Exhibit 10.41


 


AMENDMENT TO THE


AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS AMENDMENT
(the “Amendment”) is made, effective as of December       ,
2008 (the “Effective Date”), between U-STORE-IT TRUST, a Maryland real
estate investment trust (the “Company”), and STEVEN R. NICHOLS (the “Executive”).


 


WHEREAS, the
Company and the Executive are parties to an amended and restated employment agreement
dated as of April 20, 2007 (the “Agreement”); and


 


WHEREAS, the Company
and the Executive desire to amend the Agreement to ensure compliance with or
exemption from provisions of the Section 409A of the Internal Revenue Code of
1986, as amended, and its implementing regulations and guidance; and


 


WHEREAS, capitalized terms used herein but not otherwise
defined herein shall have the meanings given to them in the Agreement.


 


NOW THEREFORE,
in consideration of these premises, and intending to be legally bound, the
parties agrees as follows:


 


1.             Section 7.17
of the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“Section
409A.


 


(a)           Notwithstanding anything in the
Agreement to the contrary or otherwise, except to the extent any expense,
reimbursement or in-kind benefit provided pursuant to the Agreement does not
constitute a “deferral of compensation” within the meaning of Section 409A of
the Internal Revenue Code of 1986, and its implementing regulations and
guidance (“Section 409A”), (i) the amount of expenses eligible for
reimbursement or in-kind benefits provided to the Executive during any calendar
year will not affect the amount of expenses eligible for reimbursement or
in-kind benefits provided to the Executive in any other calendar year, (ii) the
reimbursements for expenses for which the Executive is entitled to be reimbursed
shall be made on or before the last day of the calendar year following the
calendar year in which the applicable expense is incurred and (iii) the right
to payment or reimbursement or in-kind benefits hereunder may not be liquidated
or exchanged for any other benefit.”


 


(b)           For purposes of the application of
Treas. Reg. § 1.409A-1(b)(4)(or any successor provision), each payment in a
series of payments to the Executive will be deemed a separate payment.


 


(c)           Notwithstanding any other provision of the
Agreement to the contrary, any payment or benefit provided to the Executive
upon or following her termination of employment that represents a “deferral of
compensation” within the meaning of Section 409A shall only be paid or provided
to the Executive upon


 

















 


her “separation from
service” within the meaning of Treas. Reg. § 1.409A-1(h) (or any successor
regulation).


 


(d)           In the event the payment of any amounts payable
pursuant to Section 5 of this Agreement within six months of the date of the
Executive’s termination of employment would cause the Executive to incur any
additional tax under Section 409A, then payment of such amounts shall be
delayed until the date that is six months following the Executive’s termination
date (the “Earliest Payment Date”).  If this provision becomes
applicable, it is anticipated that payments that would have been made prior to
the Earliest Payment Date in the absence of this provision would be paid as a
lump sum on the Earliest Payment Date and the remaining severance benefits or other
payments would be paid according to the schedule otherwise applicable to the
payments.


 


IN WITNESS
WHEREOF, the parties hereto have executed and delivered this Amendment on the       
day of December, 2008.


 


 


	
   

  	
  U-STORE IT TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dean Jernigan

  
	
   

  	
   

  	
  Name:  Dean
  Jernigan

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Stephen R. Nichols

  
	
   

  	
  STEVEN R. NICHOLS

  



 


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