Exhibit 10.2
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered into as of
February 24, 2006, by and among U-Store-It Trust, a Maryland real estate
investment trust (the "Company"), U-Store-It, L.P., a Delaware limited
partnership (the "Operating Partnership" and together with the Company, the
"Indemnitors"), and Xxxxxxxx X. Xxxxxxx (the "Indemnitee").
WHEREAS, the Indemnitee is an officer or a member of the Board of Trustees
of the Company and in such capacity is performing a valuable service for the
Company and the Operating Partnership;
WHEREAS, Maryland law permits the Company to enter into contracts with its
officers or members of its Board of Trustees with respect to indemnification of,
and advancement of expenses to, such persons;
WHEREAS, the Declaration of Trust of the Company (the "Declaration of
Trust") authorizes the Company to indemnify and advance expenses to its officers
and trustees to the maximum extent permitted by Maryland law in effect from time
to time;
WHEREAS, the Bylaws of the Company (the "Bylaws") provide that each officer
and trustee of the Company shall be indemnified by the Company to the maximum
extent permitted by Maryland law in effect from time to time and shall be
entitled to advancement of expenses consistent with Maryland law;
WHEREAS, the Company is the general partner of, and conducts substantially
all of its business through, the Operating Partnership;
WHEREAS, the Second Amended and Restated Partnership Agreement of the
Operating Partnership (the "Partnership Agreement") provides for indemnification
and advancement of expenses to the Company and its officers and trustees
consistent with the applicable provisions of Maryland law, subject to the same
limitations on indemnity and advancement of expenses that apply under Maryland
law to indemnity and advancement of expenses by the Company of its officers and
trustees; and
WHEREAS, to induce the Indemnitee to provide services to the Company as an
officer or a member of the Board of Trustees, and to provide the Indemnitee with
specific contractual assurance that indemnification will be available to the
Indemnitee regardless of, among other things, any amendment to or revocation of
the Declaration of Trust, the Bylaws or the Partnership Agreement, or any
acquisition transaction relating to the Company, the Indemnitors desire to
provide the Indemnitee with protection against personal liability as set forth
herein;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Indemnitors and the Indemnitee hereby agree as follows:
1. DEFINITIONS.
For purposes of this Agreement:
(A) "Change in Control" shall mean
i. the dissolution or liquidation of the Company;
ii. the merger, consolidation, or reorganization of the Company with
one or more other entities in which the Company is not the
surviving entity or immediately following which the persons or
entities who were beneficial owners (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of voting securities of the Company
immediately prior thereto cease to beneficially own more than
fifty percent (50%) of the voting securities of the surviving
entity immediately thereafter;
iii. a sale of all or substantially all of the assets of the Company
to another person or entity other than an affiliate of the
Company;
iv. any transaction (including without limitation a merger or
reorganization in which the Company is the surviving entity) that
results in any person or entity or "group" (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (other than
persons who are shareholders or affiliates immediately prior to
the transaction) owning thirty percent (30%) or more of the
combined voting power of all classes of shares of the Company; or
v. individuals who, as of the date hereof, constitute the Board of
Trustees (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Trustees;
provided, however, that any individual becoming a trustee
subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of
at least a majority of the trustees then comprising the Incumbent
Board (either by a specific vote or by approval of the proxy
statement of the Company in which such person is named as a
nominee for trustee, without written objection to such
nomination) shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as
a result of an actual or threatened election contest with respect
to the election or removal of trustees or other actual or
threatened solicitation of proxies or contests by or on behalf of
a person other than the Board of Trustees.
(B) "Corporate Status" describes the status of a person who is or was a
trustee or officer of the Company (or of any domestic or foreign
predecessor entity of the Company in a merger, consolidation or other
transaction in which the
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predecessor's interest ceased upon consummation of the transaction) or
is or was serving at the request of the Company (or any such
predecessor entity) as a director, officer, partner (limited or
general), member, trustee, employee or agent of any other foreign or
domestic corporation, partnership, joint venture, limited liability
company, trust, other enterprise (whether conducted for profit or not
for profit) or employee benefit plan. The Company (and any domestic or
foreign predecessor entity of the Company in a merger, consolidation
or other transaction in which the predecessor's existence ceased upon
consummation of the transaction) shall be deemed to have requested the
Indemnitee to serve an employee benefit plan where the performance of
the Indemnitee's duties to the Company (or any such predecessor
entity) also imposes or imposed duties on, or otherwise involves or
involved services by, the Indemnitee to the plan or participants or
beneficiaries of the plan.
(C) "Expenses" shall include all attorneys' and paralegals' fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, or being or preparing to be a witness in a
Proceeding.
(D) "Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing, or any
other proceeding, including appeals therefrom, whether civil,
criminal, administrative, or investigative, except one initiated by
the Indemnitee pursuant to paragraph 8 of this Agreement to enforce
such Indemnitee's rights under this Agreement.
(E) "Special Legal Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither
presently is, or in the past two years has been, retained to represent
(i) the Indemnitors or the Indemnitee in any matter material to either
such party, or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.
2. INDEMNIFICATION
The Indemnitee shall be entitled to the rights of indemnification provided
in this paragraph 2 and under applicable law, the Declaration of Trust, the
Bylaws, the Partnership Agreement, any other agreement, a vote of shareholders
or resolution of the Board of Trustees or otherwise if, by reason of such
Indemnitee's Corporate Status, such Indemnitee is, or is threatened to be made,
a party to any threatened, pending, or completed Proceeding, including a
Proceeding by or in the right of the Company or the Operating Partnership.
Unless prohibited by paragraph 13 hereof and subject to the other provisions of
this Agreement, the Indemnitee shall be indemnified hereunder, to the maximum
extent provided by Maryland law in effect from time to time, against judgments,
penalties, fines, and settlements and reasonable Expenses actually incurred by
or on behalf of such Indemnitee in connection with such Proceeding or any claim,
issue or matter therein; provided, however, that if such Proceeding was one by
or in the right of
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the Company or the Operating Partnership, indemnification may not be made in
respect of such Proceeding if the Indemnitee shall have been adjudged to be
liable to the Company or the Operating Partnership. For purposes of this
paragraph 2, excise taxes assessed on the Indemnitee with respect to an employee
benefit plan pursuant to applicable law shall be deemed fines.
3. EXPENSES OF A SUCCESSFUL PARTY
Without limiting the effect of any other provision of this Agreement and
without regard to the provisions of paragraph 6 hereof, to the extent that the
Indemnitee is, by reason of such Indemnitee's Corporate Status, a party to and
is successful, on the merits or otherwise, in any Proceeding pursuant to a final
non-appealable order, such Indemnitee shall be indemnified against all
reasonable Expenses actually incurred by such Indemnitee in connection
therewith. If the Indemnitee is not wholly successful in such Proceeding
pursuant to a final non-appealable order but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues, or matters in
such Proceeding pursuant to a final non-appealable order, the Indemnitors shall
indemnify the Indemnitee against all reasonable Expenses actually incurred by
such Indemnitee in connection with each successfully resolved claim, issue or
matter. For purposes of this paragraph and without limitation, the termination
of any claim, issue or matter in such Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
4. ADVANCEMENT OF EXPENSES
The Indemnitors shall advance all reasonable Expenses incurred by the
Indemnitee in connection with any Proceeding within 20 days after the receipt by
the Indemnitors of a statement from the Indemnitee requesting such advance from
time to time, whether prior to or after final disposition of such Proceeding.
Such statement shall reasonably evidence the Expenses incurred or to be incurred
by the Indemnitee and shall include or be preceded or accompanied by (i) a
written affirmation by the Indemnitee of the Indemnitee's good faith belief that
the standard of conduct necessary for indemnification by the Indemnitors as
authorized by this Agreement has been met and (ii) a written undertaking by or
on behalf of the Indemnitee to repay the amounts advanced if it should
ultimately be determined that the standard of conduct has not been met. The
undertaking required by clause (ii) of the immediately preceding sentence shall
be an unlimited general obligation of the Indemnitee but need not be secured and
may be accepted without reference to financial ability to make the repayment.
5. WITNESS EXPENSES
Notwithstanding any other provision of this Agreement, to the extent that
the Indemnitee is, by reason of such Indemnitee's Corporate Status, a witness
for any reason in any Proceeding to which such Indemnitee is not a named
defendant or respondent, such Indemnitee shall be indemnified by the Indemnitors
against all Expenses actually incurred by or on behalf of such Indemnitee in
connection therewith.
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6. DETERMINATION OF ENTITLEMENT TO AND AUTHORIZATION OF INDEMNIFICATION
(A) To obtain indemnification under this Agreement, the Indemnitee shall
submit to the Indemnitors a written request, including therewith such
documentation and information reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to
indemnification.
(B) Indemnification under this Agreement may not be made unless authorized
for a specific Proceeding after a determination has been made in
accordance with this Section 6(B) that indemnification of the
Indemnitee is permissible in the circumstances because the Indemnitee
has met the following standard of conduct: the Indemnitors shall
indemnify the Indemnitee in accordance with the provisions of
paragraph 2 hereof, unless it is established that: (a) the act or
omission of the Indemnitee was material to the matter giving rise to
the Proceeding and (x) was committed in bad faith or (y) was the
result of active and deliberate dishonesty; (b) the Indemnitee
actually received an improper personal benefit in money, property or
services; or (c) in the case of any criminal proceeding, the
Indemnitee had reasonable cause to believe that the act or omission
was unlawful. Upon receipt by the Indemnitors of the Indemnitee's
written request for indemnification pursuant to subparagraph 6(A), a
determination as to whether the applicable standard of conduct has
been met shall be made within the period specified in paragraph 6(E):
(i) if a Change in Control shall have occurred, by Special Legal
Counsel in a written opinion to the Board of Trustees, a copy of which
shall be delivered to the Indemnitee, with Special Legal Counsel
selected by the Indemnitee (unless the Indemnitee shall request that
such determination be made by the person or persons and in the manner
provided in clause (ii) of this paragraph 6(B), in which event the
provisions of such clause (ii) shall apply) (If the Indemnitee selects
Special Legal Counsel to make the determination under this clause (i),
the Indemnitee shall give prompt written notice to the Indemnitors
advising them of the identity of the Special Legal Counsel so
selected); or (ii) if a Change in Control shall not have occurred, (A)
by the Board of Trustees by a majority vote of a quorum consisting of
trustees not, at the time, parties to the Proceeding, or, if such
quorum cannot be obtained, then by a majority vote of a committee of
the Board of Trustees consisting solely of two or more trustees not,
at the time, parties to such Proceeding and who were duly designated
to act in the matter by a majority vote of the full Board of Trustees
in which the designated trustees who are parties may participate, (B)
by Special Legal Counsel in a written opinion to the Board of
Trustees, a copy of which shall be delivered to the Indemnitee, with
Special Legal Counsel selected by the Board of Trustees or a committee
of the Board of Trustees by vote as set forth in subparagraph (ii)(A)
of this paragraph 6(B), or, if the requisite quorum of the full Board
of Trustees cannot be obtained therefor and the committee cannot be
established, by a majority of the full Board of Trustees in which
trustees who are parties to the Proceeding may participate (If the
Indemnitors select Special Legal Counsel to make the determination
under this clause (ii), the Indemnitors shall give prompt
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written notice to the Indemnitee advising him or her of the identity
of the Special Legal Counsel so selected) or (C) by the shareholders
of the Company. If it is so determined that the Indemnitee is entitled
to indemnification, payment to the Indemnitee shall be made within 10
days after such determination. Authorization of indemnification and
determination as to reasonableness of Expenses shall be made in the
same manner as the determination that indemnification is permissible.
However, if the determination that indemnification is permissible is
made by Special Legal Counsel under clause (B) above, authorization of
indemnification and determination as to reasonableness of Expenses
shall be made in the manner specified under clause (B) above for the
selection of such Special Legal Counsel.
(C) The Indemnitee shall cooperate with the person or entity making such
determination with respect to the Indemnitee's entitlement to
indemnification, including providing upon reasonable advance request
any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to the
Indemnitee and reasonably necessary to such determination. Any
reasonable costs or expenses (including reasonable attorneys' fees and
disbursements) incurred by the Indemnitee in so cooperating shall be
borne by the Indemnitors (irrespective of the determination as to the
Indemnitee's entitlement to indemnification) and the Indemnitors
hereby indemnify and agree to hold the Indemnitee's harmless
therefrom.
(D) In the event the determination of entitlement to indemnification is to
be made by Special Legal Counsel pursuant to paragraph 6(B) hereof,
the Indemnitee, or the Indemnitors, as the case may be, may, within
seven days after such written notice of selection shall have been
given, deliver to the Indemnitors or to the Indemnitee, as the case
may be, a written objection to such selection. Such objection may be
asserted only on the grounds that the Special Legal Counsel so
selected does not meet the requirements of "Special Legal Counsel" as
defined in paragraph 1 of this Agreement. If such written objection is
made, the Special Legal Counsel so selected may not serve as Special
Legal Counsel until a court has determined that such objection is
without merit. If, within 20 days after submission by the Indemnitee
of a written request for indemnification pursuant to paragraph 6(A)
hereof, no Special Legal Counsel shall have been selected or, if
selected, shall have been objected to, either the Indemnitors or the
Indemnitee may petition a court for resolution of any objection which
shall have been made by the Indemnitors or the Indemnitee to the
other's selection of Special Legal Counsel and/or for the appointment
as Special Legal Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect
to whom an objection is so resolved or the person so appointed shall
act as Special Legal Counsel under paragraph 6(B) hereof. The
Indemnitors shall pay all reasonable fees and expenses of Special
Legal Counsel incurred in connection with acting pursuant to paragraph
6(B) hereof, and all reasonable fees and expenses incident to the
selection of such Special Legal Counsel pursuant to this paragraph
6(D). In the event that a determination of entitlement to
indemnification is to be made by Special Legal Counsel and such
determination
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shall not have been made and delivered in a written opinion within
ninety (90) days after the receipt by the Indemnitors of the
Indemnitee's request in accordance with paragraph 6(A), upon the due
commencement of any judicial proceeding in accordance with paragraph
8(A) of this Agreement, Special Legal Counsel shall be discharged and
relieved of any further responsibility in such capacity.
(E) If the person or entity making the determination whether the
Indemnitee is entitled to indemnification shall not have made a
determination within 60 days after receipt by the Indemnitors of the
request therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and the Indemnitee
shall be entitled to such indemnification, absent: (i) a misstatement
by the Indemnitee of a material fact, or an omission of a material
fact necessary to make the Indemnitee's statement not materially
misleading, in connection with the request for indemnification, or
(ii) a prohibition of such indemnification under applicable law. Such
60-day period may be extended for a reasonable time, not to exceed an
additional 30 days, if the person or entity making said determination
in good faith requires additional time for the obtaining or evaluating
of documentation and/or information relating thereto. The foregoing
provisions of this paragraph 6(E) shall not apply: (i) if the
determination of entitlement to indemnification is to be made by the
shareholders and if within 15 days after receipt by the Indemnitors of
the request for such determination the Board of Trustees resolves to
submit such determination to the shareholders for consideration at an
annual or special meeting thereof to be held within 75 days after such
receipt and such determination is made at such meeting, or (ii) if the
determination of entitlement to indemnification is to be made by
Special Legal Counsel pursuant to paragraph 6(B) of this Agreement.
7. PRESUMPTIONS
(A) In making a determination with respect to entitlement or authorization
of indemnification hereunder, the person or entity making such
determination shall presume that the Indemnitee is entitled to
indemnification under this Agreement and the Indemnitors shall have
the burden of proof to overcome such presumption.
(B) The termination of any Proceeding by conviction, or upon a plea of
nolo contendere or its equivalent, or an entry of an order of
probation prior to judgment, creates a rebuttable presumption that the
Indemnitee did not meet the requisite standard of conduct described
herein for indemnification.
8. REMEDIES
(A) In the event that: (i) a determination is made in accordance with the
provisions of paragraph 6 that the Indemnitee is not entitled to
indemnification under this Agreement, or (ii) advancement of
reasonable Expenses is not timely made pursuant to this Agreement, or
(iii) payment of indemnification due the Indemnitee under this
Agreement is not timely made, the Indemnitee shall be entitled to an
adjudication in an appropriate court of competent jurisdiction of
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such Indemnitee's entitlement to such indemnification or advancement
of Expenses.
(B) In the event that a determination shall have been made pursuant to
paragraph 6 of this Agreement that the Indemnitee is not entitled to
indemnification, any judicial proceeding commenced pursuant to this
paragraph 8 shall be conducted in all respects as a de novo trial on
the merits. The fact that a determination had been made earlier
pursuant to paragraph 6 of this Agreement that the Indemnitee was not
entitled to indemnification shall not be taken into account in any
judicial proceeding commenced pursuant to this paragraph 8 and the
Indemnitee shall not be prejudiced in any way by reason of that
adverse determination. In any judicial proceeding commenced pursuant
to this paragraph 8, the Indemnitors shall have the burden of proving
that the Indemnitee is not entitled to indemnification or advancement
of Expenses, as the case may be.
(C) If a determination shall have been made or deemed to have been made
pursuant to this Agreement that the Indemnitee is entitled to
indemnification, the Indemnitors shall be bound by such determination
in any judicial proceeding commenced pursuant to this paragraph 8,
absent: (i) a misstatement by the Indemnitee of a material fact, or an
omission of a material fact necessary to make the Indemnitee's
statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(D) The Indemnitors shall be precluded from asserting in any judicial
proceeding commenced pursuant to this paragraph 8 that the procedures
and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court that the Indemnitors
are bound by all the provisions of this Agreement.
(E) In the event that the Indemnitee, pursuant to this paragraph 8, seeks
a judicial adjudication of such Indemnitee's rights under, or to
recover damages for breach of, this Agreement, if successful on the
merits or otherwise as to all or less than all claims, issues or
matters in such judicial adjudication, the Indemnitee shall be
entitled to recover from the Indemnitors, and shall be indemnified by
the Indemnitors against, any and all reasonable Expenses actually
incurred by such Indemnitee in connection with each successfully
resolved claim, issue or matter.
9. NOTIFICATION AND DEFENSE OF CLAIMS
The Indemnitee agrees promptly to notify the Indemnitors in writing upon
being served with any summons, citation, subpoena, complaint, indictment,
information, or other document relating to any Proceeding or matter which may be
subject to indemnification or advancement of Expenses covered hereunder, but the
failure so to notify the Indemnitors will not relieve the Indemnitors from any
liability that the Indemnitors may have to Indemnitee under this Agreement
unless the Indemnitors are materially prejudiced thereby. With respect to any
such Proceeding as to which Indemnitee notifies the Indemnitors of the
commencement thereof:
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(A) The Indemnitors will be entitled to participate therein at their own
expense.
(B) Except as otherwise provided below, the Indemnitors will be entitled
to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee. After notice from the Indemnitors to Indemnitee of the
Indemnitors' election so to assume the defense thereof, the
Indemnitors will not be liable to Indemnitee under this Agreement for
any legal or other expenses subsequently incurred by Indemnitee in
connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. Indemnitee shall have
the right to employ Indemnitee's own counsel in such Proceeding, but
the fees and disbursements of such counsel incurred after notice from
the Indemnitors of the Indemnitors' assumption of the defense thereof
shall be at the expense of Indemnitee unless (a) the employment by
counsel by Indemnitee has been authorized by the Indemnitors, (b) the
Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Indemnitors and the Indemnitee in the
conduct of the defense of such action, (c) such Proceeding seeks
penalties or other relief against the Indemnitee with respect to which
the Indemnitors could not provide monetary indemnification to the
Indemnitee (such as injunctive relief or incarceration) or (d) the
Indemnitors shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and
disbursements of counsel shall be at the expense of the Indemnitors.
The Indemnitors shall not be entitled to assume the defense of any
Proceeding brought by or on behalf of the Indemnitors, or as to which
Indemnitee shall have reached the conclusion specified in clause (b)
above, or which involves penalties or other relief against Indemnitee
of the type referred to in clause (c) above.
(C) The Indemnitors shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
effected without the Indemnitors' written consent. The Indemnitors
shall not settle any action or claim in any manner that would impose
any penalty or limitation on Indemnitee without Indemnitee's written
consent. Neither the Indemnitors nor Indemnitee will unreasonably
withhold or delay consent to any proposed settlement.
10. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE SUBROGATION
(A) The rights of indemnification and to receive advancement of reasonable
Expenses as provided by this Agreement shall not be deemed exclusive
of any other rights to which the Indemnitee may at any time be
entitled under applicable law, the Declaration of Trust, the Bylaws,
the Operating Partnership's Partnership Agreement, any other
agreement, a vote of shareholders, a resolution of the Board of
Trustees or otherwise, except that any payments otherwise required to
be made by the Indemnitors hereunder shall be offset by any and all
amounts received by the Indemnitee from any other indemnitor or under
one or more liability insurance policies maintained by an indemnitor
or otherwise and shall not be duplicative of any other payments
received by an Indemnitee from the Indemnitors in respect of
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the matter giving rise to the indemnity hereunder. No amendment,
alteration or repeal of this Agreement or any provision hereof shall
be effective as to the Indemnitee with respect to any action taken or
omitted by the Indemnitee as a member of the Board of Trustees prior
to such amendment, alteration or repeal.
(B) To the extent that the Company maintains an insurance policy or
policies providing liability insurance for trustees and officers of
the Company, the Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent
of the coverage available and upon any "Change in Control" the Company
shall use commercially reasonable efforts to obtain or arrange for
continuation and/or "tail" coverage for the Indemnitee to the maximum
extent obtainable at such time.
(C) In the event of any payment under this Agreement, the Indemnitors
shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required
and take all actions necessary to secure such rights, including
execution of such documents as are necessary to enable the Indemnitors
to bring suit to enforce such rights.
(D) The Indemnitors shall not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the
extent that the Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement, or otherwise.
11. CONTINUATION OF INDEMNITY
(A) All agreements and obligations of the Indemnitors contained herein
shall continue during the period the Indemnitee is an officer or a
member of the Board of Trustees of the Company and shall continue
thereafter so long as the Indemnitee shall be subject to any
threatened, pending or completed Proceeding by reason of such
Indemnitee's Corporate Status and during the period of statute of
limitations for any act or omission occurring during the Indemnitee's
term of Corporate Status. This Agreement shall be binding upon the
Indemnitors and their respective successors and assigns and shall
inure to the benefit of the Indemnitee and such Indemnitee's heirs,
executors and administrators.
(B) The Company and the Operating Partnership shall require and cause any
successor (whether direct or indirect by purchase, merger,
consolidation or otherwise) to all, substantially all or a substantial
part, of the business and/or assets of the Company or the Operating
Partnership, by written agreement in form and substance reasonably
satisfactory to the Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that
the Company and the Operating Partnership would be required to perform
if no such succession had taken place.
12. SEVERABILITY
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If any provision or provisions of this Agreement shall be held to be
invalid, illegal, or unenforceable for any reason whatsoever, (i) the validity,
legality, and enforceability of the remaining provisions of this Agreement
(including, without limitation, each portion of any paragraph of this Agreement
containing any such provision held to be invalid, illegal, or unenforceable,
that is not itself invalid, illegal, or unenforceable) shall not in any way be
affected or impaired thereby, and (ii) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of any
paragraph of this Agreement containing any such provision held to be invalid,
illegal, or unenforceable, that is not itself invalid, illegal, or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provisions held invalid, illegal, or unenforceable.
13. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
Notwithstanding any other provisions of this Agreement, the Indemnitee
shall not be entitled to indemnification or advancement of reasonable Expenses
under this Agreement with respect to any Proceeding initiated by such Indemnitee
against the Indemnitors other than a proceeding commenced pursuant to paragraph
8.
14. NOTICE TO THE COMPANY SHAREHOLDERS
Any indemnification of, or advancement of reasonable Expenses, to an
Indemnitee in accordance with this Agreement, if arising out of a Proceeding by
or in the right of the Company, shall be reported in writing to the shareholders
of the Company with the notice of the next Company shareholders' meeting or
prior to the meeting.
15. PAYMENT BY THE OPERATING PARTNERSHIP OF AMOUNTS REQUIRED TO BE PAID OR
ADVANCED BY THE COMPANY
The obligations of the Company and the Operating Partnership under this
Agreement shall be joint and several. The Operating Partnership shall promptly
pay upon demand by the Company or the Indemnitee all amounts the Company is
required to pay or advance hereunder.
16. HEADINGS
The headings of the paragraph of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
17. MODIFICATION AND WAIVER
No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by each of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver.
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18. NOTICES
All notices, requests, demands, and other communications hereunder shall be
in writing and shall be deemed to have been duly given if (i) delivered by hand
and receipted for by the party to whom said notice or other communication shall
have been directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed, if
so delivered or mailed, as the case may be, to the following addresses:
If to the Indemnitee, to the address set forth in the records of the
Company.
If to the Indemnitors, to:
U-Store-It Trust
U-Store-It, L.P.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Fax No.: 440/000-0000
with a copy (which shall not constitute notice) to:
U-Store-It Trust
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxx
Fax No.: 440/000-0000
or to such other address as may have been furnished to the Indemnitee by the
Indemnitors or to the Indemnitors by the Indemnitee, as the case may be.
19. GOVERNING LAW
The parties agree that this Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Maryland, without
application of the conflict of laws principles thereof.
20. NO ASSIGNMENTS
The Indemnitee may not assign its rights or delegate obligations under this
Agreement without the prior written consent of the Indemnitors. Any assignment
or delegation in violation of this Section 20 shall be null and void.
21. NO THIRD PARTY RIGHTS
Nothing expressed or referred to in this Agreement will be construed to
give any person other than the parties to this Agreement any legal or equitable
right, remedy or claim under or
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with respect to this Agreement or any provision of this Agreement. This
Agreement and all of its provisions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and permitted assigns.
22. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together constitute an agreement
binding on all of the parties hereto.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
U-STORE-IT TRUST
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board of Trustees
and Chief Executive Officer
U-STORE-IT, L.P.
By: U-Store-It Trust,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board of Trustees
and Chief Executive Officer
INDEMNITEE:
/s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxxx
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