EX-10.23



 





EXHIBIT 10.23



NONCOMPETITION AGREEMENT




          THIS NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of
October    , 2004 by and between U-STORE-IT TRUST, a Maryland real estate
investment trust (the “Company”), and Robert J. Amsdell (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 any of the following: (I)
the Executive’s ownership, development, management, leasing, marketing, sale,
transfer or exchange of any of the Executive’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 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 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.



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          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 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.



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               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: 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 EXECUTIVE:
	 
	 	 	 	 
	 	 	
 
	 	 	Robert J. Amsdell
	 
	 	 	 	 
	 	 	THE COMPANY:
	 
	 	 	 	 
	 	 	U-STORE-IT TRUST
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	Name:	 	 
	

	 	 	 	
 
	

	 	Title: