exv10w26



 





Exhibit 10.26




NONCOMPETITION AGREEMENT




     THIS NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of
October 27, 2004 by and between U-STORE-IT TRUST, a Maryland real estate
investment trust (the “Company”), and Barry L. Amsdell (the “Trustee”).



     WHEREAS, the Company and U-Store-It, L.P., a Delaware limited partnership,
of which the Company is the general partner (the “Operating Partnership”), are
engaging in various related transactions pursuant to which, among other things,
the Company will effect an initial public offering of its common shares and
contribute the proceeds therefrom for units of partnership interest in the
Operating Partnership (the “U-Store-It IPO,” and together with all related
transactions, the “U-Store-It IPO Transactions”); and



     WHEREAS, the Company and the Trustee agree that, as part of the U-Store-It
IPO Transactions, the Trustee will not engage in competition with the Company
and will refrain from taking certain other actions pursuant to the terms and
conditions hereof in an effort to protect the Company’s legitimate business
interests and goodwill and for other business purposes.



     NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:



     1. Noncompetition. The Trustee agrees with the Company that for
the longer of (i) the three-year period beginning on the date of this Agreement
or (ii) the period during which the Trustee is employed by, or serving as an
officer or trustee or director of, the Company, the Operating Partnership or
any of their direct or indirect subsidiaries (collectively, the “REIT”), and
for one year thereafter (the “Restricted Period”), the Trustee will not, (a)
directly or indirectly, engage in any business involving self-storage facility
development, construction, acquisition or operation, whether such business is
conducted by the Trustee individually or as a principal, partner, member,
stockholder, director, trustee, officer, employee or independent contractor of
any Person (as defined below) or (b) own any interests in any self-storage
facilities, in each case in the United States of America; provided,
however, that this Section 1 shall not be deemed to prohibit any of the
following: (I) the Trustee’s ownership, development, management, leasing,
marketing, sale, transfer or exchange of any of the Trustee’s interests in
Rising Tide Development, LLC (or any of the self-storage facilities owned by
Rising Tide Development, LLC on the date hereof or subsequently acquired by it
as contemplated in the Option Agreement), and (II) the direct or indirect
ownership by the Trustee of up to five percent of the outstanding equity
interests of any public company. For purposes of this Agreement, “Person”
means any individual, firm, corporation, partnership, company, limited
liability company, trust, joint venture, association or other entity.



     2. Nonsolicitation. The Trustee agrees with the Company that for
the longer of (i) the three-year period beginning on the date of this Agreement
or (ii) the period



 









 




during which the Trustee is employed by, or serving as an
officer or trustee or director of, the REIT, and for two years thereafter, such
Trustee will not (a) directly or indirectly solicit, induce or encourage any
employee or independent contractor to terminate their employment with the REIT
or to cease rendering services to the REIT, and the Trustee shall not initiate
discussions with any such Person for any such purpose or authorize or knowingly
cooperate with the taking of any such actions by any other Person, or (b) hire
(on behalf of the Trustee or any other person or entity) any employee or
independent contractor who has left the employment or other service of the REIT
(or any predecessor thereof) within one year of the termination of such
employee’s or independent contractor’s employment or other service with the
REIT.




     3. Reasonable and Necessary Restrictions. The Trustee acknowledges
that the restrictions, prohibitions and other provisions hereof, including,
without limitation, the Restricted Period set forth in Section 2, are
reasonable, fair and equitable in terms of duration, scope and geographic area,
are necessary to protect the legitimate business interests of the REIT, and are
a material inducement to the Company to enter into this Agreement.



     4. Specific Performance. The Trustee acknowledges that the
obligations undertaken by such Trustee pursuant to this Agreement are unique
and that the Company likely will have no adequate remedy at law if the Trustee
shall fail to perform any of such Trustee’s obligations hereunder, and the
Trustee therefore confirms that the Company’s right to specific performance of
the terms of this Agreement is essential to protect the rights and interests of
the Company. Accordingly, in addition to any other remedies that the Company
may have at law or in equity, the Company shall have the
right to have all obligations, covenants, agreements and other provisions
of this Agreement specifically performed by the Trustee, and the Company shall
have the right to obtain preliminary and permanent injunctive relief to secure
specific performance and to prevent a breach or contemplated breach of this
Agreement by the Trustee. Further, the Trustee agrees to indemnify and hold
harmless the Company from and against any reasonable costs and expenses
incurred by the Company as a result of any breach of this Agreement by such
Trustee, and in enforcing and preserving the Company’s rights under this
Agreement, including, without limitation, the Company’s reasonable attorneys’
fees. The Trustee hereby acknowledges and agrees that the Company shall not be
required to post bond as a condition to obtaining or exercising such remedies,
and the Trustee hereby waives any such requirement or condition. If the
Trustee is the prevailing party in any action in which the Company seeks to
enforce its rights under this Agreement, the Company agrees to indemnify and
hold harmless the Trustee from and against any reasonable costs and expenses
incurred by the Trustee as a result of such action, including, without
limitation, the Trustee’s reasonable attorneys’ fees.



     5. Miscellaneous Provisions.



               5.1 Assignment; Binding Effect. This Agreement may not be assigned
by the Trustee, but may be assigned by the Company to any successor to its
business and will inure to the benefit of and be binding upon any such
successor. Subject to the foregoing provisions restricting assignment, all
covenants and agreements in this



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Agreement by or on behalf of any of the
parties hereto shall bind and inure to the benefit of the respective
successors, assigns, heirs, and personal representatives.




               5.2 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior oral or
written agreements, commitments and understandings among the parties with
respect to the matters set forth herein. This Section 5.2 shall not be used to
limit or restrict the rights or remedies, whether express or implied, of any
noncompetition or nonsolicitation policies of the REIT applicable to the
Trustee.



               5.3 Amendment. Except as otherwise expressly provided in this
Agreement, no amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by each of the
parties hereto.



               5.4 Waivers. No waiver by a party hereto shall be effective unless
made in a written instrument duly executed by the party against whom such
waiver is sought to be enforced, and only to the extent set forth in such
instrument. Neither the waiver by either of the parties hereto of a breach or
a default under any of the provisions of this Agreement, nor the failure of
either of the parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege hereunder
shall thereafter be construed as a waiver of any subsequent breach or default
of a similar nature, or as a waiver of any such provisions, rights or
privileges hereunder.



               5.5 Severability. If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
reduced to the limit of such
validity; and if any clause or provision contained in this Agreement operates
or would 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. Notwithstanding the foregoing, in the event that the
restrictions against engaging in competitive activity contained in this
Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of their extending for too great a period of time or
over too great a geographical area or by reason of their being too extensive or
unreasonable in any other respect, the Agreement shall be interpreted to extend
only over the maximum period of time for which it may be enforceable and over
the maximum geographical area as to which it may be enforceable and to the
maximum extent in all other respects as to which it may be enforceable, all as
determined by such court in such action and the court may limit the application
of any other provision or covenant, or modify any such term, provision or
covenant and proceed to enforce this Agreement as so limited or modified. To
the extent necessary, the parties shall revise the Agreement and enter into an
appropriate amendment to the extent necessary to implement any of the
foregoing.



               5.6 Governing Law; Jurisdiction. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the State of
Ohio, but not including the choice-of-law rules thereof.



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               5.7 Headings. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed
to be a part of this Agreement for any purpose, and shall not in any way define
or affect the meaning, construction or scope of any of the provisions hereof.



               5.8 Trustee’s Acknowledgement. The Trustee acknowledges (i) that he
has had the opportunity to consult with independent counsel of his own choice
concerning this Agreement, and (ii) that he has read and understands this
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.



               5.9 Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
delivered (i) when physically received by personal delivery (which shall
include the confirmed receipt of a telecopied facsimile transmission), or (ii)
three business days after being deposited in the United States certified or
registered mail, return receipt requested, postage prepaid or (iii) one
business day after being deposited with a nationally known commercial courier
service providing next day delivery service (such as Federal Express), to the
following addresses:




	(i)	 	if to the Trustee, to
the address set forth in the records of the
Company; and
	 
	(ii)	 	if to the Company,
	 
	 	 	U-Store-It Trust

6745 Engle Road

Suite 300

Middleburg Heights, OH 44130

Attn: Steven G. Osgood

Telecopy No.: (440) 234-8776





               5.10 Execution in Counterparts. To facilitate execution, this
Agreement may be executed in as many counterparts as may be required. It shall
not be necessary that the signature of or on behalf of each party appears on
each counterpart, but it shall be sufficient that the signature of or on behalf
of each party appears on one or more of the counterparts. All counterparts
shall collectively constitute a single agreement.



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               IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Agreement, or caused this Agreement to be duly executed on its behalf, as
of the date first set forth above.


	 	 	 	 	 
	 	THE TRUSTEE:

 	 
	 	/s/ Barry L. Amsdell
 	 
	 	Barry L. Amsdell 	 
	 	 	 
	 




	 	 	 	 	 
	 	 	THE COMPANY:
	 
	 	 	 	 
	 	 	U-STORE-IT TRUST
	 
	 	 	 	 
	

	 	By:
	 	/s/ Steven G. Osgood


	

	 	Name:
	 	Steven G. Osgood
	

	 	Title:
	 	 President