Exhibit 10.5


 


EXECUTION COPY


 


FIRST AMENDMENT TO SECOND AMENDED AND
RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF EXTRA SPACE STORAGE LP


 


This First Amendment to Second Amended and Restated Agreement of
Limited Partnership of Extra Space Storage LP, dated September 18, 2008
(this “Amendment”), is entered into
by and among ESS Holdings Business Trust I, a Massachusetts business trust (the
“General Partner”) and the limited
partners listed on Exhibit A hereto (the “Limited
Partners”).


 


WHEREAS, the General
Partner and ESS Holdings Business Trust II, a Massachusetts business trust (the
“Parent Limited Partner”;  and collectively with the General Partner and the Limited
Partners, the “Partners”), entered into
that certain First Amended and Restated Agreement of Limited Partnership of
Extra Space Storage LP dated as of August 17, 2004 (the “Original Agreement”);


 


WHEREAS, the General
Partner and the Parent Limited Partner amended and restated the Original
Agreement by entering into that certain Second Amended and Restated Agreement
of Limited Partnership of Extra Space Storage LP (the “Partnership
Agreement”) dated as of June 25, 2007, in order to admit
the Limited Partners into Extra Space Storage LP (the “Partnership”),
including the admission of those Limited Partners that hold Series A
Preferred Units (as defined in the Partnership Agreement), and to set forth the
rights and responsibilities of the Partners and the Partnership;


 


WHEREAS, the
Partners wish to clarify in this Amendment the allocation provisions of the
Partnership Agreement to reflect the original economic understanding and
agreement among the parties with respect to the treatment of depreciation in
allocations of Net Income and Net Loss to Holders of Series A Preferred
Units, as set forth herein; and


 


NOW THEREFORE, in
consideration of the mutual covenants and agreements herein contained and other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties hereto, intending legally to be bound, hereby
amend the Partnership Agreement as follows:


 


1.                                       Definitions.
Capitalized terms used herein, unless otherwise defined herein, shall have the
same meanings as set forth in the Partnership Agreement.


 


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2.                                       Amendments.


 


a.                                       Article I
of the Partnership Agreement is hereby amended to include the following
definition in alphabetical order:


 


“Adjusted Section 704(b) Net Income” means, for any
Partnership Year or other applicable period, (i) the Partnership’s Net
Income for such Partnership Year or other applicable period as determined under
the Code, minus (ii) that portion of the Series A Preferred
Priority Return for such Partnership Year or other applicable period that
consists of an amount, with respect to each Series A Preferred Unit, equal
to 5.00% per annum on the Series A Preferred Stated Value per Series A
Preferred Unit, commencing on the date of original issuance of the Series A
Preferred Units.”


 


b.                                      Section 6.2
of the Partnership Agreement is hereby amended by adding a new paragraph D. as
follows:


 


“D.                              Depreciation
Adjustments. Notwithstanding anything to the contrary in Section 6.2.A(a)(iv) of
this Agreement, for any Partnership year or other applicable period, (a) allocations
of Net Income to the Series A Preferred Units with respect to that portion
of their Series A Preferred Priority Return consisting of 5.00% per annum
on the Series A Preferred Stated Value per Series A Preferred Unit shall
be exclusive of Depreciation, and (b) the Series A Preferred Units shall be allocated
Depreciation on a proportionate basis with respect to the remaining portion of
their Series A Preferred Priority Return consisting of the Series A
Preferred Priority Return consisting of the Series A Preferred Return. For
purposes of Section 6.2.D.(b) above, Depreciation shall be
allocated to the Series A Preferred Units based on a fraction, the
numerator of which is that portion of the Series A Preferred Priority
Return for a Partnership Year or other applicable period that constitutes the Series A
Preferred Return, and the denominator of which is the Adjusted Section 704(b) Net
Income for such Partnership Year or other applicable period.”


 


3.                                       Effective
Date. Because this Amendment sets forth the original agreement among the
parties and is intended to be only for purposes of clarification, the parties
agree that this Amendment shall be effective as of June 25, 2007.


 


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4.                                       Continuing
Effect of Partnership Agreement. Except as modified herein, the Partnership
Agreement is hereby ratified and confirmed in its entirety and shall remain and
continue in full force and effect, provided, however,
that to the extent there shall be a conflict between the provisions of the
Partnership Agreement and this Amendment, the provisions in this Amendment
shall prevail. All references in any document to the Partnership Agreement
shall mean the Partnership Agreement, as amended hereby.


 


5.                                       Counterparts.
This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the
same agreement. Facsimile signatures shall be deemed effective execution of
this Amendment and may be relied upon as such. In the event facsimile signatures
are delivered, originals of such signatures shall be delivered within three (3) business
days after execution.


 


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Intentionally]


 


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IN WITNESS WHEREOF, this
Amendment has been executed as of the date first written above.


 


 


	
   

  	
  GENERAL PARTNER:

  
	
   

  	
   

  
	
   

  	
  ESS HOLDINGS BUSINESS TRUST I

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Kent W.
  Christensen

  
	
   

  	
   

  	
  Name: Kent W. Christensen

  
	
   

  	
   

  	
  Title: Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LIMITED PARTNERS:

  
	
   

  	
   

  
	
   

  	
  ESS HOLDINGS BUSINESS TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kent W. Christensen

  
	
   

  	
   

  	
  Name: Kent W. Christensen

  
	
   

  	
   

  	
  Title: Trustee

  



 


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EXHIBIT A


 


LIMITED PARTNERS


 


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