Exhibit 10.47
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this “Agreement”) is entered into
as of December 11, 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 Timothy M. Martin (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
