Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENt"), dated as
of May 9, 2006, is entered into by and between PUBLIC STORAGE, INC., a
California corporation (the "Company"), and BELAIR REAL ESTATE CORPORATION,
BELPORT REALTY CORPORATION, BELROSE REALTY CORPORATION, BELSHIRE REALTY
CORPORATION, BELTERRA REALTY CORPORATION, BELWATER REALTY CORPORATION and
CLEARWOOD REALTY CORPORATION, each a Delaware corporation (each a "Contributor",
and collectively "Contributors").
RECITALS
WHEREAS, in connection with the offering of 4,000,000 7.25%
Series J Cumulative Redeemable Preferred Units (the "SERIES J PREFERRED UNITS")
of PSA Institutional Partners, L.P., a California limited partnership ( the
"OPERATING PARTNERSHIP"), Contributors contributed to the Operating Partnership
$100,000,000, in the aggregate, in return for the Series J Preferred Units on
terms and conditions set forth in the Contribution Agreement, dated as of the
date hereof, by and among Contributors, the Company and Operating Partnership
(the "Contribution Agreement");
WHEREAS, the Contributors will receive the Series J Preferred
Units in exchange for cash contributed to the Operating Partnership;
WHEREAS, pursuant to the Agreement of Limited Partnership of
Operating Partnership, dated as of the date hereof (as the same may be amended
from time to time in accordance with the terms thereof, the "AGREEMENT OF
LIMITED PARTNERSHIP"), the Series J Preferred Units owned by the Contributors or
their successors and assigns will be redeemable for cash or exchangeable for
shares of the Company's 7.25% Series J Cumulative Redeemable Preferred Shares
(the "PREFERRED SHARES") or depository shares representing fractional interests
in the Preferred Shares upon the terms and subject to the conditions contained
therein; and
WHEREAS, in order to induce the Contributors to enter into the
Contribution Agreement, the Company and the Operating Partnership have agreed to
enter into this Agreement and to provide registration rights set forth herein to
the Contributors and any subsequent holder or holders of the Series J Preferred
Units and Registrable Securities (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS.
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As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"AFFILIATE" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control
with the Person specified.
"AGREEMENT" shall have the meaning set forth in the preamble.
"AGREEMENT OF LIMITED PARTNERSHIP" shall have the meaning set
forth therefor in the Recitals.
"CLOSING DATE" shall mean the date of closing of the Operating
Partnership's sale of Series J Preferred Units to the Contributors.
"COMPANY" shall have the meaning set forth in the preamble and
shall also include the Company's successors or other parties who
succeed to the Company's obligations hereunder.
"CONTRIBUTION AGREEMENT" shall have the meaning set forth in
the preamble.
"CONTRIBUTORS" shall have the meaning set forth in the
preamble and shall include their successors and permitted assigns.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, and any successor statute thereto, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"HOLDER" shall mean (i) any Contributor holding Registrable
Securities or (ii) any Person holding Registrable Securities as a
result of a transfer or assignment of Registrable Securities to that
Person other than pursuant to an effective Registration Statement or
Rule 144 under the Securities Act and who has agreed to be bound by the
terms of this Agreement, in each case where securities sold in such
transaction may be resold in a public distribution without subsequent
registration under the Securities Act, and together the entities
described in clauses (i) and (ii) hereof shall be "Holders".
"INDEMNIFIED PARTY" shall have the meaning set forth in
Section 7(c) hereof.
"INDEMNIFYING PARTY" shall have the meaning set forth in
Section 7(c) hereof.
"OPERATING PARTNERSHIp" shall have the meaning set forth
therefor in the Recitals.
"PERSON" shall mean an individual, partnership, corporation,
trust, or unincorporated organization, or government or agency or
political subdivision thereof.
"PREFERRED SHARES" shall have the meaning set forth therefor
in the Recitals.
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"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary Prospectus, and any
such Prospectus as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and by all
other amendments and supplements to such Prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"REGISTERING HOLDERS" shall have the meaning set forth in
Section 2(b) hereof.
"REGISTRABLE SECURITIES" shall mean (i) the shares of
Preferred Shares issued by the Company to the holders of the Series J
Preferred Units in exchange for the Series J Preferred Units, (ii) any
securities issued or issuable with respect to the Preferred Shares
issued in exchange for the Series J Preferred Units by way of a stock
split or stock dividend or in connection with a combination of shares
recapitalization, merger, consolidation or other reorganization and
(iii) depository shares representing fractional interests in the
Preferred Shares; provided, however, that the securities listed above
shall cease to be Registrable Securities to the extent that (i) a
Registration Statement with respect to such securities shall have been
declared effective under the Securities Act and remains effective as
provided herein, (ii) all such securities are eligible for resale in a
public distribution pursuant to Rule 144 or otherwise without holding
periods or volume limitations, or (iii) such securities have been
disposed of pursuant to such Registration Statement.
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to the Company's performance of or compliance with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. ("NASD") registration,
listing and filing fees, (ii) all reasonable fees and expenses incurred
in connection with compliance with federal or state securities or blue
sky laws (including reasonable fees and disbursements of counsel for
any Underwriters and one counsel (reasonably acceptable to Company) to
the Holders in connection with state or federal securities law
compliance and blue sky qualification of any of the Registrable
Securities and the preparation of a "blue sky" memorandum and
compliance with the rules of the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing,
duplicating, printing, delivering and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements, certificates and
other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing of any of the Registrable Securities on any securities exchange
or the Nasdaq National Market pursuant to Section 4(k) hereof, (v) the
fees and disbursements of counsel for the Company and of the
independent public accountants of the Company (including, without
limitation, the expenses of any annual or special audit and comfort
letters required by the Underwriters), but excluding underwriting
discounts and commission and transfer taxes, if any, relating to the
sale or disposition of Registrable Securities by a Holder; (vi)
Securities Act liability insurance, if the Company so desires; and
(vii) fees and expenses of other Persons reasonably necessary in
connection with the registration, including any experts, transfer agent
or registrar, retained by the Company.
"REGISTRATION REQUEST" shall have the meaning set forth in
Section 2(b) hereof.
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"REGISTRATION STATEMENT" shall mean a Registration Statement
of the Company which covers all or part of the Registrable Securities
on an appropriate form under the Securities Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to
such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor federal agency.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and any successor statute thereto, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"SERIES J PREFERRED UNITs" shall have the meaning therefor set
forth in the Recitals.
"UNDERWRITER" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
"UNDERWRITTEN OFFERING" shall mean a sale of securities of the
Company to an underwriter or underwriters for reoffering to the public.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) FILING OF SHELF REGISTRATION STATEMENT. At any Holder's
request, the Company shall file, on or before the date which is the
tenth (10th) anniversary of the Closing Date or within forty-five (45)
days after such earlier date as all Series J Preferred Units shall be
exchanged for Preferred Shares, a "shelf" Registration Statement
providing for the sale of all of the Registrable Securities of the
Holder. The Company shall use its best efforts to have such shelf
Registration Statement declared effective by the SEC within one hundred
and twenty (120) days thereafter. The Company agrees to use its best
efforts to keep the shelf Registration Statement continuously effective
for a period of two (2) years following the date the Registration
Statement is declared effective, or such shorter period which will
terminate when all of the Registrable Securities covered by the shelf
Registration Statement have been sold pursuant to the shelf
Registration Statement. The Company further agrees, if necessary, to
supplement or amend the shelf Registration Statement, if required by
the rules, regulations or instructions applicable to the registration
form used by the Company for such shelf Registration Statement or by
the Securities Act or by any other rules and regulations thereunder for
shelf registration. Any offering pursuant to a shelf registration
provided for in this Section 2(a) may, at the election of the Holders
of a majority of the Registrable Securities, be an Underwritten
Offering.
(b) DEMAND REGISTRATION.
(i) At any time during which a shelf Registration
Statement is not effective with respect to the Registrable
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Securities, upon receipt of a written request (a "REGISTRATION
REQUEST"), which shall include a description of such Holders'
proposed method of distribution (which method may, at the
election of the Holders of a majority of the Registrable
Securities, also include an Underwritten Offering by a nationally
recognized Underwriter selected by the Company and reasonably
acceptable to the Registering Holders) from Holders holding
Registrable Securities having an aggregate expected offering
price of at least $50,000,000 (or, if the expected offering price
of all remaining Registrable Securities should be less than
$50,000,000, such lesser amount), the Company shall (i) promptly
give notice of the Registration Request to all non-requesting
Holders and (ii) prepare and file with the SEC, within forty-five
(45) days after receipt of such Registration Request, a
Registration Statement for the sale of all Registrable Securities
held by the requesting Holders and any other Holder who makes a
written request of the Company to have her or his Registrable
Securities included in such Registration Statement, which such
written request must be received by the Company within ten (10)
days after such Holder receives the Registration Request (all of
such Holders, collectively, the "REGISTERING HOLDERS"). Upon
receipt of such written request, the Company shall use its best
efforts to cause such Registration Statement to be declared
effective within one hundred twenty (120) days after receipt of a
Registration Request. The Company shall keep such Registration
Statement continuously effective until the earlier of either: (i)
the date on which all Registrable Securities have been sold
pursuant to such Registration Statement or Rule 144 or (ii) two
(2) years from the effective date of the Registration Statement.
(ii) The Company shall not be required to effect more than
three registrations pursuant to this Section 2(b).
(iii) If any of the Registrable Securities registered
pursuant to a Registration Statement filed under this Section
2(b) are to be sold in an Underwritten Offering, and the lead
managing Underwriter advises the Holders in writing that in its
opinion the total number or dollar amount of Registrable
Securities proposed to be sold in such offering is such as to
materially and adversely affect the success of such offering,
then the Company will include in such registration, first, the
Registrable Securities of the Holders and, second, any securities
to be sold for the account of the Company and for the account of
other security holders of the Company who have contractual rights
to participate in such registration (the "OTHER HOLDERS")
electing to include (but not being entitled to demand inclusion
of) securities in such registration (it being understood that
such lead managing Underwriter shall have the right to eliminate
entirely the participation in such registration of the Company
and such Other Holders).
(iv) The Company shall be entitled to postpone, for a
reasonable period of time not in excess of one hundred twenty
(120) days, the filing of a Registration Statement of the
Company, if it determines, in the good faith exercise of its
reasonable business judgement, that such registration and
offering could materially adversely affect the bona fide
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financing plans of the Company or would require the disclosure of
information, the premature disclosure of which could materially
adversely affect the Company or any transaction under
consideration by the Company; provided, however, that the Company
shall not be entitled to such postponement more than once in any
360-day period.
(c) EXPENSES. The Company shall pay all Registration Expenses
in connection with any registration undertaken pursuant to Sections
2(a) and 2(b) hereof. The Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the
Registration Statement.
3. HOLD-BACK AGREEMENT.
Each Holder of Registrable Securities shall agree not to effect
any public sale or distribution of securities of the Company of the
same or similar class or classes of the securities included in the
Registration Statement or any securities convertible into or
exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act, during such
periods as reasonably requested by the Underwriter in an underwritten
public offering by the Company; provided that no Holder shall be so
obligated under this Section 3 in the event that any such period
requested by the Underwriter is longer than ninety (90) days or occurs
more than once in any twelve (12) month period.
4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to
a Registration Statement pursuant to Sections 2(a), 2(b) and 2(c)
hereof, the Company shall use its best efforts to effect or cause to be
effected the registration of the Registrable Securities under the
Securities Act to permit the sale of such Registrable Securities by the
Holder in accordance with its intended method or methods of
distribution, and the Company shall:
(a) prepare and file with the SEC, as specified in Section 2
hereof, a Registration Statement, which Registration Statement shall
comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by
the SEC to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) subject to Section 4(j) hereof, prepare and file with the
SEC such amendments and post-effective amendments to each such
Registration Statement as may be necessary to keep such Registration
Statement effective for the applicable period; cause each such
Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 or any
similar rule that may be adopted under the Securities Act; and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method
or methods of distribution by the selling Holder thereof;
(c) furnish to the Holder of Registrable Securities without
charge, as many copies of each Prospectus, including each summary
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prospectus or preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder may reasonably
request, in order to facilitate the public sale or other disposition
of the Registrable Securities; the Company consents to the use of any
such Prospectus, including each preliminary Prospectus, by the Holder
of Registrable Securities, if any, in connection with the offering
and sale of the Registrable Securities covered by any such
Prospectus;
(d) use its best efforts to register or qualify, or obtain
exemption from registration or qualification for, all Registrable
Securities by the time the applicable Registration Statement is
declared effective by the SEC under all applicable state securities
or "blue sky" laws of such jurisdictions as the Holder of Registrable
Securities covered by a Registration Statement shall reasonably
request in writing, keep each such registration or qualification or
exemption effective during the period such Registration Statement is
required to be kept effective and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however,
that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction or to register as a broker or dealer in
such jurisdiction where it would not otherwise be required to qualify
but for this Section 4(d), (ii) subject itself to taxation in any
such jurisdiction, or (iii) submit to the general service of process
in any such jurisdiction;
(e) notify the Holder of Registrable Securities promptly and,
if requested by such Holder, confirm such advice in writing (i) when
a Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective,
(ii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, and
(iii) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration
Statement or the related Prospectus contains any 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, and (iv) of the Company's receipt of any notification of
the suspension of the qualification of any Registrable Securities
covered by a Registration Statement for sale in any jurisdiction; in
the event the Company shall give notice as to the occurrence of any
event described Sections 4(e)(ii), 4(e)(iii) or 4(e)(iv) hereof, the
Company shall extend the period during which such Registration
Statement shall be maintained effective by the number of days during
the period from and including the date of the giving of such notice
to the date the Company delivers notice that disposition may be made;
(f) furnish to the Holder of Registrable Securities copies of
any request by the SEC or any state securities authority of
amendments or supplements to a Registration Statement and Prospectus
or for additional information;
(g) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment;
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(h) provide to the Holders, at no cost to such Holders, a copy
of the Registration Statement and any amendment thereto with respect
to Registrable Securities, each Prospectus contained in such
Registration Statement or post-effective amendment and any amendment
or supplement thereto and such other documents as such Holders may
reasonably request in order to facilitate the disposition of their
Registrable Securities covered by such Registration Statement; the
Company consents to the use of each such Prospectus and any
supplement thereto by such Holders in connection with the offering
and sale of their Registrable Securities covered by such Registration
Statement or any amendment thereto;
(i) upon the occurrence of any event contemplated by Section
4(e)(iii) hereof, immediately notify all Holders of the Registrable
Securities affected by such event of such event and prepare and
provide to such Holders a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference and file any required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any 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, in the
light of the circumstances under which they were made, not
misleading;
(j) make available for inspection by representatives of the
Holder of the Registrable Securities and any Underwriters
participating in any disposition pursuant to a Registration Statement
and any special counsel or accountant retained by such Holders or
Underwriters, all financial and other records, pertinent corporate
documents and properties of the Company and cause the respective
officers, directors and employees of the Company to supply all
information reasonably requested by any such representative,
Underwriter, special counsel or accountant in connection with a
Registration Statement; provided, however, that such records,
documents or information which the Company determines, in good faith,
to be confidential and notifies such representatives, Underwriter's
special counsel or accountants are confidential shall not be
disclosed by the representatives, Underwriter's special counsel or
accountants unless (i) the disclosure of such records, documents or
information is necessary to avoid or correct a misstatement or
omission in a Registration Statement, (ii) the release of such
records, documents or information is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction, or (iii) such
records, documents or information have been generally made available
to the public;
(k) use its best efforts (including, without limitation,
seeking to cure any deficiencies (within the Company's control) cited
by such exchange or market in the Company's listing application) to
list all Registrable Securities on The New York Stock Exchange
(unless the Company qualifies and chooses to list all Registrable
Securities on the American Stock Exchange or The Nasdaq National
Market, in which event the Company shall use its best efforts to list
all Registrable Securities on the American Stock Exchange or The
Nasdaq National Market);
(l) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the Registration Statement;
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(m) use best efforts to comply with the Securities Act and the
Exchange Act in connection with the offer and sale of the Registrable
Securities to be sold pursuant to a Registration Statement, and, make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering at least twelve (12) months which
shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(n) provide and cause to be maintained a transfer agent for
all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such
Registration Statement;
(o) cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing their
Registrable Securities to be sold pursuant to a Registration
Statement and not bearing any Securities Act legend; and enable
certificates for such Registrable Securities be issued for such
numbers of shares and registered in such names as such Holders may
reasonably request at least two (2) business days prior to any sale
of their Registrable Securities;
(p) enter into customary agreements (including an underwriting
agreement or securities sales agreement, if any, in customary form)
containing such representations and warranties to the Holders of such
Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by them and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities; and
(q) furnish to each registering Holder of Registrable
Securities and to each Underwriter, if any, a signed counterpart,
addressed to such registering Holder of Registrable Securities or
Underwriter, of (i) an opinion or opinions of counsel to the Company
and (ii) a comfort letter or comfort letters from the Company's
independent public accountants (to the extent permitted by the
standards of the American Institute of Certified Public Accountants),
each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may
be, as the Holders of a majority of the Registrable Securities
included in such offering or the managing Underwriter or Underwriters
therefor reasonably request.
The Company may require the Holder of Registrable Securities
to furnish to the Company such information regarding the proposed
distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing.
The Holders agree that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
Section 4(e)(iii) hereof, such Holder will immediately discontinue
disposition of Registrable Securities pursuant to a Registration
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Statement until such Holders' receipt of the copies of the
supplemented or amended Prospectus, if so directed by the Company,
such Holders will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file
copies then in such Holders' possession, of the Prospectus covering
such Registrable Securities current at the time of receipt of such
notice.
5. BLACK-OUT PERIOD.
(a) Following the effectiveness of a Registration Statement
(and the filings with any state securities commissions), the Company
may direct the Holder to suspend sales of the Registrable Securities
for such times as the Company reasonably may determine is necessary
and advisable, including the following events: (i) an underwritten
primary offering by the Company where the Company is advised by the
underwriters for such offering that sale of Registrable Shares under
the Registration Statement would have a material adverse effect on
the primary 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) which renders the Company unable to comply
with SEC 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.
(b) In the case of an event which causes the Company to
suspend the effectiveness of a Registration Statement (a "Suspension
Event"), the Company may give notice (a "Suspension Notice") to the
Holder to suspend sales of the Registrable 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. The Holder
agrees that it will not effect any sales of the Registrable 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, Holder will deliver to the Company all
copies of the Prospectus covering the Registrable Shares held by them
at the time of receipt of the Suspension Notice. The Holder may
recommence effecting sales of the Registrable 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 and the
effectiveness of any required amendment or supplement to the
Registration Statement.
(c) Notwithstanding the provisions of Sections 5(a) and 5(b)
to the contrary: (i) no Holder shall be subject to the provisions of
Sections 5(a) and 5(b) hereof for a period of time in excess of
ninety (90) days; and (ii) no Suspension Notice may be given more
than once in any twelve (12) month period. Moreover, notwithstanding
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Sections 2(a), 2(b) and 2(c) hereof, if the Company shall give a
Suspension Notice pursuant to this Section 5, the Company agrees it
shall extend the period during which the Registration Statement shall
be maintained effective pursuant to this Agreement by the number of
days during the period from the date of the giving of the Suspension
Notice to and including the date when the Holders shall have received
the End of Suspension Notice and copies of the supplemented or
amended Prospectus necessary to resume sales.
6. RULE 144 AND RULE 144A.
For so long as the Company is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act, the Company covenants that
it will timely file the reports required to be filed by it under the Securities
Act and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the SEC thereunder and, if at any time the Company is not required to
file such reports, it will, upon the request of any Holder of Registrable
Securities, make publicly available other information so long as necessary to
permit sales pursuant to Rule 144 under the Securities Act. The Company also
covenants that it will provide the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder of
Registrable Securities and it will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time, to enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, (b) Rules 144A under the Securities Act, as such Rule may be
amended from time to time, or (c) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
7. Indemnification.
(a) The Company will indemnify each Holder, each such
Holder's officers and directors, and each person controlling such
Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages, liabilities and expenses
(including reasonable legal expenses), arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact
contained in any Registration Statement or prospectus relating to
such Holders' Registrable Securities, or any amendment or supplement
thereto, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
the Company will not indemnify and will not be liable to any Holder
in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made
in conformity with and in reliance upon information furnished in
writing to the Company by such Holder or by an Underwriter for
inclusion therein.
(b) Each Holder will indemnify the Company, each of its
directors, trust managers and each of its officers who signs the
Registration Statement, each underwriter, if any, of the Company's
securities covered by such Registration Statement, and each person
who controls the Company or such underwriter within the meaning of
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Section 15 of the Securities Act, against all claims, losses,
damages, liabilities and expenses (including reasonable legal fees
and expenses) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
Registration Statement or prospectus, or any amendment or supplement
thereto, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made
in such Registration Statement or prospectus, in reliance upon and in
conformity with information furnished in writing to the Company by
such Holder for inclusion therein.
(c) Each party entitled to indemnification under this Section
7 (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought. However, the failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party from any
liability which it may have to the Indemnified Party pursuant to the
provisions of this Section 7, except to the extent of the actual
damages suffered by such delay in notification. The Indemnifying
Party shall assume the defense of such action. including the
employment of counsel, which shall be chosen by the Indemnifying
Party and shall be reasonably satisfactory to the Indemnified Party,
and payment of expenses in connection with such defense. The
Indemnified Party shall have the right to employ its own counsel in
any such case, but the legal fees and expenses of such counsel shall
be at the expense of the Indemnified Party unless (i) the employment
of such counsel shall have been authorized in writing by the
Indemnifying Party, (ii) the Indemnifying Party shall not have
assumed the defense of such action within a reasonable period of
time, or (iii) the Indemnified Party shall have been reasonably
advised by its counsel that there may be defenses available to it or
them which are different from or additional to those available to
Indemnifying Party (in which case the Indemnifying Party shall not
have the right to direct the defense of such action on behalf of the
Indemnified Party), in any of which events such fees and expenses
shall be borne by the Indemnifying Party. No Indemnifying Party in
the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to the entry of any
judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
each such Indemnified Party of a release from all liability in
respect to such claim or litigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to a party that would have been an Indemnified Party
under this Section 7, then each party that would have been an
Indemnifying Party hereunder shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such claims, losses, damages,
liabilities and expenses in such proportion as is appropriate to
12
reflect the relative fault of the Indemnifying Party on the one hand
and such Indemnified Party on the other in connection with the
statement or omission which resulted in such claims, losses, damages,
liabilities and expenses, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact related 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 statement or omission. The Company and each Holder
agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or
by any other method of allocation that fails to take account of the
equitable considerations referred to above in this Section 7(d). For
purposes of this Section 7(d), each person, if any, who controls the
Holder within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as the Holder and each trust
manager of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as the Company.
(e) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) In no event shall any Holder be liable for any claims,
losses, damages, liabilities or expenses pursuant to this Section 7
in excess of the net proceeds to such Holder for the sale of such
Holder's Registrable Securities pursuant to a registration.
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. The Company has not entered
into nor will the Company on or after the date of this Agreement
enter into any agreement which is inconsistent with the rights
granted to the Holder of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to
the Holder do not in any way conflict with and are not inconsistent
with the rights granted to the holder of the Company's other issued
and outstanding securities under any such agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given without the written consent of
the Company and Holders holding at least 51% of the total then
outstanding (i) Registrable Securities and (ii) Series J Preferred
Units not theretofore exchanged for Preferred Shares.
(c) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, facsimile, or any courier
guaranteeing overnight delivery (i) if to the Contributors, at the
address or facsimile number set forth below its signature hereon, and
thereafter at such other address or facsimile number, notice of which
is given in accordance with the provisions of this Section 8(c), (ii)
if to an assignee or transferee of the Contributors, to such address
or facsimile number such assignee or transferee shall have provided
to the Company, and (iii) if to the Company, at Public Storage, Inc.,
701 Western Avenue, Suite 200, Glendale, California 91201, facsimile
number (818) 548-9228, and thereafter at such other address or
13
facsimile number, notice of which is given in accordance with the
provisions of this Section 8(c). All such notices and communications
shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five (5) business days after being
deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if faxed; and on the
next business day if timely delivered to an air courier guaranteeing
overnight delivery.
(d) SUCCESSORS. The rights and obligations of any Holder
hereunder may be assigned to any other Holder and to any assignee of
the Series J Preferred Units permitted under the Agreement of Limited
Partnership. This Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of the Company and
the Holder.
(e) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS
THEREOF. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to
perform any of its obligations hereunder, and accordingly agree that
each party, in addition to any other remedy to which it may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this
Agreement to accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof
having jurisdiction.
(j) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter
hereof.
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(k) ATTORNEYS' FEES. If the Company or any Holder brings an
action to enforce its rights under this Agreement, the prevailing
party in the action shall be entitled to recover its costs and
expenses, including without limitation, reasonable attorneys' fees,
incurred in connection with such action, including any appeal of such
action.
(1) AUTHORITY; BINDING EFFECT. Each party hereto represents
and warrants that it has the full legal right, power and authority to
execute this Agreement, that this Agreement has been duly authorized,
executed and delivered on behalf of such party and constitutes a
valid and binding agreement of such party enforceable in accordance
with its terms.
(signatures appear on next page)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PUBLIC STORAGE, INC.
By: /s/ John Reyes
--------------
Name: John Reyes
Title:Senior Vice President and
Chief Financial Officer
BELAIR REAL ESTATE CORPORATION
By: /s/ William R. Cross
--------------------
Name: William R. Cross
Title: President
Address: c/o Eaton Vance Management
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile: (617) 388-8054
BELPORT REALTY CORPORATION
By: /s/ William R. Cross
--------------------
Name: William R. Cross
Title: President
Address: c/o Eaton Vance Management
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile: (617) 388-8054
(Signatures continue on next page.)
BELROSE REALTY CORPORATION
By: /s/ William R. Cross
--------------------
Name: William R. Cross
Title: President
Address: c/o Eaton Vance Management
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile: (617) 388-8054
BELSHIRE REALTY CORPORATION
By: /s/ William R. Cross
--------------------
Name: William R. Cross
Title: President
Address: c/o Eaton Vance Management
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile: (617) 388-8054
(Signatures continue on next page.)
BELTERRA REALTY CORPORATION
By: /s/ William R. Cross
--------------------
Name: William R. Cross
Title: President
Address: c/o Eaton Vance Management
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile: (617) 388-8054
BELWATER REALTY CORPORATION
By: /s/ William R. Cross
--------------------
Name: William R. Cross
Title: President
Address: c/o Eaton Vance Management
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile: (617) 388-8054
CLEARWOOD REALTY CORPORATION
By: /s/ William R. Cross
--------------------
Name: William R. Cross
Title: President
Address: c/o Eaton Vance Management
The Eaton Vance Building
255 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile: (617) 388-8054