Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of September 4, 2014 to be effective at 11:59 p.m. PDT on August 31, 2014, is made and entered into by and among Strategic Storage Trust, Inc., a Maryland corporation (the “Company”), Strategic Storage Holdings, LLC, a Delaware limited liability company (“SSH”), Strategic Storage Advisor, LLC, a Delaware limited liability company (the “SS Advisor”), USA Self Storage Advisor LLC, a Delaware limited liability company (the “REIT I Advisor”), USA SS REIT II Advisor, LLC, a Delaware limited liability company (the “REIT II Advisor”) and Churchill TRI, LLC, a Nevada limited liability company (“CS”). SSH, SS Advisor, REIT I Advisor, REIT II Advisor, CS and any other Person holding OP Units and becoming party to this Agreement is each referred to herein as a “Holder” and collectively as the “Holders.” Capitalized terms not otherwise defined herein shall have the meanings ascribed to them inSection 1.
WHEREAS, the Company, Strategic Storage Operating Partnership, L.P., a Delaware limited partnership (“SS OP”) and SSH have entered into a contribution agreement (the “SSH Contribution Agreement”), pursuant to which SSH has contributed all of its right, title and interest to certain assets more specifically described in the Contribution Agreement to SS OP in exchange for cash and units of limited partnership interest of SS OP (“Partnership Units”) redeemable for cash or exchangeable, at the Company’s option, for shares of the Company’s common stock (“Common Stock”), in accordance with the terms of the Partnership Agreement; and
WHEREAS, the Company, SS OP and CS have entered into a contribution agreement (the “CS Contribution Agreement”) pursuant to which CS has contributed all of its right, title and interest in the TI Interest (as defined in the CS Contribution Agreement) to SS OP in exchange for cash and OP Units; and
WHEREAS, SS OP, SS Advisor, REIT I Advisor, REIT II Advisor, USA Self Storage Operating Partnership, LP, a Maryland limited partnership (the “REIT I OP”) and USA SS REIT II Operating Partnership, L.P., a Delaware limited partnership (the “REIT II OP”) have entered into a Limited Partner Interest Contribution Agreement (the “LPI Contribution Agreement” and together with the SSH Contribution Agreement and the CS Contribution Agreement, the “Contribution Agreements”) pursuant to which: (i) SS Advisor has contributed its special limited partner interest in SS OP to SS OP; (ii) REIT I Advisor has contributed its special limited partner interest in SS OP and its Class B Limited Partnership Units in REIT I OP to SS OP; and (iii) REIT II Advisor has contributed its special limited partner interest in SS OP and its Class B Limited Partnership Units in REIT II OP to SS OP, each in exchange for Partnership Units and Class B Limited Partnership Units in SS OP (the “Class B Units” and collectively with the Partnership Units, the “OP Units”), which Class B Units are convertible into Partnership Units in accordance with their terms.
WHEREAS, the Company desires to enter into this Agreement with the Holders in order to grant the Holders the registration rights contained herein; and
WHEREAS, each of SSH, CS, SS Advisor, REIT I Advisor and REIT II Advisor contributed its portion of the various assets contributed pursuant to the Contribution Agreements in consideration of receiving, among other things, the registration rights set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms shall have the following meanings:
“Affiliate” shall mean, when used with reference to a specified Person, (i) any Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the specified Person; (ii) any Person who, from time to time, is a member of the immediate family of a specified Person; (iii) any Person who, from time to time, is an officer or director or manager of a specified Person; or (iv) any Person who, directly or indirectly, is the beneficial owner of 50% or more of any class of equity securities or other ownership interests of the specified Person, or of any Person of which the specified Person is directly or indirectly the owner of 50% or more of any class of equity securities or other ownership interests.
“Agreement” shall mean this Registration Rights Agreement as originally executed and as amended, supplemented or restated from time to time.
“Board” shall mean the Board of Directors of the Company and any successor governing body of the Company or any successor of the Company.
“Business Day” shall mean each day other than a Saturday, a Sunday or any other day on which banking institutions in the State of New York are authorized or obligated by law or executive order to be closed.
“Class B Units” shall have the meaning set forth in the Recitals hereto.
“Common Stock” shall have the meaning set forth in the Recitals hereto.
“Commission” shall mean the United States Securities and Exchange Commission and any successor thereto.
“Company” shall have the meaning set forth in the introductory paragraph hereof and includes the Company’s successors by merger, acquisition, reorganization or otherwise.
“Continuous Offering Registration Statement” shall have the meaning set forth inSection 2(a) hereof.
“Contribution Agreements” shall have the meaning set forth in the Recitals hereto.
“Control” (including the terms “Controlling,” “Controlled by” and “under common Control with”) shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person through the ownership of Voting Power, by contract or otherwise.
“CS Contribution Agreement” shall have the meaning set forth in the Recitals hereto.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended (or any corresponding provision of succeeding law), and the rules and regulations thereunder.
“Holder” and “Holders” have the meanings set forth in the introductory paragraph above.
“Listing Date” shall mean the date upon which the Company’s Common Stock becomes available for trading pursuant to the initial listing of such Common Stock on a “national securities exchange”, as such term is defined under the Exchange Act.
“LPI Contribution Agreement” shall have the meaning set forth in the Recitals hereto.
“OP Units” shall have the meaning set forth in the Recitals hereto.
“Partnership Agreement” means the Third Amended and Restated Limited Partnership Agreement of SS OP, entered into on September 4, 2014 to be effective at 11:59 p.m. PDT on August 31, 2014, as the same may be amended, modified or restated from time to time.
“Partnerships Units” shall have the meaning set forth in the Recitals hereto.
“Person” shall mean any individual, partnership, corporation, limited liability company, joint venture, association, trust, unincorporated organization or other governmental or legal entity.
“Piggy-Back Registration” shall have the meaning set forth inSection (b)(i) hereof.
“Registrable Securities” shall mean, at any time, a class of equity securities of the Company or of a successor to the entire business of the Company which (i) are the shares of Common Stock that may be acquired by each Holder in connection with the exercise by such Holder of the exchange rights associated with the OP Units and (ii) are of a class of securities that are listed for trading on a national securities exchange;provided,however, such
Registrable Securities shall cease to be Registrable Securities when (A) a registration statement with respect to the sale of such Registrable Securities shall have been declared effective by the Commission and all such Registrable Securities shall have been disposed of in accordance with such registration statement, (B) such Registrable Securities shall have been sold in accordance with Rule 144 (or any successor provision) under the Securities Act, (C) such Registrable Securities have ceased to be outstanding, or (D) such Registrable Securities have otherwise been transferred in a transaction that constitutes a sale thereof under the Securities Act, the Company has delivered to the Holder’s transferee a new certificate or other evidence of ownership for such shares not bearing the Securities Act restricted stock legend and such shares may subsequently be resold or otherwise transferred by such transferee without registration under the Securities Act.
“Registration Expenses” shall mean (i) the fees and disbursements of counsel and independent public accountants for the Company incurred in connection with the Company’s performance of or compliance with this Agreement, including the expenses of any special audits or “comfort” letters required by or incident to such performance and compliance, and any premiums and other costs of policies of insurance obtained by the Company against liabilities arising out of the sale of any securities and (ii) all registration, filing and stock exchange fees, all fees and expenses of complying with securities or “blue sky” laws, all fees and expenses of custodians, transfer agents and registrars, all printing expenses, messenger and delivery expenses;provided,however, Registration Expenses shall not include any out-of-pocket expenses of the Holders, transfer taxes, underwriting or brokerage commissions or discounts associated with effecting any sales of Registrable Securities that may be offered, or legal expenses of any Holder or group of Holders, which expenses shall be borne by each Holder of Registrable Securities on apro rata basis with respect to the Registrable Securities so sold.
“REIT I Advisor” has the meaning set forth in the introductory paragraph above.
“REIT I OP”shall have the meaning set forth in the Recitals hereto.
“REIT II Advisor” has the meaning set forth in the introductory paragraph above.
“REIT II OP” shall have the meaning set forth in the Recitals hereto.
“Rule 144” shall mean Rule 144 promulgated by the Commission under the Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as amended (or any successor corresponding provision of succeeding law), and the rules and regulations thereunder.
“SS Advisor” has the meaning set forth in the introductory paragraph above.
“SSH Contribution Agreement” shall have the meaning set forth in the Recitals hereto.
“SS OP” has the meaning set forth in the Recitals hereto.
“Voting Power” shall mean voting securities or other voting interests ordinarily (and apart from rights accruing under special circumstances) having the right to vote in the election of board members or Persons performing substantially equivalent tasks and responsibilities with respect to a particular entity.
Section 2. Continuous Offering Registration; Piggy-Back Registration.
(a)Continuous Offering Registration.
(i) The Company agrees to prepare and file with the Commission, not earlier than the Listing Date and no later than six months following the Listing Date, a registration statement under Rule 415 of the Securities Act or any successor rule thereto for the offering on a continuous or delayed basis in the future covering resales of the Registrable Securities (the “Continuous Offering Registration Statement”), and will use commercially reasonable efforts to cause such Continuous Offering Registration Statement to be
declared effective by the Commission as soon as practicable thereafter. The Continuous Offering Registration Statement shall be on an appropriate form, as determined by the Company, and the Continuous Offering Registration Statement and any form of prospectus included therein (or prospectus supplement relating thereto) shall reflect the plan of distribution or method of sale as the Holders may from time to time specify in a notice to the Company. In addition to any other rights and remedies the Holders may have, in the event that the Company fails to file, or if filed fails to maintain the effectiveness of, a Continuous Offering Registration Statement, the Holders may participate in a Piggy-Back Registration pursuant toSection 2(b) hereof, subject to the limitations set forth herein;provided that, if and so long as a Continuous Offering Registration Statement is on file and effective, then the Company shall have no obligation to allow participation in a Piggy-Back Registration.
(ii)Effectiveness. The Company shall use commercially reasonable efforts to keep the Continuous Offering Registration Statement continuously effective for the period beginning on the date on which the Continuous Offering Registration Statement is declared effective by the Commission and ending on the date that all of the Registrable Securities registered under the Continuous Offering Registration Statement cease to be Registrable Securities. During the period that the Continuous Offering Registration Statement is effective, the Company shall supplement or make amendments to the Continuous Offering Registration Statement, as required by the Securities Act or other law, including to reflect any specific plan of distribution or method of sale, and shall use its commercially reasonable efforts to have such supplements and amendments declared effective, if required, as soon as practicable after filing.
(b)Piggy-Back Registration.
(i) Subject toSection 2(a) hereof, if the Company proposes to file a registration statement under the Securities Act with respect to an underwritten equity offering by the Company for its own account or for the account of any of its security holders of any class of security (other than (1) a registration statement on Form S-4 or S-8 (or any substitute form that may be adopted by the Commission), (2) a registration statement filed in connection with an exchange offer or offering of securities solely to the Company’s existing securities holders, or (3) any registration statement filed prior to the date which is six months following the Listing Date), then the Company shall give written notice of such proposed filing to the Holders as soon as practicable (but in no event less than ten (10) days before the anticipated filing date), and such notice shall offer the Holders the opportunity to register such number of shares of Registrable Securities as each such Holder may request (a “Piggy-Back Registration”); provided, however, that in no event shall the Company be required to register in a Piggy-Back Registration any Registrable Securities registered pursuant to an effective Continuous Offering Registration Statement.
(ii)Reduction of Offering. Notwithstanding anything contained herein, if in the opinion of the managing underwriter or underwriters of an offering described inSection 2(b)(i) hereof, the (1) size of the offering that the Holders, the Company and such other Persons intend to make or (2) kind of securities that the Holders, the Company and/or any other Persons intend to include in such offering are such that the success of the offering would be adversely affected by inclusion of the Registrable Securities requested to be included, then (A) if the size of the offering is the basis of such underwriter’s opinion, the amount of Registrable Securities to be offered for the accounts of Holders shall be reducedpro rata (according to the Registrable Securities proposed for registration) to the extent necessary to reduce the total amount of Registrable Securities to be included in such offering to the amount recommended by such managing underwriter or underwriters;provided that, if the securities are being offered for the account of other Persons as well as the Company, then with respect to the Registrable Securities intended to be offered by Holders, the proportion by which the amount of such class of securities intended to be offered by Holders is reduced shall not exceed the proportion by which the amount of such class of the securities intended to be offered by such other Persons is reduced; and (B) if the combination of the securities to be offered is the basis of such underwriter’s opinion, (x) the Registrable Securities to be included in such offering shall be reduced as described in clause (A) above (subject to the proviso in clause (A)) or (y) if the actions described in clause (x) would, in the opinion of the managing underwriter or underwriters, be insufficient to substantially eliminate the adverse effect that inclusion of the Registrable Securities requested to be included would have on such offering, such Registrable Securities will be excluded from such offering.
Section 3. Black-Out Periods and Restrictions on Transfer.
(a) Notwithstanding anything herein to the contrary, the Company shall have the right, exercisable from time to time by the Board, to require the Holders not to sell pursuant to a Continuous Offering Registration Statement or similar document under the Securities Act filed pursuant to Section 2 or to suspend the effectiveness thereof if at the time of the delivery of such notice the Board reasonably and in good faith has determined that such registration and offering, continued effectiveness or sale would interfere materially with any material transaction involving the Company; provided, however, that in no event shall any black-out period extend for an aggregate period of more than 60 days in any 12-month period. The Company, as soon as practicable, shall (i) give the Holders prompt written notice in the event that the Company has suspended sales of Registrable Securities pursuant to this Section 3, (ii) give the Holders prompt written notice of the completion of such material transaction and (iii) promptly file any amendment necessary to any Continuous Offering Registration Statement or prospectus for the Registrable Securities connection with the completion of such material transaction.
(b) Each Holder agrees in connection with the redemption of OP Units in exchange for Registrable Securities, that, upon receipt of any notice from the Company of the happening of any event of the kind described in this Section 3, such Holder will forthwith discontinue its disposition of Registrable Securities pursuant to the Continuous Offering Registration Statement relating to such Registrable Securities until such Holder’s receipt of the notice of completion of such material transaction.
(c) The Holders further acknowledge and agree that their respective OP Units and the Registrable Securities for which they may be exchanged are subject to the restrictions on transfer contained in Section 6.7 of the SSH Contribution Agreement, Section 6.7 of the CS Contribution Agreement and Section 14 of the LPI Contribution Agreement as such provisions are applicable to the respective Holders in accordance with the terms of the Contribution Agreements.
Section 4. Registration Procedures.
(a) In connection with the filing of the Continuous Offering Registration Statement as provided by this Agreement, until the Registrable Securities cease to be Registrable Securities, the Company shall use its best efforts to, as expeditiously as practicable:
(i) furnish to each Holder of the Registrable Securities being registered, without charge, such number of conformed copies of such Continuous Offering Registration Statement and of each such amendment and supplement thereto (in each case including all exhibits) other than those which are being incorporated into such Continuous Offering Registration Statement by reference, such number of copies of the prospectus contained in such Continuous Offering Registration Statement (including each complete prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act in conformity with the requirements of the Securities Act, and such other documents, including documents incorporated by reference, as such Holder may request;
(ii) register or qualify all Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as the Holders and the underwriters of the Registrable Securities being registered, if any, shall request, but only to the extent legally required to do so, to keep such registration or qualification in effect for so long as such Continuous Offering Registration Statement remains in effect, to allow the Holders to consummate the disposition in such jurisdiction of the securities owned by the Holders;
(iii) notify the Holders at any time when the Company becomes aware during any period during which a prospectus for Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Continuous Offering Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, and promptly prepare and file a supplement or prepare, file and obtain effectiveness of a post-effective amendment to the Continuous Offering Registration Statement and, at the request of the Holders, furnish to the Holders a reasonable number of copies of a supplement to, or an amendment of, such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(iv) comply or continue to comply in all material respects with the Securities Act and the Exchange Act and with all applicable rules and regulations of the Commission thereunder so as to enable any Holder to sell its Registrable Securities pursuant to the Continuous Offering Registration Statement;
(v) provide a transfer agent and registrar for all Registrable Securities covered by such Continuous Offering Registration Statement not later than the effective date of such Continuous Offering Registration Statement;
(vi) cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold (if the Registrable Securities are then certificated) and not bearing any Securities Act legend; and enable certificates for such Registrable Securities to be issued for such number of shares and registered in such names as the Holders may reasonably request in writing at least two Business Days prior to any sale of Registrable Securities;
(vii) list all Registrable Securities covered by such Continuous Offering Registration Statement on any securities exchange or national quotation system on which any such class of securities is then listed or quoted and cause to be satisfied all requirements and conditions of such securities exchange or national quotation system to the listing or quoting of such Registrable Securities that are reasonably within the control of the Company including, without limitation, registering the applicable class of Registrable Securities under the Exchange Act, if appropriate, and using commercially reasonable efforts to cause such registration to become effective pursuant to the rules of the Commission;
(viii) in connection with any sale, transfer or other disposition by any Holder of any Registrable Securities pursuant to Rule 144, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold and not bearing any Securities Act legend, and enable certificates for such Registrable Securities to be for such number of shares and registered in such name as the Holders may reasonably request in writing at least two Business Days prior to any sale of Registrable Securities pursuant to Rule 144;
(ix) notify the Holders, promptly after it shall receive notice thereof, of the time when such Continuous Offering Registration Statement, or any post-effective amendments to the Continuous Offering Registration Statement, shall have become effective, or a supplement to any prospectus forming part of such Continuous Offering Registration Statement has been filed or when any document is filed with the Commission which would be incorporated by reference into the prospectus;
(x) notify the Holders of any request by the Commission for the amendment or supplement of such Continuous Offering Registration Statement or prospectus or for additional information; and
(xi) advise the Holders, promptly after it shall receive notice or obtain actual knowledge thereof, of (A) the issuance of any stop order, injunction or other order or requirement by the Commission suspending the effectiveness of such Continuous Offering Registration Statement or the initiation or threatening of any proceeding for such purpose and use commercially reasonable efforts to prevent the issuance of any stop order, injunction or other order or requirement or to obtain its withdrawal, if such stop order, injunction or other order or requirement should be issued, (B) the suspension of the registration of the subject shares of the Registrable Securities in any state or other jurisdiction and (C) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension.
(b) In connection with the filing of any Continuous Offering Registration Statement covering Registrable Securities, each Holder shall furnish in writing to the Company such information regarding such Holder (and any of his, her or its Affiliates), the intended method of distribution of such Registrable Securities and such other
information requested by the Company as is necessary or advisable for inclusion in the Continuous Offering Registration Statement relating to such offering pursuant to the Securities Act, including, without limitation, any information required by Item 507 of Regulation S-K promulgated under the Securities Act as may be amended from time to time.
(c) Each Holder agrees by acquisition of the Registrable Securities that (i) upon receipt of any notice from the Company of the happening of any event of the kind described inSection 4(a)(iii) hereof, such Holder will forthwith discontinue its disposition of Registrable Securities pursuant to the Continuous Offering Registration Statement until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated bySection 4(a)(iii) hereof; (ii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (A) ofSection 4(a)(xi) hereof, such Holder will discontinue its disposition of Registrable Securities pursuant to such Continuous Offering Registration Statement until such Holder’s receipt of the notice described in clause (C) ofSection 4(a)(xi) hereof; and (iii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (B) ofSection 4(a)(xi) hereof, such Holder will discontinue its disposition of Registrable Securities pursuant to such Continuous Offering Registration Statement in the applicable state jurisdiction(s) until such Holder’s receipt of the notice described in clause (C) ofSection 4(a)(xi) hereof.
Section 5. Indemnification.
(a)Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder, its members, partners, officers, directors, managers, trustees, stockholders, employees, retained professionals, agents and investment advisers, each underwriter, broker or any other Person on behalf of such Holder, and each Person, if any, who Controls such Holder, together with the members, partners, officers, directors, managers, trustees, stockholders, employees, retained professionals, agents and investment advisers of such Controlling Person, against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees), to which a Holder or any such indemnitees may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities and expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of, or based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities were registered and sold under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or (ii) any violation or alleged violation of the Securities Act or state securities laws or rules thereunder by the Company that relate to any action or inaction by the Company in connection with such registration statement, and the Company will reimburse such Person for any reasonable legal or any other expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, liability, action or proceedings;provided,however, that the Company shall not be liable to, or required to indemnify, any Holder under thisSection 5(a) in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon, an untrue statement or omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any such Holder or on such Holder’s behalf. The indemnity contained in thisSection 5(a) shall survive the transfer of such securities by a Holder made pursuant toSection 7(h) hereof.
(b)Indemnification by the Holder. Each Holder agrees to indemnify and hold harmless the Company, each present or past member of the Board, each past or present officer, employee, retained professional, agent and investment adviser, each past or present external advisor or manager, of the Company, underwriter, broker or other Person acting on behalf of the Holder, and each other Person, if any, who Controls any of the foregoing, together with the members, partners, officers, directors, managers, trustees, stockholders, employees, retained professionals, agents and investment advisers of such Controlling Person, against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees), to which the Company or any such indemnitees may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities and expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon (i) any untrue statement of a material fact in or omission to state a material fact from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment
or supplement thereto, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon information provided by such Holder or on such Holder’s behalf, or (ii) any violation of the Securities Act or state securities laws or rules thereunder by such Holder. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such Board member, officer, employee, agent, investment adviser or Controlling Person and shall survive the transfer of such securities by any Holder. The obligation of a Holder to indemnify will be several and not joint, among the Holders of Registrable Securities and shall be limited to the net proceeds (after underwriting fees, commissions or discounts) actually received by such Holder from the sale of Registrable Securities pursuant to such registration statement.
(c)Notices of Claims, Etc. Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding paragraphs of thisSection 5, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give prompt written notice to the latter of the commencement of such action;provided,however, that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding paragraphs of thisSection 5, except to the extent that the indemnifying party is actually and materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, the indemnifying party shall be entitled to assume the defense thereof, for itself, if applicable, and any such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to the indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof; provided, that if (i) any indemnified party shall have reasonably concluded that there may be one or more legal or equitable defenses available to such indemnified party which are additional to or conflict with those available to the indemnifying party, or that such claim or litigation involves or could have an effect upon matters beyond the scope of the indemnity provided hereunder, or (ii) such action seeks an injunction or equitable relief against any indemnified party or involves actual or alleged criminal activity, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party without such indemnified party’s prior written consent (but, without such consent, shall have the right to participate therein with counsel of its choice) and such indemnifying party shall reimburse such indemnified party and any Person controlling such indemnified party for that portion of the fees and expenses of any counsel retained by the indemnified party which is reasonably related to the matters covered by the indemnity provided hereunder. The indemnifying party shall not, without the consent of the indemnified party, consent to any judgment or settlement that (i) does not contain a full and unconditional release of the indemnified party from all liability concerning any claim or litigation; (ii) includes a statement about or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party; or (iii) commits any indemnified party to take, or hold back from taking, any action.
(d)Indemnification Payments. To the extent that the indemnifying party does not assume the defense of an action brought against the indemnified party as provided inSection 5(c) hereof, or assumes such defense and thereafter does not diligently pursue the same to conclusion the indemnified party (or parties if there is more than one) shall be entitled to the reasonable legal expenses of common counsel for the indemnified party (or parties). In such event, however, the indemnifying party will not be liable for any settlement effected without the written consent of such indemnifying party, which consent shall not be unreasonably withheld. The indemnification required by thisSection 5 shall be made by periodic payments of the amount thereof during the course of an investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred.
(e)Contribution. If, for any reason, the foregoing indemnity is unavailable, or is insufficient to hold harmless an indemnified party, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of the expense, loss, damage or liability, (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other (determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission) or (ii) if the allocation provided by subclause (i) above is not permitted by applicable law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in the proportion as is appropriate to reflect not only the relative fault of the indemnifying party and the indemnified party, but also the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other, as well as any other relevant equitable
considerations. No indemnified party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any indemnifying party who was not guilty of such fraudulent misrepresentation.
Section 6. Covenants Relating To Rule 144. In compliance with either Section 13 or 15(d) of the Exchange Act, the Company covenants that it will file any reports required to be filed by it under the Securities Act and the Exchange Act and that it will take such further action as any Holder may reasonably request, all to the extent required from time to time to enable Holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time to time or (ii) any similar rule or regulation hereafter adopted by the Commission.
Section 7. Miscellaneous.
(a)Termination; Survival. The rights of each Holder under this Agreement shall terminate on the earlier of (i) the date on which such Holder no longer holds any Registrable Securities, and (ii) the date that all of the Registrable Securities held by such Holder may be sold during any three-month period in a single transaction or series of transactions without volume limitations under Rule 144 (or any successor provision) under the Securities Act. Notwithstanding the foregoing, the obligations of the parties underSection 5 hereof and paragraphs (d), (e) and (g) of thisSection 7 shall survive the termination of this Agreement.
(b)Expenses. All Registration Expenses incurred in connection with any Continuous Offering Registration Statement underSection 2 hereof shall be borne by the Company, whether or not any Continuous Offering Registration Statement related thereto becomes effective.
(c)Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to each of the other parties.
(d)Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland.
(e)Waiver Of Jury Trial; Forum. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN. EACH PARTY SHALL BRING ANY ACTION AGAINST ANY OTHER PARTY IN CONNECTION WITH THIS AGREEMENT IN A FEDERAL OR STATE COURT LOCATED IN ORANGE COUNTY, CALIFORNIA, CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY RIGHT TO HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE GROUND OF IMPROPER VENUE OR INCONVENIENT FORUM.
(f)Prior Agreement; Construction; Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties, and all such prior agreements and understandings are merged herein and shall not survive the execution and delivery hereof.
(g)Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent, postage prepaid, by registered, certified or express mail or reputable overnight courier service or by telecopier and shall be deemed given when so delivered by hand or, if mailed, three days after mailing (one Business Day in the case of express mail or overnight courier service), addressed as follows:
| If to the Holder: | To the address set forth beside the respective Holder’s signature | |
| If to the Company: | Strategic Storage Trust, Inc. 111 Corporate Drive, Suite 120 Ladera Ranch, California 92694 Attention: H. Michael Schwartz | |
Email: hms@strategiccapital.net
with a copy to:
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 3414 Peachtree Road, NE Suite 1600 Atlanta, GA 30326 Attention: Michael K. Rafter Email: mrafter@bakerdonelson.com |
(h)Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties thereto. The Company may assign its rights or obligations hereunder to any successor to the Company’s business or with the prior written consent of Holders of a majority of the then outstanding Registrable Securities, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, no assignee of the Company shall have any of the rights granted under this Agreement until such assignee shall acknowledge its rights and obligations hereunder by a signed written agreement pursuant to which such assignee accepts such rights and obligations. Each of SSH, CS, SS Advisor, REIT I Advisor and REIT II Advisor may assign its rights under this Agreement to its members in connection with any dissolution of any of them which results in the distribution of such Holder’s OP Units to its respective members; provided that each Person taking such assignment shall acknowledge in writing its rights and obligations hereunder. In the event that SSH, CS, SS Advisor, REIT I Advisor or REIT II Advisor distributes OP Units in-kind to one or more of their respective members, then the recipient of such OP Units shall be permitted to join this Agreement, and become a Holder, by executing an instrument of joinder, commercially reasonable in its terms, pursuant to which such Person accepts the rights and obligations of a Holder hereunder. Other than as permitted pursuant to the preceding two sentences, no Holder may assign its rights under this Agreement without the consent of the Company, which the Company may withhold in its sole discretion.
(i)Headings. Headings are included solely for convenience of reference and if there is any conflict between headings and the text of this Agreement, the text shall control.
(j)Amendments And Waivers. The provisions of this Agreement may be amended or waived at any time only by the written agreement of the Company and the Holders of a majority of the Registrable Securities;provided,however, that the provisions of this Agreement may not be amended or waived without the consent of the Holders of all the Registrable Securities adversely affected by such amendment or waiver if such amendment or waiver adversely affects a portion of the Registrable Securities but does not so adversely affect all of the Registrable Securities;provided,further, that the provisions of the preceding provision may not be amended or waived except in accordance with this sentence. Any waiver, permit, consent or approval of any kind or character on the part of any such Holders of any provision or condition of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in writing. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each Holder of Registrable Securities and the Company.
(k)Interpretation; Absence Of Presumption. For the purposes hereof, (i) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (ii) the terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, paragraph or other references are to the sections, paragraphs, or other references to this Agreement unless otherwise specified, (iii) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless the context otherwise requires or unless otherwise specified, (iv) the word “or” shall not be exclusive and (v) provisions shall apply, when appropriate, to successive events and transactions.
This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instruments to be drafted.
(l)Severability. If any provision of this Agreement shall be or shall be held or deemed by a final, non-appealable order by a competent authority to be invalid, inoperative or unenforceable, such circumstance shall not
have the non-appealable effect of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable, but this Agreement shall be construed as if such invalid, inoperative or unenforceable provision had never been contained herein so as to give full force and effect to the remaining such terms and provisions.
(m)Specific Performance; Other Rights. The parties recognize that various other rights rendered under this Agreement are unique and, accordingly, the parties shall, in addition to such other remedies as may be available to them at law or in equity, have the right to enforce the rights under this Agreement by actions for injunctive relief and specific performance.
(n)Attorneys’ Fees. Should any party hereto employ attorneys or arbitrators to bring an action or arbitration to enforce any of the provisions hereof, the non-prevailing party in such action or arbitration shall pay the prevailing party all reasonable costs, charges, and expenses, including attorneys’ fees and costs, expended or incurred in connection therewith.
(o)Further Assurances. In connection with this Agreement, as well as all transactions and covenants contemplated by this Agreement, each party hereto agrees to execute and deliver or cause to be executed and delivered such additional documents and instruments and to perform or cause to be performed such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions and covenants contemplated by this Agreement.
(p)No Waiver Of Breach. The waiver of any breach of any term or condition of this Agreement shall not operate as a waiver of any other breach of such term or condition or of any other term or condition, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be duly executed as of the date first written above.
STRATEGIC STORAGE TRUST, INC.,
a Maryland corporation
By: | /s/ H. Michael Schwartz | |
| Name: H. Michael Schwartz | ||
| Its: President and Chief Executive Officer | ||
HOLDERS:
Strategic Storage Holdings, LLC,
a Delaware limited liability company
By: | /s/ H. Michael Schwartz | |
Name: | H. Michael Schwartz | |
Its: | Manager |
ADDRESS: | Strategic Storage Holdings, LLC | |
| 111 Corporate Drive, Suite 120 | ||
| Ladera Ranch, CA 92694 |
Churchill TRI, LLC
a Nevada limited liability company
By: | /s/ H. Michael Schwartz | |
Name: | H. Michael Schwartz | |
Its: | Manager |
ADDRESS: | Churchill TRI, LLC | |
| 1645 Village Center Circle | ||
| Las Vegas, NV 89134 |
STRATEGIC STORAGE ADVISOR, LLC
By: | /s/ H. Michael Schwartz |
Name: | H. Michael Schwartz | |
Title: | President |
ADDRESS: | Strategic Storage Advisor, LLC | |
| c/o Strategic Storage Holdings, LLC | ||
| 111 Corporate Drive, Suite 120 | ||
| Ladera Ranch, CA 92694 |
[Signature Page to Registration Rights Agreement]
| USA SELF STORAGE ADVISOR LLC | ||
| By: | /s/ H. Michael Schwartz | |
| Name: | H. Michael Schwartz | |
| Title: | President |
| ADDRESS: | USA Self Storage Advisor LLC | |
| c/o Strategic Storage Holdings, LLC | ||
| 111 Corporate Drive, Suite 120 | ||
| Ladera Ranch, CA 92694 |
| USA SS REIT II ADVISOR, LLC | ||
| By: | /s/ H. Michael Schwartz | |
| Name: | H. Michael Schwartz | |
| Title: | President |
| ADDRESS: | USA Self Storage Advisor LLC | |
c/o Strategic Storage Holdings, LLC 111 Corporate Drive, Suite 120 Ladera Ranch, CA 92694 |
[Signature Page to Registration Rights Agreement – Continued]