Exhibit 10.85


 


December 31, 2008


 


Mr. Stephen
R. Nichols


1506
Pearl Avenue


Crofton,
Maryland  21114


 


Re: SEVERANCE AND GENERAL RELEASE AGREEMENT


 


This agreement made and
entered into between U-Store-It Trust (the “Company”) and Stephen R.
Nichols (the “Executive”);


 


WHEREAS, the Executive has
been employed by the Company pursuant to that Amended and Restated Executive
Employment Agreement dated April 20, 2007  (the “Employment
Agreement”);


 


WHEREAS, the Executive’s
employment with the Company has been terminated, effective December 31,
2008, upon non-renewal of the employment term pursuant to Section 1 of the
Employment Agreement;


 


WHEREAS, Section 5.5 of
the Employment Agreement sets forth the payment and post-termination benefits
to which the Executive is entitled upon non-renewal of the employment term of
the Employment Agreement;


 


WHEREAS, the Company and
Executive have agreed that Exhibit A attached hereto and made a
part hereof sets forth in full the payment and post-termination benefits which the
Company has expressed its willingness to provide to the Executive and which the
Executive has expressed his willingness to accept, in connection with the termination
of the Executive’s employment (all of such payment and post-termination
benefits being referred to collectively as the “Termination Benefits”),
upon the terms set forth herein (and in full satisfaction of any and all obligations
of the Company under, or entitlement of the Executive under, the Employment
Agreement);


 


WHEREAS, the Executive has
agreed to accept the Termination Benefits upon the terms set forth herein.


 


NOW, THEREFORE, the parties
agree as follows:


 


1.                                       The recitals set forth above are true and
accurate.


 


2.                                       As a material inducement to Executive to
enter into this Agreement, the Company will provide the Executive with the
Termination Benefits within 30 days after the date hereof, to be paid in the
form of regular payroll checks and from which the Company will make all
applicable withholding.  The Executive acknowledges that he is not entitled
to receive the Termination Benefits unless he executes and does not revoke this
Severance and General Release Agreement (the “Agreement”).


 


3.                                       This Agreement is not and shall not be
construed as an admission by the Executive of any fact or conclusion of
law.  Likewise, this Agreement is not and shall not be construed as an
admission by Company of any fact or conclusion of law.  Without limiting
the general nature of the previous sentences, this Agreement shall not be
construed as an admission that the Executive, or the Company, or any of the
Company’s officers, directors, managers, agents, or employees have violated any
law or regulation or have violated any contract, express or implied.


 


4.                                       The Executive represents and warrants that he
has no personal knowledge of any practices engaged in by the Company that is or
was a violation of any applicable state law or regulations or of any federal
law or regulations.  To the extent that the Executive has knowledge of any
such practices, the Executive represents and warrants that the Executive
already has notified the Company in writing of such alleged practices.


 

















 


5.                                       The Executive represents and warrants that he
has not filed any other complaint(s) or charge(s) against the Company
with the EEOC or the state commission empowered to investigate claims of
employment discrimination or with any other local, state or federal agency or
court, and that if any such agency or court assumes jurisdiction of any
complaint(s) or charge(s) against the Company on behalf of the
Executive, the Executive will request such agency or court to withdraw from the
matter, and the Executive will refuse any benefits derived therefrom. 
This Agreement will not affect the Executive’s right to hereafter file a charge
with or otherwise participate in an investigation or proceeding conducted by
the EEOC regarding matters which arose after the date of this Agreement and
which are not the subject of this Agreement.


 


6.                                       The Executive hereby irrevocably and
unconditionally releases and forever discharges the Company, its subsidiaries,
parent companies, and related entities, and each of the Company and its
affiliates’ successors, assigns, agents, directors, officers, employees,
representatives, and attorneys, and all persons acting by, through, under or in
concert with any of them (collectively “Released Parties”), or any of
them, from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including attorney’s fees
and costs actually incurred), of any nature whatsoever, known or unknown (“Claims”),
which the Executive now has, or claims to have, or which the Executive at any
time heretofore had, or claimed to have, against each or any of the Released
Parties.  The definition of Claims also specifically encompasses all
claims of under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 1981(a), the Age Discrimination in Employment Act of 1967, as amended,
the Employment Retirement Income Security Act, the Family and Medical Leave
Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the
National Labor Relations Act, as well as all claims under state law provided
under other applicable state law or local ordinance concerning the
Executive’s employment.  This Agreement further specifically encompasses
all claims related to compensation, benefits, incentive packages, or any other
form of compensation the Executive may or may not have received during his
employment. This paragraph will not affect the Executive’s ability to file a
claim of discrimination with the Equal Employment Opportunity Commission (or
applicable state or local agency), or participate in any such investigation,
but will preclude the Executive from obtaining any personal relief in any such
proceeding.


 


7.                                       The Executive agrees that he forever waives
and relinquishes any and all claim, right, or interest in reinstatement or
future employment that he presently has or might in the future have
with the Company and its successors and assigns.  The Executive
agrees that he will not seek employment with the Company and its
successors and assigns in the future.


 


8.                                       If any provision of this Agreement is held to
be invalid or unenforceable, the remainder of the Agreement shall nevertheless
remain in full force and effect.  If any provision is held to be invalid
or unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances. 
No waiver of any terms of conditions of this Agreement or any part of the
Agreement shall be deemed a waiver of any other terms and conditions of this
Agreement or with any later breach of this Agreement.


 


9.                                       The Executive agrees to indemnify and hold
each and all of the Released Parties harmless from and against any and all
loss, costs, damage, or expense, including, without limitation, attorneys fees,
incurred by the Released Parties, or any of them, arising out of the Executive’s
breach of this Agreement or the fact that any representation made by him herein
was false when made.


 


10.                                 The obligations of Executive under Section 1
of the Noncompetition Agreement dated as of July 10, 2006 between
Executive and the Company shall terminate at the time that Executive becomes
entitled to receive the Termination Benefits pursuant to paragraph 2 above (but
the obligations of Executive under the remaining sections of the Noncompetition
Agreement shall continue in full force and effect). Subject to the preceding
sentence, in the event of any breach of this Agreement or the Noncompetition
Agreement or Section 6 of the Employment Agreement by the Executive, the
Company shall be entitled to immediately cease payment of the Termination
Benefits in addition to any other remedy it may have.  Both parties
understand and agree that should either of them breach any material term of
this Agreement, the non-breaching party can institute an action to enforce the
terms of this Agreement.  If legal action is commenced to enforce any
provision of this Agreement, the substantially prevailing party in such action


 


2

















 


shall
be entitled to recover its attorneys’ fees and expenses through any and all
trial courts or appellate courts, in addition to any other relief that may be
granted.


 


11.                                 The Executive represents that he has not
heretofore assigned or transferred, or purported to assign or transfer to any
person or entity, any Claim or any portion thereof or interest therein.


 


12.                                 The Executive represents and acknowledges
that in executing this Agreement he does not rely and has not relied upon any
other representation or statement made by any of the Released Parties or by any
of the Released Parties’ agents, representatives or attorneys, except as set
forth herein, with regard to the subject matter, basis or effect of this
Agreement.


 


13.                                 The Executive further agrees that he will not
disparage the Company, its business, its employees, officers or agents, or any
of the Company’s affiliates or related entities in any manner harmful to their
business or business reputation.  The Executive and the Company agree to
keep the matters contained herein confidential.  The Executive will not
discuss this agreement with any current or former employee(s) of the
Company.  This clause shall not prevent the Executive from communicating
confidentially with his attorney(s) or immediate family members, or to the
extent required by public disclosure laws or as required by laws, regulations,
or a final and binding court order or other compulsory process.  Likewise,
the Company agrees not to disparage the Executive or otherwise make any
negative statement about the Executive, in writing, orally, or otherwise, in
connection with the matters or claims released herein and expressly including,
but not limited to, matters related to the Executive’s employment with the
Company.  This clause shall not prevent the Company from communicating
confidentially with its attorney(s), officers, or directors of the corporation,
or to the extent required by public disclosure laws or as required by laws,
regulations, or a final and binding court order or other compulsory process.


 


14.                                 This Agreement shall be binding upon the
Company, the Executive and their respective heirs, administrators,
representatives, executors, successors, and assigns, and shall inure to the
benefit of the Released Parties and each of them, and to their heirs,
administrators, representatives, executor, successors and assigns.


 


15.                                 All terms not defined herein shall have the
meanings set forth in the Employment Agreement.


 


16.                                 This Agreement shall in all respects be
interpreted, enforced and governed under the laws of the State of Ohio.


 


17.                                 This Agreement sets forth the entire
agreement between the parties hereto.  Any modification, amendment or
change to this Agreement must be made in writing and signed by both parties.


 


The Executive acknowledges
that he has been advised to consult with an attorney prior to executing this
Agreement.  The Executive acknowledges that the Executive has been
given a period of up to twenty-one (21) days within which to consider this
Agreement.  The Executive further acknowledges that this Agreement may be
revoked by the Executive at any time during the seven (7) day period
beginning on the date that the Executive has signed this Agreement by
providing written notice of revocation to Christopher P. Marr,  Chief
Financial Officer, U-Store-It Trust, 460 E. Swedesford Road, Suite 3000,
Wayne, PA 19087.  This Agreement shall not become effective if the
Executive revokes the Agreement during this 7-day period and will not become
effective otherwise until after expiration of the 7-day period.  The
Executive shall not be entitled to receive any Termination Benefits under
this Agreement or otherwise until the expiration of the revocation period.


 


	
   

  	
   

  	
  /s/ Stephen R. Nichols

  
	
  Date

  	
   

  	
  Executive

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U-Store-It Trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Christopher P. Marr

  
	
  Date

  	
   

  	
  Title:

  	
  President and Chief Investment Officer

  
					



 


3

















 


Stephen
Nichols


Exhibit A


 


	
  Per Section 5.5 of the Amended and Restated
  Executive Employment Agreement

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.5 (1)(i) - 1 times
  Salary

  	
   

  	
  $

  	
  275,000

  	
   

  
	
  Section 5.5 (1)(ii) - Average of
  two previous Annual Bonuses

  	
   

  	
  68,083

  	
   

  
	
  Section 5.5 (1)(ii) - Average of
  two previous Long-Term Bonuses

  	
   

  	
  390,439

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subtotal

  	
   

  	
  733,522

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Additional Benefits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2008 FFO Bonus - 200% of Target

  	
   

  	
  211,750

  	
   

  
	
  2008 Personal Bonus - 100% of Target

  	
   

  	
  45,375

  	
   

  
	
  Accrued Vacation

  	
   

  	
  21,154

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subtotal

  	
   

  	
  278,279

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Severance

  	
   

  	
  $

  	
  1,011,801