Exhibit 10.83
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (this
“Agreement”) is entered into as of February 26, 2009,
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
Jeffrey P. Foster (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 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 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.
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
