EXHIBIT 10.2
FIRST AMENDMENT TO CONTRIBUTION AGREEMENT
THIS FIRST AMENDMENT TO CONTRIBUTION AGREEMENT (this "Amendment") is made as of
August 13, 2009 (the "Effective Date") by and between YSI VENTURE LP LLC, a
Delaware limited liability company ("Operator LP"), and HART - YSI INVESTOR LP
LLC, a Delaware limited liability company ("Investor LP").
RECITALS
A.
On August 6, 2009, Operator LP and Investor
LP entered into that certain Contribution Agreement (the "Contribution
Agreement") pursuant to which a joint venture would be formed to own certain
real estate.
Capitalized terms used herein, but not defined in this Amendment,
shall have the meanings given to such terms in the Contribution Agreement.
B.
Operator LP and Investor LP now wish to
modify certain terms and provisions of the Contribution Agreement on the terms
set forth in this Amendment.
In consideration of the foregoing statements and the mutual agreements herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree, each intending to be
legally bound, as follows:
1.
AMENDMENT TO SECTION 7.4(A).
SECTION 7.4(A) OF THE AGREEMENT IS HEREBY MODIFIED TO ADD AN ADDITIONAL
SUBSECTION (VII) AS FOLLOWS:
"(VII)
ARISING FROM OR IN CONNECTION WITH ANY CLAIM OR
PROCEEDING AGAINST THE INVESTOR LP, INVESTOR GP OR THE COMPANY BY A BANKRUPTCY
TRUSTEE OR OTHER THIRD PARTY IN, OR IN CONNECTION WITH, A BANKRUPTCY, INSOLVENCY
OR OTHER CREDITORS' RIGHTS ACTION OR PROCEEDING IN WHICH U-STORE-IT TRUST, A
MARYLAND REAL ESTATE INVESTMENT TRUST, YSI LP, OPERATOR LP, OPERATOR GP OR ANY
OF THEIR AFFILIATES IS A DEBTOR, THE RESULT OF WHICH CAUSES THE COMPANY TO LOSE
ANY RIGHT, TITLE OR INTEREST IN ALL OR ANY OF THE LOCATIONS, OR ANY OF ITS OTHER
ASSETS; PROVIDED, HOWEVER, TO THE EXTENT THAT THE COMPANY ACTUALLY RECOVERS ANY
OF SUCH LOSS FROM THE APPLICABLE TITLE COMPANY AS A RESULT OF TITLE INSURANCE
COVERAGE UNDER THE COMPANY'S TITLE INSURANCE POLICIES, THE AMOUNT OF SUCH
RECOVERY SHALL REDUCE THE AMOUNT OF THE LOSS COVERED UNDER THE INDEMNITY
PROVISIONS OF THIS SUBSECTION (VII); AND IF OPERATOR LP HAS ALREADY REIMBURSED
THE COMPANY FOR SUCH LOSS, THEN THE COMPANY SHALL REFUND TO OPERATOR LP THE
AMOUNT OF SUCH REIMBURSEMENT TO THE EXTENT OF SUCH RECOVERY UNDER THE COMPANY'S
TITLE INSURANCE POLICIES."
THE OTHER PORTIONS OF SECTION 7.4(A) CONTAINED IN THE CONTRIBUTION AGREEMENT
SHALL OTHERWISE REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT.
2.
AMENDMENT OF AGREEMENTS AT SECOND
CLOSING DATE.
IF A CLOSING SHALL OCCUR ON THE SECOND CLOSING DATE PURSUANT TO
THE TERMS OF THE CONTRIBUTION AGREEMENT, THEN INVESTOR LP AND OPERATOR LP AGREE
THAT THE NEW MANAGEMENT AGREEMENT AND THE NEW SERVICES AGREEMENT SHALL BE
AMENDED AS OF THE SECOND CLOSING DATE SO AS TO INCLUDE ALL ADDITIONAL LOCATIONS
WHICH ARE CONTRIBUTED TO THE COMPANY AS OF THE SECOND CLOSING DATE WITHIN THE
TERMS OF SAID AGREEMENTS.
3.
AMENDMENTS REGARDING VEHICLES.
INVESTOR LP AND OPERATOR LP HEREBY ACKNOWLEDGE THAT, NOTWITHSTANDING THE
PROVISIONS OF SECTION 1.3(D) AND SECTION 4.7 OF