFERRED UNITS OF
SOVRAN ACQUISITION LIMITED PARTNERSHIP
PARTNERSHIP PREFERRED UNITS OF
SOVRAN ACQUISITION LIMITED PARTNERSHIP
1). Number of Units and Designation.
A class of Partnership Preferred Units is hereby designated as “Series C Partnership Preferred
Units,” and the number of Partnership Preferred Units constituting such series shall be 2,800,000.
2). Definitions.
For purposes of the Series C Partnership Preferred Units, the following terms shall have the
meanings indicated in this Section 2, and capitalized terms used and not otherwise defined herein
shall have the meanings assigned thereto in the Agreement:
“Agreement” shall mean the Agreement of Limited Partnership of the Partnership, dated as of
June 1, 1995, as amended.
“Call Date” shall have the meaning set forth in paragraph (a) of Section 5 of this
Exhibit F.
“Change of Control” shall mean each occurrence of any of the following:
| (i) | the acquisition, directly or indirectly, by any individual or entity or group (as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (“Exchange Act”) of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act, except that such individual or entity shall be deemed to have beneficial ownership of all shares that any such individual or entity has the right to acquire, whether such right is exercisable immediately or only after passage of time) of more than 25% of the voting power, under ordinary circumstances, to elect directors of Sovran or more than 25% of the equity interests in the Partnership; | ||
| (ii) | (A) Sovran consolidates with or merges into another entity or Sovran or the Partnership conveys, transfers, or leases outside the ordinary course of business all or substantially all of its assets in one or a series of transactions during an 18-month period (including, but not limited to, real property investments) to any individual or entity, or (B) any entity consolidates with or merges into Sovran which, in the case of a merger or consolidation under (A) or (B) is pursuant to a transaction in which (x) the outstanding Common Stock is reclassified or changed into or exchanged for cash, securities or other property or (y) the merger or consolidation of Sovran with or into another entity in a transaction in which Sovran is not the surviving entity or in which more than 50% of the voting securities of Sovran is transferred; provided, however, that the events described in this clause (ii) shall not be deemed to be a Change of Control if the sole purpose and effect of such event is that Sovran is seeking to |
| change its domicile or to change its form of organization from a corporation to a statutory business trust; or |
| (iii) | other than with respect to the election, resignation or replacement of any director of Sovran designated, appointed or elected by the holders of any outstanding series of preferred stock of Sovran (each a “Preferred Director”), during any period of two (2) consecutive years, individuals who at the beginning of such period constituted the Board of Directors (together with any new director whose election by such Board of Directors or whose nomination for election by the stockholders of Sovran was approved by a vote of a majority of the directors of Sovran (excluding Preferred Directors) then still in office who were either directors of Sovran at the beginning of such period, or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office. |
“Common Stock” shall mean the Common Stock, $0.01 par value per share, of Sovran or such
shares of Sovran’s capital stock into which outstanding shares of Common Stock shall be
reclassified.
“Distribution Payment Date” shall mean any date on which cash dividends are paid on all
outstanding shares of the Series C Preferred Stock.
“Junior Partnership Units” shall have the meaning set forth in paragraph (c) of Section 9 of
this Exhibit F.
“Parity Partnership Units” shall have the meaning set forth in paragraph (b) of Section 9 of
this Exhibit F.
“Partnership” shall mean Sovran Acquisition Limited Partnership, a Delaware limited
partnership.
“Partnership Common Units” shall mean a fractional, undivided share of the Partnership
Interests of all Partners issued pursuant to Section 4.1 of the Agreement.
“Repurchase Date “ shall have the meaning set forth in paragraph (a) of Section 6 of this
Exhibit F.
“Senior Partnership Units” shall have the meaning set forth in paragraph (a) of
Section 9 of this Exhibit F.
“Series C Articles Supplementary” means the Articles Supplementary to the Amended and
restated Articles of Incorporation of Sovran, dated July 2, 2002 designating the Series C
Preferred Stock.
“Series C Partnership Preferred Unit” means a Partnership Preferred Unit with the
designations, preferences and relative, participating, optional or other special rights,
powers and duties as are set forth in this Exhibit F. It is the intention of the
General Partner that each Series C Partnership
Preferred Unit shall be substantially the economic equivalent of one share of Series C
Preferred Stock.
“Series C Preferred Stock” means the Series C Convertible Cumulative Preferred Stock, par
value $0.01 per share, of Sovran, with the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications and terms and conditions
of redemption set forth in the Series C Articles Supplementary.
3). Distributions.
On every Distribution Payment Date, the holders of Series C Partnership Preferred Units shall
be entitled to receive distributions payable in cash in an amount per Series C Partnership
Preferred Unit equal to the per share dividend payable on the Series C Preferred Stock on such
Distribution Payment Date. Each such distribution shall be payable to the holders of record of the
Series C Partnership Preferred Units, as they appear on the records of the Partnership at the close
of business on the record date for the dividend payable with respect to the Series C Preferred
Stock on such Distribution Payment Date. Holders of Series C Partnership Preferred Units shall not
be entitled to any distributions on the Series C Partnership Preferred Units, whether payable in
cash, property or stock, except as provided herein.
4). Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the Partnership, whether
voluntary or involuntary, before any payment or distribution of the Partnership (whether capital,
surplus or otherwise) shall be made to or set apart for the holder of Junior Partnership Units, the
holders of Series C Partnership Preferred Units shall be entitled to receive the greater of: (x)
Twenty-Five Dollars($25.00) per Series C Partnership Unit, plus an amount per Series C Partnership
Preferred Unit equal to all dividends (whether or not declared) accumulated, accrued and unpaid on
one share of Series C Preferred Stock to the date of final distribution to such holders; or (y) the
amount per Series C Partnership Preferred Unit a holder would receive if such holder converted his
or her Series C Partnership Preferred Units into Partnership Common Units immediately prior to such
liquidation, dissolution or winding-up (the “Liquidation Preference”); but such holders shall not
be entitled to any further payment. Until the holders of the Series C Partnership Preferred Units
have been paid the Liquidation Preference in full, no payment shall be made to any holder of Junior
Partnership Units upon the liquidation, dissolution or winding up of the Partnership. If, upon any
liquidation, dissolution or winding up of the Partnership, the assets of the Partnership, or
proceeds thereof, distributable among the holders of Series C Partnership Preferred Units shall be
insufficient to pay in full the preferential amount aforesaid and liquidating payments on any
Parity Partnership Units, then such assets, or the proceeds thereof, shall be distributed among the
holders of Series C Partnership Preferred Units and any such Parity Partnership Units ratably in
the same proportion as the respective amounts that would be payable on such Series C Partnership
Preferred Units and any such other Parity Partnership Units if all amounts payable thereon were
paid in full. For the purposes of this Section 4, the occurrence of an event described in
paragraph (ii) of the definition of Change of Control shall be deemed a liquidation, dissolution or
winding up, voluntary or involuntary, of the Partnership, unless waived in writing by a majority in
interest of the holders of the Series C Partnership Preferred Units.
(b) Upon any liquidation, dissolution or winding up of the Partnership, after payment shall
have been made in full to the holders of Series C Partnership Preferred Units and any Parity
Partnership Units, as provided in this Section 4, any other series or class or classes of Junior
Partnership
Units shall, subject to the respective terms thereof, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Series C Partnership
Preferred Units and any Parity Partnership Units shall not be entitled to share therein.
5). Redemption.
Series C Partnership Preferred Units shall be redeemable by the Partnership as follows:
(a) At any time that Sovran exercised its rights to redeem all or any of the shares of Series
C Preferred Stock, the General Partner shall cause the Partnership to redeem an equal number of
Series C Partnership Preferred Units, at a redemption price per Series C Partnership Preferred Unit
equal to the same price paid by Sovran to redeem the Series C Preferred Stock, and such price shall
be paid in the same manner as paid by Sovran for the Series C Preferred Stock redeemed on the same
date as the date of redemption of the Series C Preferred Stock (the “Call Date”), in the manner set
forth herein; provided, however, that in the event of a redemption of Series C Partnership
Preferred Units, if the Call Date occurs after a dividend record date for the Series C Preferred
Stock and on or prior to the related Distribution Payment Date, the distribution payable on such
Distribution Payment Date in respect of such Series C Partnership Preferred Units called for
redemption shall be payable on such Distribution Payment Date to the holders of record of such
Series C Partnership Preferred Units on the applicable dividend record date, and shall not be
payable as part of the redemption price for such Series C Partnership Preferred Units.
(b) If the Partnership shall redeem Series C Partnership Preferred Units pursuant to paragraph
(a) of this Section 5, from and after the Call Date (unless the Partnership shall fail to make
available the amount of cash or other forms of consideration necessary to effect such redemption),
(i) except for payment of the redemption price, the Partnership shall not make any further
distributions on the Series C Partnership Preferred Units so called for redemption, (ii) said units
shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders
of Series C Partnership Preferred Units of the Partnership shall cease except the rights to receive
the cash payable upon such redemption, without interest thereon; provided, however, that if a Call
Date occurs after a dividend record date for the Series C Preferred Stock and on or prior to the
related Distribution Payment Date, the full distribution payable on such Distribution Payment Date
in respect of such Series C Partnership Preferred Units called for redemption shall be payable on
such Distribution Payment Date to the holders of record of such Series C Partnership Preferred
Units on the applicable dividend record date notwithstanding the prior redemption of such Series C
Partnership Preferred Units. No interest shall accrue for the benefit of the holders of Series C
Partnership Preferred Units to be redeemed on any cash set aside by the Partnership.
6). Repurchase
Series C Partnership Preferred Units shall be repurchased by the Partnership if Sovran is
required to repurchase any of the shares of Series C Preferred Stock pursuant to the terms of the
Series C Articles Supplementary.
(a) At the time that Sovran repurchases any of the shares of Series C Preferred Stock, the
General Partner shall cause the Partnership to repurchase an equal number of Series C Partnership
Preferred Units, at a price per Series C Partnership Preferred Unit equal to the repurchase price
specified in the Series
C Articles Supplementary for the shares of Series C Preferred Stock, and
such price shall be paid in the same manner as paid by Sovran for the Series C Preferred Stock
repurchased on the same date as the date of repurchase of the Series C Preferred Stock (the
“Repurchase Date”), in the manner set forth herein; provided, however, that in the event of a
repurchase of Series C Partnership Preferred Units, if the Repurchase Date occurs after a dividend
record date for the Series C Preferred Stock and on or prior to the related Distribution Payment
Date, the distribution payable on such Distribution Payment Date in respect of such Series C
Partnership Preferred Units to be repurchased shall be payable on such Distribution Payment Date to
the holders of record of such Series C Partnership Preferred Units on the applicable dividend
record date, and shall not be payable as part of the Repurchase Price for such Series C Partnership
Preferred Units.
(b) If the Partnership shall repurchase Series C Partnership Preferred Units pursuant to
paragraph (a) of this Section 6, from and after the Repurchase Date (unless the Partnership shall
fail to make available the amount of cash or other forms of consideration necessary to effect such
redemption), (i) except for payment of the repurchase price, the Partnership shall not make any
further distributions on the Series C Partnership Preferred Units repurchased, (ii) said units
shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders
of Series C Partnership Preferred Units of the Partnership shall cease except the rights to receive
the cash payable upon such repurchase, without interest thereon; provided, however, that if a
Repurchase Date occurs after a dividend record date for the Series C Preferred Stock and on or
prior to the related Distribution Payment Date, the full distribution payable on such Distribution
Payment Date in respect of such Series C Partnership Preferred Units to be repurchased shall be
payable on such Distribution Payment Date to the holders of record of such Series C Partnership
Preferred Units on the applicable dividend record date notwithstanding the prior repurchase of such
Series C Partnership Preferred Units. No interest shall accrue for the benefit of the holders of
Series C Partnership Preferred Units to be repurchased on any cash set aside by the Partnership.
7). Status of Reacquired Units.
All Series C Partnership Preferred Units which shall have been issued and reacquired in any
manner by the Partnership shall be deemed cancelled.
8). Conversion.
Series C Partnership Preferred Units shall be convertible as follows:
(a) Upon any conversion of shares of Series C Preferred Stock into shares of Common Stock, the
General Partner shall cause a number of Series C Partnership Preferred Units equal to the number of
such converted shares of Series C Preferred Stock to be converted by the holders thereof into
Partnership Units. The conversion ratio in effect from time to time for the conversion of Series C
Partnership Preferred Units into Partnership Units pursuant to this Section 8 shall at all times be
equal to, and shall be
automatically adjusted as necessary to reflect, the conversion ratio in effect from time to
time for the conversion of Series C Preferred Stock into Common Stock.
(b) In the event of a conversion of any Series C Partnership Preferred Units, the Partnership
shall make a cash payment to the holder thereof equal to the cash payment required to be made by
Sovran to the holder of the shares of Series C Preferred Stock the conversion of which required the
conversion of such Series C Partnership Preferred Units. Holders of Series C Partnership Preferred
Units at the close of business on a distribution payment record date shall be entitled to receive
the distribution payable on such units on the corresponding Distribution Payment Date
notwithstanding the conversion thereof following such distribution payment record date and prior to
such Distribution Payment Date. Except as provided above, the Partnership shall make no payment or
allowance for unpaid distributions on converted units or for distributions on the Partnership Units
issued upon such conversion. Each conversion of Series C Partnership Preferred Units into
Partnership Units shall be deemed to have been effected at the same time and date that the
corresponding conversion of Series C Preferred Stock into Common Stock is deemed to have been
effected.
(c) No fractional Partnership Units shall be issued upon conversion of Series C Partnership
Preferred Units. Instead of any fractional Partnership Units that would otherwise be deliverable
upon the conversion of Series C Partnership Preferred Units, the Partnership shall pay to the
holder of such converted units an amount in cash equal to the cash payable to a holder of an
equivalent number of converted shares of Series C Preferred Stock in lieu of fractional shares of
Common Stock.
(d) The Partnership will pay any and all documentary stamp or similar issue or transfer taxes
payable in respect of (i) the issue or delivery of Partnership Units or other securities or
property on conversion or redemption of Series C Partnership Preferred Units pursuant hereto, and
(ii) the issue or delivery of Common Stock or other securities or property on conversion or
redemption of Series C Preferred Stock pursuant to the terms hereof.
9). Ranking.
Any class or series of Partnership Units of the Partnership shall be deemed to rank:
(a) prior or senior to the Series C Partnership Preferred Units, as to the payment of
distributions and as to distributions of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of distributions and of amounts
distributable upon liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of Series C Partnership Preferred Units (“Senior Partnership Units”);
(b) on a parity with the Series C Partnership Preferred Units, as to the payment of
distributions and as to distribution of assets upon liquidation, dissolution or winding up, whether
or not the distribution rates, distribution payment dates or redemption or liquidation prices per
unit or other denomination thereof be different from those of the Series C Partnership Preferred
Units if the holders of such class or series of Partnership Units and the Series C Partnership
Preferred Units shall be entitled to the receipt of distributions and of amounts distributable upon
liquidation, dissolution or winding up in
proportion to their respective amounts of accrued and unpaid distributions per unit or other
denomination or liquidation preferences, without preference or priority one over the other (the
Partnership Units referred to in this paragraph being hereinafter referred to as “Parity
Partnership Units”), and
(c) junior to the Series C Partnership Preferred Units, as to the payment of distributions and
as to the distribution of assets upon liquidation, dissolution or winding up, if the holders of
Series C Partnership Preferred Units shall be entitled to receipt of distributions or of amounts
distributable upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of such class or series of Partnership Units (the Partnership Units
referred to in this paragraph being hereinafter referred to, collectively, as “Junior Partnership
Units”).
The Series B Partnership Preferred Units are Parity Partnership Units and the Series A
Partnership Preferred Units are Junior Partnership Units.
10). Special Allocations.
(a) Gross income and, if necessary, gain shall be allocated to the holders of Series C
Partnership Preferred Units for any Fiscal Year (and, if necessary, subsequent Fiscal Years) to the
extent that the holders of Series C Partnership Preferred Units receive a distribution on any
Series C Partnership Preferred Units (other than an amount included in any redemption pursuant to
Section 5 hereof) with respect to such Fiscal Year.
(b) If any Series C Partnership Preferred Units are redeemed pursuant to Section 5 hereof, for
the Fiscal Year that includes such redemption (and, if necessary, for subsequent Fiscal Years) (a)
gross income and gain (in such relative proportions as the General Partner in its discretion shall
determine) shall be allocated to the holders of Series C Partnership Preferred Units to the extent
that the redemption amounts paid or payable with respect to the Series C Partnership Preferred
Units so redeemed exceeds the aggregate Capital Contributions (net of liabilities assumed or taken
subject to by the Partnership) per Series C Partnership Preferred Unit allocable to the Series C
Partnership Preferred Units so redeemed and (b) deductions and losses (in such relative proportions
as the General Partner in its discretion shall determine) shall be allocated to the holders of
Series C Partnership Preferred Units to the extent that the aggregate Capital Contributions (net of
liabilities assumed or taken subject to by the Partnership) per Series C Partnership Preferred Unit
allocable to the Series C Partnership Preferred Units so redeemed exceeds the redemption amount
paid or payable with respect to the Series C Partnership Preferred Units so redeemed.
11). Restrictions on Ownership.
The Series C Partnership Preferred Units shall be owned and held solely by Sovran or the
General Partner.
12). Vote Required for Amendment, Merger, Consolidation, etc.
So long as any Series C Partnership Preferred Units are outstanding, in addition to any other
vote or consent required by law or by the Agreement, the affirmative vote of at least 66-2/3% of
the holders
of the Series C Partnership Preferred Units, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be necessary for
effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of the Agreement, or
this Exhibit F thereto, that materially and adversely affects the powers, rights or
preferences of the holders of the shares of Series C Partnership Preferred Units;
provided, however, that the amendment of the provisions of the Agreement so
as to authorize or create or to increase the authorized amount of, any Junior Partnership
Units, or other Units that are not senior in any respect
to the Series C Partnership
Preferred Units or any Parity Partnership Units shall not be deemed to materially adversely
affect the powers, rights or preferences of the holders of Series C Partnership Preferred
Units; or
(b) An exchange that affects the Series C Partnership Preferred Units, a consolidation
with or merger of the Partnership into another entity, or a consolidation with or merger of
another entity into the Partnership, unless in each such case each Series C Partnership
Preferred Unit (i) shall remain outstanding without a material and adverse change to its
terms and rights or (ii) shall be converted into or exchanged for convertible preferred
securities of the surviving entity having preferences, conversion or other rights, powers,
restrictions, limitations as to distributions, qualifications and terms or conditions of
redemption thereof identical to that of a Series C Partnership Preferred Unit (except for
changes that, do not materially and adversely affect the holders of the Series C Partnership
Preferred Units); or
(c) The authorization, reclassification or creation of, or the increase in the
authorized amount of, any Units of any series, or any security convertible into Units of any
series, ranking prior to the Series C Partnership Preferred Units in the distribution of
assets on any liquidation, dissolution or winding up of the Partnership or in the payment of
distributions; or
(d) Any increase in the authorized amount of Series C Partnership Preferred Units or
decrease in the authorized amount of Series C Partnership Preferred Units below the number
of Series C Partnership Preferred Units then issued and outstanding;
provided, however, that no such vote of the holders of Series C Partnership Preferred Units
shall be required if, at or prior to the time when such amendment, alteration or repeal is to take
effect, or when the issuance of any such prior Units or convertible security is to be made, as the
case may be, provision is made for the redemption or repurchase of all Series C Partnership
Preferred Units at the time outstanding to the extent such redemption or repurchase is authorized
by Section 5 or 6 hereof.
For purposes of the foregoing provisions of this Section 12, each Series C Partnership
Preferred Unit shall have one (1) vote, except that when any other series of Preferred Units shall
have the right to vote with the Series C Partnership Preferred Units as a single class on any
matter, then the Series C Partnership Preferred Units and such other series shall have with respect
to such matters one (1) vote per $25.00 of stated value. Except as otherwise required by
applicable law or as set forth herein, the Series C Partnership Preferred Units shall not have any
relative, participating, optional or voting rights and powers
other than as set forth herein, and the consent of the holders thereof shall not be required
for the taking of any Partnership action.
13). General
(a) The ownership of Series C Partnership Preferred Units may (but need not, in the sole and
absolute discretion of the General Partner) be evidenced by one or more certificates. The General
Partner shall amend Exhibit A to the Agreement from time to time to the extent necessary to
reflect accurately the issuance of, and subsequent conversion, redemption, or any other event
having an effect on the ownership of, Series C Partnership Preferred Units.
(b) The rights of the General Partner or Sovran, in their capacity as holder of the Series C
Partnership Preferred Units, are in addition to and not in limitation of any other rights or
authority of the General Partner or Sovran, respectively, in any other capacity under the Agreement
or applicable law. In addition, nothing contained herein shall be deemed to limit or otherwise
restrict the authority of the General Partner or Sovran under the Agreement, other than in their
capacity as holders of the Series C Partnership Preferred Units.
14). Economic Equivalency.
Notwithstanding any other provision of this Exhibit F, the shares of Series C
Preferred Stock and the Series C Partnership Preferred Units are intended to be substantially
equivalent in distributions and other payments. In the event that any provision of this
Exhibit F would result in a different distribution or other payments being made to the
holder of a Series C Partnership Preferred Units than to a holder of a share of Series C Preferred
Stock, this Exhibit F shall be deemed automatically amended to conform to the terms of the
Series C Articles Supplementary with respect to such distribution or other payment.
