Exhibit 10.1
Execution Version
CREDIT AGREEMENT
BETWEEN
SST VI 19 ESANDAR DR, LLC,
SST VI 19 ESANDAR DR, ULC,
SST VI 1230 LAKESHORE RD E, LLC,
SST VI 1230 LAKESHORE RD E, ULC,
SST VI 1770 APPLEBY LINE, LLC,
SST VI 1770 APPLEBY LINE, ULC,
SST VI 2068 S SHERIDAN WAY, LLC,
SST VI 2068 S SHERIDAN WAY, ULC,
SST VI 24-60 SANFORD AVE N, LLC,
SST VI 24-60 SANFORD AVE N, ULC,
SST VI 411 CITYVIEW BLVD, LLC, and
SST VI 411 CITYVIEW BLVD, ULC
as Borrowers
AND
STRATEGIC STORAGE TRUST VI, INC.
as Parent Guarantor
AND
SST6 CANADA ACQUISITIONS, LLC
as Limited Recourse Guarantor
AND
NATIONAL BANK OF CANADA
as Administrative Agent
AND
FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO
as Lenders
MADE AS OF
June 15, 2023
NATIONAL BANK FINANCIAL
as Lead Arranger and Sole Bookrunner
McCarthy Tétrault LLP
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TABLE OF CONTENTS
Article 1 – INTERPRETATION 2
1.01 Definitions 2
1.02 Extended Meanings and References 30
1.03 Knowledge 31
1.04 Accounting Principles 31
1.05 Interest Calculations and Payments 32
1.06 Permitted Encumbrances 32
1.07 Currency 32
1.08 Entire Agreement and Conflicts 33
1.09 Severability 33
1.10 Further Assurances 33
1.11 Schedules 33
Article 2 – THE CREDIT FACILITY 34
2.01 Credit Facility 34
2.02 Purpose of Credit Facility 34
2.03 Manner of Borrowing 34
2.04 Non-Revolving Nature of Credit Facility 34
2.05 Drawdowns, Conversions and Rollovers 34
2.06 Agent’s and Lenders’ Obligations with Respect to Loans 35
2.07 Irrevocability 35
2.08 Account of Record 35
2.09 Benchmark Replacement Setting 36
Article 3 – DRAWDOWN CONDITIONS 38
3.01 Conditions Precedent to Drawdown under the Credit Facility 38
3.02 Waiver 42
Article 4 – PAYMENTS OF INTEREST AND FEES 42
4.01 Interest on Prime Rate Loans 42
4.02 Default Interest 43
4.03 Interest Only Period 43
Article 5 – BANKERS’ ACCEPTANCES 43
5.01 Bankers’ Acceptances 43
Article 6 – REPAYMENT 46
6.01 Mandatory Repayment – Credit Facility 46
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6.02 Voluntary Repayments 47
6.03 Repayment Compensation 47
Article 7 – PLACE AND APPLICATION OF PAYMENTS 48
7.01 Place of Payment of Principal, Interest and Fees 48
Article 8 – SECURITY 48
8.01 Security 48
8.02 Registration and Protection of Security. 49
8.03 Further Assurances 49
8.04 Form of Security 49
8.05 Qualifying Hedge Arrangements 49
Article 9 – REPRESENTATIONS AND WARRANTIES 50
9.01 Representations and Warranties 50
9.02 Survival and Repetition of Representations and Warranties 58
Article 10 – COVENANTS 58
10.01 Positive Covenants 58
10.02 Financial Covenants 66
10.03 Reporting Requirements 67
10.04 Negative Covenants 68
10.05 SmartStop Transaction 71
10.06 Permitted Sale 73
10.07 Debt Service Reserve Account 74
Article 11 – events of DEFAULT 75
11.01 Events of Default 75
11.02 Acceleration and Enforcement 77
11.03 Remedies Cumulative 78
11.04 Perform Obligations 79
11.05 Third Parties 79
11.06 Application of Payments 79
11.07 Cure Rights. 80
Article 12 – guarantee 81
12.01 Guarantees and Indemnity 81
12.02 Obligations Absolute 82
12.03 No Release 83
12.04 No Exhaustion of Remedies 84
12.05 Prima Facie Evidence 84
12.06 Guarantors’ Rights 84
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12.07 Continuing Guarantee 84
12.08 Waivers by Guarantors 84
12.09 Demand 84
12.10 Interest 85
12.11 Parent Guarantor Limitation 85
12.12 Limited Recourse Guarantor Limitation 85
Article 13 – THE AGENT AND THE LENDERS 85
13.01 Appointment and Authority 85
13.02 Exculpatory Provisions 85
13.03 Reliance by Agent 86
13.04 Indemnification of Agent 87
13.05 Delegation of Duties 87
13.06 Replacement of Agent 87
13.07 Non Reliance on Agent and Other Lenders 88
13.08 Agent’s Clawback 89
13.09 Payments by the Borrowers 89
13.10 Payments by Agent 90
13.11 Administration of the Credits 91
13.12 Defaulting Lenders 93
13.13 Sharing of Payments by the Lenders 94
13.14 Rights of Agent 95
13.15 Representations, Acknowledgements and Covenants of Lenders 96
13.16 Collective Action of the Lenders 96
13.17 No Other Duties 97
13.18 Erroneous Payments 97
13.19 Provisions Operative Between Lenders and Agent Only 98
Article 14 – change in circumstances and indemnities 99
14.01 Increased Costs 99
14.02 Taxes 100
14.03 Illegality 101
Article 15 – RIGHT OF SETOFF 102
15.01 Right of Setoff 102
Article 16 – NOTICES: EFFECTIVENESS; ELECTRONIC COMMUNICATION 103
16.01 Notices, etc. 103
Article 17 – EXPENSES; INDEMNITY: DAMAGE WAIVER 105
17.01 Expenses; Indemnity: Damage Waiver 105
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Article 18 – SUCCESSORS AND ASSIGNS 107
18.01 Successors and Assigns 107
18.02 Assignment by Lender 107
18.03 Register 109
18.04 Participations 109
18.05 Certain Pledges 110
Article 19 – amendments and waivers 110
19.01 Amendments and Waivers 110
Article 20 – GOVERNING LAW; JURISDICTION; ETC. 110
20.01 Governing Law; Jurisdiction; Etc. 110
20.02 Judgment Currency. 111
Article 21 – WAIVER OF JURY TRIAL 111
21.01 Waiver of Jury Trial 111
Article 22 – COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION 112
22.01 Counterparts; Integration; Effectiveness; Electronic Execution 112
Article 23 – TREATMENT OF CERTAIN INFORMATION: CONFIDENTIALITY 112
23.01 Treatment of Certain Information: Confidentiality 112
Article 24 – language 114
24.01 Language 114
Article 25 – Nature of Obligations, Recourse and direction 114
25.01 Nature of Obligations under this Agreement and Recourse 114
CREDIT AGREEMENT
THIS AGREEMENT is made as of June 15, 2023
BETWEEN
SST VI 19 ESANDAR DR, LLC,
SST VI 19 ESANDAR DR, ULC,
SST VI 1230 LAKESHORE RD E, LLC,
SST VI 1230 LAKESHORE RD E, ULC,
SST VI 1770 APPLEBY LINE, LLC,
SST VI 1770 APPLEBY LINE, ULC,
SST VI 2068 S SHERIDAN WAY, LLC,
SST VI 2068 S SHERIDAN WAY, ULC,
SST VI 24-60 SANFORD AVE N, LLC,
SST VI 24-60 SANFORD AVE N, ULC,
SST VI 411 CITYVIEW BLVD, LLC, and
SST VI 411 CITYVIEW BLVD, ULC
as Borrowers
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STRATEGIC STORAGE TRUST VI, INC.
as Parent Guarantor
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SST6 CANADA ACQUISITIONS, LLC
as Limited Recourse Guarantor
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NATIONAL BANK OF CANADA,
as Agent
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EACH FINANCIAL INSTITUTIONS
from time to time party to this Agreement
as Lenders
WHEREAS the Borrowers have requested the Credit Facility and the Lenders have agreed to provide the Credit Facility to the Borrowers for the purposes set out in Section 2.02 and upon and subject to the terms and conditions set out in this Agreement;
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AND WHEREAS it is a condition of providing the Credit Facility that each of the Parent Guarantor and the Limited Recourse Guarantor guarantee the Obligations of the Borrowers on the terms and conditions herein set forth;
AND WHEREAS each of the Parent Guarantor and the Limited Recourse Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this Agreement and the Loan Documents and each of the Credit Parties acknowledges that they are jointly and severally liable for the Obligations; and
AND WHEREAS the Lenders confirm and acknowledge that the Nominees hold legal title to the Secured Properties, for the benefit and on behalf of the Beneficial Owners, and that the Credit Facility has been established in accordance with the provisions of this Agreement, for the sole use and benefit of the Beneficial Owners.
NOW THEREFORE, in consideration of the covenants and agreements herein contained, the parties agree as follows:
In this Agreement, unless something in the subject matter or context is inconsistent therewith:
“Acceptable Appraisal” means, with respect to any Secured Property, a “market value” appraisal of such Secured Property prepared in accordance with the requirements of the Uniform Standards of Professional Appraisal Practice adopted by the Appraisal Institute of Canada and conducted in accordance with the standards of the Appraisal Institute of Canada by an Independent Appraiser, which is approved by the Agent in form, substance and which is addressed to the Agent.
“Acquisition” means, with respect to any Person, any purchase or other acquisition, regardless of how accomplished or effected (including any such purchase or other acquisition effected by way of amalgamation, merger, arrangement, business combination or other form of corporate reorganization or by way of purchase, lease or other acquisition arrangements), of (a) any other Person (including any purchase or acquisition of such number of the issued and outstanding securities of, or such portion of an Equity Interest in, such other Person) such that such other Person becomes a Subsidiary of the purchaser or of any of its Affiliates, (b) all or substantially all of the assets of any other Person, or (c) all or any material portion of all of any division, business, or operation or undertaking of any other Person as a going concern.
“Additional Compensation” has the meaning set out in Section 14.01(3).
“Adjusted Net Operating Income” means, with respect to any real property for a given period, the sum of the following (without duplication but as adjusted pursuant to the provisions of the definition of Calculation Period): (a) rents and other revenues received in the ordinary course from the leasing or operating of such property (including proceeds of rent loss insurance but excluding prepaid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligations for rent) determined in accordance with GAAP, minus (b) all expenses paid
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or accrued by the relevant owner related to the ownership, operation or maintenance of such property, including but not limited to realty taxes, assessments and other similar charges, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses and on site marketing expenses, but in any event excluding amortization and depreciation and general administrative expenses of the relevant owner, determined in accordance with GAAP, minus (c) non-recoverable expenses. For certainty, paragraphs (b) and (c) of this definition of Adjusted Net Operating Income shall exclude any extraordinary or non-recurring expenses, any asset management fees, any payments on account of interest, fees and amortization of principal in respect of any Indebtedness, income tax expense and cash reserves.
“Advance” means an advance of funds made hereunder to any Borrower by the Lenders by way of a Loan.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled By or is Under Common Control With the Person specified.
“Agent” means National Bank of Canada, in its capacity as administrative agent, and its successors and assigns.
“Agent’s Office” means the branch of the Agent located at 130 King Street West, Suite 3200, Toronto, ON M5X 1J9, or such other office that the Agent may from time to time designate by notice to the Borrowers and the Lenders.
“Aggregate Hedge Exposure” means, at any time, the negative net marked to market amount, if any, that would be carried in the accounts of the Borrowers on a Consolidated basis at such time with respect to Qualifying Hedge Arrangements as a liability.
“Agreement” means this credit agreement, including its recitals and schedules, as refinanced, amended, restated, supplemented and otherwise modified from time to time.
“AML Laws” has the meaning set out in Section 9.01(37)(a).
“Annualized Basis” means, for purposes of computing or determining the Modified Total Property Debt Service Coverage Ratio for any measurement period, the calculation with respect to which shall be derived with reference to the period commencing on the Closing Date until the last day of such measurement period, each of the components described in the definition of “Modified Total Property Debt Service Coverage Ratio” (other than clause (a)(ii) thereof) (collectively, the “Specified Components”) for such period being deemed to be the product of (i) the actual amount of such component for such measurement period, divided by the number of calendar days in such measurement period, multiplied by (ii) 365.
“Anti-Corruption Laws” has the meaning set out in Section 9.01(37)(d).
“Applicable Canadian Pension Laws” means any law (statutory or common), rule, regulation, guideline, directive, order or notice of any Canadian federal or provincial (or other political subdivision thereof) Governmental Authority or any entity exercising executive, legislative,
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quasi-judicial, regulatory or administrative functions pertaining to, having jurisdiction over or affecting any Canadian Pension Plan or Canadian Plan in each case to the extent having the force of law.
“Applicable Law” means, at any time, in respect of any Person, property, transaction, event or other matter, as applicable, all then current laws, rules, statutes, regulations, treaties, orders, judgments and decrees and all official directives, rules, guidelines, orders, policies, decisions and other requirements of any Governmental Authority (collectively, the “Law”) relating or applicable to such Person, property, transaction, event or other matters and shall also include any interpretation of the Law, or any part of the Law, by any person having jurisdiction over it or charged with its administration or interpretation.
“Applicable Margin” means on any date for any period, the percentage rate per annum determined in accordance with the applicable table below:
Prime Rate Margin | BA Stamping Fee Rate |
1.60 | 2.60 |
“Applicable Market Capitalization Rate” means, for each relevant property, the proposed capitalization rate by the Parent Guarantor for such property (and the Parent Guarantor shall provide evidence in support thereof) for review and consideration by the Lenders, in their discretion.
“Appraised Market Value” means, with respect to any Secured Property, the appraised value of such Secured Property as set forth in the most recent applicable Acceptable Appraisal.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee and accepted by the Agent, in substantially the form of Schedule or any other form approved by the Agent.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of a Contract Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“BA Cessation Effective Date” has the meaning ascribed thereto in Section 2.09(7).
“BA Cessation Notice” has the meaning ascribed thereto in Section 2.09(7).
“BA Discount Proceeds” means, with respect to a particular Bankers’ Acceptance or BA Equivalent Note, the following amount:
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( | 1 | ) | x BA |
1 + (DR*(IP/365)) |
Where:
with the amount as so determined being rounded up or down to the fifth decimal place and 0.000005 being rounded up.
“BA Discount Rate” means, in respect of Bankers’ Acceptances or BA Equivalent Notes to be purchased pursuant to Article 5, CDOR.
“BA Equivalent Note” has the meaning set out in Section 5.01(1).
“BA Lender” means any Lender that is a bank chartered under the Bank Act (Canada) and that has not notified the Agent in writing that it is unwilling or unable to accept Drafts as provided for in Article 5.
“BA Stamping Fee” means the amount calculated by multiplying the face amount of a Bankers’ Acceptance or a BA Equivalent Note by the BA Stamping Fee Rate and then multiplying the result by a fraction, the numerator of which is the number of days to elapse from and including the date of acceptance of such Bankers’ Acceptance or purchase of such BA Equivalent Note by a Lender up to but excluding the maturity date of such Bankers’ Acceptance, and the denominator of which is the number of days in the calendar year in question.
“BA Stamping Fee Rate” means, with respect to a Bankers’ Acceptance or a BA Equivalent Note, the applicable percentage rate per annum indicated below the reference to “BA Stamping Fee Rate” in the definition of “Applicable Margin”.
“Bankers’ Acceptance” means a depository bill, as defined in the Depository Bills and Notes Act (Canada), in Canadian Dollars that is in the form of a Draft signed by a Borrower and accepted by a BA Lender as contemplated under Article 5, or for Lenders not participating in clearing services as contemplated in that Act, a draft or other bill of exchange in Canadian Dollars that is signed on behalf of a Borrower and accepted by a Lender.
“Benchmark” means, initially, CDOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 2.09, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
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“Benchmark Replacement” means, for any Available Tenor:
provided that, if the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Relevant Floor, the Benchmark Replacement will be deemed to be the Relevant Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Prime Rate,” the definition of “Business Day,” the definition of “Contract Period,” the definition of “Bankers’ Acceptance”, the definition of “BA Equivalent Advance,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters, including with respect to the obligation of the Agent and the Lenders to create, maintain or issue Bankers’ Acceptance) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). Without limiting the foregoing, Benchmark Replacement Conforming Changes made in connection with the replacement of CDOR with a Benchmark Replacement may include the implementation of mechanics for borrowing loans that bear interest by reference to the Benchmark Replacement, to replace the creation or purchase of drafts or Bankers’ Acceptances.
“Benchmark Transition Event” means, with respect to any then-current Benchmark other than CDOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of
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such Benchmark, the Bank of Canada, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.
“Beneficial Owners” means, collectively, (a) SST VI 19 Esandar Dr, LLC, (b) SST VI 1230 Lakeshore Rd E, LLC, (c) SST VI 1770 Appleby Line, LLC, (d) SST VI 2068 S Sheridan Way, LLC, (d) SST VI 24-60 Sanford Ave N, LLC, and (e) SST VI 411 Cityview Blvd, LLC, and their respective successors and assigns permitted by this Agreement, and “Beneficial Owner” means any one of them.
“Borrowers” means collectively, the Nominees and the Beneficial Owners, and their respective successors and assigns permitted by this Agreement, and “Borrower” means any one of them.
“Borrowers’ Counsel” means Norton Rose Fulbright Canada LLP, or such other firm of legal counsel as the Borrowers may from time to time designate and that is acceptable to the Agent, acting reasonably.
“Business Day” means a day on which chartered banks are open for over-the-counter business in the Province of Ontario and the Province of Québec and excludes Saturday, Sunday and any other day which is a statutory holiday in the Province of Ontario or the Province of Québec.
“Calculation Period” means the trailing twelve month period, provided that for the purposes of such calculations, in respect of any Secured Property, historical calculations for the period prior to the acquisition thereof by the Borrowers until such time as twelve months have elapsed since the acquisition date thereof (such calculation to be acceptable to the Lenders, acting reasonably), after which, the Calculation Period as of any time shall be deemed to be the trailing twelve month period.
“Canadian Dollars”, “Cdn. Dollar” and “$” mean the lawful money of Canada.
“Canadian Pension Plan” means each and every registered pension plan established under Canadian federal or provincial law and sponsored, maintained or contributed to, by or on behalf of the Credit Parties for the benefit of any of their respective employees.
“Canadian Plan” shall mean any employee benefit plan (other than a Canadian Pension Plan) established or maintained by, or on behalf of the Credit Parties for the benefit of any of their respective employees.
“Capital Expenditures” means any capital expenditure made by a Borrower for the construction, maintenance, repair, replacement, addition, alteration or refurbishment of any Secured Property.
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“Capital Lease Obligation” of any Person means the obligation of such Person, as lessee, to pay rent or other payment amounts under a lease of real or personal property which is required to be classified and accounted for as a capital lease or a liability on a Consolidated balance sheet of such Person in accordance with GAAP.
“CDOR” means, for any day and relative to Bankers’ Acceptances or BA Equivalent Notes having any specified term and face amount, the average of the annual rates for Bankers’ Acceptances having such specified term and face amount (or a term and face amount as closely as possible comparable to such specified term and face amount) of the banks named in Schedule I of the Bank Act (Canada) that appears on the Refinitiv Canadian Dollar Offered Rate (CDOR) Page as of 10:20 a.m. on such day (or, if such day is not a Business Day, as of 10:20 a.m. (Toronto time) on the preceding Business Day), provided that if such rate does not appear on the Refinitiv Canadian Dollar Offered Rate (CDOR) Page at such time on such date, CDOR for such date will be the annual discount rate of interest as of 10:20 a.m. (Toronto time) on such date at which the Agent is then offering to purchase bankers’ acceptances accepted by it having a comparable aggregate face amount and identical maturity date to the aggregate face amount and maturity date of such Bankers’ Acceptances or BA Equivalent Notes, as the case may be; provided that if CDOR as otherwise determined in accordance with this definition is less than the Relevant Floor, it shall be deemed to be the Relevant Floor.
“Change in Laws” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Applicable Laws, (b) any change in any Applicable Laws or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any Applicable Laws by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or Canada, the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Laws”, regardless of the date enacted, adopted or issued.
“Claims” means, in respect of any event, circumstance, matter or thing, all actions, proceedings, losses, damages, liabilities, taxes, claims, demands, judgments, rights (including set-off), remedies, costs and expenses of any nature or kind, including legal fees and disbursements on a full indemnity basis, and “Claim” means any one of them.
“Closing Date” means June 15, 2023.
“Closing Date Acquisitions” means the acquisitions by the Beneficial Owners of the Secured Properties pursuant to the terms of the Purchase Agreement.
“Collateral” means all Secured Properties and all real and personal property (and the revenues, insurance proceeds, issues, profits, proceeds and products of the foregoing) which are subject, or are intended or required to become subject, to the security or Encumbrance granted under any of the Loan Documents.
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“Commitment” means, in respect of each Lender, the amount specified with respect to such Lender in Schedule A (which will be amended and distributed to all parties by the Agent from time to time as other persons become Lenders), being the sum of the maximum aggregate amount of Loans that such Lender is obliged to make, as such amount may be reduced from time to time by such Lender’s Proportionate Share of the amount of any permanent repayments, reductions or prepayments required or made hereunder. For greater certainty, the aggregate amount of the Commitments of the Lenders shall not exceed an amount equal to 60% of the lesser of (a) the aggregate purchase price payable by the Borrowers for the Acquisitions, and (b) the aggregate market value of the Secured Properties as set out in the Acceptable Appraisals.
“Compliance Certificate” means the certificate required pursuant to Section 10.03(3), which for the Borrowers shall be substantially in the form attached as Schedule B, signed by any one of the Chief Executive Officer or the Chief Financial Officer of the Borrowers, or such other senior financial officer of the Borrowers approved by the Agent, and which for the Parent Guarantor, shall be substantially in the form attached as Schedule B-1, signed by any one of the Chief Executive Officer or the Chief Financial Officer of the Parent Guarantor, or such other senior financial officer of the Parent Guarantor approved by the Agent.
“Consolidated” means consolidated financial calculations of the relevant Person and its Subsidiaries in accordance with GAAP.
“Consolidated Indebtedness” means, with respect to the Parent Guarantor, as at any date, the Indebtedness (without duplication), calculated on a Consolidated basis, as at such date determined in accordance with GAAP.
“Construction Lien Legislation” has the meaning ascribed thereto in Section 10.01(21).
“Contingent Obligation” means, with respect to any Person, any obligation, whether secured or unsecured, of such Person guaranteeing or indemnifying, or in effect guaranteeing or indemnifying, any indebtedness, leases, dividends, letters of credit or other monetary obligations (the “primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person as an account party in respect of a letter of credit or letter of guarantee issued to assure payment by the primary obligor of any such primary obligation and any obligations of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds for the purchase or payment of any such primary obligation or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the obligee under any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the obligee under such primary obligation against loss in respect of such primary obligation; provided, however, that the term Contingent Obligation does not include endorsements of instruments for deposit or collection in the ordinary course of business.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power,
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by contract or otherwise. “Controlled By”, “Controls” and “Under Common Control With” have meanings correlative thereto.
“Conversion” means a conversion of one type of Loan into another type of Loan pursuant to Section 2.05.
“Conversion Date” means the Business Day specified by the Borrowers in a Conversion Notice as being the date on which the Borrowers have elected to convert one type of Loan into another type of Loan.
“Conversion Notice” means a Notice, substantially in the form set out in Schedule C, to be given to the Agent by the Borrowers pursuant to Section 2.05.
“CORRA” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
“Credit Facility” has the meaning set out in Section 2.01.
“Credit Parties” means, collectively, (a) the Borrowers, (b) the Parent Guarantor, and (c) the Limited Recourse Guarantor, and their respective successors and assigns permitted by this Agreement, and “Credit Party” means any one of them. For the purposes of Article 9, Article 10, Article 11 and Article 14 of this Agreement, reference to “Credit Party” or “Credit Parties” therein shall include each general partner of such Credit Parties, if any.
“Cure Right” has the meaning ascribed thereto pursuant to Section 11.07(1)(a) and Section 11.07(2), as applicable.
“Daily Compounded CORRA” means, for any day, CORRA with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by the Agent in accordance with the methodology and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded CORRA for business loans; provided that if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion; and provided that if the administrator has not provided or published CORRA and a Benchmark Transition Event with respect to CORRA has not occurred, then, in respect of any day for which CORRA is required, references to CORRA will be deemed to be references to the last provided or published CORRA.
“Debt Service Reserve Account” has the meaning ascribed thereto in Section 10.07(1).
“Debtor Relief Laws” means the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Code of the United States of America and any similar federal, provincial, territorial, state or foreign law (including all liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar laws of any applicable jurisdictions and affecting the rights of creditors generally) for the relief of debtors, and includes, with respect to any Lender, the Bank Act (Canada).
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“Default” means any event or condition, the occurrence of which would, with the lapse of time or giving of notice, or both, becomes an Event of Default.
“Defaulting Lender” means, subject to Section 13.12(2), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days after the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, will be specifically identified in such writing) has not been satisfied, or (ii) pay to the Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days after the date when due, (b) has notified the Borrowers or the Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, will be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Agent or the Borrowers, to confirm in writing to the Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender will cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including any provincial or federal regulatory authority acting in such a capacity; provided that a Lender will not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within Canada or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above will be conclusive and binding absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to Section 13.12(2)) upon delivery of written notice of such determination to the Borrowers and each Lender.
“discretion” means the discretion of the Agent or the Lenders (or any group of Lenders), as applicable, acting reasonably.
Disposition” means, with respect to a Person, any sale, assignment, transfer, conveyance, lease, licence or other disposition of any nature or kind whatsoever of any property, asset or of any right, title or interest in or to any property or asset, and the verb “Dispose” has a corresponding meaning.
“Distribution” means (a) any payment, declaration of dividend or other distribution, whether in cash or property to any holder of Equity Interests of any class of any of the Credit Parties, (b) any repurchase, redemption, retraction or other retirement or purchase for cancellation of Equity Interests of any Credit Party or of any options, warrants or other rights to acquire any of such Equity Interests, (c) any issuance of Equity Interests of a Credit Party pursuant to a distribution
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re-investment plan, (d) the payment by any Credit Party of any royalty, consulting fee, management fee, bonus or other fee to any Credit Party, any Affiliate of any Credit Party or to any director, officer or other management personnel, (e) making of any payment on account of any fees, principal, interest or otherwise on any subordinated debt (including the Intercompany Indebtedness) to any Affiliates, or (f) making of any payment on account of any fees and re-imbursements relating to any advisory agreements or property management agreements entered into by a Credit Party.
“Draft” has the meaning set out in Section 5.01(1).
“Drawdown” means:
“Drawdown Date” means the date on which the Drawdown is made by the Borrowers pursuant to the provisions hereof, which, for greater certainty, shall be June 16, 2023.
“Drawdown Notice” means a notice, substantially in the form set out in Schedule D, to be given to the Agent by the Borrowers pursuant to Section 2.05.
“Eligible Assignee” means any Person (other than a natural person, any Credit Party or any Affiliate of a Credit Party), in respect of which any consent that is required by Section 18.02 has been obtained.
“Encumbrance” means, with respect to any Person, any mortgage, debenture, pledge, hypothec, lien, charge, lease, sublease, easement, preference, priority, assignment by way of security, hypothecation or security interest granted or permitted by such Person or arising by operation of law, in respect of any of such Person’s property or assets, or any consignment by way of security or Capital Lease Obligations by such Person as consignee or lessee, as the case may be, or any other security agreement, trust or arrangement having the effect of security for the payment of any debt, liability or other obligation, including title reservations, limitations, provisos or conditions, and “Encumbrances”, “Encumbrancer”, “Encumber” and “Encumbered” have corresponding meanings.
“Environmental Law” means any Applicable Law in the jurisdiction where any Secured Property is located relating to the natural environment including those pertaining to:
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“Equity Interests” means, with respect to any Person, all of the shares of capital stock, membership interests, limited liability company interests, equity units or other form of equity interest of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock, membership interests, limited liability company interests, equity units or other form of equity interest of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock, membership interests, limited liability company interests, equity units or other form of equity interest of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares, membership interests, limited liability company interests, equity units or other form of equity interest (or such other interests), and all of the other ownership or profit interests in such Person (including partnership interests therein, trust interests therein, member interests therein, member status, economic rights, control rights, rights to information, rights to review of books and records, and rights to compel dissolution), whether voting or nonvoting, and whether or not such shares, membership interests, limited liability company interests, equity units, warrants, options, rights or other interests are outstanding on any date of determination.
“Event of Default” has the meaning set out in Section 11.01.
“Excluded Taxes” means (a) taxes imposed on or measured by its net income, capital gains, or capital, and franchise taxes imposed on it by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch tax, branch profits tax or any similar tax imposed by any jurisdiction, or (c) any taxes imposed under FATCA.
“Fair Market Value” means, at a specified date, the aggregate amount of the fair market values of all real properties 100% owned or leased by the Parent Guarantor, as tenant, under long term ground leases (directly or indirectly), being determined on a property by property basis based on Adjusted Net Operating Income for the most recently completed Calculation Period for each such property divided by the percentage of the Applicable Market Capitalization Rate plus the total book value of all other real property assets of the Parent Guarantor plus accumulated amortization and depreciation of such other assets, on a Consolidated basis, as shown on the Consolidated financial statements of the Parent Guarantor prepared in accordance with GAAP, such calculations to be satisfactory to the Lenders, in their discretion.
“FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof.
“Fee Letters” means, collectively, (a) the agency fee letter, dated as of the Closing Date, between the Borrowers and NBC, (b) one or more arrangement fee letters, each dated as of the Closing Date, between the Borrowers, NBC and/or certain of the other Lenders, (c) the upfront fee letter, dated as of the Closing Date, between the Borrowers and the Agent, and (d) such other fee letters entered into between any Credit Party and the Agent or any Lender from time to time.
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“Financial Assistance” means, without duplication and with respect to any Person, all loans granted by that Person and guarantees or Contingent Obligations incurred by that Person for the purpose of or having the effect of providing financial assistance to another Person or Persons, including letters of guarantee, letters of credit, legally binding comfort letters or indemnities issued in connection therewith, endorsements of bills of exchange (other than for collection or deposit in the ordinary course of business), obligations to purchase assets regardless of the delivery or non-delivery thereof and obligations to make advances or otherwise provide financial assistance to any other Person.
“Fiscal Quarter” means each successive three-month period of each Credit Party’s and the Secured Property’s Fiscal Year ending on or about March 31, June 30, September 30 and December 31.
“Fiscal Year” means, in respect of each Credit Party and each Secured Property, the twelve month period ending on or about the last day of December in any year.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means those generally accepted accounting principles in the United States of America.
“Governmental Authority” means the government of Canada, the United States or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including a Minister of the Crown, Superintendent of Financial Institutions or other comparable authority or agency.
“Hazardous Substance” means any substance or material that is prohibited, controlled or regulated by any Governmental Authority pursuant to Environmental Laws, including pollutants, contaminants, dangerous goods or substances, toxic or hazardous substances or materials, wastes (including solid non-hazardous wastes and subject wastes), petroleum and its derivatives and by‑products and other hydrocarbons, all as defined in or pursuant to any Environmental Law.
“Hedge Arrangement” means, with respect to any Person, any arrangement or transaction between such Person and any other Person that is a rate swap transaction, basis swap, forward rate transaction, commodity swap, interest rate option, forward foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of such transactions or arrangements) designed to protect or mitigate against risks in interest, currency exchange or commodity price fluctuations.
“Impermissible Qualification” means relative to the financial statements (including notes thereto) of any Person or report or opinion of any independent auditor in respect thereof, any qualification or exemption to such financial statements (or notes thereto) or report or opinion thereon which is of a “going concern” or similar nature.
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“Indebtedness” of any Person means (without duplication), on a Consolidated basis and in accordance with GAAP:
provided that, Obligations referred to in clauses (a) through (c) above exclude (A) trade accounts payable, (B) distributions payable to holders of securities, (C) accrued liabilities arising in the ordinary course of business which are not overdue or which are being contested in good faith, (D) intangible liabilities and (E) deferred revenues, all of which will be deemed not to be Indebtedness for the purposes of this definition. In calculating the amount of any Indebtedness under (i) any securitization of any receipts or receivables, the amount shall be the discounted amount of proceeds paid in exchange for the receipts or receivables, (ii) any Capital Lease Obligations, the amount shall be the aggregate portion of all rent in the nature of principal, and (iii) any Hedge Arrangements, the amount shall be the net amount owing calculated on a mark to market basis.
“Indemnified Taxes” means Taxes, other than Excluded Taxes.
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“Indemnitee” has the meaning set out in Section 17.01(2).
“Independent Appraiser” means, with respect to a Secured Property, a professional real estate appraiser who (a) is a member in good standing of the Appraisal Institute of Canada (and its successors), (b) is independent of the Borrowers and their respective Affiliates, (c) is certified and licensed in the jurisdiction in which such Secured Property is located, (d) has a minimum of five years’ experience in the subject property type and market, and (e) is approved by the Agent, acting reasonably, provided that each of the parties hereto acknowledges and agrees that Colliers International shall be deemed to be an Independent Appraiser hereunder.
“Independent Insurance Consultant” means InTech Risk Management Inc. or such other insurance consultant appointed by the Agent.
“Intellectual Property” means any and all intellectual and industrial property, whether recorded or not and regardless of form or method of recording, including all works in which copyright subsists or may subsist (such as computer software), data bases (whether or not protected by copyright), designs, documentation, manuals, specifications, industrial designs, trade secrets, confidential information, ideas, concepts, know-how, trade marks, service marks, trade names, domain names, discoveries, inventions, formulae, recipes, product formulations, processes and processing methods, technology and techniques, improvements and modifications, integrated circuit topographies and mask works.
“Intellectual Property Rights” includes all intellectual and industrial and other proprietary rights in any Intellectual Property.
“Interbank Reference Rate” means the interest rate expressed as a percentage per annum that is customarily used by the Agent when calculating interest due by it or owing to it arising from the correction of errors and other adjustments between the Agent and other Canadian chartered banks.
“Intercompany Indebtedness” means all unsecured, subordinated and postponed indebtedness, liabilities and obligations, of any nature or kind, present or future, direct or indirect, absolute or contingent, whether as primary debtor or surety, matured or not and at any time owing by each Credit Party to each other Credit Party.
“Interest Payment Date” means, with respect to each Prime Rate Loan, the first Business Day of each calendar month.
“Interest Only Period” means the period of time beginning on the Closing Date and ending on the first anniversary of the Closing Date.
“Interest Period” means:
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provided that in any case the last day of each Interest Period will be also the first day of the next Interest Period and further provided that the last day of each Interest Period will be a Business Day. If the last day of an Interest Period selected by the Borrowers is not a Business Day the Borrowers will be deemed to have selected an Interest Period the last day of which is the Business Day next following the last day of the Interest Period otherwise selected unless such next following Business Day falls in the next calendar month in which event the Borrowers will be deemed to have selected an Interest Period the last day of which is the Business Day next preceding the last day of the Interest Period otherwise selected and further provided that the last Interest Period hereunder must expire on or prior to the Maturity Date.
“Investment” means any direct or indirect (a) acquisition of any shares, partnership interests, participation interests in any arrangement, options or warrants, or any indebtedness, whether or not evidenced by any bond, debenture or other written evidence of a Person, (b) an investment (including, without limitation, by way of loan) made or held by a Person, directly or indirectly, in another Person (whether such investment was made by the first-mentioned Person in such other Person or acquired from a third party), (c) acquisition, by purchase or otherwise, of all or substantially all of the business, assets or stock or other evidence of beneficial ownership of a Person, or (d) acquisition by purchase or otherwise of any real property and related personal property of a Person. Any binding commitment to make an Investment in any Person or property and assets, as well as any option of another Person to require an Investment in such Person or property and assets, shall constitute an Investment. The amount of any Investment will be the original cost of such Investment, plus the cost of all additions thereto and minus the amount of any portion of such Investment repaid to such Person in cash as a return of capital, but without any other adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment. In determining the amount of any Investment involving a transfer of any property other than cash, such property will be valued at its fair market value at the time of such transfer.
“ISDA Master Agreement” means the 1992 ISDA Master Agreement (Multi‑Currency ‑ Cross Border) or the ISDA 2002 Master Agreement, in each case as published by the International Swaps and Derivatives Association, Inc.
“IRC” means the Internal Revenue Code of 1986 of the United States of America.
“Judgment Conversion Date” has the meaning set out in Section 20.02(1)(b).
“Judgment Currency” has the meaning set out in Section 20.02(1).
“Leases” means any leases, subleases, agreements to lease, licences or grants of rights of occupation (including storage unit agreements) (other than an easement, servitude or a right in the nature of an easement or servitude) granted, from time to time, by any Person entitling the lessee,
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sublessee, licensee or grantee thereunder to use or occupy any part of any Secured Property, and “Lease” means any one of them.
“Lender BA Suspension Notice” has the meaning set out in Section 5.01(9).
“Lenders” means the Persons from time to time party to this Agreement and identified as a Lender, and “Lender” means any one of the Lenders as the context may require.
“Lenders’ Counsel” means the firm of McCarthy Tétrault LLP or such other firm of legal counsel as the Agent may from time to time designate.
“Lending Office” means, with respect to any particular Lender, the branch or office of such Lender specified in Schedule A from which such Lender makes advances and to which such Agent disburses payments received for the benefit of such Lender.
“Limited Recourse Guarantor” means SST6 Canada Acquisitions, LLC, and its successors and assigns permitted by this Agreement.
“Limited Recourse Guarantor Pledge Agreement” has the meaning set out in Section 8.01(a).
“Loan” means any extension of credit by a Lender under this Agreement, including by way of Bankers’ Acceptance or Prime Rate Loan.
“Loan Documents” means (a) this Agreement, (b) the Security, (c) the Fee Letters, (d) Qualifying Hedge Arrangements, (e) Qualifying Cash Management Arrangements and (f) all present and future agreements, documents, certificates and instruments delivered by any Credit Party to the Agent and the Lenders pursuant to or in respect of this Agreement or the Security, in each case as the same may from time to time be amended, restated, supplemented and otherwise modified, and “Loan Document” means any one of the Loan Documents.
“Material Adverse Change” means:
which, individually or in the aggregate, would reasonably be expected to result in, or has resulted in, an impairment of the ability of such Credit Party to perform any of its Obligations;
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“Material Agreements” means, with respect to a particular Credit Party, the contracts set out in Schedule F and all other contracts to which such Person is a party or by which it is bound or may hereafter become a party or be bound, which are material and which relate to the operation or ownership of the applicable Secured Property (or its business, where such agreement is designated by the Lenders, acting reasonably, as a “Material Agreement” provided the Agent has notified the Borrowers of such designation), in each case as amended, restated, supplemented and otherwise modified from time to time in accordance with the terms of this Agreement and the other Loan Documents, and “Material Agreement” means any one thereof.
“Material Licences” means all licences, permits or approvals issued by any Governmental Authority, or any applicable stock exchange or securities commission, to any Credit Party, and which are at any time on or after the date of this Agreement,
“Maturity Date” means June 15, 2025.
“Modified Total Property Debt Service Coverage Ratio” means, for any Calculation Period, the ratio obtained by dividing: (a) the sum of (i) the aggregate Property Net Operating Income for all of the Secured Properties for such Calculation Period and (ii) the balance of the Debt Service Reserve Account as of the date of such calculation by (b) implied interest and principal payments due, or which would have been due in the absence of the Interest Only Period, in respect of all Indebtedness secured by the Borrowers’ interest in the Secured Properties, including without limitation the Loans, payable during such Calculation Period, such calculation to be satisfactory to the Lenders, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement. For the avoidance of doubt, for purposes of computing and determining the Modified Total Property Debt Service Coverage Ratio for and in respect of the first three Fiscal Quarters following the Closing Date, such computation and determination shall be made on an Annualized Basis.
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“NBC” means National Bank of Canada.
“New Borrower” has the meaning set out in Section 10.05(2)(b).
“Nominees” means, collectively, (a) SST VI 19 Esandar Dr, ULC, SST VI 1230 Lakeshore Rd E, ULC, (c) SST VI 1770 Appleby Line, ULC, (d) SST VI 2068 S Sheridan Way, ULC, (e) SST VI 24-60 Sanford Ave N, ULC, and (f) SST VI 411 Cityview Blvd, ULC, and their respective successors and assigns permitted by this Agreement, and “Nominee” means any one of them.
“Nominee Agreements” means, collectively:
and “Nominee Agreement” means any one of them.
“Non-BA Lender” means any Lender that is not a BA Lender.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 13.11(3) and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Obligations” means all obligations of the Credit Parties to the Agent and the Lenders under or in connection with this Agreement and the other Loan Documents and the Qualifying Hedge
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Arrangements and the Qualifying Cash Management Arrangements, including all debts and liabilities, present or future, direct or indirect, absolute or contingent, matured or not, and obligations of performance, at any time and howsoever arising, owing by the Credit Parties to the Agent and the Lenders in any currency or remaining unpaid by the Credit Parties to the Agent and the Lenders under or in connection with this Agreement, the other Loan Documents, the Qualifying Hedge Arrangements or the Qualifying Cash Management Arrangements or from any other dealings or proceedings by which the Agent or any Lender may be or become in any manner whatever a creditor or obligee of the Credit Parties pursuant to this Agreement, the other Loan Documents, the Qualifying Hedge Arrangements and the Qualifying Cash Management Arrangements, and wherever incurred, and whether incurred by any Credit Party alone or with another or others and whether as principal or surety, and all principal, interest, Termination Amount, fees, legal and other costs, charges and expenses relating thereto.
“Officer’s Certificate” means a certificate in writing signed by any one of the Chief Executive Officer, the President, the Chief Financial Officer, an Executive Vice-President, a Senior Vice-President, a Vice-President, an Assistant Vice-President, the Treasurer, the Secretary, an Assistant Treasurer or an Assistant Secretary or any other duly authorized signing officer of the applicable Credit Party, which certificate shall be to the such person’s knowledge, on behalf of such Credit Party, and not in his or her personal capacity.
“Opinion of Counsel” means an opinion or opinions in writing in form and subject to qualifications satisfactory to the Agent and the Lenders, acting reasonably, signed by Borrowers’ Counsel.
“Organizational Documents” means, with respect to any Person, such Person’s articles, memorandum or other charter documents, partnership agreement, joint venture agreement, limited liability company agreement, declaration of trust, trust agreement, by-laws, unanimous shareholder agreement, or any and all other similar agreements, documents and instruments pursuant to which such Person is constituted, organized or governed.
“Other Taxes” means all present or future stamp or documentary taxes or any other similar excise or property taxes, charges or levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of this Agreement or any other Loan Document, but does not include Excluded Taxes.
“Participant” has the meaning set out in Section 18.04(1).
“Parent Guarantor” means Strategic Storage Trust VI, Inc., and its successors and assigns permitted by this Agreement.
“Pension Plan” means (a) a “pension plan” or “plan” which is a “registered pension plan” as defined in the Income Tax Act (Canada) or is subject to the funding requirements of applicable pension benefits legislation in any Canadian jurisdiction and is applicable to employees resident in Canada of a Credit Party, or (b) any other pension benefit plan or similar arrangement applicable to employees of a Credit Party.
“Permitted Appleby Expansion” means a Capital Expenditure proposed to be made by SST VI 1770 Appleby Line, LLC with respect to the Secured Property located at 1770 Appleby Line,
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Burlington, Ontario in accordance with a CCDC stipulated price contract between NYX Appleby Storage LP and 431794 Ontario Inc. o/a HKC Construction dated April 18, 2022 (as otherwise assigned or amended from time to time); provided that such Capital Expenditure (a) shall not, and shall not reasonably be expected to, result in a Default or a Material Adverse Change immediately prior to or after the making of such Capital Expenditure, and (b) is funded entirely with the proceeds of the equity offerings of the Borrowers.
“Permitted Distributions” means:
provided that in each case, no Default or Event of Default then exists, and that the making of such Distribution does not cause or will result in a Default or Event of Default.
“Permitted Encumbrances” means, the following (for greater certainty the term “property” used in this definition includes, without limitation, each Secured Property):
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“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership, Governmental Authority or other entity.
“Platform” has the meaning set out in Section 16.01(3).
“Prime Rate” means the greater of (a) the variable per annum reference rate of interest announced and adjusted by the Agent from time to time for Canadian Dollar loans in Canada, and (b) the rate of interest per annum that is equal to the sum of (i) CDOR on the particular day for one-month Bankers’ Acceptances, and (ii) 1.00% per annum; provided that if the Prime Rate as otherwise determined in accordance with this definition is less than the Relevant Floor, it shall be deemed to be the Relevant Floor.
“Prime Rate Loan” means a Loan in or a Conversion into Canadian Dollars made by the Lenders to the Borrowers with respect to which the Borrowers has specified that interest is to be calculated by reference to the Prime Rate.
“Prime Rate Margin” means, for any period, the applicable percentage rate per annum applicable to that period as set out below the heading “Prime Rate Margin” in the definition of “Applicable Margin”.
“Principal Payment Date” has the meaning set out in Section 6.01(2) or Section 6.01(3), as applicable.
“Property Manager” means Strategic Storage Property Management VI, LLC, a Delaware limited liability company, or any other manager for the Property approved by the Lenders from time to time.
“Property Net Operating Income” means, with respect to any Secured Property, determined for any period on an aggregate basis means, for any period, actual total revenue generated by such Secured Property (but excluding asset management fees and straight-line rent accruals) during such period less operating expenses incurred for such Secured Property (for greater certainty excluding depreciation and capital expenditures) for the same period.
“Proportionate Share” means in respect of each Lender from time to time, (a) with respect to the Credit Facility or a Loan, the percentage of the Credit Facility a Lender has agreed to advance to the Borrowers determined by dividing such Lender’s Commitment in respect of the Credit Facility by the aggregate of Commitments of all of the Lenders with respect to the Credit Facility, and (b) with respect to the Obligations, pro rata in accordance with the aggregate unpaid amount of the Obligations owed to such Lender, which, in the case of all Qualifying Lender Hedge Arrangements, shall mean all amounts due thereunder including, with respect to all Qualifying Lender Hedge Arrangements (whether or not governed by an ISDA Master Agreement), upon the occurrence of a Termination Event (as defined in the applicable ISDA Master Agreement).
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“Purchase Agreement” means the agreement of purchase and sale between Esander Selfstorage LP, Cityview Selfstorage LP, Lakeshore Selfstorage LP, Bluebird Sanford Selfstorage LP, Bluebird Ingram Storage LP, NYX Sheridan Storage LP and NYX Appleby Storage LP, collectively as Seller, and SST II Acquisitions, LLC as Purchaser dated with effect as of April 5, 2023, as such agreement may, from time to time, be amended, modified, restated or assigned as permitted under this Agreement
“Purchase Money Security Interest” means an Encumbrance created or incurred by the Borrowers securing Indebtedness incurred to finance the acquisition of property (including the cost of installation thereof), provided that (a) such Encumbrance is created substantially simultaneously with the acquisition of such property, (b) such Encumbrance does not at any time encumber any property other than the property financed by such Indebtedness, (c) the amount of Indebtedness secured thereby is not increased subsequent to such acquisition, and (d) the principal amount of Indebtedness secured by any such Encumbrance at no time exceeds 100% of the original purchase price of such property and the cost of installation thereof, and for the purposes of this definition the term “acquisition” includes Capital Lease Obligations.
“Qualifying Cash Management Arrangements” means all agreements entered into by the Borrowers and their respective Subsidiaries with any Lender from time to time with respect to cash management arrangements which is collaterally secured by the Security, as such agreements are amended, modified, supplemented or replaced from time to time.
“Qualifying Hedge Arrangements” means a Hedge Arrangement that is entered into by any Borrower on or after the Closing Date and meets each of the following requirements:
“Register” has the meaning set out in Section 18.03.
“Related Persons” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents, advisors, trustees, administrators, managers and representatives of such Person and of such Person’s Affiliates and “Related Person” means any one of them.
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“Release” means any release or discharge of any Hazardous Substance including any discharge, spray, injection, inoculation, abandonment, deposit, spillage, leakage, seepage, pouring, emission, emptying, throwing, dumping, placing, exhausting, escape, leaching, migration, dispersal, dispensing or disposal.
“Relevant Floor” means (a) with respect to CDOR and any Benchmark Replacement, 2.5% per annum, and (b) with respect to Prime Rate, 3.5% per annum.
“Relevant Governmental Body” means the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto.
“Relevant Jurisdiction” means, from time to time, with respect to a Person that is granting Security hereunder, any province or territory of Canada, any state of the United States of America, or any other relevant jurisdiction in which such Person has its chief executive office or chief place of business or has Collateral and, for greater certainty, includes the provinces, states and jurisdictions set out in Schedule G.
“Removal Effective Date” has the meaning set out in Section 13.06(3).
“Rents” means all revenues, receipts, income, credits, deposits, profits, royalties, rents, additional rents, recoveries, accounts receivable and other receivables of any kind and nature whatsoever arising from or relating to each of the Secured Properties or any part thereof (including all amounts payable to the Beneficial Owners under any Leases).
“Repayment Notice” means the notice substantially in the form set out in Schedule H.
“Required Lenders” means (a) if no Loans are outstanding under this Agreement, the Lenders holding at least 66 2/3% of the Commitment, and (b) if any Loans are outstanding under this Agreement, the Lenders to which an amount in aggregate equal to at least 66 2/3% of such Loans is owed, and for greater certainty, in each case, (i) will exclude in such determination all Obligations owing to a Defaulting Lender and all Obligations in respect of all Qualifying Hedge Arrangements and Qualifying Cash Management Arrangements, (ii) where there are only two Lenders hereunder, “Required Lenders” means all of such Lenders; and (iii) where there are two or more Lenders hereunder, “Required Lenders” shall include at least two Lenders.
“Requirements of Law” means, with respect to any Person, the Organizational Documents of such Person and any Applicable Law or any determination of a Governmental Authority, in each case applicable to or binding upon such Person or any of its business or property or to which such Person or any of its business or property is subject.
“Resignation Effective Date” has the meaning set out in Section 13.06(2).
“Rollover” means the acceptance of a Bankers’ Acceptance in like face amount upon the maturity of a Bankers’ Acceptance or the extension of a BA Equivalent Note for an additional Interest Period.
“Rollover Date” means the date of commencement of a new Interest Period applicable to a Bankers’ Acceptance or BA Equivalent Note that is being rolled over.
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“Rollover Notice” means the notice, substantially in the form set out in Schedule I, to be given to the Agent by the Borrowers in connection with the Rollover of a Bankers’ Acceptance.
“Sanctioned Person” has the meaning set out in Section 9.01(37)(b).
“Sanctions” has the meaning set out in Section 9.01(37)(b).
“Secured Properties” means, collectively, the real properties described on Schedule E and the undertaking and personal property relating thereto which are security for the Obligations of the Borrowers hereunder and the property subject to the Security, on terms satisfactory to the Agent; and includes the lands, premises, buildings, improvements, structures, lease rights and rights of superficies and personal property and appurtenant rights relating thereto owned or leased by the Borrowers from time to time, and “Secured Property” means any one of them.
“Security” means the documents guaranteeing the Obligations or creating an Encumbrance in favour of, or any collateral held from time to time by, the Lenders or on behalf of the Lenders by the Agent, in each case securing or intended to secure repayment of the Obligations, including all security described in Article 8 and all other documents and agreements delivered from time to time as security for the payment and performance of the Obligations, and the security interests, assignments and Encumbrances constituted by the foregoing.
“Shareholders Equity” means, with respect to any Person, at any time, the shareholders’ equity, as shown on the most recent Consolidated balance sheet of the Borrowers, calculated in accordance with GAAP.
“Shares” means common shares of the Borrowers issued and outstanding from time to time.
“SmartStop REIT” means SmartStop Self Storage REIT, Inc., a Maryland corporation.
“SmartStop Transaction” has the meaning set out in Section 10.05(1).
“Spot Rate” means, in relation to the conversion of one currency into another currency, the spot rate of exchange for such conversion as quoted by the Bank of Canada at the close of business on the immediately preceding Business Day.
“Subsidiary” means, at any time, with respect to any Person, any other Person, if at such time the first mentioned Person (a) owns, directly or indirectly, securities or other ownership interests in such other Person, having ordinary voting power to elect a majority of the board of directors or persons performing similar functions for such other Person, and (b) directly or indirectly, through the operation of any agreement or otherwise, the ability to elect or cause the election of a majority of the board of directors or other persons performing similar functions for such other Person or otherwise exercise Control over the management and policies of such other Person, and in either case will include any other Person in like relationship to a Subsidiary of such first mentioned Person.
“Tangible Net Worth” shall mean, as of any date of calculation, with respect to any Person, total assets (without deduction for accumulated depreciation and accumulated amortization of lease intangibles, including accumulated depreciation and accumulated amortization of lease intangibles
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of non-wholly owned Subsidiaries, Affiliates and other Persons (other than a Person whose stock is traded on a national trading exchange) in whom such Person holds a voting equity or ownership interest) less (a) intangible assets and (b) all liabilities (including contingent and indirect liabilities), in each case, of such Person as of such date, all determined in accordance with GAAP, unless otherwise indicated in this definition. The term “intangible assets” shall include, without limitation, (x) deferred charges, and (y) the aggregate of all amounts appearing on the assets side of any such balance sheet for franchises, licenses, permits, patents, patent applications, copyrights, trademarks, trade names, goodwill, treasury stock, experimental or organizational expenses and other like intangibles (other than amounts related to the purchase price of a real property which are allocated to lease intangibles). The term “liabilities” shall include, without limitation, (i) Indebtedness secured by Encumbrances on property or assets of the Person with respect to which Tangible Net Worth is being computed whether or not such Person is liable for the payment thereof, (ii) deferred liabilities, and (iii) Capital Lease Obligations. Tangible Net Worth shall be calculated on a Consolidated basis in accordance with GAAP, unless otherwise indicated in this definition, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement.
“Tax” and “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, and including any realty taxes, duties, rates, imposts, levies, assessments and other similar charges, whether general or special, ordinary or extraordinary, or foreseen or unforeseen including municipal taxes, school taxes and local improvement charges and all related interest, penalties and fines which at any time may be levied, assessed, imposed or form an Encumbrances upon real property.
“Term CORRA” means, for the applicable corresponding tenor, the forward-looking term rate based on CORRA that has been selected or recommended by the Relevant Governmental Body, and that is published by an authorized benchmark administrator and is displayed on a screen or other information service, as identified or selected by the Agent in its reasonable discretion at approximately a time and as of a date prior to the commencement of an Interest Period determined by the Agent in its reasonable discretion in a manner substantially consistent with market practice.
“Term CORRA Notice” means the notification by the Agent to the Borrowers of the occurrence of a Term CORRA Transition Event.
“Term CORRA Transition Date” means, in the case of a Term CORRA Transition Event, the date that is set forth in the Term CORRA Notice provided to the Lenders and the Borrowers, for the replacement of the then-current Benchmark with the Benchmark Replacement described in clause 1(a) of the definition of “Benchmark Replacement”, which date shall be at least thirty (30) Business Days from the date of the Term CORRA Notice.
“Term CORRA Transition Event” means the determination by the Agent that (a) Term CORRA has been recommended for use by the Relevant Governmental Body, and is determinable for any Available Tenor, (b) the administration of Term CORRA is administratively feasible for the Agent and (c) a Benchmark Replacement, other than Term CORRA, has replaced CDOR in accordance with Section 2.09(1).
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“Termination Amount” means, with respect to any Qualifying Hedge Arrangement all amounts due to a Lender party to a Qualifying Hedge Arrangement under the relevant ISDA Master Agreement related thereto as a result of a Termination Event.
“Termination Event” means any event that causes a Qualifying Hedge Arrangement to terminate prior to its maturity date.
“Total Debt to Assets Ratio” means the ratio obtained by dividing (a) Consolidated Indebtedness of the Parent Guarantor (determined on a Consolidated basis) by (b) Fair Market Value, such calculation to be satisfactory to the Lenders, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement.
“Total Property Debt Service Coverage Ratio” means, for any Calculation Period, the ratio obtained by dividing (a) Property Net Operating Income for such Calculation Period by (b) scheduled interest and principal payments due in respect of all Indebtedness secured by the Borrowers’ interest in the Secured Properties, including without limitation the Loans, payable during such Calculation Period, such calculation to be satisfactory to the Lenders, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement.
“United States Dollars” and “US$” means the lawful money of the United States of America.
In this Agreement words importing the singular number include the plural and vice versa, words importing any gender include all genders and words importing persons include individuals, corporations, limited and unlimited liability companies, general and limited partnerships, associations, trusts, unincorporated organizations, joint ventures and Governmental Authorities. The term “including” means “including without limiting the generality of the foregoing” and the term “third party” means any person other than a person who is a party to this Agreement and any of its Affiliates. Any reference herein to any action to be taken or decision to be made by the Agent or the Lenders (or the Required Lenders, as the case may be) in their “sole discretion” shall mean that such sole discretion is absolute and unfettered. The term "References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time in accordance with the terms of this Agreement and in effect at any given time. Any reference to any Person shall include its successors and permitted assigns in the capacity indicated, and in the case of any Governmental Authority, any Person succeeding to its functions and capacities. Any reference to Requirements of Law and Applicable Laws shall include all references to such Requirements of Law and Applicable Laws as amended, supplemented or replaced. The Loan Documents are the result of negotiations between, and have been reviewed by each Credit Party, the Agent, each Lender and their respective counsel. Accordingly, the Loan Documents shall be deemed to be the product of all parties thereto, and no ambiguity shall be construed in favour of or against any Credit Party, the Agent or any Lender except as expressly provided under the Loan
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Documents. Upon an acceleration of the Loans following the occurrence of an Event of Default pursuant to Section 11.02, any reference in this Agreement or any Loan Document to an Event of Default that has occurred and is “continuing” shall be deemed to be an Event of Default that has occurred and is continuing for all times thereafter unless otherwise agreed in writing by the Required Lenders in their discretion; and the terms “continued”, “continuation” and “discontinuation” shall have corresponding meanings.
Where this Agreement references “to the knowledge of”: (a) the Credit Parties, and/or (b) the Borrowers, in each case, shall mean the actual knowledge of each of H. Michael Schwartz and Matt Lopez, after due inquiry and all reasonable investigation.
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The inclusion of reference to Permitted Encumbrances in any Loan Document is not intended to, de facto, subordinate any Encumbrance created by any of the Security to any Permitted Encumbrance.
Unless otherwise specified in this Agreement, all references to currency (without further description) are to lawful money of Canada.
This Agreement and the other Loan Documents constitute the whole and entire agreement between the parties hereto and cancels and supersedes any prior agreements, undertakings, declarations, commitments, representations, written or oral, in respect thereof. In the event of a conflict between the provisions of this Agreement and the provisions of any other Loan Document, then, unless such Loan Document or an acknowledgement from the Credit Party and the Agent and/or the Lenders relative to such Loan Document expressly states that this Section 1.08 is not applicable to such Loan Document, notwithstanding anything else contained in such other Loan Document, the provisions of this Agreement will prevail and the provisions of such
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other Loan Document will be deemed to be amended to the extent necessary to eliminate such conflict.
If any provision of this Agreement is determined by any court of competent jurisdiction to be illegal or unenforceable, that provision will be severed from this Agreement and the remaining provisions will continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any of the parties.
Each Credit Party will promptly cure any Default by it in the execution and delivery of this Agreement, the Loan Documents or of any of the agreements provided for hereunder to which it is a party. Each Credit Party, at its expense, will promptly execute and deliver to the Agent and the Lenders, upon request by the Lender, all such other and further documents, agreements, opinions, certificates and instruments in compliance with, or for the accomplishment of the covenants and agreements of such Credit Party hereunder or more fully to state the obligations of such Credit Party as set forth herein or to make any recording, file any notice or obtain any consent, all as may be reasonably necessary or appropriate in connection therewith.
The following are the Schedules attached hereto and incorporated by reference and deemed to be part hereof:
Schedule A | - | Commitments |
Schedule B | - | Compliance Certificate |
Schedule B-1 | - | Compliance Certificate (Parent Guarantor) |
Schedule C | - | Conversion Notice |
Schedule D | - | Drawdown Notice |
Schedule E | - | Secured Properties |
Schedule F | - | Material Agreements |
Schedule G | - | Relevant Jurisdictions |
Schedule H | - | Repayment Notice |
Schedule I | - | Rollover Notice |
Schedule J | - | Specific Permitted Encumbrances |
Schedule K | - | Assignment and Assumption |
Schedule 9.01(14) | - | Ownership Structure |
Subject to the terms and conditions of this Agreement, the Lenders hereby establish in favour of the Borrowers a non-revolving senior secured term credit facility in the maximum
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principal amount of the Commitment or such lesser amount pursuant to this Agreement (the “Credit Facility”).
Loans under the Credit Facility will only be used (a) to assist in completing the Closing Date Acquisitions and to pay fees and transaction expenses relating to the Closing Date Acquisitions, (b) to fund the Debt Service Reserve Account as required under Section 10.07(1) and (c) following the completion of the Closing Date Acquisitions, for operating expenditures relating to the Secured Properties. The Borrowers may not use the proceeds of any Loans under the Credit Facility to make a hostile take-over bid for any other Person.
The Borrowers may, in Canadian Dollars, make a single Drawdown on the Drawdown Date, and thereafter Conversions and Rollovers under the Credit Facility of Prime Rate Loans, Bankers’ Acceptances and BA Equivalent Notes. Any amounts not borrowed by the Borrowers under the Credit Facility on the Drawdown Date will be permanently cancelled and may not be borrowed by the Borrowers.
The Credit Facility is non-revolving and amounts repaid may not be re-borrowed.
If the Borrowers fail to deliver a Conversion Notice or Rollover Notice to the Agent as set out above in respect of Bankers’ Acceptance prior to such Loan’s applicable maturity date, the Agent shall effect a Conversion of any maturing Bankers’ Acceptance into a Prime Rate Loan. The Borrower’s right to make a Drawdown under the Credit Facility shall be subject to the satisfaction of the conditions in Section 3.01. A Drawdown Date, Conversion Date and Rollover Date must be a Business Day and each Drawdown Notice, Conversion Notice or Rollover Notice, as the case may be, must be delivered to the Agent on a Business Day.
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Each Drawdown Notice, Conversion Notice and Rollover Notice given by the Borrowers hereunder is irrevocable and will oblige the Borrowers to take the action contemplated on the date specified therein.
The Agent will open and maintain books of account evidencing all Loans and all other amounts owing by the Borrowers to the Lenders hereunder. The Agent will enter in the foregoing accounts details of all amounts from time to time owing, paid or repaid by the Borrowers hereunder. The information entered in the foregoing accounts will constitute prima facie evidence of the obligations of the Borrowers to the Lenders hereunder with respect to all Loans and all other amounts owing by the Borrowers to the Lenders hereunder. After a request by the Borrowers, the Agent will promptly advise the Borrowers of such entries made in the Agent’s books of account.
Notwithstanding anything to the contrary herein or in any other Loan Document (and any Qualifying Hedge Arrangements shall be deemed not to be a “Loan Document” for purposes of this Section 2.09):
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The obligation of each Lender under this Agreement to make the advance hereunder is subject to and conditional upon the prior satisfaction of the conditions precedent as set out below:
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and the results of such due diligence will be satisfactory to the Lenders, in their discretion;
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provided that all documents delivered pursuant to this Section 3.01 must be in full force and effect, and in form and substance satisfactory to the Lenders, acting reasonably.
The conditions set forth in Section 3.01 are inserted for the sole benefit of the Lenders and may be waived by the Lenders, in whole or in part (with or without terms or conditions), in respect of any Drawdown without prejudicing the right of the Lenders at any time to assert such conditions in respect of any subsequent Drawdown.
The Borrowers will pay interest on each Prime Rate Loan during each Interest Period applicable thereto in Canadian Dollars at a rate per annum equal to the sum of (i) the Prime Rate in effect from time to time during such Interest Period, plus (ii) the Prime Rate Margin. Each determination by the Agent of the Prime Rate and the Prime Rate Margin applicable from time to time during an Interest Period will, in the absence of manifest error, be binding upon the Borrowers. Such interest will be payable in arrears on each Interest Payment Date for such Loan for the period from and including the Drawdown Date, Conversion Date or preceding Interest Payment Date, as the case may be, for such Loan to but excluding such Interest Payment Date (or, if such Interest Payment Date follows the repayment of such Loan or the Conversion of such Loan, to but excluding the date of such repayment or Conversion) and will be calculated on the principal amount of the Prime Rate Loan outstanding during such period and on the basis of the actual number of days elapsed in a year of 365 days or 366 days, as the case may be. Changes in the Prime Rate will cause an immediate adjustment of the interest rate applicable to such Loan without the necessity of any notice to the Borrowers.
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Unless the payment of interest is otherwise specifically provided for herein, where the Credit Parties fail to pay any amount required to be paid by them hereunder when due having received notice that such amount is due, the Credit Parties shall pay interest or fees on such unpaid amount from the time such amount is due until paid at the rates otherwise applicable plus 2% per annum in order to compensate the Lenders for the additional risk.
The Agent and the Lenders acknowledge that the Borrowers shall only be required to make monthly interest only payments, beginning on first day of the month following the Closing Date and continuing on the first day of each successive month during the Interest Only Period.
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then:
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The Agent shall promptly notify the Borrowers and the Lenders of any suspension of the Borrower’s right to request Bankers’ Acceptances and of any termination of any such suspension. A Lender BA Suspension Notice shall be effective upon receipt of the same by the Agent if received prior to 12:00 p.m. (Toronto time) on a Business Day and if not, then on the next following Business Day, except in connection with a Drawdown Notice, Conversion Notice or Rollover Notice previously received by the Agent, in which case the applicable Lender BA Suspension Notice shall only be effective with respect to such previously received Drawdown Notice, Conversion Notice or Rollover Notice if received by the Agent prior to 12:00 p.m. (Toronto time) two Business Days prior to the proposed Drawdown Date, Conversion Date or Rollover Date (as applicable) set out in such previously received Drawdown Notice, Conversion Notice or Rollover Notice.
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If the Borrowers by reason of any prepayment or repayment hereunder, whether mandatory or voluntary, pay any Bankers’ Acceptances or BA Equivalent Notes prior to their respective maturity dates, the Borrowers will deposit with the Agent cash collateral equal to the full face amount at maturity of such Bankers’ Acceptance or BA Equivalent Note such collateral to be held by the Agent, on behalf of the Lenders, in a non-interest bearing cash collateral account as security (and subject to the security interests created by the Security).
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As general and continuing security for the payment and performance of the Obligations the security described below will be granted to the Agent, in each case in a form acceptable to the Agent:
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The Borrowers shall provide the Security perfected and protected to the proper satisfaction of the Agent and shall, at the Borrowers’ expense, register, file or record or cause the registration, filing or recording of the Security granted by it in all offices in each jurisdiction where such registration, filing or recording is necessary or of advantage to the creation, perfection and preserving of the Security applicable to it. The Borrowers shall provide the Agent with such assistance and do such acts as the Agent may from time to time request and to provide such other materials of conveyance, assignment, transfer or charge to properly effect the Security as contemplated and shall renew and maintain such registrations, filings and recordings from time to time as and when required to keep them in full force and effect and to maintain the required priority of the Security.
The Borrowers will from time to time execute and deliver all such further deeds or other instruments of conveyance, assignment, transfer, mortgage, hypothec, pledge or charge in connection with each Secured Property as may be required to properly perfect the security interest of the Agent and the Lenders in each Secured Property and collateral subject to the Security.
The Security will be in form satisfactory to the Agent, acting reasonably.
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Each Credit Party, in respect of Sections 9.01(1), (2), (3), (4), (5), (6), (7), (8), (9), (12), (18), (19), (20), (22), (23) and (37), on a joint and several basis, and the Borrowers, in respect of Sections 9.01(10), (11), (13), (14), (15), (16), (17), (21), (24), (25), (26), (27), (28), (29), (30), (31), (32), (33), (34), (35) and (36), on a joint and several basis, and acknowledges and confirms that the Agent and the Lenders are relying upon such representations and warranties:
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The representations and warranties set out in Section 9.01 survive the execution and delivery of this Agreement and all other Loan Documents and will be deemed to be repeated by the Borrowers so long as any Obligations remain outstanding.
So long as this Agreement is in force, each Credit Party, in respect of Sections 10.01(1),(2)(a),(3), (4), (16), (17), (18), (23), and (24) on a joint and several basis, and the Borrowers, in respect of Sections 10.01(2)(b), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (19), (20), (21), (22), and (25) on a joint and several basis, will:
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all with insurance companies having a Best’s A-VII rating at time of placement and at all times thereafter with such insurance companies having comparable claims paying ability as approved by the Agent in its discretion. Such insurance is to be in such form and amounts and with such deductibles as are customary in the case of owners of projects similar to the Secured Properties and in any event as are acceptable to the Agent.
and such insurance policies may contain reasonable deductibles per occurrence as approved by the Agent in consultation with the Independent Insurance Consultant;
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So long as this Agreement is in force, the Borrowers will deliver to the Agent (each in form and scope acceptable to the Lenders and in sufficient quantities for the Agent and the Lenders):
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So long as this Agreement is in force, each Credit Party, on a joint and several basis, in respect of Sections 10.04(2), (3), (8), (9), (13) and (23), and the Borrowers, jointly and severally, in respect of Sections 10.04(1), (4), (5), (6), (7), (10), (11), (12), (14), (15), (16), (17), (18), (19), (20), (21) and (22) will not:
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Notwithstanding anything set out in this Agreement, the Borrowers shall be entitled to a partial discharge of a portion of a Secured Property in connection with the sale thereof, subject to the prior satisfaction of the following conditions:
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The occurrence of any one or more of the following events (each such event being referred to as an “Event of Default”) will constitute a default under this Agreement:
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For greater certainty, it is expressly understood that the respective rights and remedies of the Lenders and the Agent hereunder or under any other Loan Document or instrument executed pursuant to this Agreement are cumulative and are in addition to and not in substitution for any rights or remedies provided by law or by equity; and any single or partial exercise by the Lenders or by the Agent of any right or remedy for a default or breach of any term, covenant, condition or agreement contained in this Agreement or any other Loan Document will not be deemed to be a waiver of or to alter, affect or prejudice any other right or remedy or other rights or remedies to which any one or more of the Lenders and the Agent may be lawfully entitled in connection with such default or breach.
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If an Event of Default has occurred and is continuing and if any Credit Party has failed to perform any of its covenants or agreements in the Loan Documents, the Required Lenders, may, but will be under no obligation to, instruct the Agent on behalf of the Lenders to perform any such covenants or agreements in any manner deemed fit by the Required Lenders without thereby waiving any rights to enforce the Loan Documents. The reasonable expenses (including any legal costs) paid by the Agent and the Lenders in respect of the foregoing will be an Obligation and will be subject to the terms of this Agreement and secured by the Security.
It is not necessary for any Person dealing with the Lenders, the Agent or any other agent of the Lenders to inquire whether the Security has become enforceable, or whether the powers that the Lenders and the Agent are purporting to exercise may be exercised, or whether any Obligations remain outstanding upon the security thereof, or as to the necessity or expediency of the stipulations and conditions subject to which any sale is to be made, or otherwise as to the propriety or regularity of any sale or other disposition or any other dealing with the collateral charged by such Security or any part thereof.
All proceeds received by the Agent and the Lenders from or in respect of any realization of Security, any judgment against any Credit Party obtained by the Agent or any Lender, any other realization of any Credit Party’s assets, any set-off or combination of accounts in respect of any credit balance, any recovery, distribution or payment arising out of any bankruptcy of any Credit Party or any proposal or re-organization, plan of arrangement, liquidation or winding-up of any Credit Party, shall be paid to the Agent and, upon receipt by the Agent shall, subject to the provisions hereof, be allocated from time to time by the Agent as follows:
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The liability of the Guarantors hereunder is absolute and unconditional and is not affected by:
Each of the foregoing is hereby waived by each Guarantor to the fullest extent permitted under Applicable Law. The foregoing provisions apply and the foregoing waivers will be effective to the fullest extent permitted under Applicable Law even if the effect of any action or failure to take action by the Agent or any Lender is to destroy or diminish the any Guarantor’s subrogation rights, any Guarantor’s right to proceed against any Credit Party for reimbursement, any Guarantor’s right to recover contribution from any other Person or any other right or remedy of any Guarantor.
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Save and except as expressly provide in Section 12.02 above, the liability of each Guarantor hereunder is not released, discharged, limited or in any way affected by anything done, suffered or permitted by the Agent, any Lender or any other Person in connection with any duties or liabilities of any Credit Party to the Agent and the Lenders or any Security including any loss of or in respect of any Security. Without limiting the generality of the foregoing and without releasing, discharging, limiting or otherwise affecting in whole or in part the liability of the Guarantors hereunder, without obtaining the consent of or giving notice to any Guarantor, the Agent and the Lenders may, subject to the terms of this Agreement:
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Neither the Agent nor any Lender is bound or obligated to exhaust its recourse against any Credit Party or other Person or any Security it or they may hold, or take any other action before being entitled to demand payment from any Guarantor hereunder. Each Guarantor agrees that the Agent and the Lenders may seek payment or performance of any of the Obligations from such Guarantor in accordance with the terms set out in this Agreement, whether or not the Agent or any Lender shall have realized the value of any Secured Property secured under the Security or shall have proceeded against any of the Credit Parties principally or secondarily obligated for any of the Obligations.
Any account settled or stated in writing by or between the Agent and each Credit Party will, absent manifest error, be prima facie evidence that the balance or amount thereof appearing due to the Agent and the Lenders is so due.
Notwithstanding anything to the contrary contained in this Article 12, in any claim by the Agent or any Lender against any Guarantor, nothing shall impair or prevent such Guarantor from asserting any set-off or counterclaim, claim or other right that the Borrowers may have against the Agent or any Lender and arising in respect of this Agreement.
The Obligations of the Guarantors hereunder will constitute and be continuing obligations and will apply to and secure any ultimate balance due or remaining due to the Agent and the Lenders and will not be considered as wholly or partially satisfied by the payment or liquidation at any time of any sum of money for the time being due or remaining unpaid to any such Person. The Obligations of the Guarantors hereunder will continue to be effective even if at any time any payment of any of the Obligations is rendered unenforceable or is rescinded or must otherwise be returned by the recipient of such payment upon the occurrence of any action or event including the insolvency, bankruptcy or reorganization of any Credit Party or otherwise, all as though such payment had not been made.
Each Guarantor hereby irrevocably waives acceptance hereof, presentation, demand, protest and any notice, as well as any requirement that at any time any action be taken by any Person against such Guarantor, any other Credit Party or any other Person.
Each Guarantor will make payment to the Agent of the full amount of the Obligations and all other amounts payable by it hereunder forthwith after demand therefor is made to it. Each Guarantor will also make payment to the Agent of all costs and expenses incurred by the Agent and the Lenders in enforcing the provisions of this Article 14.
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Each Guarantor will pay interest to the Agent, the Lenders and each of them at the interest rate of Prime Rate (i) plus the Applicable Margin, and (ii) plus 2.00%, on all amounts payable by such Guarantor hereunder, such interest to accrue from and including the date of demand on such Guarantor, and will be compounded monthly.
Notwithstanding anything contained to the contrary in this Agreement, the recourse of the Agent and the Lenders under the guarantee in this Article 12 against the Parent Guarantor shall not exceed $137,200,000.
Notwithstanding anything contained to the contrary in this Agreement, the recourse of the Agent and the Lenders under the guarantee in this Article 12 against the Limited Recourse Guarantor shall be limited to the Agent enforcing its rights and remedies against the Security granted under the Limited Recourse Guarantor Pledge Agreement, as such agreement may be amended, restated, supplemented or otherwise modified from time to time, and no recourse for any such purpose may be had nor will judgment be issued or other process levied against any other assets or rights of the Limited Recourse Guarantor.
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The Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and will not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms
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must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent will have received notice to the contrary from such Lender prior to the making of such Loan. The Agent may consult with legal counsel (who may be counsel for the Credit Parties), independent accountants and other experts selected by it and will not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Each Lender agrees to indemnify the Agent and hold it harmless (to the extent not reimbursed by the Credit Parties), rateably according to its Proportionate Share (and not jointly or jointly and severally) from and against any and all losses, claims, damages, liabilities and related expenses, inducing the fees, charges and disbursements of any counsel, which may be incurred by or asserted against the Agent in any way relating to or arising out of the Loan Documents or the transactions therein contemplated. However, no Lender will be liable for any portion of such losses, claims, damages, liabilities and related expenses resulting from the Agent’s gross negligence or wilful misconduct.
The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Agent from among the Lenders (including the Person serving as Agent) and their respective Affiliates. The Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Persons. The provisions of this Article and other provisions of this Agreement for the benefit of the Agent will apply to any such sub agent and to the Related Persons of the Agent and any such sub agent, and will apply to their respective activities in connection with the syndication of the Credit Facility as well as activities as Agent. The Agent will not be responsible for the negligence or misconduct of any sub agents except to the extent a court of competent jurisdiction determines in a final and non-appealable judgment that the Agent acted with gross negligence or willful misconduct in the selection of such sub agents.
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Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Persons and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of their Related Persons and based on such documents and information as it will from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
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If any Lender, by exercising any right of setoff or counterclaim or otherwise, obtains any payment or other reduction that might result in such Lender receiving payment or other reduction of a proportion of the aggregate amount of its Loans and accrued interest thereon or other obligations hereunder greater than its pro rata share thereof as provided herein, then the Lender receiving such payment or other reduction will (a) notify the Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as will be equitable, so that the benefit of all such payments will be shared by the Lenders rateably in accordance with the aggregate amount of
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principal of and accrued interest on their respective Loans and other amounts owing them, provided that:
The Credit Parties consent to the foregoing and agree, to the extent they may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim and similar rights of Lenders with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.
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Each of the Lenders hereby acknowledges that to the extent permitted by Applicable Law, any collateral security and the remedies provided under the Loan Documents to the Lenders are for the benefit of the Lenders collectively and acting together and not severally and further acknowledges that its rights hereunder and under any collateral security are to be
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exercised not severally, but by the Agent upon the decision of the Required Lenders (or such other number or percentage of the Lenders as will be expressly provided for in the Loan Documents). Accordingly, notwithstanding any of the provisions contained herein or in any collateral security, each of the Lenders hereby covenants and agrees that it will not be entitled to take any action hereunder or thereunder including, without limitation, any declaration of default hereunder or thereunder but that any such action will be taken only by the Agent with the prior written agreement of the Required Lenders (or such other number or percentage of the Lenders as will be expressly provided for in the Loan Documents). Each of the Lenders hereby further covenants and agrees that upon any such written agreement being given, it will co operate fully with the Agent to the extent requested by the Agent. Notwithstanding the foregoing, in the absence of instructions from the Lenders and where in the sole opinion of the Agent, acting reasonably and in good faith, the exigencies of the situation warrant such action, the Agent may without notice to or consent of the Lenders take such action on behalf of the Lenders as it deems appropriate or desirable in the interest of the Lenders.
Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers or holders of similar titles, if any, specified in this Agreement will have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Agent or a Lender hereunder.
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Except for the provisions of Section 13.11(2), Section 13.11(3), Section 13.11(4), Section 13.15(1), 13.15(3) and 13.15(6), the first sentence of Section 13.09(1), and the rights of
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the Borrowers to receive notice as specified in this Article 13, the provisions of this Article 13 relating to the rights and obligations of the Lenders and the Agent inter se will be operative as between the Lenders and the Agent only, and the Credit Parties will not have any rights or obligations under or be entitled to rely for any purpose upon such provisions.
and the result of any of the foregoing shall be to increase the cost to such Lender of making converting to, continuing or maintaining any Loans (or of maintaining its obligation to make any such Loans), or to increase the cost to such Lender, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount), then upon request of such Lender and subject to such Lender providing the certificate referred to in Subsection (3), the Credit Parties will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
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If any Lender determines that any Applicable Laws has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make or maintain any Loans (or to maintain its obligations to make any Loan) or to determine or charge interest rates based upon any particular rate, then, on notice thereof by such Lender to the Borrowers through such Lender, any obligation of such Lender with respect to the activity that is unlawful shall be suspended until such Lender notifies the Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt
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of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the Agent), prepay or, if conversion would avoid the activity that is unlawful, convert any Loans. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of the Lender, otherwise be materially disadvantageous to such Lender.
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ELECTRONIC COMMUNICATION
To the Borrowers:
10 Terrace Road, Ladera Ranch
California, USA, 92694
Attention: H. Michael Schwartz and Matt Lopez
Email: hms@smartstop.com and MLopez@smartstop.com
To the Agent:
National Bank of Canada, as Agent
Corporate Customer Service – Syndication and Agency Group
500 Place d’Armes, 21st Floor
Montreal, Québec H2Y 2W3
Attention: Syndication – Agency Group
E-mail:
For purposes of all notices of utilization, conversion, renewal or repayment:
syndication@bnc.ca
For purposes of the delivery of the financial information:
AgencyCompliance@bnc.ca
in the case of any Lender or the Agent, with a copy to:
McCarthy Tétrault LLP
Suite 5300
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
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Attention: Justin Lapedus
Facsimile: (416) 868-0673
E-mail: jlapedus@mccarthy.ca
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The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the no Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 18.02, (ii) by way of participation in accordance with the provisions of Section 18.04(1), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 18.04(2) (and any other attempted assignment or transfer by any party hereto will be null and void). Nothing in this Agreement expressed or implied, will be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 18.04(1) and, to the extent expressly contemplated hereby, the Related Persons of each of the Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that:
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Subject to acceptance and recording thereof by the Agent pursuant to Section 18.03, from and after the effective date specified in each Assignment and Assumption, the Eligible
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Assignee thereunder will be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement and the other Loan Documents, including any collateral security, and the assigning Lender thereunder will, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender will cease to be a party hereto) but will continue to be entitled to the benefits of Article 3 and Article 10, and will continue to be liable for any breach of this Agreement by such Lender, with respect to facts and circumstances occurring prior to the effective date of such assignment, provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph will be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 18.04. Any payment by an assignee to an assigning Lender in connection with an assignment or transfer will not be or be deemed to be a repayment by the Borrowers or a new Loan to the Borrowers.
The Agent will maintain at one of its offices in Toronto, Ontario a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register will be conclusive, absent manifest error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register will be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under the Agreement to secure obligations of such Lender, but no such pledge or assignment will release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
No amendment to this Agreement will be valid or binding unless set forth in writing and duly executed by the Borrowers and the Lender. No waiver of any breach of any provision of the Loan Documents and no consent required hereunder will be effective or binding unless made in writing and signed by the party purporting to give the same. Unless otherwise provided, any waiver or consent given hereunder will be limited to the specific breach waived or matter consented to, as the case may be, and may be subject to such conditions as the party giving such waiver or consent considers appropriate.
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EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
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CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
EFFECTIVENESS; ELECTRONIC EXECUTION
INFORMATION: CONFIDENTIALITY
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The parties acknowledge that they have required that this Agreement, as well as all documents, notices and legal proceedings executed, given or instituted pursuant or relating directly or indirectly hereto, be drawn up in English (except as the parties may otherwise agree in writing). Les parties reconnaissent avoir exigé la rédaction en anglais de ce contrat, ainsi que de tous documents exécutés, avis donnés et procédures judiciaires intentées, directement ou indirectement, à la suite de ou relativement au présent contrat.
Recourse and direction
[Signature pages follow]
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BORROWERS: | SST VI 19 ESANDAR DR, LLC
By: STRATEGIC STORAGE TRUST VI, INC., its Manager
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 19 ESANDAR DR, ULC
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 1230 LAKESHORE RD E, LLC
By: STRATEGIC STORAGE TRUST VI, INC., its Manager
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 1230 LAKESHORE RD E, ULC
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 1770 APPLEBY LINE, LLC
By: STRATEGIC STORAGE TRUST VI, INC., its Manager
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 1770 APPLEBY LINE, ULC
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 2068 S SHERIDAN WAY, LLC
By: STRATEGIC STORAGE TRUST VI, INC., its Manager
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President |
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| SST VI 2068 S SHERIDAN WAY, ULC
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 24-60 SANFORD AVE N, LLC
By: STRATEGIC STORAGE TRUST VI, INC., its Manager
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 24-60 SANFORD AVE N, ULC
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 411 CITYVIEW BLVD, LLC
By: STRATEGIC STORAGE TRUST VI, INC., its Manager
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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| SST VI 411 CITYVIEW BLVD, ULC
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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PARENT GUARANTOR: | STRATEGIC STORAGE TRUST VI, INC.
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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LIMITED RECOURSE GUARANTOR: | SST6 CANADA ACQUISITIONS, LLC
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| By: Strategic Storage Trust VI, Inc., its Manager
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| By: | /s/ H. Michael Schwartz |
| Name: H. Michael Schwartz | |
| Title: Chief Executive Officer and President | |
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AGENT: | NATIONAL BANK OF CANADA, as Agent | ||
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| By: | /s/ Nicholas Hung | |
| Name: Nicholas Hung |
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| Title: Vice-President |
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By: | /s/ Anne-Sophie Thene | ||
| Name: Anne-Sophie Thene |
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| Title: Director |
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LENDER: | NATIONAL BANK OF CANADA, as a Lender | ||
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Address: 130 King Street West, Suite 3200 Toronto, ON M5X 1J9
Attention: Jonathan Khan, Director
| By: | /s/ Jonathan Khan | |
| Name: Jonathan Khan |
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| Title: Director |
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By: | /s/ Varun Hariharan | ||
| Name: Varun Hariharan |
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| Title: Director |
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LENDER: | QUADREAL REAL ESTATE DEBT (CANADA) GP INC., in its capacity as general partner of QUADREAL REAL ESTATE DEBT (CANADA) LIMITED PARTNERSHIP as a Lender | ||
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Attention:
| By: | /s/ Gavin McQueenie | |
| Name: Gavin McQueenie |
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| Title: Director |
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By: | /s/ Andrew Black | ||
| Name: Andrew Black |
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| Title: Vice President |
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