Exhibit 99(D)(10)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT between STORAGE USA, INC., a
Tennessee corporation operating as a real estate investment trust (the
"Company"), SUSA PARTNERSHIP, L.P., a Tennessee limited partnership of which the
Company is the general partner ("SUSA"), and certain holders (the "Limited
Partners") of units of limited partnership interests (the "Units") in SUSA who
are signatories to this Agreement, recites and provides as follows:
A. The Units have been issued by SUSA to the Limited Partners in
consideration of the transfer to SUSA of certain real estate assets of the
Limited Partners.
B. Pursuant to the Second Restated and Amended Agreement of Limited
Partnership of SUSA, dated as of September 21, 1994, as amended (the
"Partnership Agreement"), the Limited Partners have the right, under certain
circumstances, to redeem the Units for cash or, at the option of SUSA or the
Company, shares of the common stock of the Company (the "Common Stock").
C. As further consideration for the assets transferred by the Limited
Partners to SUSA, the Company desires to provide for the registration of the
Common Stock under the Securities Act of 1933, as amended (the "Securities
Act").
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and SUSA agree with each of the Limited Partners as follows:
1. Shelf Registration of the Common Stock.
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Within 90 days following the first date upon which the Units owned by
any Limited Partner may be redeemed for Common Stock, the Company agrees to file
with the Securities and Exchange Commission (the "Commission"), a shelf
registration statement on Form S-3 under Rule 415 of the Securities Act (a
"Registration Statement"), or any similar rule that may be adopted by the
Commission, with respect to all of the shares of Common Stock that may be issued
upon redemption of such Units pursuant to Section 8.05 of the Partnership
Agreement ("Redemption Shares"). The Company will use its best efforts to have
the Registration Statement declared effective under the Securities Act.
Notwithstanding the foregoing, the Company shall not be required to file a
Registration Statement with respect to any Redemption Shares at any time after
the Company shall have delivered to the Limited Partner holding such Redemption
Shares an opinion of counsel reasonably satisfactory to such Limited Partner to
the effect that all of the Redemption Shares may be sold without such
registration. The Company need not file a separate Registration Statement, but
may file one Registration Statement covering Redemption Shares held by more than
one Limited Partner. The Company further agrees to supplement or make amendments
to each Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form utilized by the Company or by
the Securities Act or rules and regulations thereunder for such Registration
Statement.
2. Black-Out Period.
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(a) Following the effectiveness of a Registration Statement (and the
filings with any state securities commissions), the Company may direct the
Limited Partner(s) to suspend sales of the Redemption Shares for such times as
the Company reasonably may determine are necessary and advisable, including upon
the occurrence of any of the following events: (i) an underwritten offering by
the Company where the Company is advised by the managing underwriter(s) for such
underwritten offering that sale of Redemption Shares under the Registration
Statement would have a material adverse effect on the offering; or (ii) pending
negotiations relating to, or consummation of, a transaction or the occurrence of
an event (x) that would require additional disclosure of material information by
the Company in the Registration Statement (or such filings), (y) as to which the
Company has a bona fide business purpose for preserving confidentiality, or (z)
that renders the Company unable to comply with Commission requirements, in each
case under circumstances that would make it impractical or inadvisable to cause
the Registration Statement (or such filings) to become effective or to promptly
amend or supplement the Registration Statement on a post-effective basis, as
applicable (a "Suspension Event"); provided, however, that any such Suspension
Event shall not exceed 120 days during any 12 month period.
(b) In the case of a Suspension Event, the Company shall give written
notice (a "Suspension Notice") to the Limited Partners to suspend sales of the
Redemption Shares so that the Company may correct or update the Registration
Statement (or such filings); provided, however, that such suspension shall
continue only for so long as the Suspension Event or its effect is continuing.
No Limited Partner shall effect any sales of the Redemption Shares pursuant to
such Registration Statement (or such filings) at any time after it has received
a Suspension Notice from the Company. If so directed by the Company, the Limited
Partners will deliver to the Company all copies of the prospectus covering the
Redemption Shares held by them at the time of receipt of the Suspension Notice.
The Limited Partners may recommence effecting sales of the Redemption Shares
pursuant to the Registration Statement (or such filings) following further
notice to such effect (an "End of Suspension Notice") from the Company, which
End of Suspension Notice shall be given by the Company promptly following the
conclusion of any Suspension Event.
3. Allocation of Expenses. SUSA shall pay all expenses in connection
with the Shelf Registration, including without limitation (i) registration fees,
(ii) printing expenses, (iii) accounting and legal fees and expenses of the
accountants and attorneys engaged by SUSA or the Company, provided, however,
SUSA shall not be liable for (A) any commissions to any broker attributable to
the sale of Redemption Shares, (B) any fees or expenses incurred by holders of
Redemption Shares in connection with such registration which, according to the
written instructions of any regulatory authority, SUSA is not permitted to pay,
and (C) any transfer taxes or fees in connection with the sale of the Redemption
Shares.
4. Listing on Securities Exchange. If the Company shall list or
maintain the listing of any shares of Common Stock on any securities exchange or
national market system, it will at its expense and as necessary to permit the
registration and sale of the Redemption Shares hereunder, list thereon, maintain
and, when necessary, increase such listing to include such Redemption Shares.
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5. General Provisions.
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a. Notices. All communications required or permitted under this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally or upon deposit in the United States mail, registered,
postage prepaid return receipt requested, as follows:
if to the Company or SUSA:
Storage USA, Inc.
00000 Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxxx
copy to:
Xx. Xxxxxxx X. Xxxxx
Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
if to the Limited Partners:
at their respective addresses of record as maintained on the books of
SUSA.
b. Survival of Rights. This Agreement shall be binding upon and
inure to the benefit of the Limited Partners, the Company and SUSA and their
respective legal representatives, successors, transferees and assigns.
c. Severability. If any provision of this Agreement shall be
declared illegal, invalid, or unenforceable in any jurisdiction, then such
provision shall be deemed to be severable from this Agreement (to the extent
permitted by law) and in any event such illegality, invalidity or
unenforceability shall not affect the remainder hereof.
d. Entire Agreement. This Agreement constitutes the entire
agreement of the Limited Partners, the Company and SUSA and supersedes all prior
written agreements and prior and contemporaneous oral agreements, understandings
and negotiations with respect to the subject matter hereof.
e. Pronouns and Plurals. When the context in which words are used
in the Agreement indicates that such is the intent, words in the singular number
shall include the plural and the masculine gender shall include the neuter or
female gender as the context may require.
f. Headings. The section headings in this Agreement are for
convenience only and shall not be used in construing the scope of this Agreement
or any particular Article.
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g. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy and all of
which together shall constitute one and the same instrument binding on all
parties hereto, notwithstanding that all parties shall not have signed the same
counterpart.
h. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee.
i. Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
IN WITNESS WHEREOF, the parties hereto have hereunder affixed their
signatures, as of the respective dates set forth below.
STORAGE USA, INC.
Dated:____________________ By:____________________________
Name:
Title:
SUSA PARTNERSHIP, L.P.
Dated:____________________ By:_____________________________
Name:
Title:
LIMITED PARTNERS:
Dated:____________________ _____________________________
Name:
Title:
Dated:____________________ _____________________________
Name:
Title:
Dated:_____________________ _____________________________
Name:
Title:
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