exv10w8



 




Exhibit 10.8


MARKETING AND ANCILLARY SERVICES AGREEMENT



          THIS MARKETING AND ANCILLARY SERVICES AGREEMENT (this “Agreement”) is made
as of October 27, 2004, between U-Store-It Mini Warehouse Co., an Ohio
corporation (“Service Provider”) and Rising Tide Development, LLC, a Delaware
limited liability company (“Property Owner”).



RECITALS




          WHEREAS, Property Owner owns the self-storage facilities listed on Exhibit
A (the “Facilities”);



          WHEREAS, Property Owner simultaneously with the execution hereof has
entered into a property management agreement with YSI Management LLC (“YSI”),
pursuant to which YSI will provide property management services with respect to
the Facilities;



          WHEREAS, YSI is a wholly owned subsidiary of U-Store-It, L.P., a Delaware
limited partnership (“U-Store-It”);



          WHEREAS, Service Provider, which is a wholly owned subsidiary of
U-Store-It, L.P., and is a taxable REIT subsidiary under Section 856(l) of the
Internal Revenue Code of 1986, as amended (the “Code”) with respect to
U-Store-It Trust, a Maryland real estate investment trust that is the general
partner of and the owner of substantially all of the partnership interests in
U-Store-It (“U-Store-It REIT”), is engaged in the business of providing certain
services to customers of self-storage facilities such as the Facilities,
including without limitation sales of locks, boxes, packing materials, and
other ancillary items, rentals of trucks and referral activities with respect
to insurance and other services, as more fully described on Exhibit B hereto
(collectively the “Marketing and Ancillary Services”);



          WHEREAS, in order to remain competitive in the self-storage rental market,
Property Owner desires that the tenants at the Facilities be provided the
Marketing and Ancillary Services;



          WHEREAS, Property Owner believes it is in its best interest to enter into
an agreement with Service Provider for the provision of Marketing and Ancillary
Services at the Facilities;



          WHEREAS, under federal income tax rules applicable to U-Store-It REIT, YSI
cannot perform some or all of the Marketing and Ancillary Services without
causing adverse tax consequences to U-Store-It REIT;



          WHEREAS, Service Provider desires to perform for its own account the
Marketing and Ancillary Services with respect to tenants at the Facilities; and



 









 




          WHEREAS, Property Owner desires to grant to Service Provider the rights
necessary for Service Provider to perform the Marketing and Ancillary Services
for its own account at the Facilities;.



          NOW THEREFORE, in consideration of the foregoing, the mutual agreements
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Service Provider and Property
Owner hereby agree as follows:



MARKETING AND ANCILLARY SERVICES; LICENSE





	 	1.1	 	Rights and Duties of Service Provider





                         (a) Property Owner hereby grants Service Provider the exclusive rights to:




          (i) perform Marketing and Ancillary Services at the Facilities
for its own account and, to retain all profits, income, referral
fees or other remuneration earned therefrom under the activities
set forth on or referred to in Exhibit B hereto, as it may be
amended from time to time by the parties hereto (subject to such
third-party consents, if any, as may be required), in each case
during the term hereof;




          (ii) subject to rules and regulations which may be applicable
at each Facility and such other reasonable restrictions imposed by
Property Owner, access the Facilities (including accessing, and
occupying, space at the Facilities necessary to perform and provide
the Marketing and Ancillary Services) and contact and deal directly
with tenants at the Facilities in order to perform the Ancillary
Services;




          (iii) develop and distribute marketing materials and products,
in accordance with Section 1.2 hereof, for use in connection with
its performance of the Marketing and Ancillary Services;




          (iv) utilize trademarks, trade names, logos, service marks and
other intellectual property of Property Owner, in accordance with
the restrictions set forth in Section 1.3 hereof, in connection
with the development and use of marketing materials (including
lists of potential and actual tenants and other tenant information
and customer contacts); and




          (v) enter into contracts or other arrangements with service
providers that will provide services to the tenants at the
Facilities, including those that are either “noncustomary” or a
“service



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to tenants” within the meaning of Section 856 of the Code, and
receive cash or other compensation under such contracts.




     (b) Service Provider shall:




               (i) independently for its own account perform, or cause to be
performed, any Marketing and Ancillary Services it undertakes in
accordance with the terms of this Agreement and in accordance with
commercially sound business practices;




               (ii) indemnify Property Owner for all losses, claims costs,
damages and expenses sustained by Property Owner (including,
without limitation, attorneys’ fees, judgments and fines) arising
out of acts or omissions by Service Provider or its permitted
subcontractors or sublicensees in accordance with Article 5 of this
Agreement; and




               (iii) bear all expenses or costs incurred in connection with
the Marketing and Ancillary Services (including those incurred
pursuant to Section 1.2).




          (c) Notwithstanding the foregoing terms of this Section 1.1,
Property Owner may require Service Provider to cease and desist from
conducting any Ancillary Services at any Facility if Property Owner
determines, in its sole discretion, that the conduct of such Ancillary
Service is having or may have a material adverse effect on the operations
and business of Property Owner.




          (d) Service Provider shall not cease to conduct any Ancillary
Service at any Facility without Property Owner’s prior written consent,
in which event Property Owner may require Service Provider to procure
third party vendors to offer such Marketing and Ancillary Service at
Service Provider’s expense, if the offering of such Marketing and
Ancillary Service in connection with the rental of storage space is
deemed necessary by Property Owner in its reasonable judgment for the
prudent operation of the Facility.





	 	1.2	 	Marketing Materials





                         Service Provider may, at its discretion, except as limited by Section 1.3,
design and produce customized marketing brochures and marketing materials for
some or all of the Marketing and Ancillary Services to be conducted at the
Facilities.





	 	1.3	 	License





                         (a) Property Owner hereby grants to Service Provider a non-exclusive,
royalty free license to utilize the trademarks, trade names, logos and service
marks of Property Owner (collectively, the “Marks”) solely in connection with
Service Provider’s performance of Marketing and Ancillary Services to be



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conducted at or with respect to the Facilities during the term of this
Agreement (including in connection with the development and use of marketing
materials for use at or with respect to the Facilities pursuant to this
Agreement) and subject to compliance with Property Owner’s trademark policies
in effect from time to time.



                         (b) All representations of the Marks that Service Provider uses shall be
exact copies of those used by Property Owner, or shall be submitted to Property
Owner for prior approval of, for example, design, color and other details.



                         (c) At no time during or after the term of this Agreement shall Service
Provider contest any of the Marks or attempt to register any trademarks,
service marks, or trade names similar to the Marks anywhere in the world.



                         (d) Except as expressly set forth herein, nothing contained in this
Agreement shall grant or shall be deemed to grant any right, title or interest
in or to the Marks.



                         (e) All uses of the Marks shall inure solely to Property Owner and Service
Provider shall obtain no rights with respect to any Marks, other than the right
to produce marketing materials for use in connection with the performance of
the Marketing and Ancillary Services. All of Property Owner’s patent,
copyright, trademark, trade secret or other intellectual property rights and
all of Property Owner’s customer information is and will remain the sole
exclusive property of Property Owner and its licensors.





	2	 	CERTAIN REPRESENTATIONS





                         (a) Service Provider represents and warrants to Property Owner that (i) it
has full power and authority to enter into and to perform its obligations under
this Agreement and (ii) it has to its knowledge all approvals necessary to
enter into and perform its obligations under this Agreement.



                         (b) Property Owner represents and warrants to Service Provider that (i) it
has full power and authority to enter into, and to perform its obligations
under this Agreement; (ii) it has to its knowledge all approvals necessary to
enter into and perform its obligations under this Agreement; (iii) it is to its
knowledge the owner or valid licensee of the Marks, and (iv) it has the right
to grant to Service Provider the rights granted under Section 1.3 of this
Agreement





	3	 	TERM; TERMINATION.





                         The term of this Agreement shall commence on the date hereof and, except
as otherwise expressly provided herein, shall continue for a period of four
years or, if earlier, until the earlier of (x) the expiration of the Option
Term as described in the Option Agreement dated as of October 27, 2004 between
Property



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Owner and U-Store-It, and (y) the date on which all the Facilities are
sold or otherwise disposed of. If at the end of such four year period, Property Owner
hasn’t sold all of the Facilities, Property Owner will be entitled to extend
this Agreement for a period of up to one year with 60 days advance written
notice.



                         In the event of (i) Service Provider’s breach of this Agreement, which
breach materially and adversely affects Property Owner or the Facilities and
which, if capable of cure, remains uncured for 30 days after written notice
thereof, (ii) the gross negligence, willful misconduct or fraud in the
performance by Service Provider of its obligations hereunder which, if capable
of cure, remains uncured for 30 days after written notice thereof, (iii) the
filing by Service Provider of a petition under any bankruptcy, insolvency or
similar law seeking dissolution, liquidation or reorganization, (iv) a general
assignment by Service Provider for the benefit of creditors or (v) the
dissolution of Service Provider, Property Owner shall have the right to
terminate this Agreement upon written notice to Service Provider in accordance
with the notice provisions set forth in Section 6.14, which termination shall
be effective seven business days after delivery of such written notice.



                         In the event of (i) Property Owner’s breach of this Agreement, which
breach materially and adversely affects Service Provider or the Facilities and
which, if capable of cure, remains uncured for 30 days after written notice
thereof, (ii) the gross negligence, willful misconduct or fraud in the
performance by Property Owner of its obligations hereunder which, if capable of
cure, remains uncured for 30 days after written notice thereof, (iii) the
filing by Property Owner of a petition under any bankruptcy, insolvency or
similar law seeking dissolution, liquidation or reorganization, (iv) a general
assignment by Property Owner for the benefit of creditors or (v) the
dissolution of Property Owner, Service Provider shall have the right to
terminate this Agreement upon written notice to Property Owner in accordance
with the notice provisions set forth in Section 6.14, which termination shall
be effective seven business days after delivery of such written notice.



                         Notwithstanding anything to the contrary set forth herein, no termination
of this Agreement shall be effective unless and until Property Owner has
received the consent of any lender to Property Owner required under the terms
of the applicable loan documents.





	4	 	CONFIDENTIAL INFORMATION.





                         (a) Service Provider acknowledges that by reason of its relationship to
Property Owner hereunder that it will have access to information concerning
Property Owner’s and U-Store-It’s businesses, plans, customers, technical
descriptions, technology and services that are confidential and of substantial
value to Property Owner and/or U-Store-It (“Confidential Information”), which
value would be impaired if such information were disclosed to a third party.
Service Provider shall not use Confidential Information of Property Owner or
U-Store-It in



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any way for its own account or the account of any third party
other than in connection with performing its obligations under this Agreement, nor
disclose to any third party any Confidential Information revealed to it by
Property Owner, except that it may disclose Confidential Information to its
representatives in connection with performing its obligations under this
Agreement and to third party vendors or suppliers in connection with the
performance of the Marketing and Ancillary Services, subject to appropriate
protective covenants.



                         (b) Confidential Information shall not include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party, (ii) becomes publicly known and
made generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party, (iii) is
already in the possession of the receiving party at the time of disclosure by
the disclosing party as shown by the receiving party’s files and records in
existence immediately prior to the time of disclosure, (iv) is obtained by the
receiving party from a third party without a breach of such third party’s
obligations of confidentiality, (v) is independently developed by the receiving
party without use of or reference to the disclosing party’s Confidential
Information, as shown by documents and other competent evidence in the
receiving party’s possession, or (vi) is required by law to be disclosed by the
receiving party, provided that the receiving party gives the disclosing party
prompt written notice of such requirement prior to such disclosure and
assistance in obtaining an order protecting the information from public
disclosure.





	5	 	INDEMNIFICATION.







	 	5.1	 	Indemnification of Parties.





                         Service Provider on the one hand, and Property Owner, on the other, shall
each indemnify, hold harmless, release, and defend the other party, its
affiliates, partners and members, and their respective partners, members,
officers, directors, employees, agents, contractors, subcontractors, invitees,
and successors, as the case may be, from and against any and all claims,
liabilities, losses, costs, damages and expenses (including reasonable attorney
and expert fees, and disbursements incurred by any of them in any action or
proceeding brought by any third party or any party hereto), to the extent
caused by any act or omission, negligent or otherwise, by such party and/or its
affiliates, officers, members, partners, employees, agents, contractors,
subcontractors and invitees arising out of or connected with this Agreement,
including a breach of any representation or covenant hereunder or a failure by
such party to perform its obligations hereunder. No person shall be entitled to
indemnity under the preceding sentence to the extent that a court of competent
jurisdiction determines that the acts or omissions, negligent or otherwise, of
such person or its affiliates caused such damages.



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	 	5.2	 	Indemnification Procedures.





                         If a person entitled to indemnification under Section 5.1 hereof (an
“Indemnitee”) intends to seek indemnification under this Article 5 from Service
Provider or Property Owner (as applicable, the “Indemnitor”), the Indemnitee
shall give the Indemnitor notice of such claim within ninety (90) days of the
commencement of, or the Indemnitee’s actual knowledge of, such claim. Such
notice shall describe the claim in reasonable detail, and shall indicate the
amount (estimated if necessary) of the claim that has been, or may be sustained
by, the Indemnitee. To the extent that the Indemnitor is actually and
materially prejudiced as a result of failure to provide such notice, such
notice shall be a condition precedent to any liability of Indemnitor under the
provisions for indemnification contained in this Agreement.





	 	5.3	 	Survival.





                         The indemnification obligations under this Article 5 resulting from acts
or omissions that occur during the term of this Agreement shall continue in
full force and effect regardless of whether this Agreement has either expired
or been terminated or canceled.





	6	 	MISCELLANEOUS







	 	6.1	 	No Third-Party Beneficiaries.





                         The parties agree that this Agreement is for the benefit of the parties
hereto and is not intended to confer any rights or benefits on any third party,
including any employee of any of the parties, and that there are no third-party
beneficiaries to this Agreement or any part or specific provision of this
Agreement.





	 	6.2	 	No Partnership or Joint Venture.





                         Service Provider shall perform the Marketing and Ancillary Services as an
independent contractor. The parties are not, and shall not be deemed to be,
partners or joint venturers with each other, except to the extent specifically
provided by a separate agreement. Nothing in this Agreement shall be construed
to create a partnership or joint venture among the parties for any purpose.





	 	6.3	 	Assignment.





                         This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party hereto without the
prior written consent of the other parties, except that any party may assign
this


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Agreement without the consent of the other parties to any acquirer of all
or substantially all of the assets of a party.






	 	6.4	 	Applicable Law.





                         This Agreement shall be governed by and construed in accordance with the
laws of the State of Ohio, without regard to the choice of law principles
applied in such jurisdiction.





	 	6.5	 	Severability.





                         If fulfillment of any provision of this Agreement, or performance of any
transaction related hereto, at the time such fulfillment of performance shall
be due, shall involve transcending the limit of validity prescribed by law,
then the obligation to be fulfilled or performed shall be reduced to the limit
of such validity; and if any clause or provision contained in this Agreement
operates or would prospectively operate to invalidate this Agreement in whole
or in part, then such clause or provision only shall be held ineffective, as
though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.





	 	6.6	 	Construction.





                         Each party acknowledges that all parties participated equally in the
negotiation and drafting of this Agreement and that, accordingly, no court
construing this Agreement shall construe it more stringently against one party
than against any other.





	 	6.7	 	Pronouns.





                         All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular, or plural, as the identity of the person
or entity may require.





	 	6.8	 	Headings.





                         The headings are used herein for convenience of reference only, and shall
not be deemed to vary to contents of this Agreement.





	 	6.9	 	Counterparts.





                         To facilitate execution, this Agreement may be executed in as many
counterparts as may be required; and it shall not be necessary that the
signature of each party, or that the signatures of all persons required to bind
any party, appear on each counterpart, but it shall be sufficient that the
signature of each party or that the signatures of the persons required to bind
any party, appear on one or more such counterparts. All counterparts shall
collectively constitute a single agreement.



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	 	6.10	 	Entire Agreement.





                         This Agreement contains the entire agreement among the parties with
respect to its subject matter, and supersedes all prior oral or written
agreements, understandings, representations and communications.





	 	6.11	 	Amendments.





                         This Agreement shall not be amended, in whole or in part, except by an
instrument in writing signed by all parties hereto, or their respective
successors or permitted assigns, provided however that any such amendment is
subject to the pre-approval of a majority of the “independent” members of the
Board of Trustees of U-Store-It REIT (as defined in the U-Store-It REIT
Bylaws), and no amendment may occur without such pre-approval.





	 	6.12	 	Lender Provisions.





                         Notwithstanding anything contained in this Agreement to the contrary,
during any period that Property Owner is a party to one or more loan agreements
or other instruments of indebtedness secured by one or more of the Facilities
(the “Loan Agreements”) with one or more third party financial institutions
(collectively, the “Lender”), Service Provider agrees that:



                         (a) this Agreement (including any occupancy rights of Service Provider,
whether set forth in the herein or otherwise) and the interests and estates
created hereby and the rights, privileges and powers of Service Provider
hereunder, shall be unconditionally made and at all times remain subject,
subordinate and inferior to any security deed, mortgage or similar security
instrument relating to a Loan Agreement, and all the rights, privileges and
powers of the Lender, or any agent thereof, thereunder and to any and all
renewals, modifications, consolidations, replacements and extensions thereof;



                         (b) without the prior written consent of Lender, Service Provider shall
have no right to assign, in whole or in part, its interest under this
Agreement, and any attempted or purported assignment without such prior written
consent shall be, at Lender’s sole and absolute discretion, void and of no
force or effect;



                         (c) if any act or omission by Property Owner or any other circumstance
(each such act, omission, and circumstance, a “default or condition”) which
would give Service Provider the right, either immediately or after a lapse of
time, with or without notice, to terminate this Agreement or otherwise entitle
Service Provider to a claim, offset, defense or charge against Property Owner,
shall occur or exist, then Service Provider immediately upon knowledge of such
event shall give written notice of such default or condition to Lender, and
notwithstanding



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anything contained herein, Service Provider will not exercise
any such right unless and until 30 days have expired;



                         (d) not to enforce, or otherwise claim the benefit of, any and all rights,
claims and liens which Service Provider may now or hereafter have in and to the
Facilities, including, without limitation, any rights, claims and liens of
Service Provider, or rights to file or have filed any liens, claims of lien,
pursuant to any applicable laws on or against the Facilities on account of any
services furnished or to be furnished by Service Provider. In addition,
Service Provider shall indemnify and hold harmless Lender from and against any
such claim or lien which may be asserted by any agent, broker, or other
intermediary by reason of any act or agreement of Service Provider; and



                         (e) to take such steps and execute such documentation as may be required
by the Lender or Property Owner to implement and evidence any of the foregoing
provisions.





	 	6.13	 	Termination of Existing Management Agreement.





                         Notwithstanding anything to the contrary in any document, each of Property
Owner and Service Provider acknowledge that the Property Management Agreement
dated as of December 23, 2002 between Property Owner and Service Provider is,
simultaneously with the execution of this Agreement, hereby terminated, that
any and all Ancillary Services to be provided to the Properties subsequent to
the date hereof shall be provided by Service Provider pursuant to the terms of
this Agreement.





	 	6.14	 	Notices.





                         Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given (a)
upon personal delivery to the party to be notified, (b) on the fifth business
day after deposit with the United States Post Office, by registered or
certified mail, postage prepaid, (c) on the next business day after dispatch
via nationally recognized overnight courier or (d) upon confirmation of
transmission by facsimile, all addressed to the party to be notified at the
address indicated for such party below, or at such other address as such party
may designate by 10 days’ advance written notice to the other parties. Notices
should be provided in accordance with this Section at the following addresses:



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If to Service Provider, to:


U-Store-It Mini Warehouse Co.

6745 Engle Road, Suite 300

Middleburg Heights, Ohio 44130

Attention: Todd C. Amsdell

Facsimile: (440) 234-8776



If to Property Owner


Rising Tide Development, LLC

6745 Engle Road, Suite 300

Middleburg Heights, Ohio 44130

Attention: Robert J. Amsdell

Facsimile: (440) 234-8776



[Remainder of page intentionally left blank]




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                         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.


	 	 	 	 	 
	 	U-Store-It Mini Warehouse Co.

 	 
		By:	/s/ Todd C. Amsdell
	 	Name:  	Todd C. Amsdell 	 	 
	 	Title:  	President 	 	 
	 
	 	RISING TIDE DEVELOPMENT, LLC	 
	 
	 	By:  	Mizzen, LLC, it Sole Member 	 
	 
	 	By:  	Amsdell Holdings X, Inc., its Manager 	 
	 
	 
		By:	/s/ Robert J. Amsdell
	 	Name:  	Robert J. Amsdell 	 	 
	 	Title:  	President 	 	 
	 





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