Exhibit 10.79


 


U-STORE-IT TRUST


 


EXECUTIVE DEFERRED COMPENSATION PLAN


 


 


Amended and Restated Effective January 1,
2009


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  
	
  ARTICLE 1 PURPOSE

  	
  2

  
	
   

  	
   

  
	
  ARTICLE 2 DEFINITIONS

  	
  2

  
	
   

  	
   

  
	
  ARTICLE 3 PARTICIPATION

  	
  5

  
	
  3.1

  	
  Eligibility

  	
  5

  
	
  3.2

  	
  Participation

  	
  5

  
	
   

  	
   

  
	
  ARTICLE 4 BENEFITS

  	
  5

  
	
  4.1

  	
  Deferred Compensation

  	
  5

  
	
  4.2

  	
  Matching Deferred Compensation

  	
  5

  
	
  4.3

  	
  Nonelective Deferred Compensation

  	
  5

  
	
  4.4

  	
  Election Procedures

  	
  6

  
	
  4.5

  	
  One Time Change in Time and Form of Payment

  	
  7

  
	
   

  	
   

  
	
  ARTICLE 5 ACCOUNTS

  	
  7

  
	
  5.1

  	
  Participant Accounts

  	
  7

  
	
  5.2

  	
  Returns on Distribution Accounts

  	
  7

  
	
  5.3

  	
  Deemed Investment Options

  	
  8

  
	
  5.4

  	
  Changes in Deemed Investment Options

  	
  8

  
	
  5.5

  	
  Valuation of Accounts

  	
  8

  
	
  5.6

  	
  Statement of Accounts

  	
  8

  
	
  5.7

  	
  Distributions from Accounts

  	
  8

  
	
  5.8

  	
  Deemed Company Stock Fund

  	
  9

  
	
   

  	
   

  
	
  ARTICLE 6 DISTRIBUTIONS

  	
  9

  
	
  6.1

  	
  Retirement Distribution Option

  	
  9

  
	
  6.2

  	
  In-Service Distribution Option

  	
  9

  
	
  6.3

  	
  Distribution Limitations

  	
  9

  
	
   

  	
   

  
	
  ARTICLE 7 BENEFITS TO PARTICIPANTS

  	
  10

  
	
  7.1

  	
  Benefits Under the Retirement Distribution Option

  	
  10

  
	
  7.2

  	
  Benefits Under the In-Service Distribution Option

  	
  11

  
	
   

  	
   

  
	
  ARTICLE 8 SURVIVOR BENEFITS

  	
  11

  
	
  8.1

  	
  Death of Participant Prior to the Commencement of Benefits

  	
  11

  
	
  8.2

  	
  Survivor Benefits Under the Retirement Distribution Option

  	
  11

  
	
  8.3

  	
  Survivor Benefits Under the In-Service Distribution Option

  	
  12

  
	
  8.4

  	
  Death of Participant After Benefits Have Commenced

  	
  12

  
	
   

  	
   

  
	
  ARTICLE 9 EMERGENCY BENEFIT

  	
  12

  
	
   

  	
   

  
	
  ARTICLE 10 ADMINISTRATION

  	
  13

  
	
  10.1

  	
  Plan Administrator

  	
  13

  



 

















 


	
  10.2

  	
  Appointment of Administrative Committee

  	
  13

  
	
  10.3

  	
  Powers of Plan Administrator

  	
  13

  
	
  10.4

  	
  Limitation of Liability

  	
  13

  
	
  10.5

  	
  Claims Procedures

  	
  13

  
	
   

  	
   

  
	
  ARTICLE 11 MISCELLANEOUS

  	
  14

  
	
  11.1

  	
  Unfunded Plan

  	
  14

  
	
  11.2

  	
  Spendthrift Provision

  	
  15

  
	
  11.3

  	
  Employment Rights

  	
  15

  
	
  11.4

  	
  Designation of Beneficiary

  	
  15

  
	
  11.5

  	
  Withholding of Taxes

  	
  15

  
	
  11.6

  	
  Amendment or Termination

  	
  16

  
	
  11.7

  	
  No Fiduciary Relationship Created

  	
  16

  
	
  11.8

  	
  Release

  	
  16

  
	
  11.9

  	
  No Warranty or Representation

  	
  16

  
	
  11.10

  	
  Construction

  	
  16

  
	
  11.11

  	
  Governing Law

  	
  16

  
	
  11.12

  	
  Counterparts

  	
  16

  
	
  11.13

  	
  American Jobs Creation Act of 2004

  	
  16

  
	
  11.14

  	
  Transition Elections

  	
  16

  
	
  11.15

  	
  Permissible Accelerations

  	
  17

  



 

















 


U-STORE-IT TRUST EXECUTIVE DEFERRED COMPENSATION PLAN


 


ARTICLE 1


PURPOSE


 


The U-Store-It Trust Executive Deferred Compensation
Plan (the “Plan”) is hereby amended and restated in accordance with the
following terms and conditions for the purpose of providing deferred
compensation to eligible employees, which plan is intended to be a
non-qualified deferred compensation arrangement for a select group of
management and highly compensated employees.  
The Plan was originally adopted by the Board on November 3, 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           Base
Salary  means for a Plan
Year the annual cash compensation relating to services performed during such
Plan Year, whether or not paid in such Plan Year or included on the Federal
Income Tax Form W-2 for such Plan Year, excluding bonuses, commissions,
overtime, special awards, tax planning stipends, fringe benefits, stock
options, relocation expenses, incentive payments, non-monetary awards, fees,
automobile and other allowances paid to a Participant for employment services
rendered (whether or not such allowances are included in the Employee’s gross
income).  Base Salary shall be calculated
before reduction for compensation voluntarily deferred or contributed by the
Participant pursuant to all qualified or non-qualified plans of any Employer
and shall be calculated to include amounts not otherwise included in the
Participant’s gross income under Sections 125, 402(e)(3), 402(h), or 403(b) of
the Code pursuant to plans established by any Employer; provided, however, that
all such amounts will be included in compensation only to the extent that, had
there been no such plan, the amount would have been payable in cash to the
Employee.


 


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


 


2.4           Board  means the Board of Trustees of the Company.


 


2.5           Bonus  means for a Plan Year any compensation
relating to services performed during such Plan Year payable to a Participant
pursuant to a regular U-Store-It Trust bonus program, whether or not paid in
such Plan Year or included on the Federal Income Tax Form W-2 for such
Plan Year.


 


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


 


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


 


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


 


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


 


2.10         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.


 


2.11         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.


 


2.12         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.


 


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


 


2.14         Employee  means, with respect to each Employer,
management and highly compensated employees.


 


2.15         Employer  means the Company and any other entity with
which the Company would be considered a single employer (within the meaning of Section 414(b) of
the Code) which, with the authorization of the Board, adopts the Plan for the
benefit of its employees pursuant to resolution of its board of directors.


 


2.16         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.


 


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


 


2.18         Matching
Deferred Compensation 
means a Participant’s matching deferred compensation allocated to the
Participant’s Account as further described in Section 4.2.


 


2.19         Nonelective
Deferred Compensation 
means a Participant’s nonelective deferred compensation allocated to the
Participant’s Account as further described in Section 4.3.


 


3

















 


2.20         Participant  means an Employee or former Employee of an
Employer who has met the requirements for participation under Section 3.1
and who is or may become eligible to receive a benefit from the Plan or whose
beneficiary may be eligible to receive a benefit from the Plan.


 


2.21         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 Executive Deferred Compensation Plan.”


 


2.22         Plan
Administrator means the Company.


 


2.23         Plan Year  means the period beginning on November 6,
2006, and ending on December 31, 2006, and thereafter beginning on January 1
and ending on December 31 of each year.


 


2.24         Retirement  means a Participant’s Separation from Service
with the Company (for reasons other than death) at or after age 55.


 


2.25         Retirement
Distribution Account 
means the Account maintained for a Participant to which Deferred
Compensation, Matching Deferred Compensation, and Nonelective Deferred
Compensation are credited pursuant to the Retirement Distribution Option.


 


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


 


2.27         Separation
from Service  means a “separation
from service” as defined in Section 1.409A-1(h) of the Treasury
Regulations; provided that in applying Section 1.409A-1(h)(1)(ii) of
the Treasury Regulations, a Separation from Service shall be deemed to occur if
the Participant’s Employer and the Participant reasonably anticipate that the
level of bona fide services the Participant will perform for the Employers
(whether as an Employee or as an independent contractor) will permanently
decrease to less than 50% of the average level of bona fide services performed
by the Participant for the Employers (whether as an Employee or as an
independent contractor) over the immediately preceding 36-month period (or the
full period of services performed for the Employers if the Participant has been
providing services to the Employers for less than 36 months).  In the event of a disposition of assets by
the Company to an unrelated person, the Company reserves the discretion to
specify (in accordance with Section 1.409A-1(h)(4) of the Treasury
Regulations) whether a Participant who would otherwise experience a Separation
from Service with the Company and the Employers as part of the disposition of
assets will be considered to experience a Separation from Service for purposes
of Section 1.409A-1(h) of the Treasury Regulations.


 


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


 


4

















 


ARTICLE 3


PARTICIPATION


 


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


 


3.2           Participation.  An Employee 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 or upon such other events as determined by 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 4.4, a
Participant may elect for a Plan Year to have his or her Base Salary and/or
Bonus deferred in any amount, expressed as a percentage, less applicable tax
withholding, 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 on such schedule as the Plan Administrator shall determine.


 


4.2           Matching
Deferred Compensation. 
There shall be credited to each Participant’s Account for each Plan Year
a Matching Deferred Compensation amount equal to the total matching
contribution such Participant would have received under the Company’s qualified
defined contribution plan for the Plan Year without regard to the limitations
imposed thereon under Sections 402(g), 415 and 417 of the Code less the
actual matching contribution such Participant received under the Company’s qualified
defined contribution plan for the Plan Year, or such other amount as may be
established from time to time by action of the Board, provided such Participant
has made the maximum elective deferrals to the Company’s qualified defined
contribution plan as permitted under the terms of such plan.  Matching Deferred Compensation shall be
credited to a Participant’s Retirement Distribution Account on such schedule as
the Plan Administrator shall determine.


 


4.3           Nonelective
Deferred Compensation. 
The Compensation Committee may in its discretion determine for any Plan
Year to make an additional credit to a Participant’s Retirement Distribution
Account as Nonelective Deferred Compensation, which amount may be a different
amount or percentage (including no amount) for each Participant, as the
Compensation Committee shall in its sole and absolute discretion determine.
Nonelective Deferred Compensation shall be credited to a Participant’s
Retirement Distribution Account monthly or on such other schedule as the Compensation
Committee shall determine.


 


5
















 


4.4           Election
Procedures.


 


(a)           Except
as provided in paragraphs (b) and (c) 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 be valid only with respect to
Base Salary, Bonus, Matching Deferred Compensation and Nonelective Deferred
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 Base Salary and/or the percentage of
Bonus the Participant elects to defer for such Plan Year; (ii) allocate
his or her deferrals between the In-Service Distribution 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 Employee
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 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


 


6

















 


after the date of Retirement if
any Nonelective Deferral Compensation is credited to his Retirement
Distribution Account for such 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 or a hardship distribution
within the meaning of Section 1.401(k)-1(d)(3) of the Treasury
Regulations from any plan of an Employer, 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.


 


4.5           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 Accounts in accordance with Section 4.4(c)(iii),
4.4(c)(iv) or 4.4(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 (taking into account any delay of commencement of payment under Section 6.3
on account of a Participant’s status as a Specified Employee.)


 


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, 
Matching Deferred Compensation, and Nonelective 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


 


7

















 


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.


 


5.4           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, with
respect to an “executive officer” as defined in the rules promulgated
under Section 16 of the Securities and Exchange Act of 1934, 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


 


8

















 


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
is an “executive officer” as defined in the rules promulgated under Section 16
of the Securities and Exchange Act of 1934 and 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, Matching Deferred Compensation and Nonelective 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, Matching Deferred Compensation or Nonelective Deferred
Compensation would have otherwise been paid to the Participant or credited to
the Participant’s Account and (b) for the period commencing on the date
Deferred Compensation, Matching Deferred Compensation or Nonelective Deferred
Compensation would have otherwise been paid to the Participant or credited to
the Participant’s Account until such date as the Deferred Compensation,
Matching Deferred Compensation or Nonelective 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.


 


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.


 


6.3           Distribution
Limitations.  Notwithstanding any
other provision of the Plan to the contrary, the Retirement Distribution
Account of a Specified Employee shall not be paid or commence to be paid until
the date that is six months following the date of such Specified Employee’s
Retirement or other Separation from Service. 
On the date that payment is made or payments commence, the Participant
shall receive payment of any amounts that would have


 


9

















 


otherwise
been paid during the six month delay but for the application of this Section 6.3.  For purposes of this Section 6.3,
Specified Employees shall be determined as of any date in accordance with the
U-Store-It Trust Policy for determining Specified Employees.


 


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 service with the Company terminates 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 with respect
to the Plan Year 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 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 4.5 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 Separation from Service,
subject to the requirements of Section 6.3.


 


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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 Company, 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.


 


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.


 


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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), after  deduction of
any and all taxes as may be required pursuant to Section 11.5 (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); 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.


 


12

















 


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.


 


(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 all other Employers, 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


 


13

















 


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.


 


ARTICLE 11

MISCELLANEOUS


 


11.1         Unfunded
Plan.


 


(a)           The
Plan shall be an unfunded plan maintained by the Company and the other
Employers for the purpose of providing benefits for a select group of
management or highly compensated employees. Neither the Company nor any other
Employer shall 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


 


14

















 


the rights of a general creditor
of the Company or the other Employers 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 Participant’s Employer(s) 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. No
Employer, other than the Company as provided below, shall have any obligation
to pay benefits hereunder in respect of any Participants who are not Employees
or former Employees of such Employer. The obligation of each Employer hereunder
in respect of any Participant shall be limited to the amounts payable to such
Participant from the Account established for such Participant in respect of
employment with that Employer, except that if an Employer shall fail to make or
cause to be made any benefit payment hereunder when due, the Company shall
promptly make such benefit payment from its general assets and/or the assets of
the Trust.


 


(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 or any other Employer 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 any other Employer 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
or any other Employer.


 


11.3         Employment
Rights.  The existence of
the Plan shall not grant a Participant any legal or equitable right to continue
as an Employee nor affect the right of the Company or any other Employer to
discharge a Participant.


 


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
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         Withholding
of Taxes.  To the extent
required by applicable law, the Company or another Employer will withhold from
a Participant’s compensation and/or Deferred Compensation and any payment
hereunder all taxes required to be withheld for federal, state or local
government purposes.


 


15

















 


11.6         Amendment
or Termination.  Subject to the
requirements of Section 409A of the Code and the Treasury Regulations
promulgated thereunder, provisions of Section 11.13, 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. Subject to the
requirements of Section 409A of the Code and the Treasury Regulations
promulgated thereunder, an Employer may terminate its participation in the Plan
at any time by action of its board of directors.


 


11.7         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 any other Employer or the Plan
Administrator and any Participant, Beneficiary or any other person.


 


11.8         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,
the other Employers and any of their respective officers, directors,
shareholders, employees or agents.


 


11.9         No
Warranty or Representation. 
Neither the Company nor any other Employer makes any warranty or
representation regarding the effect of deferrals made or benefits paid under
this Plan for any purpose.


 


11.10       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.


 


11.11       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.


 


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


 


11.13       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.


 


11.14       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 during 2006 were only available
for amounts that were payable after the 2006 calendar year and


 


16

















 


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 payments into the 2008 calendar year.


 


11.15       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

  
					



 


17