Exhibit 10.78


 


U-STORE-IT TRUST


 


TRUSTEES DEFERRED COMPENSATION PLAN


 


 


Amended and Restated Effective January 1,
2009


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 PURPOSE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 PARTICIPATION

  	
   

  	
  3

  
	
  3.1

  	
  Eligibility

  	
   

  	
  3

  
	
  3.2

  	
  Participation

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 BENEFITS

  	
   

  	
  3

  
	
  4.1

  	
  Deferred Compensation

  	
   

  	
  3

  
	
  4.2

  	
  Election Procedures

  	
   

  	
  3

  
	
  4.3

  	
  One Time Change in Time and Form of Payment

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 ACCOUNTS 

  	
   

  	
  5

  
	
  5.1

  	
  Participant Accounts

  	
   

  	
  5

  
	
  5.2

  	
  Returns on Distribution Accounts

  	
   

  	
  5

  
	
  5.3

  	
  Deemed Investment Options

  	
   

  	
  5

  
	
  5.4

  	
  Changes in Deemed Investment Options

  	
   

  	
  6

  
	
  5.5

  	
  Valuation of Accounts

  	
   

  	
  6

  
	
  5.6

  	
  Statement of Accounts

  	
   

  	
  6

  
	
  5.7

  	
  Distributions from Accounts

  	
   

  	
  6

  
	
  5.8

  	
  Deemed Company Stock Fund

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 DISTRIBUTIONS

  	
   

  	
  7

  
	
  6.1

  	
  Retirement Distribution Option

  	
   

  	
  7

  
	
  6.2

  	
  In-Service Distribution Option

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 BENEFITS TO PARTICIPANTS

  	
   

  	
  7

  
	
  7.1

  	
  Benefits Under the Retirement Distribution Option

  	
   

  	
  7

  
	
  7.2

  	
  Benefits Under the In-Service Distribution Option

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 SURVIVOR BENEFITS

  	
   

  	
  9

  
	
  8.1

  	
  Death of Participant Prior to the Commencement of Benefits

  	
   

  	
  9

  
	
  8.2

  	
  Survivor Benefits Under the Retirement Distribution Option

  	
   

  	
  9

  
	
  8.3

  	
  Survivor Benefits Under the In-Service Distribution Option

  	
   

  	
  9

  
	
  8.4

  	
  Death of Participant After Benefits Have Commenced

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 EMERGENCY BENEFIT

  	
   

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 ADMINISTRATION

  	
   

  	
  10

  
	
  10.1

  	
  Plan Administrator

  	
   

  	
  10

  
	
  10.2

  	
  Appointment of Administrative Committee

  	
   

  	
  10

  



 

















 


	
  10.3

  	
  Powers of Plan Administrator

  	
   

  	
  10

  
	
  10.4

  	
  Limitation of Liability

  	
   

  	
  11

  
	
  10.5

  	
  Claims Procedures.

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 MISCELLANEOUS

  	
   

  	
  12

  
	
  11.1

  	
  Unfunded Plan.

  	
   

  	
  12

  
	
  11.2

  	
  Spendthrift Provision

  	
   

  	
  12

  
	
  11.3

  	
  Employment Rights

  	
   

  	
  12

  
	
  11.4

  	
  Designation of Beneficiary

  	
   

  	
  12

  
	
  11.5

  	
  Amendment or Termination

  	
   

  	
  13

  
	
  11.6

  	
  No Fiduciary Relationship Created

  	
   

  	
  13

  
	
  11.7

  	
  Release

  	
   

  	
  13

  
	
  11.8

  	
  No Warranty or Representation

  	
   

  	
  13

  
	
  11.9

  	
  Construction

  	
   

  	
  13

  
	
  11.10

  	
  Governing Law

  	
   

  	
  13

  
	
  11.11

  	
  Counterparts

  	
   

  	
  13

  
	
  11.12

  	
  American Jobs Creation Act of 2004

  	
   

  	
  13

  
	
  11.13

  	
  Transition Elections

  	
   

  	
  13

  
	
  11.14

  	
  Permissible Accelerations

  	
   

  	
  14

  



 


2

















 


U-STORE-IT
TRUST TRUSTEES DEFERRED COMPENSATION PLAN


 


ARTICLE 1


PURPOSE


 


The U-Store-It Trust Trustees Deferred Compensation
Plan (the “Plan”) is hereby amended and restated in accordance with the
following terms and conditions for the purpose of providing a vehicle for
deferring the payment of Compensation to members of the Board and promoting the
success of U-Store-It Trust by aligning the financial interests of the Trustees
providing services to the Company with long term shareholder value. The Plan is
intended to be a non-qualified deferred compensation arrangement. The Plan was
originally adopted by the Board on December 13, 2006, amended and restated as
of January 1, 2007 and is hereby further amended and restated effective January
1, 2009.


 


ARTICLE 2


DEFINITIONS


 


The following terms shall have the following
meanings described in this Article unless the context clearly indicates another
meaning. All references in the Plan to specific Articles or Sections shall
refer to Articles or Sections of the Plan unless otherwise stated.


 


2.1           Account  means the record or records established for
each Participant in accordance with Section 5.1.


 


2.2           Beneficiary  means the person or persons who, pursuant to Article
8, are entitled to a distribution from the Plan after a Participant’s death.


 


2.3           Board  means the Board of Trustees of the Company.


 


2.4           Code  means the Internal Revenue Code of 1986, as
amended.


 


2.5           Company  means U-Store-It Trust, a Maryland real
estate investment trust.


 


2.6           Compensation  means for a Plan Year the annual fee related
to Board membership, Board meetings and Board committee meetings payable to a
Trustee for services rendered as a member of the Board during such Plan Year
that would otherwise be reported on Form 1099 — MISC. Notwithstanding the
foregoing, Compensation does not include expense reimbursements incurred in
connection with attendance at Board meetings.


 


2.7           Compensation
Committee  means the Compensation
Committee of the Board of Trustees or, at any time that no such committee
exists, the Board.


 


2.8           Deferred
Compensation  means the portion of a
Participant’s Compensation allocated to the Participant’s Retirement
Distribution Account or an In-Service Distribution Account in accordance with Section
4.1 of the Plan.


 

















 


2.9           Deemed
Investment Options  means the deemed
investment options selected by the Participant from time to time pursuant to
which deemed earnings are credited to the Participant’s Distribution Accounts.


 


2.10         Distribution
Account  means, with respect to a
Participant, the Retirement Distribution Account and/or the In-Service
Distribution Accounts established on the books of account of the Company,
pursuant to Section 5.1.


 


2.11         Distribution
Option  means the two distribution
options which are available under the Plan, consisting of the Retirement
Distribution Option and the In-Service Distribution Option.


 


2.12         Election
Agreement  means the written
agreement entered into by a Trustee, pursuant to which the Trustee becomes a
Participant in the Plan and makes an election relating to Deferred Compensation
and the period over which Deferred Compensation and investment return thereon
will be paid.


 


2.13         In-Service
Distribution Accounts  means the
Accounts maintained for a Participant for each Plan Year to which Deferred
Compensation is credited pursuant to the In-Service Distribution Option.


 


2.14         In-Service
Distribution Option  means the
Distribution Option pursuant to which benefits are payable in accordance with Section
7.2.


 


2.15         Participant  means any Trustee (a) who is selected to
participate in the Plan, (b) who elects to participate in the Plan, (c) who
signs an Election, (d) whose signed Election Form is accepted by the Plan
Administrator, and (e) who commences participation in the Plan.


 


2.16         Plan  means the plan, the terms and provisions of
which are herein set forth, and as it may be amended or restated from time to
time, designated as the “U-Store-It Trust Trustees Deferred Compensation Plan.”


 


2.17         Plan
Administrator  means the Company.


 


2.18         Plan
Year  means the period beginning on January
1 and ending on December 31 of each year.


 


2.19         Retirement  means a Participant’s Separation from Service
as a Trustee (for reasons other than death) at or after age 55.


 


2.20         Retirement
Distribution Account  means the
Account maintained for a Participant to which Deferred Compensation is credited
pursuant to the Retirement Distribution Option.


 


2.21         Retirement
Distribution Option  means the
Distribution Option pursuant to which benefits are payable in accordance with Section 7.1.


 


2.22         Separation
from Service  means a “separation
from service” as defined in Section 1.409A-1(h) of the Treasury Regulations.


 


2

















 


2.23         Trust  means any domestic trust that may be
maintained in the United States pursuant to Section 11.1.


 


2.24         Trustee  means any individual who is a member of the
Board.


 


ARTICLE 3


PARTICIPATION


 


3.1           Eligibility.
Trustee shall be eligible to participate in the Plan if he or she is a Trustee
designated as eligible by the Board or the Compensation Committee. Individuals
not specifically designated by the Board or the Compensation Committee are not
eligible to participate in the Plan.


 


3.2           Participation.
A Trustee shall become a Participant as of the date he or she satisfies the
eligibility requirements of Section 3.1 and completes all administrative forms
required by the Plan Administrator. A Participant’s participation in the Plan
shall terminate upon Separation from Service, voluntarily or involuntarily, for
any reason, including death or upon such other events as determined by the
Board or the Compensation Committee.


 


ARTICLE 4


BENEFITS


 


4.1           Deferred
Compensation. Subject to any limitations established by the Compensation
Committee or the Plan Administrator and in accordance with the procedures
described in Section 4.2, a Participant may elect for a Plan Year to have his
or her Compensation deferred in any amount, expressed as a percentage, and to
have that amount credited to his or her Retirement Distribution Account or
In-Service Distribution Account for such Plan Year as Deferred Compensation.
Deferred Compensation shall be credited to a Participant’s Accounts as of the
date it would be payable but for the election to defer.


 


4.2           Election
Procedures.


 


(a)           Except as provided in paragraph (b) below,
Compensation for services performed during a Plan Year may be deferred at the
Participant’s election only if the election to defer such Compensation is made
not later than the close of the preceding Plan Year.


 


(b)           In the case of the first year in
which a Participant becomes eligible to participate in the Plan, the
Participant’s election shall only be valid with respect to compensation earned
with respect to services to be performed subsequent to the date of the election
which must be made within 30 days after the date the Participant becomes
eligible to participate in the Plan.


 


(c)           Each Participant shall on his or her
Election Agreement with respect to each Plan Year (i) specify the percentage of
Compensation the Participant elects to defer for such Plan Year; (ii) allocate
his or her deferrals between the In-Service Distribution 


 


3

















 


Option
and the Retirement Distribution Option in increments of ten percent, provided,
however, that 100 percent of such deferrals may be allocated to one or the
other of the Distribution Options; (iii) with respect to amounts allocated to
the Retirement Distribution Option for the first Plan Year in which amounts are
allocated to the Retirement Distribution Option, elect whether such amounts
will be paid in a single lump sum or in annual installments payable over five,
ten, or fifteen years upon the Participant’s Separation from Service; and (iv) with
respect to amounts allocated to the In-Service Distribution Option for the Plan
Year, elect the time and manner of distribution from among the options
described in Section 7.2. Moreover, (x) at any time prior to the first Plan
Year or other period in which a Participant defers compensation into his or her
Retirement Distribution Account, such Participant may irrevocably specify in
his or her Election Agreement that distribution of his or her Retirement
Distribution Account is to be made in a lump sum on the 60th day following the
date of a change in control event within the meaning of Section 1.409A-3(i)(5) of
the Treasury Regulations, notwithstanding any other election made hereunder,
and (y) at any time prior to the first Plan Year or other period in which a
Participant defers compensation into an In-Service Distribution Account, such
Participant may irrevocably specify in his Election Agreement that distribution
of such In-Service Distribution Account is to be made in a lump sum on the 60th
day following the date of a change in control event within the meaning of Section
1.409A-3(i)(5) of the Treasury Regulations, notwithstanding any other election
made hereunder.


 


(d)           A Participant can change his or her
Election Agreement and an eligible Trustee who is not a Participant may become
a Participant, as of any January 1 by completing, signing and filing an
Election Agreement with the Plan Administrator not later than the preceding December
31 (subject, however, to the provisions of paragraph (b) above in the case of a
Participant who becomes newly eligible during the Plan Year). A Participant who
does not complete a new Election Agreement for a Plan Year will be deemed to
have elected not to have any Deferred Compensation for the Plan Year. In the
event any amount is credited to the Account of a Participant with respect to
which no timely election concerning method of payment has been made, such
amount shall be credited to the Retirement Distribution Account of such
Participant and if such Participant does not have a Retirement Distribution
Account election on file, such Participant will be deemed to have elected a
single lump sum to be paid on the 60th day after the date of Retirement.


 


(e)           An election of Deferred Compensation
shall be irrevocable on the first day of the Plan Year (or other period) to
which it relates, except that in the case of an unforeseeable emergency as
defined in Article 9, the election shall be cancelled for the remainder of the
Plan Year.


 


(f)            All Election Agreements shall be in
a form acceptable to the Plan Administrator and shall be completed, signed, and
filed with the Plan Administrator as provided herein.


 


4.3           One
Time Change in Time and Form of Payment. Notwithstanding the method of
payment elected or deemed elected by a Participant with respect to his Retirement
Distribution Account or any of his In-Service Distribution 


 


4

















 


Accounts
in accordance with Section 4.2(c)(iii), 4.2(c)(iv) or 4.2(d), such Participant
may elect to make one change to the time or form of any such payment to any
other permissible payment option at any time up to 12 months before the first
scheduled payment; provided, however, that (a) any such election shall not be
effective for at least 12 months following the date made; and (b) to the extent
required by Section 409A of the Code, as a result of any such change, payment
or commencement of payment shall be delayed for 5 years from the date the first
payment was scheduled to have been paid.


 


ARTICLE 5


ACCOUNTS


 


5.1           Participant
Accounts. The Plan Administrator shall establish separate Distribution
Accounts with respect to a Participant for each Distribution Option. A
Participant’s Distribution Accounts shall consist of the Retirement
Distribution Account and one or more In-Service Distribution Accounts. A
Participant’s Distribution Accounts shall be maintained by the Plan
Administrator in accordance with the terms of this Plan until all of the
Deferred Compensation and investment return to which a Participant is entitled
has been distributed to a Participant or his or her beneficiary in accordance
with the terms of the Plan. A Participant shall be fully vested in his or her
Distribution Accounts at all times.


 


5.2           Returns
on Distribution Accounts. A Participant’s Distribution Accounts shall be
credited with returns in accordance with the Deemed Investment Options elected
by the Participant from time to time. Participants may allocate their
Retirement Distribution Account and/or each of their In-Service Distribution
Accounts among the Deemed Investment Options available under the Plan only in
whole percentages of not less than one (1) percent. The rate of return,
positive or negative, credited under each Deemed Investment Option is based
upon the actual investment performance of the corresponding investment
portfolios of the Company’s qualified defined contribution plan, or such other
investment fund(s) as the Compensation Committee may designate from time to
time, and shall equal the total return of such investment fund net of asset
based charges, including, without limitation, money management fees, fund
expenses and mortality and expense risk insurance contract charges. The
Compensation Committee reserves the right, on a prospective basis, to add or
delete Deemed Investment Options.


 


5.3           Deemed
Investment Options. Except as otherwise provided pursuant to Section 5.2,
the Deemed Investment Options available under the Plan shall consist of
pre-determined actual investment options which correspond to certain investment
portfolios of the Company’s qualified defined contribution plan, or such other
investment fund(s) as the Compensation Committee may designate from time to
time.


 


Notwithstanding that the rates of return credited to
Participants’ Distribution Accounts under the Deemed Investment Options are
based upon the actual performance of the corresponding portfolios of the
Company’s qualified defined contribution plan, or such other investment fund(s)
as the Compensation Committee may designate, the Company shall not be obligated
to invest any Deferred Compensation by Participants under this Plan, or any
other amounts, in such portfolios or in any other investment funds.


 


5
















 


5.4           Changes
in Deemed Investment Options. A Participant may change the Deemed
Investment Options to which the Participant’s Distribution Accounts are deemed
to be allocated with whatever frequency is determined by the Plan
Administrator, which shall not be less than four times per Plan Year. Each such
change may include (a) reallocation of the Participant’s existing Accounts
in whole percentages of not less than one (1) percent, and/or (b) change
in investment allocation of amounts to be credited to the Participant’s
Accounts in the future, as the Participant may elect. Notwithstanding the
provisions herein, any change that reallocates Participant’s existing Accounts
to or from the deemed Company Stock Fund or that increases or reduces the
allocation to the deemed Company Stock Fund shall not become effective until
the first business day of the next calendar quarter, or such other date as is
determined by the Compensation Committee in its sole discretion.


 


5.5           Valuation
of Accounts. The value of a Participant’s Distribution Accounts as of any
date shall equal the amounts theretofore credited to such Accounts, including
any earnings (positive or negative) deemed to be earned on such Accounts in
accordance with Section 5.2 through the day preceding such date, less the
amounts theretofore deducted from such Accounts.


 


5.6           Statement
of Accounts. The Plan Administrator shall provide to each Participant, not
less frequently than quarterly, a statement in such form as the Plan
Administrator deems desirable setting forth the balance standing to the credit
of each Participant in each of his Distribution Accounts.


 


5.7           Distributions
from Accounts. Any distribution made to or on behalf of a Participant from
one or more of his Distribution Accounts in an amount which is less than the
entire balance of any such Account shall be made pro rata from each of the
Deemed Investment Options to which such Account is then allocated.


 


5.8           Deemed
Company Stock Fund. Notwithstanding any other provision of the Plan to the
contrary, for purposes of a Participant who directs any portion of his
Distribution Accounts to be credited with returns in accordance with the Deemed
Investment Option consisting of the Company Stock Fund, (a) Deferred
Compensation shall be credited to that portion of the Participant’s
Distribution Accounts which are credited with returns in accordance with the
Deemed Investment Option consisting of the Company Stock Fund as of the first
business day of the calendar quarter, or as of such other date as is determined
by the Compensation Committee in its sole discretion, on or following the date
that Deferred Compensation would have otherwise been paid to the Participant
and (b) for the period commencing on the date Deferred Compensation would
have otherwise been paid to the Participant until such date as the Deferred
Compensation is actually credited to that portion of the Participant’s
Distribution Accounts which are credited with returns in accordance with the
Deemed Investment Option consisting of the Company Stock Fund, such amounts
shall be deemed to earn a rate of return equal to the monthly applicable
federal rate as of the first of the month.


 


6

















 


ARTICLE 6


DISTRIBUTIONS


 


6.1           Retirement
Distribution Option. Subject to Section 7.1, distribution of the
Participant’s Retirement Distribution Account shall commence on the later of (a) the
60th day after the Participant’s Retirement or (b) the year following the
Participant’s attainment of age 65 or other elected age greater than age 55 but
less than age 65, as elected by the Participant in the Election Agreement
pursuant to which such Retirement Distribution Account was established.


 


6.2           In-Service
Distribution Option. Subject to Section 7.2, the Participant’s
In-Service Distribution Account for any Plan Year shall be distributed
commencing on February 28 of the Plan Year elected by the Participant in
the Election Agreement pursuant to which such In-Service Distribution Account
was established. Notwithstanding the foregoing, a Participant shall not be
entitled to allocate any deferrals to an In-Service Distribution Account for
the two Plan Years preceding the Plan Year which includes the date on which
such Account is to be distributed and such additional deferrals shall instead
be allocated to the Retirement Distribution Account.


 


ARTICLE 7


BENEFITS TO PARTICIPANTS


 


7.1           Benefits
Under the Retirement Distribution Option. Benefits under the Retirement
Distribution Option shall be paid to a Participant as follows:


 


(a)           Benefits Upon Retirement. In
the case of a Participant whose discontinuance of service with the Board is on
account of Retirement and whose Retirement Distribution Account balance, when
added to his In-Service Distribution Account balance and the benefit payable
from any other nonqualified deferred compensation arrangement that is required
to be aggregated with the Plan under Section 1.409A-1(e) of the
Treasury Regulations as of the date payment would otherwise commence exceeds
$10,000, the Participant’s Retirement Distribution Account shall be distributed
in one of the following methods, as elected by the Participant in writing in
the Election Agreement:  (i) in a lump sum; (ii) in annual
installments over five years; (iii) in annual installments over ten years;
or (iv) in annual installments over 15 years. Any lump-sum
benefit payable in accordance with this paragraph shall be paid on the date
that is 60 days after the date of Retirement or on February 28 of the Plan
Year elected by the Participant in an amount equal to the value of such
Retirement Distribution Account as of the date of distribution. An initial
annual installment payment shall be paid on the date that is 60 days after the
date of Retirement or on February 28 of the Plan Year elected by the
Participant in an amount equal to (i) the value of such Retirement
Distribution Account to be so distributed as of the last business day of the
Plan Year preceding the date of payment, divided by (ii) the number
of annual installment payments elected by the Participant. The remaining annual
installments shall be paid on February 28 of each succeeding Plan Year in
an amount equal to (i) the value of such Retirement Distribution Account
as of the last business day of the immediately preceding Plan Year divided by (ii) the
number of installments remaining; provided that the last installment payment
shall 


 


7

















 


be in
an amount equal to the value of the Retirement Distribution Account on the date
of such last installment payment. A Participant may change the election
regarding the manner of payment as described in Section 4.3 as permitted
by Section 409A of the Code.


 


(b)           Benefits Upon Separation From
Service. In the case of a Participant who has a Separation from Service
prior to the earliest date on which the Participant is eligible for Retirement,
other than on account of death, or whose Retirement Account balance when added
to his In-Service Distribution Account balance and the benefit payable from any
other nonqualified deferred compensation arrangement that is required to be
aggregated with the Plan under Section 1.409A-1(e) of the Treasury
Regulations as of the date payment would otherwise commence does not exceed
$10,000, the Participant’s Retirement Distribution Account shall be distributed
in a lump sum on the 60th day following the date of such Separation from
Service.


 


7.2           Benefits
Under the In-Service Distribution Option. Benefits under the In-Service
Distribution Option shall be paid to a Participant as follows:


 


(a)           In-Service Distributions. In
the case of a Participant who continues in Service with the Board, the
Participant’s In-Service Distribution Account for any Plan Year shall be
paid as irrevocably elected by the Participant in the Election Agreement
pursuant to which such In-Service Distribution Account was established in one
lump sum or in annual installments payable over 2, 3, 4, or 5 years. Any
lump-sum benefit payable in accordance with this paragraph shall be paid on February 28
of such Plan Year in an amount equal to the value of such In-Service
Distribution Account on the date of payment. The initial annual installment
payment shall be paid on February 28 of such Plan Year in an amount equal
to (i) the value of such In-Service Distribution Account as of the last
business day of the Plan Year preceding the date of payment, divided by (ii) the
number of annual installment payments elected by the Participant in the
Election Agreement pursuant to which such In-Service Distribution Account was
established. The remaining annual installments shall be paid on February 28
of each succeeding year in an amount equal to (i) the value of such
In-Service Distribution Account as of the last business day of the immediately
preceding Plan Year divided by (ii) the number of installments remaining;
provided that the last installment payment shall be in an amount equal to the
value of such In-Service Distribution Account on the date of such last
installment payment.


 


(b)           Benefits Upon Separation From
Service. In the case of a Participant who has a Separation from Service
prior to the date on which the Participant’s In-Service Distribution Account
would otherwise be distributed, other than on account of death, such In-Service
Distribution Account shall be distributed as irrevocably elected by the
Participant in the Election Agreement pursuant to which such In-Service
Distribution Account was established.


 


8

















 


ARTICLE 8


SURVIVOR BENEFITS


 


8.1           Death
of Participant Prior to the Commencement of Benefits. In the event of a
Participant’s death prior to the commencement of benefits in accordance with Article 7,
benefits shall be paid to the Participant’s Beneficiary, as determined under Section 11.4,
pursuant to Section 8.2 or 8.3, whichever is applicable, in lieu of any
benefits otherwise payable under the Plan to or on behalf of such Participant.


 


8.2           Survivor
Benefits Under the Retirement Distribution Option. In the case of a
Participant with respect to whom the Plan Administrator has established a
Retirement Distribution Account, and who dies prior to the commencement of
benefits under such Retirement Distribution Account pursuant to Section 7.1,
distribution of such Retirement Distribution Account shall be made in a lump
sum on the first day of the second month following the Participant’s death. The
amount of any lump sum benefit payable in accordance with this Section shall
equal the value of such Retirement Distribution Account as of the date on which
such benefit is paid.


 


8.3           Survivor
Benefits Under the In-Service Distribution Option. In the case of a
Participant with respect to whom the Plan Administrator has established one or more In-Service
Distribution Accounts, and who dies prior to the date on which such In-Service
Distribution Accounts are to be paid pursuant to Section 7.2, distribution
of such In-Service Distribution Accounts shall be made in a lump sum on the
first day of the second month following the Participant’s death. The amount of
any lump sum benefit payable in accordance with this Section shall equal
the value of such In-Service Distribution Account as of the date on which such
benefit is paid.


 


8.4           Death
of Participant After Benefits Have Commenced. In the event a Participant
dies after annual installment benefits payable under Section 7.1 or 7.2
have commenced, but before the entire balance of the applicable Distribution
Account has been paid, any remaining installments shall continue to be paid to
the Participant’s Beneficiary, as determined under Section 11.4, at such times
and in such amounts as they would have been paid to the Participant had the
Participant survived.


 


ARTICLE 9


EMERGENCY BENEFIT


 


In the event that the Plan Administrator, upon
written request of a Participant, determines, in its sole discretion, that the
Participant has suffered an unforeseeable emergency, the Company shall pay to
the Participant from the Participant’s Distribution Account(s), within 60 days
following such determination, an amount not exceeding the amount reasonably
necessary to meet the emergency (which may include amounts necessary to pay any
Federal, State, or local income taxes or penalties reasonably anticipated that
result from the distribution) (the “Emergency Benefit”). For purposes of this
Plan, an unforeseeable emergency is a severe financial hardship of the
Participant arising from an illness or accident of the Participant, the
Participant’s spouse, or the Participant’s dependent (as defined in Section 152(a) of
the Code); 


 


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loss
of the Participant’s property due to casualty (including the need to rebuild a
home following damage to a home not otherwise covered by insurance, for
example, as a result of a natural disaster); or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant. Cash needs arising from foreseeable events such as the
education expenses for children shall not be considered to be the result of an
unforeseeable financial emergency. Emergency Benefits shall be paid first from
the Participant’s In-Service Distribution Accounts, if any, to the extent the
balance of one or more of such In-Service Distribution Accounts is sufficient
to meet the emergency, in the order in which such Accounts would otherwise be
distributed to the Participant. If the distribution exhausts the In-Service
Distribution Accounts, the Retirement Distribution Account may be accessed.
With respect to that portion of any Distribution Account which is distributed
to a Participant as an Emergency Benefit, in accordance with this Article, no
further benefit shall be payable to the Participant under this Plan.
Notwithstanding anything in this Plan to the contrary, a Participant who
receives an Emergency Benefit in any Plan Year shall not be entitled to make
any further deferrals for the remainder of such Plan Year. It is intended that
the Plan Administrator’s determination as to whether a Participant has suffered
an “unforeseeable emergency” shall be made consistent with the requirements
under Section 409A of the Code.


 


ARTICLE 10


ADMINISTRATION


 


10.1        Plan Administrator. The Company shall have the sole
responsibility for the administration of the Plan and is designated as Plan
Administrator.


 


10.2        Appointment of Administrative Committee. The Company
may delegate its duties as Plan Administrator to an Administrative Committee.
The members of the Administrative Committee shall be selected by the Board.


 


10.3        Powers of Plan Administrator. The Plan Administrator
shall have the full and exclusive power, discretion and authority to administer
the Plan. The determinations and decisions of the Plan Administrator are final
and binding on all persons. The Plan Administrator’s powers shall include but
shall not be limited to, the power to:


 


(a)           Maintain records pertaining to the
Plan.


 


(b)           Interpret the terms and provisions of
the Plan, and to construe ambiguities and correct omissions.


 


(c)           Establish procedures by which
Participants may apply for benefits under the Plan and appeal a denial of benefits.


 


(d)           Determine the rights under the Plan
of any Participant applying for or receiving benefits.


 


(e)           Administer the claims procedure
provided in this Article.


 


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(f)            Perform all acts necessary to meet
the reporting and disclosure obligations imposed by the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”).


 


(g)           Delegate specific responsibilities
for the operation and administration of the Plan to such employees or agents as
it deems advisable and necessary.


 


In the exercise of its powers, the Plan
Administrator shall be entitled to rely upon all tables, valuations,
certificates and reports furnished by any accountant or consultant and upon
opinions given by any legal counsel in each case duly selected by the Plan
Administrator.


 


10.4        Limitation of Liability. The Plan Administrator and
the Company and their respective officers and directors (including but not
limited to the members of the Board), shall not be liable for any act or omission
relating to their duties under the Plan, unless such act or omission is
attributable to their own willful misconduct or lack of good faith.


 


10.5        Claims Procedures.


 


(a)           All claims under the Plan shall be
directed to the attention of the Plan Administrator. Any Participant or
Beneficiary whose application for benefits or other claim under the Plan has
been denied, in whole or in part, shall be given written notice of the denial
by the Plan Administrator within sixty (60) days after the receipt of the claim.
The notice shall explain that the Participant or Beneficiary may request a
review of the denial and the procedure for requesting review. The notice shall describe any
additional information necessary to perfect the Participant’s or Beneficiary’s
claim and explain why such information is necessary. If a Participant or
Beneficiary does not receive a written response to a claim within sixty (60)
days after receipt of the claim by the Plan Administrator, the claim will be
deemed to be denied.


 


(b)           A Participant or Beneficiary may make
a written request to the Plan Administrator for a review of any denial of
claims under this Plan. The request for review must be in writing and must be
made within sixty (60) days after the mailing date of the notice of denial or
the deemed denial. The request shall refer to the provisions of the Plan on
which it is based and shall set forth the facts relied upon as justifying a
reversal or modification of the determination being appealed.


 


(c)           A Participant or Beneficiary who
requests a review of denial of claims in accordance with this claims procedure
may examine pertinent documents and submit pertinent issues and comments in
writing. A Participant or Beneficiary may have a duly authorized representative
act on his or her behalf in exercising his or her right to request a review and
any other rights granted by this claims procedure. The Plan Administrator shall
provide a review of the decision denying the claim within sixty (60) days after
receiving the written request for review. If a Participant or Beneficiary does
not receive a written response to a request for a review within the foregoing
time limit, such request will be deemed to be denied. A decision by the Plan
Administrator for review shall be final and binding on all persons.


 


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ARTICLE 11


MISCELLANEOUS


 


11.1        Unfunded Plan.


 


(a)           The Plan shall be an unfunded plan
maintained by the Company for the purpose of providing benefits to the
Trustees. The Company shall not be required to set aside, earmark or entrust
any fund or money with which to pay their obligations under this Plan or to
invest in any particular investment vehicle and may change investments of
Company assets at any time.


 


(b)           The Company may establish a Trust to
hold property that may be used to pay benefits under the Plan. The Trust shall
be a domestic trust maintained in the United States. The Trust shall be
intended to be a grantor trust, within the meaning of Section 671 of the
Code, of which the Company is the grantor, and the Plan is to be construed in
accordance with that intention. Notwithstanding any other provision of this
Plan, the assets of the Trust will remain the property of the Company and will
be subject to the claims of creditors in the event of bankruptcy or insolvency,
as provided in the Trust Agreement. No Participant or person claiming through a
Participant will have any priority claim on the assets of the Trust or any
security interest or other right superior to the rights of a general creditor
of the Company as provided in the Trust Agreement.


 


(c)           Subject to the following provisions
of this Section 11.1(c), all benefits under this Plan shall be paid by the
Company from its general assets and/or the assets of the Trust, which assets
shall, at all times, remain subject to the claims of creditors as provided in
the Trust Agreement.


 


(d)           Neither Participants, their
Beneficiaries nor their legal representatives shall have any right, other than
the right of an unsecured general creditor, against the Company in respect of
any portion of a Participant’s Account and shall have no right, title or
interest, legal or equitable, in or to any asset of the Company or the Trust.


 


11.2        Spendthrift Provision. The Plan shall not in any
manner be liable for or subject to the debts or liabilities of any Participant
or Beneficiary. No benefit or interest under the Plan is subject to assignment,
alienation, pledge or encumbrance, whether voluntary or involuntary, and any
purported or attempted assignment, alienation, pledge or encumbrance of
benefits shall be void and will not be recognized by the Company.


 


11.3        Employment Rights. The existence of the Plan shall not
grant a Participant any legal or equitable right to continue as a Trustee nor
affect the right of the Company to discontinue the service of a Participant as
a Trustee.


 


11.4        Designation of Beneficiary. Each Participant may
designate a Beneficiary or Beneficiaries (which Beneficiary may be an entity
other than a natural person) to receive any payments which may be made
following the Participant’s death. Such designation may be changed or canceled
at any time without the consent of any such Beneficiary. Any such designation,
change or cancellation must be made in a form approved by the Plan
Administrator and shall not be effective until received by the Plan
Administrator, or its designee. If no 


 


12

















 


Beneficiary
has been named, or if the designated Beneficiary or Beneficiaries shall have
predeceased the Participant, the Beneficiary shall be the Participant’s estate.
If a Participant designates more than one Beneficiary, the interests of such
Beneficiaries shall be paid in equal shares, unless the Participant has
specifically designated otherwise.


 


11.5         Amendment
or Termination. Subject to the requirements of Section 409A of the
Code and the Treasury Regulations promulgated thereunder, the Company reserves
the right to amend, modify, suspend or terminate the Plan at any time without
prior notice by action of its Board; provided, however, that no such action may
deprive a Participant of his rights to receive a benefit pursuant to the Plan
with respect to Compensation deferred prior to such action.


 


11.6         No
Fiduciary Relationship Created. Nothing contained in this Plan, and no
action taken pursuant to the provisions of this Plan, shall create or be deemed
to create a fiduciary relationship between the Company or the Plan
Administrator and any Participant, Beneficiary or any other person.


 


11.7         Release.
Any payment to any Participant or Beneficiary in accordance with the provisions
of this Plan shall, to the extent thereof, be in full satisfaction of all
claims against the Plan Administrator, the Company, and any of their respective
officers, directors, shareholders, employees or agents.


 


11.8         No
Warranty or Representation. The Company makes no warranty or representation
regarding the effect of deferrals made or benefits paid under this Plan for any
purpose.


 


11.9         Construction.
Words used in the masculine shall apply to the feminine where applicable; and
wherever the context of the Plan dictates, the plural shall be read as the
singular and the singular as the plural.


 


11.10       Governing
Law. To the extent that Ohio law is not preempted by ERISA, the provisions
of the Plan shall be governed by the laws of the State of Ohio.


 


11.11       Counterparts.
This Plan may be signed in any one or more counterparts each of which together
shall constitute one instrument.


 


11.12       American
Jobs Creation Act of 2004. The Plan is intended to provide for the deferral
of compensation in accordance with the provisions of Section 409A of the
Code and Treasury Regulations and published guidance issued pursuant thereto.
Notwithstanding any provision of the Plan or any Election Agreement to the
contrary, no otherwise permissible election or distribution shall be made or
given effect under the Plan that would result in taxation of any amount under Section 409A
of the Code.


 


11.13       Transition
Elections. Notwithstanding any other elections made hereunder and only to
the extent permitted by the Company and transition rules issued under Section 409A
of the Code, through such dates as specified by the Company pursuant to
transitional guidance issued under Section 409A of the Code, Participants
have been permitted to make one or more elections as to the time and form of
payment of their In-Service Distribution Accounts and Retirement Distribution
Accounts under the Plan, provided that (a) any such elections made 


 


13

















 


during
2006 were only available for amounts that were payable after the 2006 calendar
year and could not accelerate any payments into the 2006 calendar year, (b) any
such elections made during 2007 were only available for amounts that were
payable after the 2007 calendar year and could not accelerate any payments into
the 2007 calendar year, and (c) any such elections made during 2008 were
only available for amounts that were payable after the 2008 calendar year and
could not accelerate any payment into the 2008 calendar year.


 


11.14       Permissible
Accelerations. Notwithstanding any other provision of the Plan to the
contrary, in accordance with Section 1.409A-3(j)(4) of the Treasury
Regulations, the Company may, in its sole discretion, cause payments to or on
behalf of a Participant to be accelerated (i) to the extent necessary to
fulfill a domestic relations order (as defined in Section 414(p)(1)(B) of
the Code, (ii) to the extent necessary for any Federal officer or employee
in the executive branch to comply with an ethics agreement with the Federal
government, (iii) to the extent reasonably necessary to avoid the
violation of an applicable Federal, state, local, or foreign ethics law or
conflicts of interest law (including where such payment is reasonably necessary
to permit the Participant or Beneficiary to participate in activities in the
normal course of his or her position in which a Participant or Beneficiary
would otherwise not be able to participate under an applicable rule); (iv) to
pay FICA taxes on any amounts deferred under the Plan and any state, local or
foreign income tax withholding related to such FICA tax, (v) at any time
the Plan fails to meet the requirements of Section 409A of the Code and
the Treasury Regulations thereunder; provided however that the amount of the
accelerated payment may not exceed the amount required to be included as a
result of the failure to comply with Section 409A of the Code and the
Treasury Regulations thereunder; (vi) where the acceleration of the
payment is made pursuant to a termination and liquidation of the Plan in
accordance with Section 1.409A-3(j)(4)(ix) of the Treasury
Regulations; (vii) to reflect payment of state, local or foreign tax
obligations arising from participation in the Plan that apply to the amount
deferred under the Plan before the amount is paid or made available to the
Participant or Beneficiary; provided such payment may not exceed the amount of
such taxes due as a result of participation in the Plan; (viii) as
satisfaction of a debt of the Participant or Beneficiary to the Company in
accordance with Section 1.409A-3(j)(4)(xiii) of the Treasury Regulations
and (ix) where such payment occurs as a part of a settlement between the
Participant or the Beneficiary and the Company of an arm’s length, bona fide
dispute as to the Participant’s or Beneficiary’s right to the deferred amount.


 


IN WITNESS WHEREOF, U-Store-It Trust,  has executed this Amended and Restated Plan
on the       day of December, 2008.


 


 




	
   

  	
   

  	
  U-STORE-IT TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Christopher P. Marr

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Christopher P. Marr

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President and Chief Investment Officer

  
						






 


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