EXHIBIT 10.29
FORM OF CONTRIBUTOR INDEMNITY AGREEMENT
This Contributor Indemnity Agreement (the "Agreement") is
entered into as of __________, 2004, by and among U-Store-It, L.P., a Delaware
limited partnership (the "Operating Partnership"), and Xxxxxx X. Xxxxxxx, Xxxxx
X. Xxxxxxx, Xxxx X. Amsdell, Amsdell, Amsdell Holdings I, Inc. and Xxxxxx X.
Xxxxxxx, Trustee (collectively, the "Indemnitees").
WHEREAS, (i) the Operating Partnership and its general partner
U-Store-It Trust, a Maryland real estate investment trust (the "REIT"), are
engaging in various related transactions as more fully described in the
registration statement on Form S-11, as it may be amended from time to time,
covering the registration of the common shares, par value $0.01 per share, of
the REIT (the "Common Shares") under the Securities Act of 1933, as amended, and
(ii) the REIT will effect an initial public offering of its Common Shares and
contribute the proceeds therefrom for units of partnership interest in the
Operating Partnership (the "IPO," and together with the other transactions
described above, the "IPO Transactions");
WHEREAS, the Indemnitees have provided environmental indemnities
and other similar undertakings to lenders in connection with mortgage loans
secured by facilities being contributed to the Operating Partnership in
connection with the IPO Transactions, including, without limitation, the
indemnities and undertakings listed on Schedule 1 hereto;
WHEREAS, the Operating Partnership has agreed that, if it is
unsuccessful in obtaining a release of all personal guarantees previously made
by the Indemnitees with respect to the properties and other assets being
contributed in connection with the IPO Transactions, the Operating Partnership
will indemnify the Indemnitees with respect to any loss actually incurred by the
Indemnitees to the beneficiaries of the personal guarantees pursuant to such
guarantees; and
WHEREAS, the parties desire to enter into this Agreement to
memorialize the indemnity obligation described above.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agree as
follows:
Section 1. Indemnification. The Operating Partnership hereby
agrees to indemnify, defend and hold harmless the Indemnitees and their agents,
assigns and successors from and against all losses, claims, damages, fines,
causes of action, judgments, lawsuits, assessments, costs, expenses (including
but not limited to reasonable attorneys' fees and court costs) and other
liabilities, including liabilities for taxes, penalties, interest, and amounts
paid in settlement (collectively "Liabilities") actually incurred by the
Indemnitees to the beneficiaries of the personal guarantees arising out of,
relating to, or resulting from, the failure of the Operating Partnership to
obtain a release of all personal
guarantees previously made by the Indemnitees with respect to the property and
other assets being contributed pursuant to the IPO Transactions. The Operating
Partnership also agrees to reimburse the Indemnitees for all expenses that they
incur in connection with successfully enforcing their rights under this
Agreement.
Section 2. Indemnification Procedures. The Indemnitees shall
notify the Operating Partnership promptly in writing of indemnifiable
Liabilities ("Indemnifiable Claim") under Section 1 of this Agreement after
receiving notice or being informed of the existence thereof. The Operating
Partnership shall assume, at its cost and expense, the sole defense of such
Indemnifiable Claim through counsel selected by the Operating Partnership and
reasonably acceptable to the Indemnitees. The Indemnitees shall cooperate fully
with the Operating Partnership in such defense, including making relevant
documents available and providing witnesses to testify at any deposition, trial,
hearing, arbitration, or other proceeding. The Indemnitees may, at their option
and expense, participate in the Operating Partnership's defense. However, the
Operating Partnership shall maintain control of such defense, including any
decision as to settlement, provided that in the event that the Operating
Partnership does not assume the defense on a timely basis or reasonably maintain
the defense, then, without prejudice to any other rights and remedies available
to the Indemnitees under this Agreement, the Indemnitees may take over such
defense with counsel of their choosing at the Operating Partnership's cost and
expense. In the event that there arises a conflict of interest, which, under
applicable principles of legal ethics, prevents a single legal counsel from
representing both the Indemnitees and the Operating Partnership, the Indemnitees
may take over their defense with counsel of their choosing at the Operating
Partnership's cost and expense. The Operating Partnership shall not be liable
for any compromise or settlement made by the Indemnitees without the consent of
the Operating Partnership.
Section 3. Remedies Not Exclusive. The indemnification provided
to the Indemnitees by the Operating Partnership, or granted pursuant to the
provisions of this Agreement, shall not be deemed exclusive of any other rights
to which the Indemnitees may be entitled. Each party's right to indemnification
by the other party shall be enforceable in any court of competent jurisdiction.
Section 4. Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provisions of this Agreement, which shall remain in full force and
effect. If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against its regulatory policy, the remainder of
the terms, provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
Section 5. Modifications. This Agreement may not be amended or
modified except in writing, validly executed and delivered by each party hereto.
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Section 6. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Ohio, without
reference to principles of conflicts of laws.
Section 7. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the undersigned have executed and delivered
this Agreement as of the date first written above.
U-STORE-IT, L.P.
By: U-Store-It Trust
its general partner
By:
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Name: Xxxxxx X. Xxxxxx
Title: President and Chief Financial Officer
THE INDEMNITEES
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Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Amsdell and Amsdell
By: _______________________
Name: ____________________
Title: _____________________
Amsdell Holdings I, Inc.
By: _______________________
Name: ____________________
Title: _____________________
Xxxxxx X. Xxxxxxx, Trustee
By: _______________________
Name: ____________________
Title: _____________________
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