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EXHIBIT 3.2
STORAGE USA, INC.
ARTICLES OF AMENDMENT TO THE AMENDED CHARTER
DESIGNATING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
Pursuant to the provisions of Section 48-20-106 of the Tennessee
Business Corporation Act, the undersigned corporation (the "Corporation") hereby
adopts the following Articles of Amendment to its Amended Charter:
FIRST: The name of the corporation is Storage USA, Inc.
SECOND: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 6.1 of the Corporation's Amended Charter
(the "Charter") and Section 48-16-102 of the Tennessee Code Annotated, the Board
of Directors has, by resolution, duly divided and classified 650,000 shares of
the preferred stock of the Company into a series designated 8 7/8% Series A
Cumulative Redeemable Preferred Stock ( the "Series A Preferred Stock") and has
provided for the issuance of the Series A Preferred Stock.
THIRD: Section 6.1 is hereby amended by adding the following:
8 7/8% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK.
(a) Designation and Number. A series of Preferred Stock designated as the
8 7/8% Series A Cumulative Redeemable Preferred Stock (the "Series A Preferred
Stock") is hereby established. The number of shares of Series A Preferred Stock
shall be 650,000.
(b) Definitions. For purposes of the Series A Preferred Stock, the
following terms shall have the meanings indicated:
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions
in New York City, New York are authorized or required by law,
regulation or executive order to close.
"Priority Return" shall mean the cumulative preferential cash
distributions with respect to the Series A Preferred Stock set forth in
Section 4.02(e)(iii).
(c) Distributions.
A. Payment of Distributions. Holders of Series A
Preferred Stock will be entitled to receive, when, as and if declared
by the Board of Directors (or a duly authorized committee thereof), out
of funds legally available for the payment of dividends, cumulative
preferential cash distributions at the rate per annum of $8.78 per
share of Series A Preferred Stock. Such distributions shall be
cumulative, shall accrue
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from the original date of issuance and will be payable quarterly in
arrears, on January 15, April 15, July 15 and October 15 of each year
(each a "Series A Preferred Stock Distribution Payment Date"). The
amount of the distribution payable for any period will be prorated and
computed on the basis of a 360-day year of twelve 30-day months and for
any period shorter than a full quarterly period for which distributions
are computed, the amount of the distribution payable will be computed
on the basis of the actual number of days elapsed in such a 30-day
month. If any date on which distributions are to be made on the Series
A Preferred Stock is not a Business Day, then payment of the
distribution to be made on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. Distributions
on the Series A Preferred Stock will be made to the holders of record
of shares of the Series A Preferred Stock on the relevant record dates,
which will be fifteen (15) days prior to the relevant Series A
Preferred Stock Distribution Payment Date.
B. Distributions Cumulative. Notwithstanding the
foregoing, distributions on shares of the Series A Preferred Stock will
accrue whether or not the terms and provisions of any agreement of the
Corporation at any time prohibit the current payment of distributions,
whether or not the Corporation has earnings, whether or not there are
funds legally available for the payment of such distributions and
whether or not such distributions are authorized. Accrued but unpaid
distributions on the Series A Preferred Stock will accumulate as of the
Series A Preferred Stock Distribution Payment Date on which they first
become payable. Accumulated and unpaid distributions will not bear
interest.
C. Priority as to Distributions.
1. So long as any shares of Series A Preferred
Stock are outstanding, no distribution of cash or other
property shall be authorized, declared, paid or set apart for
payment on or with respect to any class or series of capital
stock ranking junior as to the payment of distributions to the
shares of Series A Preferred Stock (collectively, "Junior
Stock"), nor shall any cash or other property be set aside for
or applied to the purchase, redemption or other acquisition
for consideration of any shares of Series A Preferred Stock or
any Junior Stock, unless, in each case, all distributions
accumulated on all shares of Series A Preferred Stock have
been paid in full.
2. So long as distributions have not been paid
in full (or a sum sufficient for such full payment is not so
set apart) upon shares of the Series A Preferred Stock, all
distributions authorized and declared on shares of the Series
A Preferred Stock shall be authorized and declared so that the
amount of distributions authorized and declared per share of
Series A Preferred Stock shall in all cases bear to each other
the same ratio that accrued distributions per share of Series
A Preferred Stock bear to each other.
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D. No Further Rights. Holders of shares of Series A
Preferred Stock shall not be entitled to any distributions, whether
payable in cash, other property or otherwise, in excess of the full
cumulative distributions described herein.
(d) Liquidation Proceeds
A. Distribution. Upon voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, holders of
shares of Series A Preferred Stock shall be entitled to be paid out of
the assets of the Corporation legally available for distribution to its
shareholders a liquidation preference of $100.00 per share, plus an
amount equal to any accrued and unpaid dividends to the date of
payment, but without interest, before any distribution of assets is
made to holders of any other class or series of capital stock of the
Corporation that ranks junior to the Series A Preferred Stock as to
liquidation rights.
B. Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation,
stating the payment date or dates when, and the place or places where,
the amounts distributable in such circumstances shall be payable, shall
be given by (1) fax and (2) first class mail, postage pre-paid, not
less than 30 and not more that 60 days prior to the payment date stated
therein, to each record holder of shares of Series A Preferred Stock at
the respective addresses of such holders as the same shall appear on
the transfer records of the Corporation.
C. No Further Rights. After payment of the full amount
of the Liquidation Preference, the holders of shares of Series A
Preferred Stock will have no right or claim to any of the remaining
assets of the Corporation.
D. Consolidation, Merger or Certain Other Transactions.
The consolidation or merger or other business combination of the
Corporation with or into any corporation, trust or other entity (or of
any corporation, trust or other entity with or into the Corporation)
shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
(e) Optional Redemption.
A. Right of Optional Redemption. The Series A Preferred
Stock may not be redeemed prior to November 1, 2003. On or after such
date, the Corporation shall have the right to redeem the Series A
Preferred Stock, in whole or in part, at any time or from time to time
out of funds legally available therefor, upon not less than 30 nor more
than 60 days' written notice, at a redemption price, payable in cash,
equal to $100.00, plus accumulated and unpaid dividends to the
redemption date (the "Redemption Price"). If fewer than all of the
outstanding shares of Series A Preferred Stock are to be redeemed, the
shares of Series A Preferred Stock to be redeemed shall be selected pro
rata (as nearly as practicable without creating fractional shares).
B. Limitation on Redemption. The Corporation may not
redeem fewer than all of the outstanding shares of Series A Preferred
Stock unless all accumulated and unpaid distributions have been paid on
all shares of Series A Preferred Stock for all quarterly distribution
periods terminating on or prior to the date of redemption, unless
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such redemption is pursuant to a purchase or exchange offer made on the
same terms to all holders of Series A Preferred Stock.
C. Procedures for Redemption.
1. Notice of redemption will be (i) faxed, and
(ii) mailed by the Corporation, by certified mail, postage
prepaid, not less than 30 nor more than 60 days' prior to the
redemption date, addressed to the respective holders of record
of the shares of Series A Preferred Stock at their respective
addresses as they appear on the records of the Corporation. No
failure to give or defect in such notice shall affect the
validity of the proceedings for the redemption of any shares
of Series A Preferred Stock except as to the holder to whom
such notice was defective or not given. In addition to any
information required by law, each such notice shall state: (u)
the redemption date, (v) the Redemption Price, (w) the
aggregate number of Series A Preferred Stock to be redeemed
and, if fewer than all of the outstanding shares of Series A
Preferred Stock are to be redeemed, the number of shares of
Series A Preferred Stock to be redeemed held by such holder,
which number shall equal such holder's pro rata share (based
on the percentage of the aggregate number of outstanding
shares of Series A Preferred Stock that the total number of
shares of Series A Preferred Stock held by such holder
represents) of the aggregate number of shares of Series A
Preferred Stock to be redeemed, (x) the place or places where
such shares of Series A Preferred Stock are to be surrendered
for payment of the Redemption Price, (y) that distributions on
the shares of Series A Preferred Stock to be redeemed will
cease to accumulate on such redemption date and (z) that
payment of the Redemption Price will be made upon presentation
and surrender of such shares of Series A Preferred Stock.
2. If the Corporation gives a notice of
redemption in respect of shares of Series A Preferred Stock
(which notice will be irrevocable) then, by 12:00 noon, New
York City time, on the redemption date, the Corporation will
deposit irrevocably in trust for the benefit of the shares of
Series A Preferred Stock being redeemed funds sufficient to
pay the applicable Redemption Price and will give irrevocable
instructions and authority to pay such Redemption Price to the
holders of the shares of Series A Preferred Stock upon
surrender of the shares of Series A Preferred Stock by such
holders at the place designated in the notice of redemption.
On and after the date of redemption, distributions will cease
to accumulate on the shares of Series A Preferred Stock or
portions thereof called for redemption, unless the Corporation
defaults in the payment thereof. If any date fixed for
redemption of shares of Series A Preferred Stock is not a
Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on
the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price is improperly
withheld or refused and not paid by the Corporation,
distributions on such shares of Series A Preferred Stock will
continue to accumulate from the original redemption date
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to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes
of calculating the applicable Redemption Price.
(f) Voting Rights.
A. General. Holders of shares of Series A
Preferred Stock will not have any voting rights or right to
consent to any matter requiring the consent or approval of
holders of the Corporation's common stock, except as set forth
below.
B. Certain Voting Rights. So long as any shares
of Series A Preferred Stock remain outstanding, the
Corporation shall not, without the affirmative vote of the
holders of at least two-thirds of the shares of Series A
Preferred Stock outstanding at the time (1) authorize or
create, or increase the authorized or issued amount of, any
class or series of capital stock ranking prior to the Series A
Preferred Stock with respect to payment of distributions or
rights upon liquidation, dissolution or winding-up, or
reclassify any capital stock of the Corporation into any such
capital stock, or create, authorize or issue any obligations
or security convertible into or evidencing the right to
purchase any such capital stock, (2) authorize or create, or
increase the authorized or issued amount of any capital stock
on a parity with the Series A Preferred Stock or reclassify
any capital stock of the Corporation into any such capital
stock or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such
capital stock, if such capital stock or right to purchase
capital stock is issued to any affiliate of the Corporation,
other than any issuance to (i) Security Capital U.S. Realty,
Security Capital Holdings, S.A. or any of their affiliates or
to (ii) any other affiliate, provided that a majority of
Independent Directors of the Company (as defined in the
Charter) has approved such issuance, or (3) either
consolidate, merge into or with, or convey, transfer or lease
its assets substantially as an entirety to, any corporation or
other entity, or amend, alter or repeal the provisions of the
Charter (including, without limitation, this Section), whether
by merger, consolidation or otherwise, in each case in a
manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the
shares of Series A Preferred Stock or the holders thereof;
provided, however, that with respect to the occurrence of any
event set forth in (3) above, so long as the Corporation is
the surviving entity and the Series A Preferred Stock remain
outstanding with the terms thereof unchanged, then the
occurrence of any such event shall not be deemed to materially
and adversely affect such rights, privileges or voting powers
of the holders of the Series A Preferred Stock; and provided
further, that any increase in the amount of capital stock or
the creation or issuance of any other class or series of
capital stock, in each case ranking (i) junior to the Series A
Preferred Stock with respect to payment of distributions or
the distribution of assets upon liquidation, dissolution or
winding-up, or (ii) on a parity to the Series A Preferred
Stock with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or
winding-up to the extent such capital stock is not issued to
an affiliate of the Corporation, other than any such issuances
(i) to Security Capital U.S. Realty, Security Capital
Holdings, S.A. or any of their affiliates or (ii) to any other
affiliate, provided that a majority of the Independent
Directors of the Company have approved such creation or
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issuance, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
(g) Conversion. The Series A Preferred Stock is not convertible into or
exchangeable for any other property or securities of the Corporation.
(h) No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series A Preferred Stock.
FOURTH: This Designating Amendment shall be effective at the time the
Tennessee Secretary of State accepts this Designating Amendment for filing.
FIFTH: The foregoing amendment was duly adopted by unanimous consent
of the Board of Directors without shareholder action, such shareholder action
not being required, on November 11, 1998.
IN WITNESS WHEREOF, STORAGE USA, INC. has caused these presents to be
signed in its name and on its behalf by its Executive Vice President and General
Counsel on this the 11th day of November, 1998.
STORAGE USA, INC.
By: /s/ John W. McConomy
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Name: John W. McConomy
Title: Executive Vice President and
General Counsel