exv10w23



 





Exhibit 10.23




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 Steven G. Osgood (the “Executive”).



     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”);



     WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and the Executive are entering into an Employment Agreement dated
as of the date hereof, pursuant to which, among other things, the Company has
agreed to employ the Executive, and the Executive has agreed to be employed by
the Company, in accordance with the terms thereof (the “Employment Agreement”);
and



     WHEREAS, the Company and the Executive agree that, as part of the
U-Store-It IPO Transactions, the Executive 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 Executive 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 Executive 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 Executive 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 Executive 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 the direct
or indirect ownership by the Executive 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 Executive 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 Executive is employed by, or serving as an
officer or trustee or director of, the REIT, and for two years thereafter, such
Executive 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 Executive 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 Executive 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 Executive
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 and
the Employment Agreement.



     4. Specific Performance. The Executive acknowledges that the
obligations undertaken by such Executive pursuant to this Agreement are unique
and that the Company likely will have no adequate remedy at law if the
Executive shall fail to perform any of such Executive’s obligations hereunder,
and the Executive 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 Executive, 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 Executive. Further, the Executive agrees to indemnify and
hold harmless the Company from and against any reasonable costs



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and expenses
incurred by the Company as a result of any breach of this Agreement by such
Executive, and in enforcing and preserving the Company’s rights under this
Agreement, including, without limitation, the Company’s reasonable attorneys’
fees. The Executive 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 Executive hereby waives any such requirement or condition.
If the Executive 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 Executive from and against any reasonable costs
and expenses incurred by the Executive as a result of such action, including,
without limitation, the Executive’s reasonable attorneys’ fees.



     5. Miscellaneous Provisions.



          5.1 Assignment; Binding Effect. This Agreement may not be assigned
by the Executive, 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 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, together with the Employment
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 Executive.



          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



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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.



          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 Executive’s Acknowledgement. The Executive 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 Executive, 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: Robert J. Amsdell

Telecopy No.: (440) 234-8776




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          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 EXECUTIVE:

 	 
	 	/s/ Steven G. Osgood
 	 
	 	Steven G. Osgood 	 
	 	 	 
	 	THE COMPANY:



U-STORE-IT TRUST

 	 
	 	By:  	/s/  Robert J. Amsdell
 	 
	 	Name:  	Robert J. Amsdell 	 
	 	Title:  	Chief Executive Officer