Exhibit 10.4
EXECUTION COPY
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 23, 2006
by and among
U-STORE-IT, L.P.,
as Borrower,
U-STORE-IT TRUST,
as Parent,
WACHOVIA CAPITAL MARKETS, LLC,
and
KEYBANC CAPITAL MARKETS,
as Co-Lead Arrangers,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent,
Each of
BANK OF MONTREAL,
LASALLE BANK NATIONAL ASSOCIATION
and
SUNTRUST BANK,
as Documentation Agent,
and
THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 13.5.,
as Lenders
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TABLE OF CONTENTS
Article I. Definitions..................................................... 1
Section 1.1. Definitions.............................................. 1
Section 1.2. General; References to Times............................. 24
Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries.... 24
Article II. Credit Facility................................................ 25
Section 2.1. Revolving Loans.......................................... 25
Section 2.2. Swingline Loans.......................................... 25
Section 2.3. Letters of Credit........................................ 28
Section 2.4. Rates and Payment of Interest on Loans................... 32
Section 2.5. Number of Interest Periods............................... 32
Section 2.6. Repayment of Loans....................................... 33
Section 2.7. Prepayments.............................................. 33
Section 2.8. Continuation............................................. 33
Section 2.9. Conversion............................................... 34
Section 2.10. Notes.................................................... 34
Section 2.11. Voluntary Reductions of the Commitment................... 35
Section 2.12. Extension of Termination Date............................ 35
Section 2.13. Expiration or Maturity Date of Letters of Credit Past
Termination Date...................................... 35
Section 2.14. Amount Limitations....................................... 36
Section 2.15. Increase of Commitments.................................. 36
Article III. Payments, Fees and Other General Provisions................... 37
Section 3.1. Payments................................................. 37
Section 3.2. Pro Rata Treatment....................................... 37
Section 3.3. Sharing of Payments, Etc................................. 38
Section 3.4. Several Obligations...................................... 38
Section 3.5. Minimum Amounts.......................................... 38
Section 3.6. Fees..................................................... 39
Section 3.7. Computations............................................. 40
Section 3.8. Usury.................................................... 40
Section 3.9. Agreement Regarding Interest and Charges................. 40
Section 3.10. Statements of Account.................................... 41
Section 3.11. Defaulting Lenders....................................... 41
Section 3.12. Taxes.................................................... 42
Article IV. Borrowing Base Properties...................................... 44
Section 4.1. Eligibility of Properties................................ 44
Section 4.2. Release of Properties.................................... 45
Section 4.3. Frequency of Calculations of Borrowing Base.............. 46
Article V. Yield Protection, Etc........................................... 46
Section 5.1. Additional Costs; Capital Adequacy....................... 46
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Section 5.2. Suspension of LIBOR Loans................................ 47
Section 5.3. Illegality............................................... 48
Section 5.4. Compensation............................................. 48
Section 5.5. Affected Lenders......................................... 48
Section 5.6. Treatment of Affected Loans.............................. 49
Section 5.7. Change of Lending Office................................. 49
Section 5.8. Assumptions Concerning Funding of LIBOR Loans............ 50
Article VI. Conditions Precedent........................................... 50
Section 6.1. Initial Conditions Precedent............................. 50
Section 6.2. Conditions Precedent to All Loans and Letters of Credit.. 52
Article VII. Representations and Warranties................................ 53
Section 7.1. Representations and Warranties........................... 53
Section 7.2. Survival of Representations and Warranties, Etc.......... 59
Article VIII. Affirmative Covenants........................................ 59
Section 8.1. Preservation of Existence and Similar Matters............ 59
Section 8.2. Compliance with Applicable Law and Material Contracts.... 59
Section 8.3. Maintenance of Property.................................. 60
Section 8.4. Conduct of Business...................................... 60
Section 8.5. Insurance................................................ 60
Section 8.6. Payment of Taxes and Claims.............................. 60
Section 8.7. Visits and Inspections................................... 60
Section 8.8. Use of Proceeds; Letters of Credit....................... 61
Section 8.9. Environmental Matters.................................... 61
Section 8.10. Books and Records........................................ 61
Section 8.11. Further Assurances....................................... 62
Section 8.12. New Subsidiaries; Guarantors; Release of Guarantors...... 62
Section 8.13. REIT Status.............................................. 63
Section 8.14. Exchange Listing......................................... 63
Article IX. Information.................................................... 63
Section 9.1. Quarterly Financial Statements........................... 63
Section 9.2. Year-End Statements...................................... 63
Section 9.3. Compliance Certificate................................... 64
Section 9.4. Other Information........................................ 64
Section 9.5. Delivery of Documents.................................... 67
Article X. Negative Covenants.............................................. 67
Section 10.1. Financial Covenants...................................... 67
Section 10.2. Restricted Payments...................................... 68
Section 10.3. Indebtedness............................................. 69
Section 10.4. Certain Permitted Investments............................ 69
Section 10.5. Investments Generally.................................... 70
Section 10.6. Liens; Negative Pledges; Other Matters................... 71
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Section 10.7. Merger, Consolidation, Sales of Assets and Other
Arrangements.......................................... 71
Section 10.8. Fiscal Year.............................................. 72
Section 10.9. Modifications to Material Contracts...................... 73
Section 10.10. Modifications of Organizational Documents................ 73
Section 10.11. Transactions with Affiliates............................. 73
Section 10.12. ERISA Exemptions......................................... 73
Article XI. Default........................................................ 73
Section 11.1. Events of Default........................................ 73
Section 11.2. Remedies Upon Event of Default........................... 77
Section 11.3. Remedies Upon Default.................................... 78
Section 11.4. Allocation of Proceeds................................... 78
Section 11.5. Collateral Account....................................... 79
Section 11.6. Performance by Agent..................................... 80
Section 11.7. Rights Cumulative........................................ 80
Article XII. The Agent..................................................... 80
Section 12.1. Authorization and Action................................. 80
Section 12.2. Agent's Reliance, Etc.................................... 81
Section 12.3. Notice of Defaults....................................... 82
Section 12.4. Agent as Lender.......................................... 82
Section 12.5. Approvals of Lenders..................................... 82
Section 12.6. Lender Credit Decision, Etc.............................. 83
Section 12.7. Indemnification of Agent................................. 84
Section 12.8. Successor Agent.......................................... 84
Section 12.9. Titled Agents............................................ 85
Article XIII. Miscellaneous................................................ 85
Section 13.1. Notices.................................................. 85
Section 13.2. Expenses................................................. 86
Section 13.3. Setoff................................................... 87
Section 13.4. Litigation; Jurisdiction; Other Matters; Waivers......... 87
Section 13.5. Successors and Assigns................................... 88
Section 13.6. Amendments............................................... 91
Section 13.7. Nonliability of Agent and Lenders........................ 92
Section 13.8. Confidentiality.......................................... 92
Section 13.9. Indemnification.......................................... 93
Section 13.10. Termination; Survival.................................... 95
Section 13.11. Severability of Provisions............................... 96
Section 13.12. GOVERNING LAW............................................ 96
Section 13.13. Patriot Act.............................................. 96
Section 13.14. Counterparts............................................. 96
Section 13.15. Obligations with Respect to Loan Parties................. 96
Section 13.16. Limitation of Liability.................................. 97
Section 13.17. Entire Agreement......................................... 97
Section 13.18. Construction............................................. 97
Section 13.19. No Novation.............................................. 97
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SCHEDULE 1.1.(A) List of Loan Parties
SCHEDULE 4.1. Initial Borrowing Base Properties
SCHEDULE 7.1.(b) Ownership Structure
SCHEDULE 7.1.(f) Title to Properties; Liens
SCHEDULE 7.1.(g) Indebtedness and Guaranties
SCHEDULE 7.1.(h) Material Contracts
SCHEDULE 7.1.(i) Litigation
SCHEDULE 10.6. Existing Negative Pledges
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Borrowing Base Certificate
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Notice of Swingline Borrowing
EXHIBIT G Form of Swingline Note
EXHIBIT H Form of Revolving Note
EXHIBIT I Form of Opinion of Counsel
EXHIBIT J Form of Compliance Certificate
EXHIBIT K Form of Guaranty
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THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as of
February 23, 2006 by and among U-STORE-IT, L.P., a limited partnership formed
under the laws of the State of Delaware (the "Borrower"), U-STORE-IT TRUST, a
real estate investment trust formed under the laws of the State of Maryland (the
"Parent"), WACHOVIA CAPITAL MARKETS, LLC and KEYBANC CAPITAL MARKETS, as Co-Lead
Arrangers (each a "Co-Lead Arranger"), WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent, KEYBANK NATIONAL ASSOCIATION, as Syndication Agent (the "Syndication
Agent"), each of BANK OF MONTREAL, LASALLE BANK NATIONAL ASSOCIATION and
SUNTRUST BANK, as Documentation Agent (each a "Documentation Agent"), and each
of the financial institutions initially a signatory hereto together with their
assignees pursuant to Section 13.5.(d).
WHEREAS, pursuant to that certain Credit Agreement dated as of October 27,
2004 (as amended and in effect immediately prior to the date hereof, the
"Existing Credit Agreement"), by and among the Parent, the Borrower, the
financial institutions party thereto as "Lenders" (the "Existing Lenders"),
Lehman Commercial Paper Inc., as Agent (the "Existing Agent"), and the other
parties thereto, the Existing Lenders and the Existing Agent have made available
to the Borrower a $150,000,000 credit facility;
WHEREAS, the Agent, the Lenders, the Parent and the Borrower are entering
into this Agreement, among other things, (a) to amend and restate the Existing
Credit Agreement to make available to the Borrower a $250,000,000 revolving
credit facility, which will include a $40,000,000 letter of credit subfacility
and a $10,000,000 swingline subfacility, on the terms and conditions contained
herein and (b) to effect the release of all collateral securing the Existing
Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree that the Existing Credit Agreement is amended and restated in its
entirety as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"ACCESSION AGREEMENT" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"ACQUISITION PRICE" means, with respect to any Property, the purchase price
paid by the Borrower or any of its Subsidiaries for such Property less closing
and other transaction costs and any amounts paid by the Borrower or such
Subsidiary as a purchase price adjustment, to be held in escrow, to be retained
as a contingency reserve, or other similar amounts.
"ADDITIONAL COSTS" has the meaning given that term in Section 5.1.
"ADJUSTED ASSET VALUE" means, with respect to any Property of the Borrower
or any of its Subsidiaries, on any date of determination, (a) with respect to
any Storage Property owned in fee simple or leased by the Borrower or any of its
Subsidiaries for more than 2 full fiscal quarters ended prior to such date of
determination and for which financial statements are available, an amount equal
to (i) the Net Operating Income of such Storage Property for the 2 full fiscal
quarters of the Parent most recently ended for which financial statements are
available multiplied by (ii) 2 and divided by (iii) the Capitalization Rate and
(b) otherwise an amount equal to the Acquisition Price of such Property.
"ADJUSTED EBITDA" means, for any given period, (a) Consolidated EBITDA for
such period minus (b) Reserves for Capital Expenditures for all Storage
Properties for such period.
"ADJUSTED LIBOR" means, with respect to each Interest Period for any LIBOR
Loan, the rate obtained by dividing (a) LIBOR for such Interest Period by (b) a
percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all
reserves, if any, required to be maintained with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities") as specified in Regulation
D of the Board of Governors of the Federal Reserve System (or against any other
category of liabilities which includes deposits by reference to which the
interest rate on LIBOR Loans is determined or any applicable category of
extensions of credit or other assets which includes loans by an office of any
Lender outside of the United States of America to residents of the United States
of America). Any change in such maximum rate shall result in a change in
Adjusted LIBOR on the date on which such change in such maximum rate becomes
effective.
"ADJUSTED TOTAL REVENUE" means, for any period, an amount equal to (a) the
total revenue of the Parent and its Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP, minus (b) the aggregate amount of
total revenue of all the Excluded Subsidiaries for such period.
"AFFILIATE" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or indirectly owning or holding ten percent (10.0%)
or more of any Equity Interest in the Borrower; or (c) ten percent (10.0%) or
more of whose voting stock or other Equity Interest is directly or indirectly
owned or held by the Borrower. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with") means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or by contract or
otherwise. The Affiliates of a Person shall include any officer or director of
such Person. In no event shall the Agent or any Lender be deemed to be an
Affiliate of the Borrower.
"AGENT" means Wachovia Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
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"ANTICIPATED MORTGAGE VALUE" means, as of any date of determination and
with respect to any Borrowing Base Property, an amount equal to (a)(i) the Net
Operating Income of such Borrowing Base Property for the two most recently ended
fiscal quarters of the Borrower times (ii) 2 divided by (b) 1.50 divided by (c)
the mortgage constant for a 25-year loan bearing interest at a per annum rate
equal to the greater of (i) the yield on a 10 year United States Treasury Note
plus 1.50% and (ii) 7.0%. If a Loan Party has not owned and operated a Borrowing
Base Property for at least two fiscal quarters, then the Anticipated Mortgage
Value of such Borrowing Base Property shall be deemed to be an amount equal to
65.0% of the Acquisition Price of such Borrowing Base Property.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, laws, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"APPLICABLE MARGIN" means the percentage set forth below corresponding to
the ratio of Consolidated Total Indebtedness to Consolidated Adjusted Asset
Value as determined in accordance with Section 10.1. in effect at such time:
Consolidated Total Indebtedness to Applicable Margin for Applicable Margin for
Level Consolidated Adjusted Asset Value LIBOR Loans Base Rate Loans
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1 < or = 0.45 to 1.00 1.15% 0.15%
2 > 0.45 to 1.00 and < or = 0.55 to 1.00 1.30% 0.30%
3 > 0.55 to 1.00 and < or = 0.60 to 1.00 1.45% 0.45%
4 > 0.60 to 1.00 1.60% 0.60%
The Applicable Margin shall be determined by the Agent from time to time, based
on the ratio of Consolidated Total Indebtedness to Consolidated Adjusted Asset
Value as set forth in the Compliance Certificate most recently delivered by the
Borrower pursuant to Section 9.3. Any adjustment to the Applicable Margin shall
be effective (a) in the case of a Compliance Certificate delivered in connection
with quarterly financial statements of the Parent delivered pursuant to Section
9.1., as of the date 55 days following the end of the last day of the applicable
fiscal quarter covered by such Compliance Certificate, (b) in the case of a
Compliance Certificate delivered in connection with annual financial statements
of the Parent delivered pursuant to Section 9.2., as of the date 100 days
following the end of the last day of the applicable fiscal year covered by such
Compliance Certificate, and (c) in the case of any other Compliance Certificate,
as of the date 5 Business Days following the Agent's request for such Compliance
Certificate. If the Borrower fails to deliver a Compliance Certificate pursuant
to Section 9.3., the Applicable Margin shall equal the percentages corresponding
to Level 4 until the date of the delivery of the required Compliance
Certificate. As of the Agreement Date, and thereafter until changed as provided
above, the Applicable Margin is determined based on Level 1.
"ARRANGER" means Wachovia Capital Markets, LLC, together with its
successors and permitted assigns.
"ASSIGNEE" has the meaning given that term in Section 13.5.(d).
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"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Agent, substantially in the form
of Exhibit A.
"BASE RATE" means the per annum rate of interest equal to the greater of
(a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Lender acting as the Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged by the Lender
acting as the Agent or any other Lender on any extension of credit to any
debtor.
"BASE RATE LOAN" means a Revolving Loan bearing interest at a rate based on
the Base Rate.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and permitted assigns.
"BORROWING BASE" means an amount equal to the sum of the Borrowing Base
Values of the Borrowing Base Properties as determined and adjusted from time to
time in accordance with Section 4.3. To the extent that the aggregate Borrowing
Base Values of Properties subject to a Ground Lease exceeds 15% of the Borrowing
Base such excess shall be excluded from the Borrowing Base.
"BORROWING BASE CERTIFICATE" means a report in substantially the form of
Exhibit B, certified by the chief financial officer, treasurer, or chief
accounting officer of the Parent, setting forth the calculations required to
establish the Borrowing Base Value for each Borrowing Base Property and the
Borrowing Base for all Borrowing Base Properties as of a specified date, all in
form and detail satisfactory to the Agent.
"BORROWING BASE PROPERTY" means a Property which is to be included in
calculations of the Borrowing Base pursuant to Section 4.1. A Property shall
cease to be a Borrowing Base Property if at any time such Property shall cease
to be an Eligible Property unless otherwise agreed by the Requisite Lenders.
"BORROWING BASE VALUE" means, with respect to a Borrowing Base Property for
any date of determination, an amount equal to the lesser of (a) 65% of the
Unencumbered Pool Property Value of such Borrowing Base Property and (b) the
Anticipated Mortgage Value of such Borrowing Base Property.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other day
on which banks in Charlotte, North Carolina are authorized or required to close
and (b) with reference to a
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LIBOR Loan, any such day that is also a day on which dealings in Dollar deposits
are carried out in the London interbank market.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"CAPITALIZATION RATE" means 8.50%.
"CASH EQUIVALENTS" means: (a) securities issued, guaranteed or insured by
the United States of America or any of its agencies with maturities of not more
than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, acting through a branch or agency, which bank
has capital and unimpaired surplus in excess of $500,000,000 and which bank or
its holding company has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by Moody's; (c) reverse
repurchase agreements with terms of not more than seven days from the date
acquired, for securities of the type described in clause (a) above and entered
into only with commercial banks having the qualifications described in clause
(b) above; (d) commercial paper issued by any Person incorporated under the laws
of the United States of America or any State thereof and rated at least A-2 or
the equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Moody's, in each case with maturities of not more than one year from the date
acquired; and (e) investments in money market funds registered under the
Investment Company Act of 1940, as amended, which have net assets of at least
$500,000,000 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (d) above.
"COLLATERAL ACCOUNT" means a special non-interest bearing deposit account
or securities account maintained by, or on behalf of, the Agent and under its
sole dominion and control.
"COMMITMENT" means, as to each Lender (other than the Swingline Lender),
such Lender's obligation (a) to make Revolving Loans pursuant to Section 2.1.,
(b) to issue (in the case of the Lender then acting as Agent) or participate in
(in the case of the other Lenders) Letters of Credit pursuant to Section 2.3.(a)
and 2.3.(i), respectively (but in the case of the Lender acting as the Agent
excluding the aggregate amount of participations in the Letters of Credit held
by the other Lenders), and (c) to participate in Swingline Loans pursuant to
Section 2.2.(e), in each case, in an amount up to, but not exceeding, the amount
set forth for such Lender on its signature page hereto as such Lender's
"Commitment Amount" or as set forth in the applicable Assignment and Acceptance
Agreement, as the same may be reduced from time to time pursuant to Section
2.11. or increased or reduced as appropriate to reflect any assignments to or by
such Lender effected in accordance with Section 13.5.
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"COMMITMENT PERCENTAGE" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders; provided, however, that if at the time
of determination the Commitments have terminated or been reduced to zero, the
"Commitment Percentage" of each Lender shall be the Commitment Percentage of
such Lender in effect immediately prior to such termination or reduction.
"COMPLIANCE CERTIFICATE" has the meaning given that term in Section 9.3.
"CONSOLIDATED ADJUSTED ASSET VALUE" means, on any date of determination,
the sum (without duplication) of (a) the aggregate Adjusted Asset Value of all
Storage Properties of the Borrower and its Subsidiaries on such date plus (b)
the book value (determined in accordance with GAAP) of all other tangible assets
of the Parent and its Subsidiaries on such date, provided that, (x) the portion
of the Consolidated Adjusted Asset Value attributable to clause (b) above shall
not exceed 5.0% of the Consolidated Adjusted Asset Value and (y) the portion of
the Consolidated Adjusted Asset Value attributable to Lease-Up Properties shall
not exceed 15% of the Consolidated Adjusted Asset Value and any excess of such
amounts shall be excluded when determining the Consolidated Adjusted Asset
Value.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income of the
Parent and its Subsidiaries for such period plus, without duplication and to the
extent reflected as a charge in the statement of Consolidated Net Income for
such period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness,
(c) depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets outside of
the ordinary course of business), and (f) any other non-cash charges, and minus,
to the extent included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income (except to the extent deducted in
determining such Consolidated Net Income), (ii) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of
business), (iii) any other non-cash income and (iv) any cash payments made
during such period in respect of items described in clause (e) above subsequent
to the fiscal quarter in which the relevant non-cash expenses or losses were
reflected as a charge in the statement of Consolidated Net Income, all as
determined on a consolidated basis.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b) all
regularly scheduled payments made during such period on account of principal of
Indebtedness of the Parent or any of its Subsidiaries, other than balloon,
bullet or similar principal payments which repay in full such Indebtedness, (c)
Preferred Dividends accrued (whether or not declared or payable) by the Parent
or any of its Subsidiaries during such period and (d) the Parent's and its
Subsidiaries' pro-rata
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share of all expenses and payments referred to in the preceding clauses (a) and
(b) of any Unconsolidated Affiliate of the Parent or any of its Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total interest
expense of Parent and its Subsidiaries (including that attributable to Capital
Lease Obligations and any capitalized interest expense) for such period with
respect to all outstanding Indebtedness of Parent and its Subsidiaries
(including, without limitation, all commissions, discounts and other fees and
charges owed by the Parent and its Subsidiaries with respect to letters of
credit, bankers' acceptance financing and net costs of Parent and its
Subsidiaries under Derivatives Contracts in respect of interest rates to the
extent such net costs are allocable to such period in accordance with GAAP),
plus the Parent's and its Subsidiaries' pro-rata share of all such expenses of
any Unconsolidated Affiliates of the Parent or any Subsidiary.
"CONSOLIDATED NET INCOME" means, of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of Parent and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of Parent or is
merged into or consolidated with Parent or any of its Subsidiaries, (b) the
income (or deficit) of any Person (other than a Subsidiary of the Borrower) in
which Parent or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by Parent or such Subsidiary in
the form of dividends or similar distributions and (c) the undistributed
earnings of any Subsidiary of Parent to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not at the
time permitted by the terms of any Contractual Obligation (other than under any
Loan Document) or Applicable Law applicable to such Subsidiary.
"CONSOLIDATED TOTAL INDEBTEDNESS" means, at any date, the aggregate
principal amount of all Indebtedness of Parent and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
"CONSTRUCTION BUDGET" means the fully-budgeted costs for the acquisition
and construction of a given parcel of real property (including, without
limitation, the cost of acquiring such parcel of real property, reserves for
construction interest and operating deficits, tenant improvements, leasing
commissions, and infrastructure costs) as reasonably determined by the Parent in
good faith.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to the continuation
of a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.8.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to the conversion of a
Revolving Loan of one Type into a Revolving Loan of another Type pursuant to
Section 2.9.
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"CREDIT EVENT" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Continuation of a LIBOR Loan, (c) the Conversion of
a Base Rate Loan into a LIBOR Loan, and (d) the issuance of a Letter of Credit.
"DEFAULT" means any of the events specified in Section 11.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, or both.
"DEFAULTING LENDER" has the meaning given that term in Section 3.11.
"DERIVATIVES CONTRACT" means any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the
foregoing, the term "Derivatives Contract" includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement, including any such
obligations or liabilities under any such master agreement.
"DERIVATIVES TERMINATION VALUE" means, in respect of any one or more
Derivatives Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Derivatives Contracts, (a) for
any date on or after the date such Derivatives Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the mark-to-market value(s) for such Derivatives
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Derivatives
Contracts (which may include any Lender).
"DOLLARS" or "$" means the lawful currency of the United States of America.
"EFFECTIVE DATE" means the later of: (a) the Agreement Date; and (b) the
date on which all of the conditions precedent set forth in Section 6.1. shall
have been fulfilled or waived in writing by the Requisite Lenders.
"ELIGIBLE ASSIGNEE" means any Person who is, at the time of determination:
(i) a Lender or an affiliate of a Lender; (ii) a commercial bank, trust, trust
company, insurance company, investment bank or pension fund organized under the
laws of the United States of America, or any state thereof, and having total
assets in excess of $5,000,000,000; (iii) a savings and loan association or
savings bank organized under the laws of the United States of America, or any
-8-
state thereof, and having a tangible net worth of at least $500,000,000; or (iv)
a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. Notwithstanding the foregoing, while an
Event of Default under subsection (a), (b), (e), (f) or (g) of Section 11.1.
exists, "Eligible Assignee" shall mean any Person that is not an individual.
"ELIGIBLE PROPERTY" means a Property which satisfies all of the following
requirements: (a) such Property is owned, or leased under a Ground Lease, by the
Borrower or a Subsidiary that is a Guarantor; (b) such Property is utilized
principally as a Storage Property and has an Occupancy Rate of at least 70%; (c)
such Property is located in one of the 48 contiguous states of the United States
of America or in the District of Columbia; (d) neither such Property, nor any
interest of the Borrower or any Subsidiary thereof therein, is subject to any
Lien (other than Permitted Liens described in clauses (a) through (e) of the
definition thereof) or any Negative Pledge; (e) if such Property is owned by a
Subsidiary that is a Guarantor, (i) none of the Borrower's or the Parent's
direct or indirect ownership interest in such Subsidiary is subject to any Lien
(other than Permitted Liens described in clauses (a) through (e) of the
definition thereof) or any Negative Pledge and (ii) the Borrower directly, or
indirectly through a Subsidiary, has the right to take the following actions
without the need to obtain the consent of any Person: (A) to create Liens on
such Property as security for Indebtedness of the Parent, the Borrower or such
Subsidiary, and (B) to sell, transfer or otherwise dispose of such Property; and
(f) such Property is free of all structural defects or major architectural
deficiencies, title defects, environmental conditions or other adverse matters
except for defects, deficiencies, conditions or other matters individually or
collectively which are not material to the profitable operation of such
Property.
"ENVIRONMENTAL LAWS" means any Applicable Law relating to environmental
protection or the manufacture, storage, remediation, disposal or clean-up of
Hazardous Materials including, without limitation, the following: Clean Air Act,
42 U.S.C. Section 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. SEction 9601
et seq.; National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.;
regulations of the Environmental Protection Agency and any applicable rule of
common law and any judicial interpretation thereof relating primarily to the
environment or Hazardous Materials.
"EQUITY INTEREST" means, with respect to any Person, any share of capital
stock of (or other ownership or profit interests in) such Person, any warrant,
option or other right for the purchase or other acquisition from such Person of
any share of capital stock of (or other ownership or profit interests in) such
Person, any security convertible into or exchangeable for any share of capital
stock of (or other ownership or profit interests in) such Person or warrant,
right or option for the purchase or other acquisition from such Person of such
shares (or such other interests), and any other ownership or profit interest in
such Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and
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whether or not such share, warrant, option, right or other interest is
authorized or otherwise existing on any date of determination.
"EQUITY ISSUANCE" means any issuance by a Person of any Equity Interest in
such Person and shall in any event include the issuance of any Equity Interest
upon the conversion or exchange of any security constituting Indebtedness that
is convertible or exchangeable, or is being converted or exchanged, for Equity
Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA GROUP" means the Parent, the Borrower, the other Subsidiaries and
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXCLUDED SUBSIDIARY" means any Subsidiary (a) holding title to assets
which are or are to become collateral for any Secured Indebtedness of such
Subsidiary (or whose sole asset is an Equity Interest in such a Subsidiary) and
(b) which is prohibited from Guarantying the Indebtedness of any other Person
pursuant to (i) any document, instrument or agreement evidencing such Secured
Indebtedness or (ii) a provision of such Subsidiary's organizational documents
which provision was included in such Subsidiary's organizational documents as a
condition to the extension of such Secured Indebtedness.
"EXISTING AGENT" has the meaning given such term in the recitals hereof.
"EXISTING CREDIT AGREEMENT" has the meaning given such term in the recitals
hereof.
"EXISTING LENDERS" has the meaning given such term in the recitals hereof.
"FAIR MARKET VALUE" means, with respect to (a) a security listed on a
national securities exchange or the NASDAQ National Market, the price of such
security as reported on such exchange or market by any widely recognized
reporting method customarily relied upon by financial institutions and (b) with
respect to any other property, the price which could be negotiated in an
arm's-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of which is under pressure or compulsion to complete the
transaction.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded upward
to the nearest 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day, provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day, and
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(b) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to the Agent by
federal funds dealers selected by the Agent on such day on such transaction as
determined by the Agent.
"FEES" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"FLOATING RATE INDEBTEDNESS" means all Indebtedness of a Person which bears
interest at a variable rate during the scheduled life of such Indebtedness and
for which such Person has not obtained interest rate swap agreements, interest
rate "cap" or "collar" agreements or other similar Derivatives Contracts which
effectively cause such variable rates to be equivalent to fixed rates less than
or equal to (a) the rate (as determined by the Agent) borne by United States
10-year Treasury Notes at the time the applicable Derivatives Contract became
effective plus (b) 1.50%.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"FUNDS FROM OPERATIONS" means, for any period, with respect to the Parent
and its Subsidiaries, (a) Consolidated Net Income of the Parent and its
Subsidiaries for such period, plus (b) real estate depreciation and amortization
(excluding amortization of financing costs), plus (c) amortization associated
with the purchase of property management companies, plus (d) non-cash charges
for the impairment of real estate assets for such period, minus, to the extent
included in the statement of such Consolidated Net Income for such period
(without duplication), (e) gains (or losses) from debt restructuring and sales
of property, and after adjustments for Unconsolidated Affiliates (with
adjustments for Unconsolidated Affiliates calculated to reflect funds from
operations on the same basis) together with adjustments for the non-cash
deferred portion of any income tax provision for Unconsolidated Affiliates and
the payment of Preferred Dividends, as interpreted by the National Association
of Real Estate Investment Trusts in its May, 1995, White Paper on Funds From
Operations; provided that, the following shall be excluded when calculating
Funds From Operations: (i) non-cash adjustments for loan amortization costs and
(ii) interest expense charges (or benefits) for minority interest
marked-to-market adjustments arising under Statement of Financial Accounting
Standards No. 150 of the Financial Accounting Standards Board as interpreted
under GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
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"GOVERNMENTAL AUTHORITY" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau, commission, board, department or other entity
(including, without limitation, the Federal Deposit Insurance Corporation, the
Comptroller of the Currency or the Federal Reserve Board, any central bank or
any comparable authority) or any arbitrator with authority to bind a party at
law.
"GROUND LEASE" means a ground lease containing the following terms and
conditions: (a) a remaining term (exclusive of any unexercised extension
options) of 30 years or more from the Agreement Date; (b) the right of the
lessee to mortgage and encumber its interest in the leased property without the
consent of the lessor; (c) the obligation of the lessor to give the holder of
any mortgage Lien on such leased property written notice of any defaults on the
part of the lessee and agreement of such lessor that such lease will not be
terminated until such holder has had a reasonable opportunity to cure or
complete foreclosures, and fails to do so; (d) reasonable transferability of the
lessee's interest under such lease, including ability to sublease; and (e) such
other rights customarily required by mortgagees making a loan secured by the
interest of the holder of the leasehold estate demised pursuant to a ground
lease.
"GUARANTOR" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include the Parent and each Material
Subsidiary.
"GUARANTY", "GUARANTEED", "GUARANTYING" or to "GUARANTEE" as applied to any
obligation means and includes: (a) a guaranty (other than by endorsement of
negotiable instruments for collection or deposit in the ordinary course of
business), directly or indirectly, in any manner, of any part or all of such
obligation, or (b) an agreement, direct or indirect, contingent or otherwise,
and whether or not constituting a guaranty, the practical effect of which is to
assure the payment or performance (or payment of damages in the event of
nonperformance) of any part or all of such obligation whether by: (i) the
purchase of securities or obligations, (ii) the purchase, sale or lease (as
lessee or lessor) of property or the purchase or sale of services primarily for
the purpose of enabling the obligor with respect to such obligation to make any
payment or performance (or payment of damages in the event of nonperformance) of
or on account of any part or all of such obligation, or to assure the owner of
such obligation against loss, (iii) the supplying of funds to or in any other
manner investing in the obligor with respect to such obligation, (iv) repayment
of amounts drawn down by beneficiaries of letters of credit (including Letters
of Credit), or (v) the supplying of funds to or investing in a Person on account
of all or any part of such Person's obligation under a Guaranty of any
obligation or indemnifying or holding harmless, in any way, such Person against
any part or all of such obligation. As the context requires, "Guaranty" shall
also mean the Guaranty to which the Guarantors are parties substantially in the
form of Exhibit K.
"HAZARDOUS MATERIALS" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity,
"TCLP" toxicity or "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural
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gas, natural gas liquids or synthetic gas and drilling fluids, produced waters
and other wastes associated with the exploration, development or production of
crude oil, natural gas or geothermal resources; (c) any flammable substances or
explosives or any radioactive materials; (d) asbestos in any form; (e) toxic
mold; and (f) electrical equipment which contains any oil or dielectric fluid
containing levels of polychlorinated biphenyls in excess of fifty parts per
million.
"INDEBTEDNESS" of any Person at any date, without duplication: (a) all
indebtedness of such Person for borrowed money; (b) all obligations of such
Person for the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person's business); (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments; (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property); (e) all Capital Lease Obligations of such Person; (f)
all obligations of such Person, contingent or otherwise, as an account party or
applicant under acceptance, letter of credit, surety bond or similar facilities;
(g) all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Equity Interests of such
Person; (h) all Off-Balance Sheet Obligations of such Person; (i) all
obligations of such Person in respect of Guaranties of obligations of the kind
referred to in clauses (a) through (h) above; (j) all obligations of the kind
referred to in clauses (a) through (i) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation; and (k) net obligations of such
Person under any Derivatives Contract not entered into as a hedge against
existing Indebtedness, in an amount equal to the Derivatives Termination Value
thereof. The Indebtedness of any person shall include the Indebtedness of any
other entity (including any partnership in which such person is a general
partner) to the extent such person is liable therefore as a result of such
person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness expressly provide that such person is
not liable therefore, provided that, Indebtedness shall include such person's
pro-rata share of Indebtedness of any joint venture in which such person is a
partner, regardless if such person is liable therefor.
"INTELLECTUAL PROPERTY" has the meaning given that term in Section 7.1.(t).
"INTEREST PERIOD" means with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made, or in the case of the
Continuation of a LIBOR Loan the last day of the preceding Interest Period for
such Loan, and ending 1, 2, 3 or 6 months thereafter, as the Borrower may select
in a Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the
case may be, except that each Interest Period that commences on the last
Business Day of a calendar month, or on a day for which there is no
corresponding day in the appropriate subsequent calendar month, shall end on the
last Business Day of the appropriate subsequent calendar month. Notwithstanding
the foregoing: (i) if any Interest Period would otherwise end after the
Termination Date, such Interest Period shall end on the Termination Date; and
(ii) each Interest Period that would otherwise end on a day which is not a
Business
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Day shall end on the immediately following Business Day (or, if such immediately
following Business Day falls in the next calendar month, on the immediately
preceding Business Day).
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"INVESTMENT" means, with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, by means
of any of the following: (a) the purchase or other acquisition of any Equity
Interest in another Person, (b) a loan, advance or extension of credit to,
capital contribution to, Guaranty of Indebtedness of, or purchase or other
acquisition of any Indebtedness of, another Person, including any partnership or
joint venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute the business or a division or operating unit of
another Person. Any binding commitment to make an Investment in any other
Person, as well as any option of another Person to require an Investment in such
Person, shall constitute an Investment. Except as expressly provided otherwise,
for purposes of determining compliance with any covenant contained in a Loan
Document, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"L/C COMMITMENT AMOUNT" equals $40,000,000.
"LEASE-UP PROPERTY" means any Storage Property upon which construction of
all improvements has been completed but has not reached stabilization. For the
purposes of this definition, the "stabilization" of any Storage Property is the
earlier to occur of (a) the first date on which the Occupancy Rate equals or
exceeds 70% and (b) the date that is 24 months after the completion of such
construction.
"LENDER" means each financial institution from time to time party hereto as
a "Lender", together with its respective successors and permitted assigns, and
as the context requires, includes the Swingline Lender.
"LENDING OFFICE" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender of which such Lender may notify the Agent in writing from time to time.
"LETTER OF CREDIT" has the meaning given that term in Section 2.3.(a).
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document
presented in connection with a drawing under such Letter of Credit and any other
agreement, instrument or other document governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations.
"LETTER OF CREDIT LIABILITIES" means, without duplication, at any time and
in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the
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aggregate unpaid principal amount of all Reimbursement Obligations of the
Borrower at such time due and payable in respect of all drawings made under such
Letter of Credit. For purposes of this Agreement, a Lender (other than the
Lender acting as the Agent) shall be deemed to hold a Letter of Credit Liability
in an amount equal to its participation interest in the related Letter of Credit
under Section 2.3.(i), and the Lender acting as the Agent shall be deemed to
hold a Letter of Credit Liability in an amount equal to its retained interest in
the related Letter of Credit after giving effect to the acquisition by the
Lenders other than the Lender acting as the Agent of their participation
interests under such Section.
"LEVEL" has the meaning given that term in the definition of the term
"Applicable Margin."
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Dow Jones Market Service (formerly Telerate) Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "LIBOR" shall mean, for any
LIBOR Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on the Reuters
Screen LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on the Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates. If for any
reason none of the foregoing rates is available, LIBOR shall be, for any
Interest Period, the rate per annum reasonably determined by the Agent as the
rate of interest at which Dollar deposits in the approximate amount of the LIBOR
Loan comprising part of such borrowing would be offered by the Agent to major
banks in the London interbank Eurodollar market at their request at or about
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period.
"LIBOR LOAN" means a Revolving Loan bearing interest at a rate based on
LIBOR.
"LIEN" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment
of leases and rents, pledge, lien, charge or lease constituting a Capital Lease
Obligation, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) any arrangement,
express or implied, under which any property of such Person is transferred,
sequestered or otherwise identified for the purpose of subjecting the same to
the payment of Indebtedness or performance of any other obligation in priority
to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the Uniform Commercial Code or its
equivalent in any jurisdiction, other than any precautionary filing not
otherwise constituting or giving rise to a Lien, including a financing statement
filed (i) in respect of a lease not constituting a Capital Lease Obligation
pursuant to Section 9-505 (or a successor provision) of the Uniform Commercial
Code or its equivalent as in effect in an applicable jurisdiction or (ii) in
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connection with a sale or other disposition of accounts or other assets not
prohibited by this Agreement in a transaction not otherwise constituting or
giving rise to a Lien; and (d) any agreement by such Person to grant, give or
otherwise convey any of the foregoing.
"LOAN" means a Revolving Loan or a Swingline Loan.
"LOAN DOCUMENT" means this Agreement, each Note, each Letter of Credit
Document, the Guaranty and each other document or instrument now or hereafter
executed and delivered by a Loan Party in connection with, pursuant to or
relating to this Agreement.
"LOAN PARTY" means each of the Parent, the Borrower and each other Person
who guarantees all or a portion of the Obligations and/or who pledges any
collateral security to secure all or a portion of the Obligations. Schedule
1.1.(A) sets forth the Loan Parties in addition to the Parent and the Borrower
as of the Agreement Date.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a) the
business, assets, liabilities, condition (financial or otherwise), or results of
operations of the Parent and its Subsidiaries taken as a whole, (b) the ability
of the Parent, the Borrower or any other Loan Party to perform its obligations
under any Loan Document to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, or (d) the rights and remedies of
the Lenders and the Agent under any of the Loan Documents.
"MATERIAL CONTRACT" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Parent, the Borrower, any
other Subsidiary or any other Loan Party is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.
"MATERIAL SUBSIDIARY" means (a) any Subsidiary of the Parent that owns, or
otherwise has any interest in, any Borrowing Base Property or any other property
or asset which is taken into account when calculating Unencumbered Property Pool
Value; (b) any Subsidiary (other than an Excluded Subsidiary) that has total
assets greater than or equal to 5.0% of total assets of the Borrower determined
on a consolidated basis (calculated as of the end of the fiscal quarter most
recently ending for which financial statements are available) or (c) any
Subsidiary (other than an Excluded Subsidiary) that has total revenues greater
than or equal to 5.0% of the total revenues of the Borrower determined on a
consolidated basis (calculated for the fiscal quarter most recently ending for
which financial statements are available). In any event, the term "Material
Subsidiaries" shall mean and include all Subsidiaries (other than Excluded
Subsidiaries) of the Borrower, which, together with the Borrower, account for
90.0% or more of the Adjusted Total Revenue of the Borrower determined on a
consolidated basis for the fiscal quarter most recently ended for which
financial statements are available. If more than one combination of Subsidiaries
satisfies such threshold, then those Subsidiaries so determined to the "Material
Subsidiaries" shall be specified by the Borrower.
"MOODY'S" means Moody's Investors Service, Inc., and its successors.
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"MULTIEMPLOYER PLAN" means at any time a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is
then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions, including for these purposes any
Person which ceased to be a member of the ERISA Group during such five year
period.
"NEGATIVE PLEDGE" means, with respect to a given asset, any provision of a
document, instrument or agreement (other than any Loan Document) which prohibits
or purports to prohibit the creation or assumption of any Lien on such asset as
security for Indebtedness of the Person owning such asset or any other Person;
provided, however, that an agreement that conditions a Person's ability to
encumber its assets upon the maintenance of one or more specified ratios that
limit such Person's ability to encumber its assets but that do not generally
prohibit the encumbrance of its assets, or the encumbrance of specific assets,
shall not constitute a Negative Pledge.
"NET OPERATING INCOME" or "NOI" means, for any Storage Property and for a
given period, the sum of the following (without duplication and determined on a
consistent basis with prior periods): (a) rents and other revenues received in
the ordinary course of business from operating such Property (including proceeds
of rent loss insurance but excluding pre-paid rents and revenues and security
deposits except to the extent applied in satisfaction of tenants' obligations
for rent) during such period minus (b) all expenses paid or accrued related to
the ownership, operation or maintenance of such Property, including, but not
limited to, taxes, assessments and other similar charges, insurance, utilities,
payroll costs, maintenance, repair and landscaping expenses and on-site
marketing expenses during such period minus (c) the Reserves for Capital
Expenditures for such Property for such period minus (d) an imputed management
fee in the amount of five percent (5.0%) of the gross revenues for such Property
for such period.
"NET PROCEEDS" means with respect to any Equity Issuance by a Person, the
aggregate amount of all cash and the Fair Market Value of all other property
(other than securities of such Person being converted or exchanged in connection
with such Equity Issuance) received by such Person in respect of such Equity
Issuance net of investment banking fees, legal fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred by such Person in connection with such Equity Issuance.
"NONRECOURSE INDEBTEDNESS" means, with respect to a Person, Indebtedness
for borrowed money in respect of which recourse for payment (except for
exceptions for fraud, misapplication of funds, environmental indemnities,
bankruptcy, transfer of collateral in violation of the applicable loan
documents, failure to obtain consent for subordinate financing in violation of
the applicable loan documents and other exceptions to nonrecourse liability
which are customary for nonrecourse financings at the time as determined by the
Agent) is contractually limited to specific assets of such Person encumbered by
a Lien securing such Indebtedness. Liability of a Person under a completion
guarantee, to the extent relating to the Nonrecourse Indebtedness of another
Person, shall not, in and of itself, prevent such liability from being
characterized as Nonrecourse Indebtedness.
"NOTE" means a Revolving Note or a Swingline Note.
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"NOTICE OF BORROWING" means a notice in the form of Exhibit C to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower's
request for a borrowing of Revolving Loans.
"NOTICE OF CONTINUATION" means a notice in the form of Exhibit D to be
delivered to the Agent pursuant to Section 2.8. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"NOTICE OF CONVERSION" means a notice in the form of Exhibit E to be
delivered to the Agent pursuant to Section 2.9. evidencing the Borrower's
request for the Conversion of a Loan from one Type to another Type.
"NOTICE OF SWINGLINE BORROWING" means a notice in the form of Exhibit F to
be delivered to the Agent pursuant to Section 2.2. evidencing the Borrower's
request for a Swingline Loan.
"OBLIGATIONS" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower and the other Loan Parties owing to the Agent or any Lender of every
kind, nature and description, under or in respect of this Agreement or any of
the other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"OCCUPANCY RATE" means, with respect to a Property at any time, the ratio,
expressed as a percentage, of (a) aggregate leaseable square footage of all
completed space of such Property actually occupied by non-Affiliates tenants
paying rent at market rates pursuant to binding leases as to which no monetary
default has occurred and has continued for a period in excess of 60 days to (b)
the aggregate leaseable square footage of all completed space of such Property.
"OFAC" means U.S. Department of the Treasury's Office of Foreign Assets
Control and any successor Governmental Authority.
"OFF-BALANCE SHEET OBLIGATIONS" means liabilities and obligations of the
Parent, the Borrower, any other Subsidiary or any other Person in respect of
"off-balance sheet arrangements" (as defined in Item 303(a)(4)(ii) of Regulation
S-K promulgated under the Securities Act) which the Parent would be required to
disclose in the "Management's Discussion and Analysis of Financial Condition and
Results of Operations" section of the Parent's report on Form 10-Q or Form 10-K
(or their equivalents) which the Parent is required to file with the Securities
and Exchange Commission (or any Governmental Authority substituted therefor).
"PARENT" has the meaning set forth in the introductory paragraph hereof and
shall include the Parent's successors and permitted assigns.
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"PARTICIPANT" has the meaning given that term in Section 13.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"PERMITTED LIENS" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA or
pursuant to any Environmental Laws) or the claims of materialmen, mechanics,
carriers, warehousemen or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, which are not at the time required
to be paid or discharged under Section 8.6.; (b) Liens consisting of deposits or
pledges made, in the ordinary course of business, in connection with, or to
secure payment of, obligations under workers' compensation, unemployment
insurance or similar Applicable Laws; (c) Liens consisting of encumbrances in
the nature of zoning restrictions, easements, and rights or restrictions of
record on the use of real property, which do not materially detract from the
value of such property or materially and adversely impair the intended use
thereof in the business of such Person; (d) the rights of tenants under leases
or subleases not interfering with the ordinary conduct of business of such
Person; (e) Liens in favor of the Agent for the benefit of the Lenders; and (f)
Liens in existence as of the Agreement Date and set forth in Part II of Schedule
7.1.(f).
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"PLAN" means an employee pension benefit plan (other than a Multiemployer
Plan) which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Internal Revenue Code and either (a) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (b) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"POST-DEFAULT RATE" means a rate per annum equal to the Base Rate as in
effect from time to time plus the Applicable Margin for Base Rate Loans plus
four percent (4.0%).
"PREFERRED DIVIDENDS" means, for any period and without duplication, all
Restricted Payments paid during such period on Preferred Equity Interests issued
by the Parent or any of its Subsidiaries. Preferred Dividends shall not include
dividends or distributions (a) to the extent paid or payable to the Parent or
any of its Subsidiaries, or (b) constituting or resulting in the redemption of
Preferred Equity Interests, other than scheduled redemptions not constituting
balloon, bullet or similar redemptions in full.
"PREFERRED EQUITY INTERESTS" means, with respect to any Person, Equity
Interests in such Person which are entitled to preference or priority over any
other Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.
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"PRIME RATE" means the rate of interest per annum announced publicly by the
Lender then acting as the Agent as its prime rate from time to time. The Prime
Rate is not necessarily the best or the lowest rate of interest offered by the
Lender acting as the Agent or any other Lender.
"PRINCIPAL OFFICE" means the office of the Agent located at One Wachovia
Center, Charlotte, North Carolina, or such other office of the Agent as the
Agent may designate from time to time.
"PROPERTY" means any parcel of real property owned or leased (in whole or
in part) or operated by the Parent, the Borrower, any Subsidiary or any
Unconsolidated Affiliate of the Borrower.
"REGISTER" has the meaning given that term in Section 13.5.(e).
"REGULATORY CHANGE" means, with respect to any Lender, any change effective
after the Agreement Date in Applicable Law (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks, including such Lender, of or under any Applicable
Law (whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) by any Governmental Authority or monetary authority
charged with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy.
"REIMBURSEMENT OBLIGATION" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate investment
trust" under the Internal Revenue Code.
"REQUISITE LENDERS" means, as of any date, Lenders having at least 66-2/3%
of the aggregate amount of the Commitments (not held by Defaulting Lenders who
are not entitled to vote), or, if the Commitments have been terminated or
reduced to zero, Lenders holding at least 66-2/3% of the principal amount of the
aggregate outstanding Loans and Letter of Credit Liabilities (not held by
Defaulting Lenders who are not entitled to vote). Commitments, Revolving Loans
and Letter of Credit Liabilities held by Defaulting Lenders shall be disregarded
when determining the Requisite Lenders. For purposes of this definition, a
Lender (other than the Swingline Lender) shall be deemed to hold a Swingline
Loan or a Letter of Credit Liability to the extent such Lender has acquired a
participation therein under the terms of this Agreement and has not failed to
perform its obligations in respect of such participation.
"RESERVES FOR CAPITAL EXPENDITURES" means, with respect to any Storage
Property for any period, an amount equal to (a) the aggregate leasable square
footage of all completed space of such Property multiplied (b) $0.15 per square
foot multiplied by (c) the number of days actually elapsed during such period
divided by (d) 365.
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"RESPONSIBLE OFFICER" means with respect to the Parent, the Borrower or any
Subsidiary, the chief executive officer, president and chief financial officer
of the Parent, the Borrower or such Subsidiary or, if any of the foregoing is a
partnership, such officer of its general partner.
"RESTRICTED PAYMENT" means: (a) any dividend or other distribution, direct
or indirect, on account of any Equity Interest of the Parent, the Borrower or
any other Subsidiary now or hereafter outstanding, except a dividend payable
solely in Equity Interests of an identical or junior class to the holders of
that class; (b) any redemption, conversion, exchange, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or indirect,
of any Equity Interest of the Parent, the Borrower or any other Subsidiary now
or hereafter outstanding; and (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire any
Equity Interests of the Parent, the Borrower or any other Subsidiary now or
hereafter outstanding.
"REVOLVING LOAN" means a loan made by a Lender to the Borrower pursuant to
Section 2.1.(a).
"REVOLVING NOTE" has the meaning given that term in Section 2.10.(a).
"SANCTIONED ENTITY" means (a) an agency of the government of, (b) an
organization directly or indirectly controlled by, or (c) a Person resident in,
in each case, a country that is subject to a sanctions program identified on the
list maintained by the OFAC and published from time to time, as such program may
be applicable to such agency, organization or Person.
"SANCTIONED PERSON" means a Person named on the list of Specially
Designated Nationals or Blocked Persons maintained by the OFAC as published from
time to time.
"SECURED INDEBTEDNESS" means, with respect to a Person as of any given
date, the aggregate principal amount of all Indebtedness of such Person
outstanding at such date and that is secured in any manner by any Lien, and in
the case of the Parent and any of its Subsidiaries, shall include (without
duplication) the Parents' and its Subsidiaries' pro rata shares of the Secured
Indebtedness of their Unconsolidated Affiliates.
"SECURED RECOURSE INDEBTEDNESS" means all Indebtedness of the Parent and
the Subsidiaries that is Secured Indebtedness and is not Nonrecourse
Indebtedness.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
"SECURITY FILING" has the meaning given that term in Section 9.4.(b).
"SIGNIFICANT SUBSIDIARY" means any Subsidiary to which 5.0% or more of
Consolidated Adjusted Asset Value is attributable.
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"SOLVENT" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets (excluding any Indebtedness due
from any affiliate of such Person) are each in excess of the fair valuation of
its total liabilities (including all contingent liabilities computed at the
amount which, in light of all the facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and
matured liability); (b) such Person is able to pay its debts or other
obligations in the ordinary course as they mature; and (c) such Person has
capital not unreasonably small to carry on its business and all business in
which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"STATED AMOUNT" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"STORAGE PROPERTY" means a Property primarily operated as a self-storage
facility.
"SUBSIDIARY" means, for any Person, any corporation, partnership, limited
liability company or other entity of which at least a majority of the Equity
Interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other individuals performing similar functions of
such corporation, partnership or other entity (without regard to the occurrence
of any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person, and shall include all Persons the accounts
of which are consolidated with those of such Person pursuant to GAAP.
"SWINGLINE COMMITMENT" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.2. in an amount up to, but not exceeding,
$10,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"SWINGLINE LENDER" means Wachovia Bank, National Association, together with
its respective successors and assigns.
"SWINGLINE LOAN" means a loan made by the Swingline Lender to the Borrower
pursuant to Section 2.2.(a).
"SWINGLINE NOTE" means the promissory note of the Borrower payable to the
order of the Swingline Lender in a principal amount equal to the amount of the
Swingline Commitment as originally in effect and otherwise duly completed,
substantially in the form of Exhibit G.
"TANGIBLE NET WORTH" means, for any Person on any date of determination,
(a) such Person's total stockholders' equity determined on a consolidated basis,
plus (b) accumulated depreciation and amortization, minus (c) the following (to
the extent reflected in determining stockholders' equity of such Person): (i)
the amount of any write-up in the book value of any assets contained in any
balance sheet resulting from revaluation thereof or any write-up in excess
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of the cost of such assets acquired, and (ii) the aggregate of all amounts
appearing on the assets side of any such balance sheet for assets which would be
classified as intangible assets under GAAP, all determined on a consolidated
basis.
"TAXES" has the meaning given that term in Section 3.12.
"TERMINATION DATE" means February 22, 2009, or such later date to which the
Termination Date may be extended pursuant to Section 2.12.
"TITLED AGENTS" means each of the Co-Lead Arrangers, the Syndication Agent,
and the Documentation Agents and their respective successors and permitted
assigns.
"TYPE" with respect to any Revolving Loan, refers to whether such Loan is a
LIBOR Loan or Base Rate Loan.
"UNCONSOLIDATED AFFILIATE" means, with respect to any Person, any other
Person in which such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.
"UNENCUMBERED PROPERTY POOL VALUE" means, with respect to each Borrowing
Base Property, on any date of determination (a) if such Property has been owned
in fee simple or leased by a Loan Party for more than 2 full fiscal quarters
ended prior to such date of determination and financial statements are available
for such period, an amount equal to (i) the Net Operating Income of such
Borrowing Base Property for the 2 full fiscal quarters of the Borrower most
recently ended for which financial statements are available multiplied by (ii) 2
divided by (iii) the Capitalization Rate, and (b) otherwise, the Acquisition
Price of such Borrowing Base Property.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNSECURED INDEBTEDNESS" means Indebtedness which is not Secured
Indebtedness.
"WACHOVIA" means Wachovia Bank, National Association, together with its
successors and assigns.
"WHOLLY OWNED SUBSIDIARY" means any Subsidiary of a Person in respect of
which all of the equity securities or other ownership interests (other than, in
the case of a corporation,
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directors' qualifying shares) are at the time directly or indirectly owned or
controlled by such Person or one or more other Subsidiaries of such Person or by
such Person and one or more other Subsidiaries of such Person.
SECTION 1.2. GENERAL; REFERENCES TO TIMES.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP; provided that, if at
any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Loan Document, and either the Borrower or the
Requisite Lenders shall so request, the Agent, the Lenders and the Borrower
shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of the Requisite Lenders); provided further that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) the Borrower shall provide to the Agent and the
Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP. References in this Agreement to "Sections", "Articles",
"Exhibits" and "Schedules" are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. References in this Agreement 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, to the extent permitted
hereby and (c) shall mean such document, instrument or agreement, or replacement
or predecessor thereto, as amended, supplemented, restated or otherwise modified
as of the date of this Agreement and from time to time thereafter to the extent
not prohibited hereby and in effect at any given time. Wherever from the context
it appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter.
Unless explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of the Parent or a Subsidiary of such Subsidiary and a reference to
an "Affiliate" means a reference to an Affiliate of the Borrower. Titles and
captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement. Unless otherwise indicated, all references to time are references to
Charlotte, North Carolina time.
SECTION 1.3. FINANCIAL ATTRIBUTES OF NON-WHOLLY OWNED SUBSIDIARIES.
When determining compliance by the Borrower or the Parent with any
financial covenant contained in any of the Loan Documents, only the pro rata
share of the Borrower or the Parent, as applicable, of the financial attributes
of a Subsidiary that is not a Wholly Owned Subsidiary shall be included;
provided, however, for purposes of determining the Parent's compliance with any
such financial covenant the Borrower shall be considered to be a Wholly Owned
Subsidiary of the Parent.
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ARTICLE II. CREDIT FACILITY
SECTION 2.1. REVOLVING LOANS.
(a) Generally. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, each
Lender severally and not jointly agrees to make Revolving Loans to the Borrower
in an aggregate principal amount at any one time outstanding up to, but not
exceeding, the lesser of (i) the amount of such Lender's Commitment and (ii)
such Lender's Commitment Percentage of the Borrowing Base. Subject to the terms
and conditions of this Agreement, during the period from the Effective Date to
but excluding the Termination Date, the Borrower may borrow, repay and reborrow
Revolving Loans hereunder.
(b) Requesting Revolving Loans. The Borrower shall give the Agent notice
pursuant to a Notice of Borrowing or telephonic notice of each borrowing of
Revolving Loans. Each Notice of Borrowing shall be delivered to the Agent before
11:00 a.m. (i) in the case of LIBOR Loans, on the date three Business Days prior
to the proposed date of such borrowing and (ii) in the case of Base Rate Loans,
on the date one Business Day prior to the proposed date of such borrowing. Any
such telephonic notice shall include all information to be specified in a
written Notice of Borrowing and shall be promptly confirmed in writing by the
Borrower pursuant to a Notice of Borrowing sent to the Agent by telecopy on the
same day of the giving of such telephonic notice. The Agent will transmit by
telecopy the Notice of Borrowing (or the information contained in such Notice of
Borrowing) to each Lender promptly upon receipt by the Agent (but in any event
no later than 2:00 p.m. on the date of receipt by the Agent). Each Notice of
Borrowing or telephonic notice of each borrowing shall be irrevocable once given
and binding on the Borrower.
(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m. on
the date specified in the Notice of Borrowing, each Lender will make available
for the account of its applicable Lending Office to the Agent at the Principal
Office, in immediately available funds, the proceeds of the Revolving Loan to be
made by such Lender. Subject to satisfaction of the applicable conditions set
forth in Article VI. for such borrowing, the Agent will make the proceeds of
such borrowing available to the Borrower no later than 2:00 p.m. on the date and
at the account specified by the Borrower in such Notice of Borrowing. With
respect to Revolving Loans to be made after the Effective Date, unless the Agent
shall have been notified by any Lender prior to the specified date of borrowing
that such Lender does not intend to make available to the Agent the Revolving
Loan to be made by such Lender on such date, the Agent may assume that such
Lender will make the proceeds of such Revolving Loan available to the Agent on
the date of the requested borrowing as set forth in the Notice of Borrowing and
the Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to the Borrower no later than 11:00 a.m. on the date requested by
the Borrower the amount of such Revolving Loan to be provided by each such
Lender.
SECTION 2.2. SWINGLINE LOANS.
(a) Swingline Loans. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, the
Swingline Lender agrees to
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make Swingline Loans to the Borrower in an aggregate principal amount at any one
time outstanding up to, but not exceeding, the amount of the Swingline
Commitment. If at any time the aggregate principal amount of the Swingline Loans
outstanding at such time exceeds the Swingline Commitment in effect at such
time, the Borrower shall immediately pay the Agent for the account of the
Swingline Lender the amount of such excess. Subject to the terms and conditions
of this Agreement, the Borrower may borrow, repay and reborrow Swingline Loans
hereunder.
(b) Procedure for Borrowing Swingline Loans. The Borrower shall give the
Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing or telephonic notice of each borrowing of a Swingline Loan. Each
Notice of Swingline Borrowing shall be delivered to the Swingline Lender no
later than 3:00 p.m. on the proposed date of such borrowing. Any such notice
given telephonically shall include all information to be specified in a written
Notice of Swingline Borrowing and shall be promptly confirmed in writing by the
Borrower pursuant to a Notice of Swingline Borrowing sent to the Swingline
Lender by telecopy on the same day of the giving of such telephonic notice. On
the date of the requested Swingline Loan and subject to satisfaction of the
applicable conditions set forth in Article VI. for such borrowing, the Swingline
Lender will make the proceeds of such Swingline Loan available to the Borrower
in Dollars, in immediately available funds, at the account specified by the
Borrower in the Notice of Swingline Borrowing not later than 4:00 p.m. on such
date (or 12:00 noon if the Borrower delivered the applicable Notice of Swingline
Borrowing to the Swingline Lender before 10:00 a.m. on the proposed date of such
borrowing).
(c) Interest. Swingline Loans shall bear interest at a per annum rate equal
to the Base Rate plus the Applicable Margin for Base Rate Loans. Interest
payable on Swingline Loans is solely for the account of the Swingline Lender.
All accrued and unpaid interest on Swingline Loans shall be payable on the dates
and in the manner provided in Section 2.4. with respect to interest on Base Rate
Loans (except as the Swingline Lender and the Borrower may otherwise agree in
writing in connection with any particular Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $100,000 and integral multiples of $100,000 or such other
minimum amounts agreed to by the Swingline Lender and the Borrower. Any
voluntary prepayment of a Swingline Loan must be in integral multiples of
$50,000 or the aggregate principal amount of all outstanding Swingline Loans (or
such other minimum amounts upon which the Swingline Lender and the Borrower may
agree) and in connection with any such prepayment, the Borrower must give the
Swingline Lender prior written notice thereof no later than 10:00 a.m. on the
date of such prepayment. The Swingline Loans shall, in addition to this
Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrower agrees to
repay each Swingline Loan within one Business Day of demand therefor by the
Swingline Lender and in any event, within 5 Business Days after the date such
Swingline Loan was made; provided, that the proceeds of a Swingline Loan may not
be used to repay a Swingline Loan. Notwithstanding the foregoing, the Borrower
shall repay the entire outstanding principal amount of, and all accrued but
unpaid interest on, the Swingline Loans on the Termination Date (or such
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earlier date as the Swingline Lender and the Borrower may agree in writing). In
lieu of demanding repayment of any outstanding Swingline Loan from the Borrower,
the Swingline Lender may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf for such purpose), request a
borrowing of Base Rate Loans from the Lenders in an amount equal to the
principal balance of such Swingline Loan. The amount limitations of Section
3.5.(a) shall not apply to any borrowing of Base Rate Loans made pursuant to
this subsection. The Swingline Lender shall give notice to the Agent of any such
borrowing of Base Rate Loans not later than 12:00 noon on the proposed date of
such borrowing and the Agent shall give prompt notice of such borrowing to the
Lenders. No later than 2:00 p.m. on such date, each Lender will make available
to the Agent at the Principal Office for the account of Swingline Lender, in
immediately available funds, the proceeds of the Base Rate Loan to be made by
such Lender and, to the extent of such Base Rate Loan, such Lender's
participation in the Swingline Loan so repaid shall be deemed to be funded by
such Base Rate Loan. The Agent shall pay the proceeds of such Base Rate Loans to
the Swingline Lender, which shall apply such proceeds to repay such Swingline
Loan. At the time each Swingline Loan is made, each Lender shall automatically
(and without any further notice or action) be deemed to have purchased from the
Swingline Lender, without recourse or warranty, an undivided interest and
participation to the extent of such Lender's Commitment Percentage in such
Swingline Loan. If the Lenders are prohibited from making Loans required to be
made under this subsection for any reason, including without limitation, the
occurrence of any Default or Event of Default described in Section 11.1.(f) or
11.1.(g), upon notice from the Agent or the Swingline Lender, each Lender
severally agrees to pay to the Agent for the account of the Swingline Lender in
respect of such participation the amount of such Lender's Commitment Percentage
of each outstanding Swingline Loan. If such amount is not in fact made available
to the Agent by any Lender, the Swingline Lender shall be entitled to recover
such amount on demand from such Lender, together with accrued interest thereon
for each day from the date of demand thereof, at the Federal Funds Rate. If such
Lender does not pay such amount forthwith upon demand therefor by the Agent or
the Swingline Lender, and until such time as such Lender makes the required
payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation for all
purposes of the Loan Documents (other than those provisions requiring the other
Lenders to purchase a participation therein). Further, such Lender shall be
deemed to have assigned any and all payments made of principal and interest on
its Loans, and any other amounts due such Lender hereunder, to the Swingline
Lender to fund Swingline Loans in the amount of the participation in Swingline
Loans that such Lender failed to purchase pursuant to this Section until such
amount has been purchased (as a result of such assignment or otherwise). A
Lender's obligation to make payments in respect of a participation in a
Swingline Loan shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever, including without limitation, (i) any claim of
setoff, counterclaim, recoupment, defense or other right which such Lender or
any other Person may have or claim against the Agent, the Swingline Lender or
any other Person whatsoever, (ii) the occurrence or continuation of a Default or
Event of Default (including without limitation, any of the Defaults or Events of
Default described in Section 11.1.(f) or 11.1.(g)) or the termination of any
Lender's Commitment, (iii) the existence (or alleged existence) of an event or
condition which has had or could have a Material Adverse Effect, (iv) any breach
of any Loan Document by the Agent, any Lender or the Borrower or (v) any
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other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
SECTION 2.3. LETTERS OF CREDIT.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account
of the Borrower during the period from and including the Effective Date to, but
excluding, the date 30 days prior to the Termination Date one or more letters of
credit (each a "Letter of Credit") up to a maximum aggregate Stated Amount at
any one time outstanding not to exceed the L/C Commitment Amount.
(b) Terms of Letters of Credit. At the time of issuance, the amount, form,
terms and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Agent and the Borrower.
Notwithstanding the foregoing, in no event may the expiration date of any Letter
of Credit extend beyond the earlier of (i) the date one year from its date of
issuance or (ii) the Termination Date; provided, however, a Letter of Credit may
contain a provision providing for the automatic extension of the expiration date
in the absence of a notice of non-renewal from the Agent but in no event shall
any such provision permit the extension of the expiration date of such Letter of
Credit beyond the Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give the
Agent written notice (or telephonic notice promptly confirmed in writing) at
least 5 Business Days prior to the requested date of issuance of a Letter of
Credit, such notice to describe in reasonable detail the proposed terms of such
Letter of Credit and the nature of the transactions or obligations proposed to
be supported by such Letter of Credit, and in any event shall set forth with
respect to such Letter of Credit the proposed (i) Stated Amount, (ii)
beneficiary, and (iii) expiration date. The Borrower shall also execute and
deliver such customary letter of credit application forms as requested from time
to time by the Agent. Provided the Borrower has given the notice prescribed by
the first sentence of this subsection and subject to the other terms and
conditions of this Agreement, including the satisfaction of any applicable
conditions precedent set forth in Article VI., the Agent shall issue the
requested Letter of Credit on the requested date of issuance for the benefit of
the stipulated beneficiary. Upon the written request of the Borrower, the Agent
shall deliver to the Borrower a copy of each issued Letter of Credit within a
reasonable time after the date of issuance thereof. To the extent any term of a
Letter of Credit Document is inconsistent with a term of any Loan Document, the
term of such Loan Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower of the amount to be paid by
the Agent as a result of such demand and the date on which payment is to be made
by the Agent to such beneficiary in respect of such demand; provided, however,
the Agent's failure to give, or delay in giving, such notice shall not discharge
the Borrower in any respect from the applicable Reimbursement Obligation. The
Borrower hereby unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under such Letter of Credit on
or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind (other than notice as provided in this subsection). Upon
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receipt by the Agent of any payment in respect of any Reimbursement Obligation,
the Agent shall promptly pay to each Lender that has acquired a participation
therein under the second sentence of Section 2.3.(i) such Lender's Commitment
Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to in
the immediately preceding subsection (d), the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment and, if it does, the Borrower shall submit a timely request for such
borrowing as provided in the applicable provisions of this Agreement. If the
Borrower fails to so advise the Agent, or if the Borrower fails to reimburse the
Agent for a demand for payment under a Letter of Credit by the date of such
payment, then (i) if the applicable conditions contained in Article VI. would
permit the making of Revolving Loans, the Borrower shall be deemed to have
requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an
amount equal to the unpaid Reimbursement Obligation and the Agent shall give
each Lender prompt notice of the amount of the Revolving Loan to be made
available to the Agent not later than 1:00 p.m. and (ii) if such conditions
would not permit the making of Revolving Loans, the provisions of subsection (j)
of this Section shall apply. The limitations of Section 3.5.(a) shall not apply
to any borrowing of Base Rate Loans under this subsection.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by the
Agent of any Letter of Credit and until such Letter of Credit shall have expired
or been terminated, the Commitment of each Lender shall be deemed to be utilized
for all purposes of this Agreement in an amount equal to the product of (i) such
Lender's Commitment Percentage and (ii) the sum of (A) the Stated Amount of such
Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.
(g) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligations. In examining documents presented in connection with
drawings under Letters of Credit and making payments under Letters of Credit
against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
the Lenders shall be responsible for, and the Borrower's obligations in respect
of the Letters of Credit shall not be affected in any manner by, any of the
following except to the extent resulting from the gross negligence or willful
misconduct of the Agent or a Lender, as applicable, as determined by a court of
competent jurisdiction in a final, non-appealable judgment: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effects of any document
submitted by any party in connection with the application for and issuance of or
any drawing honored under any Letter of Credit even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit, or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any Letter of Credit to comply fully with conditions required in
order to draw upon such Letter of
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Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telex, telecopy or otherwise, whether
or not they be in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit, or of the proceeds thereof;
(vii) the misapplication by the beneficiary of the proceeds of any drawing under
any Letter of Credit; or (viii) any consequences arising from causes beyond the
control of the Agent or the Lenders. None of the above shall affect, impair or
prevent the vesting of any of the Agent's or any Lender's rights or powers
hereunder. Any action taken or omitted to be taken by the Agent under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final, non-appealable judgment), shall not create against the
Agent or any Lender any liability to the Borrower or any Lender. In this regard,
the obligation of the Borrower to reimburse the Agent for any drawing made under
any Letter of Credit, and to repay any Revolving Loan made pursuant to the
second sentence of the immediately preceding subsection (e), shall be absolute,
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement and any other applicable Letter of Credit Document under
all circumstances whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any Letter of
Credit Document or any term or provisions therein; (B) any amendment or waiver
of or any consent to departure from all or any of the Letter of Credit
Documents; (C) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against the Agent, any Lender, any beneficiary
of a Letter of Credit or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or in the Letter of Credit
Documents or any unrelated transaction; (D) any breach of contract or dispute
between the Borrower, the Agent, any Lender or any other Person; (E) any demand,
statement or any other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein or made in connection therewith being untrue or inaccurate in any
respect whatsoever; (F) any non-application or misapplication by the beneficiary
of a Letter of Credit of the proceeds of any drawing under such Letter of
Credit; (G) payment by the Agent under any Letter of Credit against presentation
of a draft or certificate which does not strictly comply with the terms of such
Letter of Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a
legal or equitable defense to or discharge of the Borrower's Reimbursement
Obligations. Notwithstanding anything to the contrary contained in this Section
or Section 13.9., but not in limitation of the Borrower's unconditional
obligation to reimburse the Agent for any drawing made under a Letter of Credit
as provided in this Section and to repay any Revolving Loan made pursuant to the
second sentence of the immediately preceding subsection (e), the Borrower shall
have no obligation to indemnify the Agent or any Lender in respect of any
liability incurred by the Agent or such Lender arising solely out of the gross
negligence or willful misconduct of the Agent or such Lender in respect of a
Letter of Credit as determined by a court of competent jurisdiction in a final,
non-appealable judgment. Except as otherwise provided in this Section, nothing
in this Section shall affect any rights the Borrower may have with respect to
the gross negligence or willful misconduct of the Agent or any Lender with
respect to any Letter of Credit.
(h) Amendments, Etc. The issuance by the Agent of any amendment, supplement
or other modification to any Letter of Credit shall be subject to the same
conditions applicable
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under this Agreement to the issuance of new Letters of Credit (including,
without limitation, that the request therefor be made through the Agent), and no
such amendment, supplement or other modification shall be issued unless either
(i) the respective Letter of Credit affected thereby would have complied with
such conditions had it originally been issued hereunder in such amended,
supplemented or modified form or (ii) the Requisite Lenders (or all of the
Lenders if required by Section 13.6.) shall have consented thereto. In
connection with any such amendment, supplement or other modification, the
Borrower shall pay the Fees, if any, payable under the last sentence of Section
3.6.(b).
(i) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Commitment Percentage of the liability of the Agent with
respect to such Letter of Credit, and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Commitment Percentage of the Agent's liability under such
Letter of Credit. In addition, upon the making of each payment by a Lender to
the Agent in respect of any Letter of Credit pursuant to the immediately
following subsection (j), such Lender shall, automatically and without any
further action on the part of the Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Agent by the Borrower in respect of such Letter of Credit and (ii)
a participation in a percentage equal to such Lender's Commitment Percentage in
any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation (other than the Fees payable to the Agent pursuant to
the third and last sentences of Section 3.6.(b)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay to
the Agent on demand in immediately available funds in Dollars the amount of such
Lender's Commitment Percentage of each drawing paid by the Agent under each
Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.3.(d); provided, however, that in respect of any drawing
under any Letter of Credit, the maximum amount that any Lender shall be required
to fund, whether as a Revolving Loan or as a participation, shall not exceed
such Lender's Commitment Percentage of such drawing. If the notice referenced in
the second sentence of Section 2.3.(e) is received by a Lender not later than
11:00 a.m., then such Lender shall make such payment available to the Agent not
later than 2:00 p.m. on the date of demand therefor; otherwise, such payment
shall be made available to the Agent not later than 1:00 p.m. on the next
succeeding Business Day. Each Lender's obligation to make such payments to the
Agent under this subsection, and the Agent's right to receive the same, shall be
absolute, irrevocable and unconditional and shall not be affected in any way by
any circumstance whatsoever, including without limitation, (i) the failure of
any other Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any other Loan Party, (iii) the existence of any
Default or Event of Default, including any Event of Default described in Section
11.1.(f) or 11.1.(g) or (iv) the termination of the Commitments. Each such
payment to the Agent shall be made without any offset, abatement, withholding or
deduction whatsoever.
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(k) Information to Lenders. The Agent shall periodically deliver to the
Lenders information setting forth the Stated Amount of all outstanding Letters
of Credit. Other than as set forth in this subsection, the Agent shall have no
duty to notify the Lenders regarding the issuance or other matters regarding
Letters of Credit issued hereunder. The failure of the Agent to perform its
requirements under this subsection shall not relieve any Lender from its
obligations under Section 2.3.(j).
SECTION 2.4. RATES AND PAYMENT OF INTEREST ON LOANS.
(a) Rates. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per
annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at the Base
Rate (as in effect from time to time) plus the Applicable Margin; and
(ii) during such periods as such Loan is a LIBOR Loan, at Adjusted
LIBOR for such Loan for the Interest Period therefor plus the Applicable
Margin.
Notwithstanding the foregoing, while an Event of Default exists, the Borrower
shall pay to the Agent for the account of each Lender interest at the
Post-Default Rate on the outstanding principal amount of any Loan made by such
Lender, on all Reimbursement Obligations and on any other amount payable by the
Borrower hereunder or under the Notes held by such Lender to or for the account
of such Lender (including without limitation, accrued but unpaid interest to the
extent permitted under Applicable Law).
(b) Payment of Interest. Accrued and unpaid interest on each Loan shall be
payable (i) in the case of a Base Rate Loan, monthly in arrears on the first day
of each calendar month, (ii) in the case of a LIBOR Loan, in arrears on the last
day of each Interest Period therefor, and, if such Interest Period is longer
than three months, at three-month intervals following the first day of such
Interest Period, and (iii) in the case of any Loan, in arrears upon the payment,
prepayment or Continuation thereof or the Conversion of a Base Rate Loan into a
LIBOR Loan (but only on the principal amount so paid, prepaid, Continued or
Converted). Interest payable at the Post-Default Rate shall be payable from time
to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Agent shall give notice thereof
to the Lenders to which such interest is payable and to the Borrower. All
determinations by the Agent of an interest rate hereunder shall be conclusive
and binding on the Lenders and the Borrower for all purposes, absent manifest
error.
SECTION 2.5. NUMBER OF INTEREST PERIODS.
There may be no more than 8 different Interest Periods for LIBOR Loans
outstanding at the same time.
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SECTION 2.6. REPAYMENT OF LOANS.
The Borrower shall repay the entire outstanding principal amount of, and
all accrued but unpaid interest on, the Revolving Loans on the Termination Date.
SECTION 2.7. PREPAYMENTS.
(a) Optional. Subject to Section 5.4., the Borrower may prepay any Loan at
any time without premium or penalty. The Borrower shall give the Agent at least
one Business Day's prior written notice of the prepayment of any Revolving Loan.
(b) Mandatory.
(i) Outstandings in Excess of Commitments. If at any time the
aggregate principal amount of all outstanding Loans, together with the
aggregate amount of all Letter of Credit Liabilities, exceeds the aggregate
amount of the Commitments in effect at such time, the Borrower shall
immediately pay to the Agent for the accounts of the Lenders the amount of
such excess.
(ii) Outstandings in Excess of Borrowing Base. If at any time the
aggregate outstanding principal balance of Loans, together with the
aggregate amount of all Letter of Credit Liabilities, exceeds the Borrowing
Base, then the Borrower shall within 5 days of the Agent's demand or a
Responsible Officer of the Parent or the Borrower obtaining knowledge of
such excess, pay to the Agent for the account of the Lenders the amount of
such excess.
(c) Application of Prepayments. Amounts paid under the preceding subsection
(b) shall be applied to pay all amounts of principal outstanding on the Loans
and any Reimbursement Obligations pro rata in accordance with Section 3.2. and
if any Letters of Credit are outstanding at such time, the remainder, if any,
shall be deposited into the Collateral Account for application to any
Reimbursement Obligations. If the Borrower is required to pay any outstanding
LIBOR Loans by reason of this Section prior to the end of the applicable
Interest Period therefor, the Borrower shall pay all amounts due under Section
5.4.
SECTION 2.8. CONTINUATION.
So long as no Default or Event of Default shall exist, the Borrower may on
any Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR
Loan or any portion thereof as a LIBOR Loan by selecting a new Interest Period
for such LIBOR Loan. Each new Interest Period selected under this Section shall
commence on the last day of the immediately preceding Interest Period. Each
selection of a new Interest Period shall be made by the Borrower giving to the
Agent a Notice of Continuation not later than 11:00 a.m. on the third Business
Day prior to the date of any such Continuation. Such notice by the Borrower of a
Continuation shall be by telephone or telecopy, confirmed immediately in writing
if by telephone, in the form of a Notice of Continuation, specifying (a) the
proposed date of such Continuation, (b) the LIBOR Loans and portions thereof
subject to such Continuation and (c) the duration of the selected Interest
Period, all of which shall be specified in such manner as is necessary to comply
with all
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limitations on Loans outstanding hereunder. Each Notice of Continuation shall be
irrevocable by and binding on the Borrower once given. Promptly after receipt of
a Notice of Continuation, the Agent shall notify each Lender by telecopy, or
other similar form of transmission, of the proposed Continuation. If the
Borrower shall fail to select in a timely manner a new Interest Period for any
LIBOR Loan in accordance with this Section, or if a Default or Event of Default
shall exist, such Loan will automatically, on the last day of the current
Interest Period therefor, Convert into a Base Rate Loan notwithstanding the
first sentence of Section 2.9. or the Borrower's failure to comply with any of
the terms of such Section.
SECTION 2.9. CONVERSION.
The Borrower may on any Business Day, upon the Borrower's giving of a
Notice of Conversion to the Agent, Convert all or a portion of a Loan (including
a Base Rate Loan made pursuant to Section 2.2.(e)) of one Type into a Loan of
another Type; provided, however, a Base Rate Loan may not be Converted to a
LIBOR Loan if a Default or Event of Default shall exist. Any Conversion of a
LIBOR Loan into a Base Rate Loan shall be made on, and only on, the last day of
an Interest Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan
into a LIBOR Loan, the Borrower shall pay accrued interest to the date of
Conversion on the principal amount so Converted. Each such Notice of Conversion
shall be given not later than 11:00 a.m. on the Business Day prior to the date
of any proposed Conversion into Base Rate Loans and on the third Business Day
prior to the date of any proposed Conversion into LIBOR Loans. Promptly after
receipt of a Notice of Conversion, the Agent shall notify each Lender by
telecopy, or other similar form of transmission, of the proposed Conversion.
Subject to the restrictions specified above, each Notice of Conversion shall be
by telephone (confirmed immediately in writing) or telecopy in the form of a
Notice of Conversion specifying (a) the requested date of such Conversion, (b)
the Type of Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if
such Conversion is into a LIBOR Loan, the requested duration of the Interest
Period of such Loan. Each Notice of Conversion shall be irrevocable by and
binding on the Borrower once given.
SECTION 2.10. NOTES.
(a) Revolving Notes. The Revolving Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit H (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.
(b) Records. The date, amount, interest rate, Type and duration of Interest
Periods (if applicable) of each Loan made by each Lender to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by such
Lender on its books and such entries shall be binding on the Borrower, absent
manifest error; provided, however, that the failure of a Lender to make any such
record shall not affect the obligations of the Borrower under any of the Loan
Documents.
(c) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the
Borrower of (i) written notice from a Lender that a Note of such Lender has been
lost, stolen, destroyed or
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mutilated, and (ii) (A) in the case of loss, theft or destruction, an unsecured
agreement of indemnity from such Lender in form reasonably satisfactory to the
Borrower, or (B) in the case of mutilation, upon surrender and cancellation of
such Note, the Borrower shall execute and deliver to such Lender a new Note
dated the date of such lost, stolen, destroyed or mutilated Note.
SECTION 2.11. VOLUNTARY REDUCTIONS OF THE COMMITMENT.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of Letter of Credit Liabilities and
the aggregate principal amount of all outstanding Swingline Loans) at any time
and from time to time without penalty or premium upon not less than 5 Business
Days prior written notice to the Agent of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction and shall be irrevocable once given and effective only upon receipt by
the Agent; provided, however, if the Borrower seeks to reduce the aggregate
amount of the Commitments below $100,000,000, then the Commitments shall all
automatically and permanently be reduced to zero. The Agent will promptly
transmit such notice to each Lender. The Commitments, once terminated or reduced
may not be increased or reinstated.
SECTION 2.12. EXTENSION OF TERMINATION DATE.
The Borrower shall have the right, exercisable one time, to extend the
Termination Date by one year. The Borrower may exercise such right only by
executing and delivering to the Agent at least 90 days but not more than 120
days prior to the current Termination Date, a written request for such extension
(an "Extension Request"). The Agent shall forward to each Lender a copy of the
Extension Request delivered to the Agent promptly upon receipt thereof. Subject
to satisfaction of the following conditions, the Termination Date shall be
extended for one year effective upon receipt of the Extension Request and
payment of the fee referred to in the following clause (b): (a) immediately
prior to such extension and immediately after giving effect thereto, (i) no
Default or Event of Default shall exist and (ii) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of such extension with the same force
and effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents and (b) the
Borrower shall have paid the Fees payable under Section 3.6.(c).
SECTION 2.13. EXPIRATION OR MATURITY DATE OF LETTERS OF CREDIT PAST TERMINATION
DATE.
If on the date the Commitments are terminated or reduced to zero (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise),
there are any Letters of Credit outstanding hereunder, the Borrower shall, on
such date, pay to the Agent an amount of money equal to the Stated Amount of
such Letter(s) of Credit for deposit into the Collateral Account.
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SECTION 2.14. AMOUNT LIMITATIONS.
Notwithstanding any other term of this Agreement or any other Loan
Document, no Lender shall be required to make a Loan, the Agent shall not be
required to issue a Letter of Credit and no reduction of the Commitments
pursuant to Section 2.11. shall take effect, if immediately after the making of
such Loan, the issuance of such Letter of Credit or such reduction in the
Commitments the aggregate principal amount of all outstanding Loans, together
with the aggregate amount of all Letter of Credit Liabilities, would exceed the
lesser of (a) the aggregate amount of the Commitments at such time or (b) the
Borrowing Base at such time.
SECTION 2.15. INCREASE OF COMMITMENTS.
With the prior consent of the Agent, the Borrower shall have the right at
any time and from time to time during the term of this Agreement to request
increases in the aggregate amount of the Commitments (provided that after giving
effect to any increases in the Commitments pursuant to this Section, the
aggregate amount of the Commitments may not exceed $350,000,000) by providing
written notice to the Agent, which notice shall be irrevocable once given. Each
such increase in the Commitments must be in an aggregate minimum amount of
$25,000,000 and integral multiples of $10,000,000 in excess thereof. No Lender
shall be required to increase its Commitment and any new Lender becoming a party
to this Agreement in connection with any such requested increase must be an
Eligible Assignee. If a new Lender becomes a party to this Agreement, or if any
existing Lender agrees to increase its Commitment, such Lender shall on the date
it becomes a Lender hereunder (or increases its Commitment, in the case of an
existing Lender) (and as a condition thereto) purchase from the other Lenders
its Commitment Percentage (or in the case of an existing Lender, the increase in
the amount of its Commitment Percentage, in each case as determined after giving
effect to the increase of Commitments) of any outstanding Revolving Loans, by
making available to the Agent for the account of such other Lenders at the
Principal Office, in same day funds, an amount equal to the sum of (A) the
portion of the outstanding principal amount of such Revolving Loans to be
purchased by such Lender plus (B) the aggregate amount of payments previously
made by the other Lenders under Section 2.3.(j) which have not been repaid plus
(C) interest accrued and unpaid to and as of such date on such portion of the
outstanding principal amount of such Revolving Loans. The Borrower shall pay to
the Lenders amounts payable, if any, to such Lenders under Section 5.4. as a
result of the prepayment of any such Revolving Loans. No increase of the
Commitments may be effected under this Section if (x) a Default or Event of
Default shall be in existence on the effective date of such increase or (y) any
representation or warranty made or deemed made by the Borrower or any other Loan
Party in any Loan Document to which any such Loan Party is a party is not (or
would not be) true or correct on the effective date of such increase (except for
representations or warranties which expressly relate solely to an earlier date).
In connection with any increase in the aggregate amount of the Commitments
pursuant to this subsection, (a) any Lender becoming a party hereto shall
execute such documents and agreements as the Agent may reasonably request and
(b) the Borrower shall make appropriate arrangements so that each new Lender,
and any existing Lender increasing its Commitment, receives a new or replacement
Note, as appropriate, in the amount of such Lender's Commitment within 2
Business Days of the effectiveness of the applicable increase in the aggregate
amount of Commitments.
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ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
SECTION 3.1. PAYMENTS.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement or
any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at its Principal
Office, not later than 2:00 p.m. on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day). Subject to Section 11.4.,
the Borrower may, at the time of making each payment under this Agreement or any
Note, specify to the Agent the amounts payable by the Borrower hereunder to
which such payment is to be applied. Each payment received by the Agent for the
account of a Lender under this Agreement or any Note shall be paid to such
Lender at the applicable Lending Office of such Lender no later than 5:00 p.m.
on the date of receipt. If the Agent fails to pay such amount to a Lender as
provided in the previous sentence, the Agent shall pay interest on such amount
until paid at a rate per annum equal to the Federal Funds Rate from time to time
in effect. If the due date of any payment under this Agreement or any other Loan
Document would otherwise fall on a day which is not a Business Day such date
shall be extended to the next succeeding Business Day and interest shall be
payable for the period of such extension.
SECTION 3.2. PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each borrowing from the
Lenders under Section 2.1.(a), 2.2.(e) and 2.3.(e) shall be made from the
Lenders, each payment of the Fees under Section 3.6.(a), under the first
sentence of Section 3.6.(b) and under Section 3.6.(c) shall be made for the
account of the Lenders, and each termination or reduction of the amount of the
Commitments under Section 2.11. shall be applied to the respective Commitments
of the Lenders, pro rata according to the amounts of their respective
Commitments; (b) each payment or prepayment of principal of Revolving Loans by
the Borrower shall be made for the account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of the Revolving Loans held by
them, provided that if immediately prior to giving effect to any such payment in
respect of any Revolving Loans the outstanding principal amount of the Revolving
Loans shall not be held by the Lenders pro rata in accordance with their
respective Commitments in effect at the time such Loans were made, then such
payment shall be applied to the Revolving Loans in such manner as shall result,
as nearly as is practicable, in the outstanding principal amount of the
Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving Loans by the
Borrower shall be made for the account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the making, Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 5.6.)
shall be made pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Revolving Loans) or their
respective Revolving Loans (in the case of Conversions and Continuations of
Revolving Loans) and the then current Interest Period for each Lender's portion
of each Revolving Loan of such Type shall be coterminous; (e) the Lenders'
participation in, and payment obligations in respect of, Letters of Credit under
Section 2.3., shall
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be pro rata in accordance with their respective Commitments; and (f) the
Lenders' participation in, and payment obligations in respect of, Swingline
Loans under Section 2.2., shall be pro rata in accordance with their respective
Commitments. All payments of principal, interest, fees and other amounts in
respect of the Swingline Loans shall be for the account of the Swingline Lender
only (except to the extent any Lender shall have acquired and funded a
participating interest in any such Swingline Loan pursuant to Section 2.2.(e),
in which case such payments shall be pro rata in accordance with such
participating interests).
SECTION 3.3. SHARING OF PAYMENTS, ETC.
If a Lender shall obtain payment of any principal of, or interest on, any
Loan made by it to the Borrower under this Agreement, or shall obtain payment on
any other Obligation owing by the Borrower or any other Loan Party through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise or through voluntary prepayments directly to a Lender or other
payments made by the Borrower to a Lender not in accordance with the terms of
this Agreement and such payment should be distributed to the Lenders pro rata in
accordance with Section 3.2. or Section 11.4., as applicable, such Lender shall
promptly purchase from the other Lenders participations in (or, if and to the
extent specified by such Lender, direct interests in) the Loans made by the
other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with Section 3.2. or Section
11.4., as applicable. To such end, all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored. The Borrower agrees
that any Lender so purchasing a participation (or direct interest) in the Loans
or other Obligations owed to such other Lenders may exercise all rights of
set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Lender
to exercise any such right or shall affect the right of any Lender to exercise,
and retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
SECTION 3.4. SEVERAL OBLIGATIONS.
No Lender shall be responsible for the failure of any other Lender to make
a Loan or to perform any other obligation to be made or performed by such other
Lender hereunder, and the failure of any Lender to make a Loan or to perform any
other obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other Lender.
SECTION 3.5. MINIMUM AMOUNTS.
(a) Borrowings and Conversions. Except as otherwise provided in Sections
2.2.(e) and 2.3.(e), each borrowing of Base Rate Loans shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $100,000 in excess
thereof. Each borrowing, Conversion and Continuation of LIBOR Loans shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount.
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(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess thereof (or, if less, the aggregate principal amount of Revolving Loans
then outstanding).
(c) Reductions of Commitments. Each reduction of the Commitments under
Section 2.11. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $5,000,000 in excess thereof.
(d) Letters of Credit. The initial Stated Amount of each Letter of Credit
shall be at least $100,000.
SECTION 3.6. FEES.
(a) Unused Fee. During the period from the Effective Date to but excluding
the Termination Date, the Borrower agrees to pay to the Agent for the account of
the Lenders an unused facility fee with respect to the average daily difference
between the (i) aggregate amount of the Commitments and (ii) the aggregate
principal amount of all outstanding Revolving Loans plus the aggregate amount of
all Letter of Credit Liabilities (the "Unused Amount"). Such fee shall be
computed by multiplying the Unused Amount with respect to such quarter by the
corresponding per annum rate set forth below:
UNUSED AMOUNT UNUSED FEE
------------- ----------
> or = 50% of the aggregate amount of Commitments 0.250%
< 50% of the aggregate amount of Commitments 0.125%
Such fee shall be payable in arrears on the last day of each March, June,
September or December of each calendar year. Any such accrued and unpaid fee
shall also be payable on the Termination Date or any earlier date of termination
of the Commitments or reduction of the Commitments to zero.
(b) Letter of Credit Fees. The Borrower agrees to pay to the Agent for the
account of each Lender a letter of credit fee at a rate per annum equal to the
Applicable Margin for LIBOR Loans (or while an Event of Default exists, at a per
annum rate equal to 4.0%) times the daily average Stated Amount of each Letter
of Credit for the period from and including the date of issuance of such Letter
of Credit (x) through and including the date such Letter of Credit expires or is
terminated or (y) to but excluding the date such Letter of Credit is drawn in
full and is not subject to reinstatement, as the case may be. The fees provided
for in the immediately preceding sentence shall be nonrefundable and payable in
arrears on (i) the last day of March, June, September and December in each year,
(ii) the Termination Date, (iii) the date the Commitments are terminated or
reduced to zero and (iv) thereafter from time to time on demand of the Agent. In
addition, the Borrower shall pay to the Agent for its own account and not the
account of any Lender, an issuance fee in respect of each Letter of Credit equal
to the greater of (i) $500 or (ii) one-eighth of one percent (0.125%) per annum
on the initial Stated Amount of such Letter of Credit payable (A) for the period
from and including the date of issuance of such Letter of Credit through and
including the expiration date of such Letter of Credit and (B) if the expiration
date of any Letter of Credit is extended (whether as a result of the operation
of an automatic extension
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clause or otherwise), for the period from but excluding the previous expiration
date to and including the extended expiration date. The fees provided for in the
immediately preceding sentence shall be nonrefundable and payable upon issuance
(or in the case of an extension of the expiration date, on the previous
expiration date). The Borrower shall pay directly to the Agent from time to time
on demand all commissions, charges, costs and expenses in the amounts
customarily charged by the Agent from time to time in like circumstances with
respect to the issuance of each Letter of Credit, drawings, amendments and other
transactions relating thereto.
(c) Extension Fee. If the Borrower exercises its right to extend the
Termination Date in accordance with Section 2.12., the Borrower agrees to pay to
the Agent for the account of each Lender a fee equal to 0.15% of the amount of
such Lender's Commitment (whether or not utilized) at the time of such
extension. Such fee shall be due and payable in full on the date the Agent
receives the Extension Request pursuant to such Section.
(d) Administrative and Other Fees. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing by the
Borrower and the Agent from time to time.
SECTION 3.7. COMPUTATIONS.
Unless otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or any other Obligations due hereunder shall be computed on the
basis of a year of 365 or 366 days, as applicable, and the actual number of days
elapsed; provided, however, interest on LIBOR Loans shall be computed on the
basis of a year of 360 days and the actual number of days elapsed.
SECTION 3.8. USURY.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or any other Loan Party or
received by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the respective Lender in writing
that the Borrower elects to have such excess sum returned to it forthwith. It is
the express intent of the parties hereto that the Borrower not pay and the
Lenders not receive, directly or indirectly, in any manner whatsoever, interest
in excess of that which may be lawfully paid by the Borrower under Applicable
Law.
SECTION 3.9. AGREEMENT REGARDING INTEREST AND CHARGES.
The parties hereto hereby agree and stipulate that the only charge imposed
upon the Borrower for the use of money in connection with this Agreement is and
shall be the interest specifically described in Sections 2.4.(a)(i) and (ii) and
in Section 2.2.(c). Notwithstanding the foregoing, the parties hereto further
agree and stipulate that all agency fees, syndication fees, facility fees,
closing fees, letter of credit fees, underwriting fees, default charges, late
charges, funding or "breakage" charges, increased cost charges, attorneys' fees
and reimbursement for costs and expenses paid by the Agent or any Lender to
third parties or for damages incurred by the Agent or any Lender, in each case
in connection with the transactions contemplated by this
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Agreement and the other Loan Documents, are charges made to compensate the Agent
or any such Lender for underwriting or administrative services and costs or
losses performed or incurred, and to be performed or incurred, by the Agent and
the Lenders in connection with this Agreement and shall under no circumstances
be deemed to be charges for the use of money. All charges other than charges for
the use of money shall be fully earned and nonrefundable when due.
SECTION 3.10. STATEMENTS OF ACCOUNT.
The Agent will account to the Borrower monthly with a statement of Loans,
Letters of Credit, accrued interest and Fees, charges and payments made pursuant
to this Agreement and the other Loan Documents, and such account rendered by the
Agent shall be deemed conclusive upon Borrower absent manifest error. The
failure of the Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.
SECTION 3.11. DEFAULTING LENDERS.
(a) Generally. If for any reason any Lender (a "Defaulting Lender") shall
fail or refuse to perform any of its obligations under this Agreement or any
other Loan Document to which it is a party within the time period specified for
performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of two Business Days after notice from
the Agent, then, in addition to the rights and remedies that may be available to
the Agent or the Borrower under this Agreement or Applicable Law, such
Defaulting Lender's right to participate in the administration of the Loans,
this Agreement and the other Loan Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction
of the Agent or to be taken into account in the calculation of the Requisite
Lenders, shall be suspended during the pendency of such failure or refusal. If a
Lender is a Defaulting Lender because it has failed to make timely payment to
the Agent of any amount required to be paid to the Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights and
remedies which the Agent or the Borrower may have under the immediately
preceding provisions or otherwise, the Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period
from the date on which the payment was due until the date on which the payment
is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other
Loan Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Agent in respect of a
Defaulting Lender's Loans shall not be paid to such Defaulting Lender and shall
be held uninvested by the Agent and either applied against the purchase price of
such Loans under the following subsection (b) or paid to such Defaulting Lender
upon such Defaulting Lender's curing of its default.
(b) Purchase or Cancellation of Defaulting Lender's Commitment. Any Lender
who is not a Defaulting Lender may, but shall not be obligated, in its sole
discretion, to acquire all or a portion of a Defaulting Lender's Commitment. Any
Lender desiring to exercise such right shall give written notice thereof to the
Agent and the Borrower no sooner than 2 Business Days and not later than 5
Business Days after such Defaulting Lender became a Defaulting Lender. If
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more than one Lender exercises such right, each such Lender shall have the right
to acquire an amount of such Defaulting Lender's Commitment in proportion to the
Commitments of the other Lenders exercising such right. If after such 5th
Business Day, the Lenders have not elected to purchase all of the Commitment of
such Defaulting Lender, then the Borrower may, by giving written notice thereof
to the Agent, such Defaulting Lender and the other Lenders, either (i) demand
that such Defaulting Lender assign its Commitment to an Eligible Assignee
subject to and in accordance with the provisions of Section 13.5.(d) for the
purchase price provided for below or (ii) terminate the Commitment of such
Defaulting Lender, whereupon such Defaulting Lender shall no longer be a party
hereto or have any rights or obligations hereunder or under any of the other
Loan Documents. No party hereto shall have any obligation whatsoever to initiate
any such replacement or to assist in finding an Eligible Assignee. Upon any such
purchase or assignment, the Defaulting Lender's interest in the Loans and its
rights hereunder (but not its liability in respect thereof or under the Loan
Documents or this Agreement to the extent the same relate to the period prior to
the effective date of the purchase except to the extent assigned pursuant to
such purchase) shall terminate on the date of purchase, and the Defaulting
Lender shall promptly execute all documents reasonably requested to surrender
and transfer such interest to the purchaser or assignee thereof, including an
appropriate Assignment and Acceptance Agreement and, notwithstanding Section
13.5.(d), shall pay to the Agent an assignment fee in the amount of $7,000. The
purchase price for the Commitment of a Defaulting Lender shall be equal to the
amount of the principal balance of the Loans outstanding and owed by the
Borrower to the Defaulting Lender. Prior to payment of such purchase price to a
Defaulting Lender, the Agent shall apply against such purchase price any amounts
retained by the Agent pursuant to the last sentence of the immediately preceding
subsection (a). The Defaulting Lender shall be entitled to receive amounts owed
to it by the Borrower under the Loan Documents which accrued prior to the date
of the default by the Defaulting Lender, to the extent the same are received by
the Agent from or on behalf of the Borrower. There shall be no recourse against
any Lender or the Agent for the payment of such sums except to the extent of the
receipt of payments from any other party or in respect of the Loans.
SECTION 3.12. TAXES.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes imposed on or measured by any Lender's
assets, net income, receipts or branch profits, (iii) any taxes (other than
withholding taxes) with respect to the Agent or a Lender that would not be
imposed but for a connection between the Agent or such Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), and (iv) any taxes, fees, duties,
levies, imposts, charges, deductions, withholdings or other charges to the
extent imposed as a result of the failure of the Agent or a Lender, as
applicable, to provide and keep current (to the extent legally able) any
certificates, documents or other evidence required to qualify for an exemption
from, or reduced rate of, any such taxes fees, duties, levies, imposts, charges,
deductions, withholdings or other charges or required by the immediately
following subsection (c) to be furnished by the Agent or such Lender, as
applicable (such non-excluded items being collectively called "Taxes"). If any
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withholding or deduction from any payment to be made by the Borrower hereunder
is required in respect of any Taxes pursuant to any Applicable Law, then the
Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or amounts as
is necessary to ensure that the net amount actually received by the Agent
or such Lender will equal the full amount that the Agent or such Lender
would have received had no such withholding or deduction been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due to
the appropriate Governmental Authority or fails to remit to the Agent, for its
account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) Tax Forms. Prior to the date that any Foreign Lender becomes a party
hereto, such Foreign Lender shall deliver to the Borrower and the Agent such
certificates, documents or other evidence, as required by the Internal Revenue
Code or Treasury Regulations issued pursuant thereto (including Internal Revenue
Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms),
properly completed, currently effective and duly executed by such Foreign Lender
establishing that payments to it hereunder and under the Notes are (i) not
subject to United States Federal backup withholding tax and (ii) not subject to
United States Federal withholding tax imposed under the Internal Revenue Code.
Each such Foreign Lender shall, to the extent it may lawfully do so, (x) deliver
further copies of such forms or other appropriate certifications on or before
the date that any such forms expire or become obsolete and after the occurrence
of any event requiring a change in the most recent form delivered to the
Borrower or the Agent and (y) obtain such extensions of the time for filing, and
renew such forms and certifications thereof, as may be reasonably requested by
the Borrower or the Agent. The Borrower shall not be required to pay any amount
pursuant to the last sentence of subsection (a) above to any Foreign Lender or
the Agent, if it is organized under the laws of a jurisdiction outside of the
United States of America, if such Foreign Lender or the Agent, as applicable,
fails to comply with the requirements of this subsection. If any such Foreign
Lender, to the extent it may lawfully do so, fails to deliver the above forms or
other documentation, then the Agent may withhold from any payments to be made to
such Foreign Lender under any of the Loan Documents such amounts as are required
by the Internal Revenue Code. If any Governmental Authority asserts that the
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Agent therefor, including all penalties and interest,
any
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taxes imposed by any jurisdiction on the amounts payable to the Agent under this
Section, and costs and expenses (including all reasonable fees and disbursements
of any law firm or other external counsel and the allocated cost of internal
legal services and all disbursements of internal counsel) of the Agent. The
obligation of the Lenders under this Section shall survive the termination of
the Commitments, repayment of all Obligations and the resignation or replacement
of the Agent.
ARTICLE IV. BORROWING BASE PROPERTIES
SECTION 4.1. ELIGIBILITY OF PROPERTIES.
(a) Initial Borrowing Base Properties. As of the date hereof, the parties
agree that the Properties identified on Schedule 4.1. shall be included in
calculations of the Borrowing Base and shall initially have the respective
Borrowing Base Values set forth on such Schedule.
(b) Additional Borrowing Base Properties. If after the Effective Date the
Borrower desires that any additional Eligible Property be included in
calculations of the Borrowing Base, the Borrower shall so notify the Agent in
writing and provide the Agent with the following, in form and substance
satisfactory to the Agent:
(i) An operating statement for such Property audited or certified by a
representative of the Borrower as being true and correct in all material
respects and prepared in accordance with GAAP for the previous three fiscal
years, provided that, with respect to any period such Property was not
owned by the Borrower or a Subsidiary, such information shall only be
required to be delivered to the extent reasonably available to the Borrower
and such certification may be based upon the best of the Borrower's
knowledge and provided further, the Borrower shall provide such projections
and other information concerning the anticipated operation of such Property
as the Agent may reasonably request;
(ii) A current rent roll and a one-year occupancy history of such
Property each certified by a representative of the Borrower to be true and
correct, provided that, with respect to any period such Property was not
owned by the Borrower or a Subsidiary, the occupancy history shall only be
required to be delivered to the extent reasonably available to the Borrower
and such certification may be based upon the best of the Borrower's
knowledge;
(iii) To the extent not provided under the immediately preceding
clause (i), such projections and other information concerning the
anticipated operation of such Property as the Agent may reasonably request;
(iv) Budgets with respect to any capital expenditures to be made with
respect to such Property within the next twelve months; and
(v) Such other information the Agent may reasonably request in order
to evaluate the Property.
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If, after receipt and review of all of the foregoing documents and information,
the Agent has not determined that such Property is not an Eligible Property, the
Agent will so notify the Borrower and each Lender within 5 Business Days after
receipt of all of such documents and information.
(c) Nonconforming Properties. If a Property which the Borrower wants to
have included in calculations of the Borrowing Base does not satisfy the
requirements of an Eligible Property, then the Agent, upon written request of
the Borrower shall request that the Lenders determine whether such Property
shall be included as a Borrowing Base Property. In connection therewith, the
Borrower shall deliver the information required by the immediately preceding
subsection (b) to each of the Lenders. If such a request is made by the Agent to
the Lenders, within 10 Business Days after the date on which a Lender has
received such request and all of the items referred to in the immediately
preceding subsection (b), such Lender shall notify the Agent in writing whether
or not such Lender accepts such Property as a Borrowing Base Property. If a
Lender fails to give such notice within such time period, such Lender shall be
deemed to have approved such Property as a Borrowing Base Property. A Property
shall become a Borrowing Base Property under this subsection only upon the
approval of the Requisite Lenders.
(d) Documents with Respect to Subsidiary. Upon the approval as a Borrowing
Base Property of a Property owned by a Subsidiary that is not a Guarantor, the
Borrower shall deliver to the Agent an Accession Agreement executed by such
Subsidiary together with the items that would have been delivered with respect
to such Subsidiary under Sections 6.1.(a)(v) through (ix) and (xiii) as if such
Subsidiary had been a Guarantor on the Effective Date. Until such time as the
Agent shall have received the items referred to in the foregoing sentence with
respect to such Subsidiary, the Borrowing Base Value of any Borrowing Base
Property owned by such Subsidiary shall be $0.
SECTION 4.2. RELEASE OF PROPERTIES.
From time to time the Borrower may request, upon not less than 5 Business
Days prior written notice to the Agent, that a Borrowing Base Property be no
longer considered a Borrowing Base Property, which release (the "Property
Release") shall be effected by the Agent if the Agent determines all of the
following conditions are satisfied as of the date of such Property Release:
(a) No Default or Event of Default exists or will exist immediately after
giving effect to such Property Release and the reduction in the Borrowing Base
by reason of the release of such Property; and
(b) The Borrower shall have delivered to the Agent a Borrowing Base
Certificate and Compliance Certificate demonstrating on a pro forma basis, and
the Agent shall have determined to its satisfaction, that the outstanding
principal balance of the Loans, together with the Letter of Credit Liabilities,
will not exceed the Borrowing Base after giving effect to such request and any
prepayment to be made and/or the acceptance of any Property as an additional or
replacement Borrowing Base Property to be given concurrently with such request
and that the Parent and the Borrower will be in compliance with the covenants
set forth in Section 10.1. after giving effect to the Property Release.
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SECTION 4.3. FREQUENCY OF CALCULATIONS OF BORROWING BASE.
Initially, the Borrowing Base shall be the amount set forth as such in the
Borrowing Base Certificate delivered under Section 6.1. Thereafter, the
Borrowing Base shall be the amount set forth as such in the Borrowing Base
Certificate most recently delivered under Article IX. or 4.2.(b). Any increase
in the Borrowing Base Value of a Borrowing Base Property shall become effective
as of the next determination of the Borrowing Base Value as provided in this
Section.
ARTICLE V. YIELD PROTECTION, ETC.
SECTION 5.1. ADDITIONAL COSTS; CAPITAL ADEQUACY.
(a) Additional Costs. The Borrower shall promptly pay to the Agent for the
account of each affected Lender from time to time such amounts as such Lender
may determine to be necessary to compensate such Lender for any costs incurred
by such Lender that it determines are attributable to its making or maintaining
of any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such Loans or such obligation or
the maintenance by such Lender of capital in respect of its Loans or its
Commitment (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), to the extent resulting from any Regulatory
Change that: (i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or any of the other Loan Documents in respect of any
of such Loans or its Commitment (other than taxes, fees, duties, levies,
imposts, charges, deductions, withholdings or other charges which are excluded
from the definition of Taxes pursuant to the first sentence of Section
3.12.(a)); or (ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement to the extent utilized in the
determination of Adjusted LIBOR for such Loan) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Lender, or any commitment of such Lender (including, without limitation, the
Commitment of such Lender hereunder); or (iii) has or would have the effect of
reducing the rate of return on capital of such Lender to a level below that
which such Lender could have achieved but for such Regulatory Change (taking
into consideration such Lender's policies with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of the
provisions of the immediately preceding subsection (a), if, by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.6.
shall apply).
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(c) Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrower under the preceding subsections of this Section (but
without duplication), if as a result of any Regulatory Change or any risk-based
capital guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable any
tax, reserve, special deposit, capital adequacy or similar requirement against
or with respect to or measured by reference to Letters of Credit and the result
shall be to increase the cost to the Agent of issuing (or any Lender of
purchasing participations in) or maintaining its obligation hereunder to issue
(or purchase participations in) any Letter of Credit or reduce any amount
receivable by the Agent or any Lender hereunder in respect of any Letter of
Credit, then, upon demand by the Agent or such Lender, the Borrower shall pay
promptly, and in any event within 3 Business Days of demand, to the Agent for
its account or the account of such Lender, as applicable, from time to time as
specified by the Agent or a Lender, such additional amounts as shall be
sufficient to compensate the Agent or such Lender for such increased costs or
reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the Agent
and each Lender agrees to notify the Borrower of any event occurring after the
Agreement Date entitling the Agent or such Lender to compensation under any of
the preceding subsections of this Section as promptly as practicable; provided,
however, the failure of the Agent or any Lender to give such notice shall not
release the Borrower from any of its obligations hereunder (and in the case of a
Lender, to the Agent). The Agent or such Lender agrees to furnish to the
Borrower (and in the case of a Lender, to the Agent) a certificate setting forth
in reasonable detail the basis and amount of each request by the Agent or such
Lender for compensation under this Section. Absent manifest error,
determinations by the Agent or any Lender of the effect of any Regulatory Change
shall be conclusive, provided that such determinations are made on a reasonable
basis and in good faith.
SECTION 5.2. SUSPENSION OF LIBOR LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of Adjusted LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining Adjusted LIBOR
for such Interest Period, or
(b) the Agent or the Requisite Lenders reasonably determine (which
determination shall be conclusive) that Adjusted LIBOR will not adequately
and fairly reflect the cost to the Lenders of making or maintaining LIBOR
Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
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SECTION 5.3. ILLEGALITY.
Notwithstanding any other provision of this Agreement, if any Lender shall
reasonably determine (which determination shall be conclusive and binding) that
it has become unlawful for such Lender to honor its obligation to make or
maintain LIBOR Loans hereunder, then such Lender shall promptly notify the
Borrower thereof (with a copy to the Agent) and such Lender's obligation to make
or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be
suspended until such time as such Lender may again make and maintain LIBOR Loans
(in which case the provisions of Section 5.6. shall be applicable).
SECTION 5.4. COMPENSATION.
The Borrower shall pay to the Agent for the account of each Lender, upon
the request of such Lender through the Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any
loss, cost or expense that such Lender reasonably determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of a
LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender for any
reason (including, without limitation, acceleration) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent
specified in Article VI. to be satisfied) to borrow a LIBOR Loan from such
Lender on the requested date for such borrowing, or to Convert a Base Rate
Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date of
such Conversion or Continuation.
Upon the Borrower's request, any Lender requesting compensation under this
Section shall provide the Borrower with a statement setting forth in reasonable
detail the basis for requesting such compensation and the method for determining
the amount thereof. Absent manifest error, determinations by any Lender in any
such statement shall be conclusive, provided that such determinations are made
on a reasonable basis and in good faith.
SECTION 5.5. AFFECTED LENDERS.
If (a) a Lender requests compensation pursuant to Section 3.12. or 5.1.,
and the Requisite Lenders are not also doing the same, or (b) the obligation of
any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate Loans
into, LIBOR Loans shall be suspended pursuant to Section 5.1.(b) or 5.3. but the
obligation of the Requisite Lenders shall not have been suspended under such
Sections, then, so long as there does not then exist any Default or Event of
Default, the Borrower may demand that such Lender (the "Affected Lender"), and
upon such demand the Affected Lender shall promptly, assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
13.5.(d) for a purchase price equal to the aggregate principal balance of all
Loans then owing to the Affected Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to the Affected Lender, or any
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other amount as may be mutually agreed upon by such Affected Lender and Eligible
Assignee. Each of the Agent and the Affected Lender shall reasonably cooperate
in effectuating the replacement of such Affected Lender under this Section, but
at no time shall the Agent, such Affected Lender nor any other Lender be
obligated in any way whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. The exercise by the Borrower of its rights under
this Section shall be at the Borrower's sole cost and expense and at no cost or
expense to the Agent, the Affected Lender or any of the other Lenders. The terms
of this Section shall not in any way limit the Borrower's obligation to pay to
any Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12. or 5.1. with respect to periods up to the date of replacement.
SECTION 5.6. TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
5.1.(b) or 5.3., then such Lender's LIBOR Loans shall be automatically Converted
into Base Rate Loans on the last day(s) of the then current Interest Period(s)
for LIBOR Loans (or, in the case of a Conversion required by Section 5.1.(b) or
5.3., on such earlier date as such Lender may specify to the Borrower with a
copy to the Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.1. or 5.3. that gave rise to
such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender
as LIBOR Loans shall be made or Continued instead as Base Rate Loans, and
all Base Rate Loans of such Lender that would otherwise be Converted into
LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1. or 5.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
SECTION 5.7. CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Section 3.12., 5.1. or 5.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by
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such Lender in its sole discretion, except that such Lender shall have no
obligation to designate a Lending Office located in the United States of
America.
SECTION 5.8. ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOANS.
Calculation of all amounts payable to a Lender under this Article V. shall
be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article V.
ARTICLE VI. CONDITIONS PRECEDENT
SECTION 6.1. INITIAL CONDITIONS PRECEDENT.
The effectiveness of the amendment and restatement of the Existing Credit
Agreement contemplated hereby and the obligation of the Lenders to effect or
permit the occurrence of the first Credit Event hereunder, whether as the making
of a Loan or the issuance of a Letter of Credit, are both subject to the
following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the parties
hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender
and complying with the applicable provisions of Section 2.10., and the
Swingline Note executed by the Borrower;
(iii) The Guaranty executed by the Parent and each other Guarantor
existing as of the Effective Date;
(iv) A letter from the Existing Agent providing information regarding
the amounts outstanding under the Existing Credit Agreement, providing for
the assignment on an "as is" basis of the Existing Credit Agreement and
other Loan Documents (as defined in the Existing Credit Agreement) to the
Agent and the Lenders and providing for the release of all Liens securing
any obligations of the Borrower or any other Loan Party owing in connection
therewith; and
(v) An opinion of counsel to the Loan Parties, addressed to the Agent
and, the Lenders, addressing the matters set forth in Exhibit I;
(vi) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of the Borrower and
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each other Loan Party certified as of a recent date by the Secretary of
State of the state of formation of such Loan Party;
(vii) A certificate of good standing or certificate of similar meaning
with respect to each Loan Party issued as of a recent date by the Secretary
of State of the state of formation of each such Loan Party and certificates
of qualification to transact business or other comparable certificates
issued by each Secretary of State (and any state department of taxation, as
applicable) of each state in which such Loan Party is required to be so
qualified and where the failure to be so qualified could reasonably be
expected to have a Material Adverse Effect;
(viii) A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
each Loan Party with respect to each of the officers of such Loan Party
authorized to execute and deliver the Loan Documents to which such Loan
Party is a party, and in the case of the Borrower, and the officers of the
Borrower then authorized to deliver Notices of Borrowing, Notices of
Swingline Borrowings, Notices of Continuation and Notices of Conversion and
to request the issuance of Letters of Credit;
(ix) Copies certified by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Loan Party of (i)
the by-laws of such Loan Party, if a corporation, the operating agreement
of such Loan Party, if a limited liability company, the partnership
agreement of such Loan Party, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity and (ii)
all corporate, partnership, member or other necessary action taken by such
Loan Party to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(x) The Fees then due and payable under Section 3.6., and any other
Fees payable to the Agent, the Titled Agents and the Lenders on or prior to
the Effective Date;
(xi) A Compliance Certificate calculated as of September 30, 2005
(giving pro forma effect to the financing contemplated by this Agreement
and the use of the proceeds of the Loans to be funded on the Effective
Date); and
(xii) A Borrowing Base Certificate calculated as of the Effective
Date; and
(xiii) Such other documents, agreements and instruments as the Agent
on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent or any
of the Lenders any event, condition, situation or status since the date of
the information contained in the financial and business projections,
budgets, pro forma data and forecasts concerning the Parent, the Borrower
and the other Subsidiaries delivered to the Agent and
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the Lenders prior to the Agreement Date that has had or could reasonably be
expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (1) result in a Material Adverse Effect or
(2) restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Parent, the
Borrower or any other Loan Party to fulfill its obligations under the Loan
Documents to which it is a party;
(iii) The Parent, the Borrower and the other Subsidiaries shall have
received all approvals, consents and waivers, and shall have made or given
all necessary filings and notices, as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (1) any Applicable Law or (2) any
agreement, document or instrument to which the Borrower or any other Loan
Party is a party or by which any of them or their respective properties is
bound, except for such approvals, consents, waivers, filings and notices
the receipt, making or giving of which would not reasonably be likely to
(A) have a Material Adverse Effect, or (B) restrain or enjoin, impose
materially burdensome conditions on, or otherwise materially and adversely
affect the ability of the Parent, the Borrower or any other Loan Party to
fulfill its obligations under the Loan Documents to which it is a party;
and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions contemplated
by the Loan Documents.
SECTION 6.2. CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT.
The obligations of the Lenders to make any Loans, and of the Agent to issue
Letters of Credit, are all subject to the further condition precedent that: (a)
no Default or Event of Default shall exist as of the date of the making of such
Loan or date of issuance of such Letter of Credit or would exist immediately
after giving effect thereto; and (b) the representations and warranties made or
deemed made by the Parent, the Borrower and each other Loan Party in the Loan
Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of the making of such Loan or date of
issuance of such Letter of Credit with the same force and effect as if made on
and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and except for changes in factual
circumstances not prohibited under the Loan Documents. Each Credit Event shall
constitute a certification by the Borrower to the effect set forth in the
preceding sentence (both as of the date of the giving of notice relating to such
Credit Event and, unless the Borrower otherwise notifies the Agent prior to the
date of such Credit Event, as of the date of the occurrence of such Credit
Event). In addition, if such Credit Event is the making of a Loan or the
issuance of a Letter of Credit, the Borrower shall be deemed to have represented
to the Agent and the Lenders at the time such Loan is made or Letter of Credit
issued that all conditions to the occurrence of such Credit Event contained in
this Article VI. have been satisfied.
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ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. REPRESENTATIONS AND WARRANTIES.
In order to induce the Agent and each Lender to enter into this Agreement
and to make Loans and issue Letters of Credit, each of the Parent and the
Borrower represents and warrants to the Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Parent, the Borrower,
the other Loan Parties, and each other Subsidiary is a corporation, partnership
or other legal entity, duly organized or formed, validly existing and in good
standing under the jurisdiction of its incorporation or formation, has the power
and authority to own or lease its respective properties and to carry on its
respective business as now being and hereafter proposed to be conducted and is
duly qualified and is in good standing as a foreign corporation, partnership or
other legal entity, and authorized to do business, in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.
(b) Ownership Structure. As of the Agreement Date, Part I of Schedule
7.1.(b) is a complete and correct list of all Subsidiaries of the Parent setting
forth for each such Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding any Equity Interests in such Subsidiary,
(iii) the nature of the Equity Interests held by each such Person, (iv) the
percentage of ownership of such Subsidiary represented by such Equity Interests
and (v) whether such Subsidiary is a Material Subsidiary and/or an Excluded
Subsidiary. Except as disclosed in such Schedule, as of the Agreement Date (i)
each of the Borrower and its Subsidiaries owns, free and clear of all Liens
(other than Permitted Liens), and has the unencumbered right to vote, all
outstanding Equity Interests in each Person shown to be held by it on such
Schedule, (ii) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, any such Person. As of the Agreement
Date Part II of Schedule 7.1.(b) correctly sets forth all Unconsolidated
Affiliates of the Parent, including the correct legal name of such Person, the
type of legal entity which each such Person is, and all Equity Interests in such
Person held directly or indirectly by the Parent.
(c) Authorization of Agreement, Etc. The Borrower has the right and power,
and has taken all necessary action to authorize it, to borrow and obtain other
extensions of credit hereunder. The Parent, the Borrower and each other Loan
Party has the right and power, and has taken all necessary action to authorize
it, to execute, deliver and perform each of the Loan Documents to which it is a
party in accordance with their respective terms and to consummate the
transactions contemplated hereby and thereby. The Loan Documents to which the
Parent, the Borrower or any other Loan Party is a party have been duly executed
and delivered by the duly
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authorized officers of such Person and each is a legal, valid and binding
obligation of such Person enforceable against such Person in accordance with its
respective terms except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein and as may be
limited by equitable principles generally.
(d) Compliance of Loan Documents with Laws, Etc. The execution, delivery
and performance of this Agreement, the Notes and the other Loan Documents to
which the Parent, the Borrower or any other Loan Party is a party in accordance
with their respective terms and the borrowings and other extensions of credit
hereunder do not and will not, by the passage of time, the giving of notice, or
both: (i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to the Parent, the Borrower or any
other Loan Party; (ii) conflict with, result in a breach of or constitute a
default under the organizational documents of the Parent, the Borrower or any
other Loan Party, or any indenture, agreement or other instrument to which the
Parent, the Borrower or any other Loan Party is a party or by which it or any of
its respective properties may be bound; or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Parent, the Borrower or any other Loan Party.
(e) Compliance with Law; Governmental Approvals. Each of the Parent, the
Borrower, each other Loan Party and each other Subsidiary is in compliance with
each Governmental Approval applicable to it and in compliance with all other
Applicable Laws (including without limitation, Environmental Laws) relating to
the Parent, the Borrower, such other Loan Party or such other Subsidiary except
for noncompliances which, and Governmental Approvals the failure to possess
which, could not, individually or in the aggregate, reasonably be expected to
cause a Default or Event of Default or have a Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Part I of
Schedule 7.1.(f) is a complete and correct listing of all of the real property
owned or leased by the Parent, the Borrower, each other Loan Party and each
other Subsidiary. Each such Person has good, marketable and legal title to, or a
valid leasehold interest in, its respective assets. As of the Agreement Date,
there are no Liens against any assets of the Parent, the Borrower, any other
Loan Party or any other Subsidiary except for Permitted Liens.
(g) Existing Indebtedness. Schedule 7.1.(g) is, as of the Agreement Date, a
complete and correct listing of all Indebtedness of the Parent, the Borrower and
the other Subsidiaries, including without limitation, Guarantees of the Parent,
the Borrower and the other Subsidiaries, and indicating whether such
Indebtedness is Secured Indebtedness (and if so whether such Indebtedness is
Nonrecourse Indebtedness) or Unsecured Indebtedness.
(h) Material Contracts. Schedule 7.1.(h) is, as of the Agreement Date, a
true, correct and complete listing of all Material Contracts. Each of the
Parent, the Borrower, the other Loan Parties and the other Subsidiaries that is
a party to any Material Contract has performed and is in compliance with all of
the terms of such Material Contract, and no default or event of default, or
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event or condition which with the giving of notice, the lapse of time, or both,
would constitute such a default or event of default, exists with respect to any
such Material Contract.
(i) Litigation. Except as set forth on Schedule 7.1.(i), there are no
actions, suits, investigations or proceedings pending (nor, to the knowledge of
the Parent, are there any actions, suits or proceedings threatened) against or
in any other way relating adversely to or affecting the Parent, the Borrower,
any other Loan Party, any other Subsidiary or any of their respective properties
in any court or before any arbitrator of any kind or before or by any other
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect. There are no strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress or threatened relating to the Parent, the
Borrower, any other Loan Party or any other Subsidiary which could reasonably be
expected to have a Material Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Parent, the
Borrower, any other Loan Party or any other Subsidiary required by Applicable
Law to be filed have been duly filed, and all federal, state and other taxes,
assessments and other governmental charges or levies upon the Parent, the
Borrower, each other Loan Party, each other Subsidiary and their respective
properties, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time permitted under Section 8.6. As
of the Agreement Date, none of the United States income tax returns of the
Parent, the Borrower, any other Loan Party or any other Subsidiary is under
audit. All charges, accruals and reserves on the books of the Parent, the
Borrower, each other Loan Party and each other Subsidiary in respect of any
taxes or other governmental charges are in accordance with GAAP.
(k) Financial Statements. The Parent has furnished to each Lender copies of
(i) the audited consolidated balance sheet of the Parent and its Subsidiaries
for the fiscal year ending December 31, 2004, and the related audited
consolidated statements of operations, cash flows and shareholders' equity for
the fiscal year ending on such dates, with the opinion thereon of Deloitte &
Touche LLP and (ii) the unaudited consolidated balance sheet of the Parent and
its Subsidiaries for the fiscal quarter ending September 30, 2005, and the
related unaudited consolidated statements of operations, cash flows and
shareholders' equity of the Parent and its Subsidiaries for the period of three
fiscal quarters ending on such date. Such financial statements (including in
each case related schedules and notes) present fairly, in all material respects
and in accordance with GAAP consistently applied throughout the periods
involved, the consolidated financial position of the Parent and its Subsidiaries
as at their respective dates and the results of operations and the cash flow for
such periods (subject, as to interim statements, to changes resulting from
normal year-end audit adjustments). Neither the Parent nor any of its
Subsidiaries has on the Agreement Date any material contingent liabilities,
liabilities, liabilities for taxes, unusual or long-term commitments or
unrealized or forward anticipated losses from any unfavorable commitments that
would be required to be set forth in its financial statements or in the notes
thereto, except as referred to or reflected or provided for in said financial
statements.
(l) No Material Adverse Change. Since December 31, 2004, there has been no
material adverse change in the business, assets, liabilities, financial
condition, results of operations, business or prospects of the Parent and its
Subsidiaries taken as a whole. Each of the Loan Parties is Solvent.
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(m) ERISA. Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member
of the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
(n) Not Plan Assets; No Prohibited Transaction. None of the assets of the
Parent, Borrower, any other Loan Party or any other Subsidiary constitute "plan
assets" within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder. Assuming that no Lender funds any
amount payable by it hereunder with "plan assets," as that term is defined in 29
C.F.R. 2510.3-101, the execution, delivery and performance of this Agreement and
the other Loan Documents, and the borrowing and repayment of amounts hereunder,
do not and will not constitute "prohibited transactions" under ERISA or the
Internal Revenue Code.
(o) Absence of Defaults. None of the Parent, the Borrower, any other Loan
Party or any other Subsidiary is in default under its articles of incorporation,
bylaws, partnership agreement or other similar organizational documents, and no
event has occurred, which has not been remedied, cured or waived, which, in any
such case: (i) constitutes a Default or an Event of Default; or (ii)
constitutes, or which with the passage of time, the giving of notice, or both,
would constitute, a default or event of default by the Parent, the Borrower, any
other Loan Party or any other Subsidiary under any agreement (other than this
Agreement) or judgment, decree or order to which the Parent, the Borrower, any
other Loan Party or any other Subsidiary is a party or by which the Parent, the
Borrower, any other Loan Party or any other Subsidiary or any of their
respective properties may be bound where such default or event of default could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(p) Environmental Laws. Each of the Parent, Borrower, the other Loan
Parties and the other Subsidiaries has obtained all Governmental Approvals which
are required under Environmental Laws and is in compliance with all terms and
conditions of such Governmental Approvals which the failure to obtain or to
comply with could reasonably be expected to have a Material Adverse Effect.
Except for any of the following matters that could not be reasonably expected to
have a Material Adverse Effect, (i) neither the Parent nor the Borrower has
received notice of, and neither is otherwise aware of, any past, present, or
future events, conditions, circumstances, activities, practices, incidents,
actions, or plans which, with respect to the Parent, the Borrower, any other
Loan Party or any other Subsidiary, may interfere with or prevent compliance or
continued compliance with Environmental Laws, or may give rise to any common-law
or legal liability, or otherwise form the basis of any claim, action, demand,
suit,
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proceeding, hearing, study, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any Hazardous Material; and (ii) there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or
demand letter, notice of violation, investigation, or proceeding pending or, to
the Parent's or the Borrower's knowledge after due inquiry, threatened, against
the Parent, the Borrower, any other Loan Party or any other Subsidiary relating
in any way to Environmental Laws.
(q) Investment Company; Etc. None of the Parent, the Borrower, any other
Loan Party or any other Subsidiary is (i) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended or (ii) subject to any other Applicable Law
which purports to regulate or restrict its ability to borrow money or to
consummate the transactions contemplated by this Agreement or to perform its
obligations under any Loan Document to which it is a party.
(r) Margin Stock. None of the Parent, the Borrower, any other Loan Party or
any other Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of buying or carrying "margin stock" within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System.
(s) Affiliate Transactions. Except as permitted by Section 10.11., none of
the Parent, the Borrower, any other Loan Party or any other Subsidiary is a
party to any transaction with an Affiliate.
(t) Intellectual Property. Each of the Parent, the Borrower, each other
Loan Party and each other Subsidiary owns or has the right to use, under valid
license agreements or otherwise, all material patents, licenses, franchises,
trademarks, trademark rights, service marks, service mark rights, trade names,
trade name rights, trade secrets and copyrights (collectively, "Intellectual
Property") necessary to the conduct of its businesses as now conducted and as
contemplated by the Loan Documents, without known conflict with any patent,
license, franchise, trademark, trademark right, service mark, service mark
right, trade secret, trade name, copyright or other proprietary right of any
other Person. The Parent, the Borrower, each other Loan Party and each other
Subsidiary have taken all such steps as they deem reasonably necessary to
protect their respective rights under and with respect to such Intellectual
Property. No material claim has been asserted by any Person with respect to the
use of any such Intellectual Property by the Parent, the Borrower, any other
Loan Party or any other Subsidiary, or challenging or questioning the validity
or effectiveness of any such Intellectual Property. The use of such Intellectual
Property by the Parent, the Borrower, the other Loan Parties and the other
Subsidiaries, does not infringe on the rights of any Person, subject to such
claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of the Parent, the Borrower, any other Loan Party or any
other Subsidiary that could reasonably be expected to have a Material Adverse
Effect.
(u) Business. As of the Agreement Date, the Parent, the Borrower and the
other Subsidiaries are substantially engaged in the business of the ownership,
operation, acquisition
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and development of self-storage facilities in the United States of America,
together with other business activities incidental thereto.
(v) Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by any Loan Party
for any other services rendered to the Parent, the Borrower or any of the other
Subsidiaries ancillary to the transactions contemplated hereby.
(w) Accuracy and Completeness of Information. No written information,
report or other papers or data (excluding financial projections and other
forward looking statements) furnished to the Agent or any Lender by, on behalf
of, or at the direction of, the Parent, the Borrower, any other Loan Party or
any other Subsidiary in connection with, pursuant to or relating in any way to
this Agreement, contained any untrue statement of a fact material to the
creditworthiness of the Parent, the Borrower, any other Loan Party or any other
Subsidiary or omitted to state a material fact necessary in order to make such
statements contained therein, in light of the circumstances under which they
were made, not misleading. All financial statements (including in each case all
related schedules and notes) furnished to the Agent or any Lender by, on behalf
of, or at the direction of, the Parent, the Borrower, any other Loan Party or
any other Subsidiary in connection with, pursuant to or relating in any way to
this Agreement, present fairly, in all material respects and in accordance with
GAAP consistently applied throughout the periods involved, the financial
position of the Persons involved as at the date thereof and the results of
operations for such periods (subject, as to interim statements, to changes
resulting from normal year-end audit adjustments). All financial projections and
other forward looking statements prepared by or on behalf of the Parent, the
Borrower, any other Loan Party or any other Subsidiary that have been or may
hereafter be made available to the Agent or any Lender were or will be prepared
in good faith based on reasonable assumptions. As of the Effective Date, no fact
is known to the Parent or the Borrower which has had, or may in the future have
(so far as the Parent or the Borrower can reasonably foresee), a Material
Adverse Effect which has not been set forth in the financial statements referred
to in Section 7.1.(k) or in such information, reports or other papers or data or
otherwise disclosed in writing to the Agent and the Lenders.
(x) REIT Status. The Parent qualifies as a REIT and is in compliance with
all requirements and conditions imposed under the Internal Revenue Code to allow
the Parent to maintain its status as a REIT.
(y) Borrowing Base Properties. Each of the Properties included in
calculations of the Borrowing Base satisfies all of the requirements contained
in the definition of "Eligible Property" (except to the extent such requirements
were waived by the Requisite Lenders pursuant to Section 4.1.(c) at the time
such Property was included in the Borrowing Base).
(z) Foreign Assets Control. None of the Parent, the Borrower, any other
Subsidiary or any Affiliate: (i) is a Sanctioned Person, (ii) has any of its
assets in Sanctioned Entities, or (iii) derives any of its operating income from
investments in, or transactions with, Sanctioned Persons or Sanctioned Entities.
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SECTION 7.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of the Parent, the Borrower, any other Loan
Party or any other Subsidiary to the Agent or any Lender pursuant to or in
connection with this Agreement or any of the other Loan Documents (including,
but not limited to, any such statement made in or in connection with any
amendment hereto or thereto or any statement contained in any certificate,
financial statement or other instrument delivered by or on behalf of the Parent
and the Borrower prior to the Agreement Date and delivered to the Agent or any
Lender in connection with the underwriting or closing of the transactions
contemplated hereby) shall constitute representations and warranties made by the
Parent and the Borrower to the Agent and the Lenders under this Agreement. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date, the
Effective Date, the date on which any extension of the Termination Date is
effectuated pursuant to Section 2.12. and the date of the occurrence of any
Credit Event, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct in all material respects on and
as of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents. All such representations and warranties
shall survive the effectiveness of this Agreement, the execution and delivery of
the Loan Documents and the making of the Loans and the issuance of the Letters
of Credit.
ARTICLE VIII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 13.6., each of the Parent and the
Borrower shall comply with the following covenants:
SECTION 8.1. PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.
Except as otherwise permitted under Section 10.7., the Parent and the
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, preserve and maintain its respective existence, rights, franchises, licenses
and privileges in the jurisdiction of its incorporation or formation and qualify
and remain qualified and authorized to do business in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
SECTION 8.2. COMPLIANCE WITH APPLICABLE LAW AND MATERIAL CONTRACTS.
The Parent and the Borrower shall, and shall cause each other Loan Party
and each other Subsidiary to, comply with (a) all Applicable Laws, including the
obtaining of all Governmental Approvals, the failure with which to comply could
reasonably be expected to have a Material Adverse Effect, and (b) all terms and
conditions of all Material Contracts to which it is a party.
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SECTION 8.3. MAINTENANCE OF PROPERTY.
In addition to the requirements of any of the other Loan Documents, the
Parent and the Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, (a) protect and preserve all of its respective material
properties, including, but not limited to, all Intellectual Property, and
maintain in good repair, working order and condition all tangible properties,
ordinary wear and tear excepted, and (b) make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
SECTION 8.4. CONDUCT OF BUSINESS.
The Parent and the Borrower shall, and shall cause each other Loan Party
and each other Subsidiary to, carry on, their respective businesses as described
in Section 7.1.(u).
SECTION 8.5. INSURANCE.
In addition to the requirements of any of the other Loan Documents, the
Parent and the Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, maintain insurance (on a replacement cost basis) with
financially sound and reputable insurance companies against such risks and in
such amounts as is customarily maintained by Persons engaged in similar
businesses or as may be required by Applicable Law, and from time to time
deliver to the Agent upon its request a detailed list, together with copies of
all policies of the insurance then in effect, stating the names of the insurance
companies, the amounts and rates of the insurance, the dates of the expiration
thereof and the properties and risks covered thereby.
SECTION 8.6. PAYMENT OF TAXES AND CLAIMS.
The Parent and the Borrower shall, and shall cause each other Loan Party
and each other Subsidiary to, pay and discharge when due (a) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or upon any properties belonging to it, and (b) all lawful
claims of materialmen, mechanics, carriers, warehousemen and landlords for
labor, materials, supplies and rentals which, if unpaid, might become a Lien on
any properties of such Person; provided, however, that this Section shall not
require the payment or discharge of any such tax, assessment, charge, levy or
claim which is being contested in good faith by appropriate proceedings which
operate to suspend the collection thereof and for which adequate reserves have
been established on the books of the Parent, the Borrower, such Subsidiary or
such other Loan Party, as applicable, in accordance with GAAP.
SECTION 8.7. VISITS AND INSPECTIONS.
The Parent and the Borrower shall, and shall cause each other Loan Party
and each other Subsidiary to, permit representatives or agents of any Lender or
the Agent, from time to time after reasonable prior notice if no Event of
Default shall be in existence, as often as may be reasonably requested, but only
during normal business hours and at the expense of the Borrower, to: (a) visit
and inspect all properties of the Parent, the Borrower, such other Loan Party or
such other Subsidiary to the extent any such right to visit or inspect is within
the control of such
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Person; (b) inspect and make extracts from their respective books and records,
including but not limited to management letters prepared by independent
accountants; and (c) discuss with its officers, and its independent accountants,
its business, properties, condition (financial or otherwise), results of
operations and performance; provided that, so long as no Event of Default
exists, the Borrower shall only be required to pay the expenses of the Agent and
any Lender with respect to one such visit and inspection per calendar year. If
requested by the Agent, the Parent and the Borrower shall execute an
authorization letter addressed to its accountants authorizing the Agent or any
Lender to discuss the financial affairs of the Parent, the Borrower, any other
Loan Party and any other Subsidiary with its accountants.
SECTION 8.8. USE OF PROCEEDS; LETTERS OF CREDIT.
The Borrower shall use the proceeds of the Loans and the Letters of Credit
for general corporate purposes only. No part of the proceeds of any Loan or
Letter of Credit will be used (a) for the purpose of buying or carrying "margin
stock" within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or (b) fund any operations in,
finance any investments or activities in, or make any payments to, a Sanctioned
Person or Sanctioned Entity.
SECTION 8.9. ENVIRONMENTAL MATTERS.
The Parent and the Borrower shall, and shall cause all of the other Loan
Parties and the other Subsidiaries to, comply with all Environmental Laws the
failure with which to comply could reasonably be expected to have a Material
Adverse Effect. If the Parent, the Borrower, any other Loan Party or any other
Subsidiary shall (a) receive notice that any violation of any Environmental Law
may have been committed or is about to be committed by such Person, (b) receive
notice that any administrative or judicial complaint or order has been filed or
is about to be filed against the Parent, the Borrower, any other Loan Party or
any other Subsidiary alleging violations of any Environmental Law or requiring
the Parent, the Borrower, any other Loan Party or any other Subsidiary to take
any action in connection with the release of Hazardous Materials or (c) receive
any notice from a Governmental Authority or private party alleging that the
Parent, the Borrower, any other Loan Party or any other Subsidiary may be liable
or responsible for costs associated with a response to or cleanup of a release
of Hazardous Materials or any damages caused thereby, and the matters referred
to in such notices, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, the Borrower shall provide the Agent
with a copy of such notice promptly, and in any event within 10 Business Days,
after the receipt thereof by the Parent, the Borrower, any other Loan Party or
any other Subsidiary. The Parent and the Borrower shall, and shall cause the
other Loan Parties and the other Subsidiaries to, take promptly all actions
necessary to prevent the imposition of any Liens on any of their respective
properties arising out of or related to any Environmental Laws.
SECTION 8.10. BOOKS AND RECORDS.
The Parent and the Borrower shall, and shall cause each of the other Loan
Parties and the other Subsidiaries to, maintain books and records pertaining to
its respective business operations
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in such detail, form and scope as is consistent with good business practice and
in accordance with GAAP.
SECTION 8.11. FURTHER ASSURANCES.
The Parent and the Borrower shall, at their sole cost and expense and upon
request of the Agent, execute and deliver or cause to be executed and delivered,
to the Agent such further instruments, documents and certificates, and do and
cause to be done such further acts that may be reasonably necessary or advisable
in the reasonable opinion of the Agent to carry out more effectively the
provisions and purposes of this Agreement and the other Loan Documents.
SECTION 8.12. NEW SUBSIDIARIES; GUARANTORS; RELEASE OF GUARANTORS.
(a) Requirement to Become Guarantor. Within 10 Business Days of any Person
(other than an Excluded Subsidiary) becoming a Material Subsidiary after the
Effective Date, the Borrower shall cause to be delivered to the Agent each of
the following items, each in form and substance satisfactory to the Agent: (i)
an Accession Agreement executed by such Material Subsidiary and (ii) the items
that would have been delivered under Sections 6.1.(a)(v) through (ix) and (xiii)
if such Material Subsidiary had been a Guarantor on the Effective Date;
provided, however, promptly (and in any event within 10 Business Days) upon any
Excluded Subsidiary ceasing to be subject to the restriction which prevented it
from becoming a Guarantor on the Effective Date or delivering an Accession
Agreement pursuant to this Section, as the case may be, such Subsidiary shall
comply with the provisions of this Section. The Borrower shall send to each
Lender copies of each of the foregoing items once the Agent has received all
such items with respect to a Material Subsidiary.
(b) Other Guarantors. The Borrower may, at its option, cause any Subsidiary
that is not already a Guarantor to become a Guarantor by executing and
delivering to the Agent the items required to be delivered under the immediately
preceding subsection (a).
(c) Release of a Guarantor. The Borrower may request in writing that the
Agent release, and upon receipt of such request the Agent shall release, a
Guarantor (other than the Parent) from the Guaranty so long as: (i) such
Guarantor (x) qualifies, or will qualify simultaneously with its release from
the Guaranty, as an Excluded Subsidiary, (y) in the case of a Material
Subsidiary, has ceased to be, or simultaneously with its release from the
Guaranty will cease to be, a Material Subsidiary or a Subsidiary and (z) does
not own or lease, or simultaneously with its release from the Guaranty will
cease to own or lease, any Borrowing Base Property; (ii) such Guarantor is not
otherwise required to be a party to the Guaranty under the immediately preceding
subsection (a); (iii) no Default or Event of Default shall then be in existence
or would occur as a result of such release, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in Section 10.1.; (iv) the representations and warranties made or
deemed made by the Parent, the Borrower and each other Loan Party in the Loan
Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of such extension with the same force
and effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date)
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and except for changes in factual circumstances not prohibited under the Loan
Documents; and (v) the Agent shall have received such written request at least
10 Business Days prior to the requested date of release. Delivery by the
Borrower to the Agent of any such request shall constitute a representation by
the Borrower that the matters set forth in the preceding sentence (both as of
the date of the giving of such request and as of the date of the effectiveness
of such request) are true and correct with respect to such request.
SECTION 8.13. REIT STATUS.
The Parent shall at all times maintain its status as a REIT.
SECTION 8.14. EXCHANGE LISTING.
The Parent shall maintain at least one class of common shares of the Parent
having trading privileges on the New York Stock Exchange or the American Stock
Exchange or which is the subject of price quotations in the over-the-counter
market as reported by the National Association of Securities Dealers Automated
Quotation System.
ARTICLE IX. INFORMATION
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.6., the Borrower shall cause to be
furnished to each Lender (or to the Agent if so provided below) at its Lending
Office:
SECTION 9.1. QUARTERLY FINANCIAL STATEMENTS.
As soon as available and in any event within 10 days after the same is
required to be filed with the Securities and Exchange Commission (but in no
event later than 45 days after the end of each of the first, second and third
fiscal quarters of the Parent), the unaudited consolidated balance sheet of the
Parent and its Subsidiaries as at the end of such period and the related
unaudited consolidated statements of income, shareholders' equity and cash flows
of the Parent and its Subsidiaries for such period, setting forth in each case
in comparative form the figures as of the end of and for the corresponding
periods of the previous fiscal year, all of which shall be certified by the
chief financial officer or chief accounting officer of the Parent, in his or her
opinion, to present fairly, in accordance with GAAP and in all material
respects, the consolidated financial position of the Parent and its Subsidiaries
as at the date thereof and the results of operations for such period (subject to
normal year-end audit adjustments).
SECTION 9.2. YEAR-END STATEMENTS.
As soon as available and in any event within 10 days after the same is
required to be filed with the Securities and Exchange Commission (but in no
event later than 90 days after the end of each fiscal year of the Parent)
(including without limitation, the fiscal year ending December 31, 2005), the
audited consolidated balance sheet of the Parent and its Subsidiaries as at the
end of such fiscal year and the related audited consolidated statements of
income, shareholders' equity and cash flows of the Parent and its Subsidiaries
for such fiscal year, setting forth in comparative
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form the figures as at the end of and for the previous fiscal year, all of which
shall be (a) certified by the chief financial officer, treasurer, or chief
accounting officer of the Parent, in his or her opinion, to present fairly, in
accordance with GAAP and in all material respects, the consolidated financial
position of the Parent and its Subsidiaries as at the date thereof and the
results of operations for such period and (b) accompanied by the report thereon
of independent certified public accountants of recognized national standing
acceptable to the Agent, whose certificate shall be unqualified and in scope and
substance satisfactory to the Requisite Lenders and who shall have authorized
the Parent to deliver such financial statements and certification to the Agent
and the Lenders.
SECTION 9.3. COMPLIANCE CERTIFICATE.
At the time financial statements are furnished pursuant to Sections 9.1.
and 9.2., and within 5 Business Days of the Agent's request with respect to any
other fiscal period, a certificate substantially in the form of Exhibit J (a
"Compliance Certificate") executed by the chief financial officer, treasurer, or
chief accounting officer of the Parent: (a) setting forth in reasonable detail
as at the end of such quarterly accounting period, fiscal year, or other fiscal
period, as the case may be, the calculations required to establish whether or
not the Borrower was in compliance with the covenants contained in Sections
10.1., 10.2. and 10.4. (including without limitation, for the fiscal year ending
December 31, 2005) and (b) stating that, to the best of his or her knowledge,
information and belief after due inquiry, no Default or Event of Default exists,
or, if such is not the case, specifying such Default or Event of Default and its
nature, when it occurred, whether it is continuing and the steps being taken by
the Borrower with respect to such event, condition or failure. Together with
each Compliance Certificate delivered in connection with quarterly or annual
financial statements, the Borrower and the Parent shall deliver a report, in
form and detail reasonably satisfactory to the Agent, setting forth a Statement
of Funds From Operations for the fiscal period then ending.
SECTION 9.4. OTHER INFORMATION.
(a) Management Reports. Promptly upon receipt thereof, copies of all
management reports, if any, submitted to the Parent or its Board of Directors by
its independent public accountants;
(b) Securities Filings. Within 5 Business Days of the filing thereof,
copies of all registration statements (excluding the exhibits thereto (unless
requested by the Agent) and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which the Parent, the Borrower, any other Loan Party or
any other Subsidiary shall file with the Securities and Exchange Commission (or
any Governmental Authority substituted therefor) or any national securities
exchange (any such registration statement, report and other periodic report
referred to as a "Security Filing");
(c) Shareholder Information. Promptly upon the mailing thereof to the
shareholders of the Parent generally, copies of all financial statements,
reports and proxy statements so mailed and promptly upon the issuance thereof
copies of all press releases issued by the Parent, the Borrower, any other Loan
Party or any other Subsidiary;
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(d) ERISA. If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement, and of which has resulted or could
reasonably be expected to result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief executive officer or chief
financial officer of the Parent setting forth details as to such occurrence and
the action, if any, which the Parent or applicable member of the ERISA Group is
required or proposes to take;
(e) Litigation. To the extent the Parent, the Borrower or any other
Subsidiary is aware of the same, prompt notice of the commencement of any
proceeding or investigation by or before any Governmental Authority and any
action or proceeding in any court or other tribunal or before any arbitrator
against or in any other way relating adversely to, or adversely affecting, the
Parent, the Borrower or any other Subsidiary or any of their respective
properties, assets or businesses which could reasonably be expected to have a
Material Adverse Effect, and prompt notice of the receipt of notice that any
United States income tax returns of the Parent, the Borrower or any other
Subsidiary are being audited;
(f) Modification of Organizational Documents. A copy of any amendment to
the articles of incorporation, bylaws, partnership agreement, operating
agreement or other similar organizational documents of the Parent, the Borrower
or any other Loan Party within 15 Business Days after the effectiveness thereof;
(g) Change of Management or Financial Condition. Prompt notice of any
change in the senior management of the Parent, the Borrower or any other Loan
Party and any change in the business, assets, liabilities, financial condition,
results of operations or business prospects of the Parent, the Borrower, any
other Loan Party or any other Subsidiary which has had or could reasonably be
expected to have a Material Adverse Effect;
(h) Default. Notice of the occurrence of any of the following promptly upon
a Responsible Officer of the Parent or the Borrower obtaining knowledge thereof:
(i) any Default or Event of Default or (ii) any event which constitutes or which
with the passage of time, the giving of notice, or otherwise, would constitute a
default or event of default by the Parent, the
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Borrower, any other Loan Party or any other Subsidiary under any Material
Contract to which any such Person is a party or by which any such Person or any
of its respective properties may be bound;
(i) Judgments. Prompt notice of any order, judgment or decree in excess of
$5,000,000 having been entered against the Parent, the Borrower, any other Loan
Party or any other Subsidiary or any of their respective properties;
(j) Notice of Violations of Law. Prompt notice if the Parent, the Borrower,
any other Loan Party or any other Subsidiary shall receive any notification from
any Governmental Authority alleging a violation of any Applicable Law or any
inquiry which, in either case, could reasonably be expected to have a Material
Adverse Effect;
(k) Budget. As soon as available, and in any event no later than 45 days
after the end of each fiscal year of the Parent, a detailed consolidated budget
for the following fiscal year (including a projected consolidated balance sheet
of the Parent and its Subsidiaries as of the end of the following fiscal year,
and the related consolidated statements of projected cash flow, projected
changes in financial position and projected income and a description of the
underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the "Projections"), which Projections shall in
each case be accompanied by a certificate of a Responsible Officer of the Parent
stating that such Projections are based on reasonable estimates, information and
assumptions and that such Responsible Officer has no reason to believe that such
Projections are incorrect or misleading in any material respect;
(l) Borrowing Base Certificate. At the time the financial statements are
furnished pursuant to Sections 9.1. and 9.2., or within 5 Business Days of
request by the Agent, a Borrowing Base Certificate setting forth the information
to be contained therein, as of the last day of such fiscal quarter. The Borrower
shall also deliver a Borrowing Base Certificate as required pursuant to Section
4.2.(b);
(m) Damage to Borrowing Base Property. Promptly (i) after any Borrowing
Base Property shall be damaged or destroyed and the reasonably estimated cost of
repair or replacement thereof would exceed $1,000,000, notice of such damage or
destruction and the reasonably estimated cost of repair or replacement thereof
and (ii) upon obtaining knowledge of the institution of any proceedings for the
condemnation of any Borrowing Base Property, or any material portion thereof,
notice of such proceedings with a copy of all documentation received by the
Borrower or any of its Subsidiaries in connection therewith and the reasonably
estimated proceeds of such proceedings;
(n) Material Asset Sales. Prompt notice of the sale, transfer or other
disposition of any material assets of the Parent, the Borrower, any other Loan
Party or any other Subsidiary to any Person other than the Parent, the Borrower,
any other Loan Party or any other Subsidiary;
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(o) Patriot Act Information. From time to time and promptly upon each
request, information identifying the Borrower as a Lender may request in order
to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001));
(p) Material Contracts. Promptly upon entering into any Material Contract
after the Agreement Date, a copy to the Agent of such Material Contract; and
(q) Other Information. From time to time and promptly upon each request,
such data, certificates, reports, statements, opinions of counsel, documents or
further information regarding the business, assets, liabilities, financial
condition, results of operations or business prospects of the Parent, the
Borrower, any other Loan Party or any other Subsidiary as the Agent or any
Lender may reasonably request.
SECTION 9.5. DELIVERY OF DOCUMENTS.
Documents required to be delivered by the Borrower pursuant to Article IX.
(to the extent any such documents are not otherwise included in a Security
Filing) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date on which such documents are posted by the Agent
on the Borrower's behalf on an internet or intranet website, if any, to which
each Lender and the Agent has access (whether a commercial, third-party website
(such as Intralinks or SyndTraks) or a website sponsored by the Agent); provided
that the Borrower shall deliver paper copies of such documents to the Agent or
any Lender that requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Agent or such
Lender. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance Certificate
required by Section 9.3. to the Agent. The Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
ARTICLE X. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.6., each of the Parent and the
Borrower, as applicable, shall comply with the following covenants:
SECTION 10.1. FINANCIAL COVENANTS.
The Parent shall not permit:
(a) Maximum Consolidated Leverage Ratio. The ratio of (i) Consolidated
Total Indebtedness to (ii) Consolidated Adjusted Asset Value, to exceed 0.65 to
1.00 at any time.
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(b) Minimum Consolidated Interest Coverage Ratio. The ratio of (i) Adjusted
EBITDA for the period of two consecutive fiscal quarters of the Parent most
recently ending to (ii) Consolidated Interest Expense for such period, to be
less than 2.00 to 1.00 at any time.
(c) Minimum Consolidated Fixed Charge Coverage Ratio. The ratio of (i)
Adjusted EBITDA for the period of two consecutive fiscal quarters of the Parent
most recently ending to (ii) Consolidated Fixed Charges for such period, to be
less than 1.60 to 1.00 at any time.
(d) Secured Indebtedness. Secured Indebtedness of the Parent and its
Subsidiaries determined on a consolidated basis to exceed 50.0% of Consolidated
Adjusted Asset Value at any time.
(e) Secured Recourse Indebtedness. The aggregate principal amount of
Secured Recourse Indebtedness to exceed 10.0% of Consolidated Adjusted Asset
Value at any time.
(f) Minimum Tangible Net Worth. Tangible Net Worth at any time to be less
than (i) $675,000,000 plus (ii) 75% of the Net Proceeds of all Equity Issuances
by the Parent and its Subsidiaries after December 31, 2005 (other than Equity
Issuances to the Parent, the Borrower or any other Subsidiary).
(g) Floating Rate Indebtedness. The ratio of (i) Floating Rate Indebtedness
of the Parent and its Subsidiaries determined on a consolidated basis to (ii)
Consolidated Total Indebtedness, to exceed 0.35 to 1.00 at any time.
(h) Minimum Unencumbered Property Pool Value. The Unencumbered Property
Pool Value to be less than $150,000,000 at any time.
SECTION 10.2. RESTRICTED PAYMENTS.
The Parent shall not, and shall not permit the Borrower or any other
Subsidiary to, declare or make any Restricted Payment; provided, however, that
the Parent, the Borrower and the other Subsidiaries may declare and make the
following Restricted Payments so long as no Default or Event of Default would
result therefrom:
(a) the Borrower may declare or make cash distributions to the Parent and
other holders of partnership interests in the Borrower during the period of four
consecutive fiscal quarters most recently ending to the extent necessary for the
Parent to distribute, and the Parent may so distribute, cash dividends to its
shareholders in an aggregate amount not to exceed the greater of (i) the amount
required to be distributed for the Parent to remain in compliance with
compliance with Section 8.13. or (ii) 95.0% of Funds From Operations; provided
that the limitations of this subsection (a) shall only apply to periods ending
on or after December 31, 2007;
(b) the Borrower may make cash distributions of capital gains to the Parent
and other holders of partnership interests in the Borrower to the extent
necessary for the Parent to make, and the Parent may make, cash distributions to
its shareholders of capital gains resulting from
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gains from certain asset sales to avoid payment of taxes on such asset sales
imposed under Sections 857(b)(3) and 4981 of the Internal Revenue Code;
(c) the Parent, the Borrower and any other Subsidiary may acquire the
Equity Interests of a Subsidiary that is not a Wholly Owned Subsidiary;
(d) a Subsidiary that is not a Wholly Owned Subsidiary may make cash
distributions to holders of Equity Interests issued by such Subsidiary; and
(e) Subsidiaries may pay Restricted Payments to the Parent, the Borrower or
any other Subsidiary.
Notwithstanding the foregoing, but subject to the following sentence, if a
Default or Event of Default exists, the Borrower may only declare and make cash
distributions to the Parent and other holders of partnership interests in the
Borrower with respect to any fiscal year to the extent necessary for the Parent
to distribute, and the Parent may so distribute, an aggregate amount not to
exceed the minimum amount necessary for the Parent to remain in compliance with
Section 8.13. If a Default or Event of Default specified in Section 11.1.(a),
Section 11.1.(b), Section 11.1.(f) or Section 11.1.(g) shall exist, or if as a
result of the occurrence of any other Event of Default any of the Obligations
have been accelerated pursuant to Section 11.2.(a), the Parent shall not, and
shall not permit the Borrower or any other Subsidiary to, make any Restricted
Payments to any Person other than to the Parent, the Borrower or any other
Subsidiary.
SECTION 10.3. INDEBTEDNESS.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, incur, assume, or otherwise become obligated
in respect of any Indebtedness after the Agreement Date if immediately prior to
the assumption, incurring or becoming obligated in respect thereof, or
immediately thereafter and after giving effect thereto, a Default or Event of
Default is or would be in existence, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained in
Section 10.1.
SECTION 10.4. CERTAIN PERMITTED INVESTMENTS.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, make any Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of the
Parent, the Borrower, the other Loan Parties and the other Subsidiaries to
exceed the applicable limits set forth below:
(a) Investments in Unconsolidated Affiliates and other Persons that are not
Subsidiaries, such that the aggregate value of such Investments (determined in a
manner consistent with the definition of Consolidated Adjusted Asset Value or,
if not contemplated under the definition of Consolidated Adjusted Asset Value,
as determined in accordance with GAAP) to exceed 20.0% of Consolidated Adjusted
Asset Value at any time;
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(b) raw land, such that the current book value of all raw land exceeds
10.0% of Consolidated Adjusted Asset Value at any time;
(c) real property under construction such that the aggregate Construction
Budget for all such real property exceeds 15.0% of Consolidated Adjusted Asset
Value at any time; and
(d) Properties leased under ground leases by the Parent or any of its
Subsidiaries, as lessee, such that the value of such Properties (determined in
accordance with the applicable provisions of the definition of Consolidated
Adjusted Asset Value) exceeds 10.0% of Consolidated Adjusted Asset Value at any
time.
In addition to the foregoing limitations, the aggregate value of all of the
items subject to the limitations in the preceding clauses (a) through (d) shall
not exceed 35.0% of Consolidated Adjusted Asset Value at any time.
SECTION 10.5. INVESTMENTS GENERALLY.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, directly or indirectly, acquire, make or
purchase any Investment, or permit any Investment of such Person to be
outstanding on and after the Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 7.1.(b);
(b) Investments to acquire Equity Interests of a Subsidiary or any other
Person who after giving effect to such acquisition would be a Subsidiary, so
long as in each case (i) immediately prior to such Investment, and after giving
effect thereto, no Default or Event of Default is or would be in existence and
(ii) if such Subsidiary is (or after giving effect to such Investment would
become) a Material Subsidiary, and is not an Excluded Subsidiary, the terms and
conditions set forth in Section 8.12. are satisfied;
(c) Investments permitted under Section 10.4.;
(d) Investments in Cash Equivalents;
(e) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries provided that such Indebtedness is permitted by the terms of
Section 10.3.;
(f) loans and advances to officers and employees for moving, entertainment,
travel and other similar expenses in the ordinary course of business consistent
with past practices; and
(g) any other Investment so long as immediately prior to making such
Investment, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence.
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SECTION 10.6. LIENS; NEGATIVE PLEDGES; OTHER MATTERS.
(a) The Parent and the Borrower shall not, and shall not permit any other
Loan Party or any other Subsidiary to, create, assume, or incur any Lien (other
than Permitted Liens) upon any of their respective properties, assets, income or
profits of any character whether now owned or hereafter acquired if immediately
prior to the creation, assumption or incurring of such Lien, or immediately
thereafter, a Default or Event of Default is or would be in existence, including
without limitation, a Default or Event of Default resulting from a violation of
any of the covenants contained in Section 10.1.
(b) The Parent and the Borrower shall not, and shall not permit any other
Loan Party or any other Subsidiary to, enter into, assume or otherwise be bound
by any Negative Pledge except for a Negative Pledge contained in (i) an
agreement (x) evidencing Indebtedness which the Parent, the Borrower, such Loan
Party or such Subsidiary may create, incur, assume, or permit or suffer to exist
under Section 10.3., (y) which Indebtedness is secured by a Lien permitted to
exist under the Loan Documents, and (z) which prohibits the creation of any
other Lien on (A) only the property securing such Indebtedness as of the date
such agreement was entered into and (B) if such property is owned by an Excluded
Subsidiary, the Equity Interests issued by such Excluded Subsidiary or any
Excluded Subsidiary that directly or indirectly owns Equity Interests in such
Excluded Subsidiary; (ii) in an agreement relating to the sale of a Subsidiary
or assets pending such sale, provided that in any such case the Negative Pledge
applies only to the Subsidiary or the assets that are the subject of such sale;
or (iii) Negative Pledges contained in the agreements described on Schedule
10.6. to the extent such Negative Pledges apply to Equity Interests issued by
the Borrower or other Subsidiary of the Parent identified on such Schedule.
(c) The Parent and the Borrower shall not, and shall not permit any other
Loan Party or any other Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Subsidiary (other than an Excluded Subsidiary) to: (i) pay
dividends or make any other distribution on any of such Subsidiary's capital
stock or other equity interests owned by the Borrower or any other Subsidiary;
(ii) pay any Indebtedness owed to the Borrower or any other Subsidiary; (iii)
make loans or advances to the Borrower or any other Subsidiary; or (iv) transfer
any of its property or assets to the Borrower or any other Subsidiary.
SECTION 10.7. MERGER, CONSOLIDATION, SALES OF ASSETS AND OTHER ARRANGEMENTS.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to: (i) enter into any transaction of merger or
consolidation; (ii) liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); or (iii) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or
substantially all of its business or assets, whether now owned or hereafter
acquired; provided, however, that:
(a) any of the actions described in the immediately preceding clauses (i)
through (iii) may be taken with respect to any Subsidiary or any other Loan
Party (other than the Parent and the Borrower) so long as immediately prior to
the taking of such action, and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in
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existence; notwithstanding the foregoing, any Loan Party (other than the Parent
and the Borrower) may enter into a transaction of merger pursuant to which such
Loan Party is not the survivor of such merger only if (i) the Borrower shall
have given the Agent and the Lenders at least 10 Business Days' prior written
notice of such merger, such notice to include a certification to the effect that
immediately after and after giving effect to such action, no Default or Event of
Default is or would be in existence; (ii) if the survivor entity is a Material
Subsidiary (and not an Excluded Subsidiary) within 5 Business Days of
consummation of such merger, the survivor entity (if not already a Guarantor)
shall have executed and delivered an assumption agreement in form and substance
satisfactory to the Agent pursuant to which such survivor entity shall expressly
assume all of such Loan Party's Obligations under the Loan Documents to which it
is a party; (iii) within 30 days of consummation of such merger, the survivor
entity delivers to the Agent the following: (A) items of the type referred to in
Sections 6.1.(a)(vii) through (xi) and (xv) with respect to the survivor entity
as in effect after consummation of such merger (if not previously delivered to
the Agent and still in effect), (B) copies of all documents entered into by such
Loan Party or the survivor entity to effectuate the consummation of such merger,
including, but not limited to, articles of merger and the plan of merger, (C)
copies, certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of such Loan Party or the survivor entity, of all
corporate and shareholder action authorizing such merger and (D) copies of any
filings with the Securities and Exchange Commission in connection with such
merger; and (iv) such Loan Party and the survivor entity each takes such other
action and delivers such other documents, instruments, opinions and agreements
as the Agent may reasonably request;
(b) the Parent, the Borrower, the other Loan Parties and the other
Subsidiaries may lease and sublease their respective assets, as lessor or
sublessor (as the case may be), in the ordinary course of their business;
(c) a Person may merge with and into the Parent or the Borrower so long as
(i) the Parent or the Borrower is the survivor of such merger, (ii) immediately
prior to such merger, and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in existence, and (iii)
the Borrower shall have given the Agent and the Lenders at least 10 Business
Days' prior written notice of such merger, such notice to include a
certification as to the matters described in the immediately preceding clause
(ii) (except that such prior notice shall not be required in the case of the
merger of a Subsidiary with and into the Borrower or a Subsidiary (other than
the Borrower) with and into the Parent); and
(d) the Parent, the Borrower, the other Loan Parties and the other
Subsidiaries may sell, transfer or dispose of assets among themselves.
SECTION 10.8. FISCAL YEAR.
The Parent shall not change its fiscal year from that in effect as of the
Agreement Date.
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SECTION 10.9. MODIFICATIONS TO MATERIAL CONTRACTS.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, enter into any amendment or modification to
any Material Contract which could reasonably be expected to have a Material
Adverse Effect.
SECTION 10.10. MODIFICATIONS OF ORGANIZATIONAL DOCUMENTS.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, amend, supplement, restate or otherwise modify
its articles or certificate of incorporation, by-laws, operating agreement,
declaration of trust, partnership agreement or other applicable organizational
document if such amendment, supplement, restatement or other modification could
reasonably be expected to have a Material Adverse Effect.
SECTION 10.11. TRANSACTIONS WITH AFFILIATES.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, permit to exist or enter into, any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (other than a Loan Party), except
(a) transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of the Parent, the Borrower or any of its other
Subsidiaries and upon fair and reasonable terms which are no less favorable to
the Parent, the Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate and
(b) transactions among Loan Parties.
SECTION 10.12. ERISA EXEMPTIONS.
The Parent and the Borrower shall not, and shall not permit any other Loan
Party or any other Subsidiary to, permit any of its respective assets to become
or be deemed to be "plan assets" within the meaning of ERISA, the Internal
Revenue Code and the respective regulations promulgated thereunder.
ARTICLE XI. DEFAULT
SECTION 11.1. EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment of Principal. The Borrower shall fail to pay when
due (whether upon demand, at maturity, by reason of acceleration or otherwise)
the principal of any of the Loans, or any Reimbursement Obligation.
(b) Default in Payment of Interest and Other Obligations. The Borrower
shall fail to pay when due any interest on any of the Loans or any of the other
payment Obligations owing by the Borrower under this Agreement or any other Loan
Document, or any other Loan Party shall
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fail to pay when due any payment Obligation owing by such other Loan Party under
any Loan Document to which it is a party, and such failure shall continue for a
period of 5 Business Days.
(c) Default in Performance. (i) The Parent or the Borrower shall fail to
perform or observe any term, covenant, condition or agreement contained in
Section 9.4.(h) or in Article X. or (ii) the Parent, the Borrower or any other
Loan Party shall fail to perform or observe any term, covenant, condition or
agreement contained in this Agreement or any other Loan Document to which it is
a party and not otherwise mentioned in this Section and in the case of this
clause (ii) only such failure shall continue for a period of 30 days after the
date upon which the Parent or the Borrower has received written notice of such
failure from the Agent.
(d) Misrepresentations. Any written statement, representation or warranty
made or deemed made by or on behalf of the Parent, the Borrower or any other
Loan Party under this Agreement or under any other Loan Document, or any
amendment hereto or thereto, or in any other writing or statement at any time
furnished or made or deemed made by or on behalf of the Parent, the Borrower or
any other Loan Party to the Agent or any Lender, shall at any time prove to have
been incorrect or misleading, in light of the circumstances in which made or
deemed made, in any material respect when furnished or made or deemed made.
(e) Indebtedness Cross-Default; Derivatives Contracts.
(i) The Parent, the Borrower, any other Loan Party or any other
Subsidiary shall fail to pay when due and payable, within any applicable
grace or cure period (not to exceed 30 days), the principal of, or interest
on, any Indebtedness (other than the Loans and Reimbursement Obligations)
having an aggregate outstanding principal amount of $10,000,000 or more (or
$25,000,000 or more in the case of Nonrecourse Indebtedness) (all such
Indebtedness being "Material Indebtedness"); or
(ii) (x) the maturity of any Material Indebtedness shall have been
accelerated in accordance with the provisions of any indenture, contract or
instrument evidencing, providing for the creation of or otherwise
concerning such Material Indebtedness or (y) any Material Indebtedness
shall have been required to be prepaid or repurchased prior to the stated
maturity thereof;
(iii) any other event shall have occurred and be continuing which
permits any holder or holders of Material Indebtedness, any trustee or
agent acting on behalf of such holder or holders or any other Person, to
accelerate the maturity of any such Material Indebtedness or require any
such Material Indebtedness to be prepaid or repurchased prior to its stated
maturity; or
(iv) there occurs under any Derivatives Contract an Early Termination
Date (as defined in such Derivatives Contract) resulting from (A) any event
of default under such Derivatives Contract as to which any Loan Party is
the Defaulting Party (as defined in such Derivatives Contract) or (B) any
Termination Event (as so defined) under such Derivatives Contract as to
which any Loan Party is an Affected Party (as so defined) and,
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in either event, the Derivatives Termination Value owed by any Loan Party
as a result thereof is $10,000,000 or more.
(f) Voluntary Bankruptcy Proceeding. The Parent, the Borrower, any other
Loan Party, or any Excluded Subsidiary that is a Significant Subsidiary shall:
(i) commence a voluntary case under the Bankruptcy Code of 1978, as amended, or
other federal bankruptcy laws (as now or hereafter in effect); (ii) file a
petition seeking to take advantage of any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; (iii) consent to, or fail to contest in a
timely and appropriate manner, any petition filed against it in an involuntary
case under such bankruptcy laws or other Applicable Laws or consent to any
proceeding or action described in the immediately following subsection; (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign; (v) admit in writing its inability to pay its debts as they
become due; (vi) make a general assignment for the benefit of creditors; (vii)
make a conveyance fraudulent as to creditors under any Applicable Law; or (viii)
take any corporate or partnership action for the purpose of effecting any of the
foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Parent, the Borrower, any other Loan Party, or any
Excluded Subsidiary that is a Significant Subsidiary in any court of competent
jurisdiction seeking: (i) relief under the Bankruptcy Code of 1978, as amended,
or other federal bankruptcy laws (as now or hereafter in effect) or under any
other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of such
Person, or of all or any substantial part of the assets, domestic or foreign, of
such Person, and such case or proceeding shall continue undismissed or unstayed
for a period of 60 consecutive calendar days, or an order granting the remedy or
other relief requested in such case or proceeding against such Person
(including, but not limited to, an order for relief under such Bankruptcy Code
or such other federal bankruptcy laws) shall be entered.
(h) Litigation; Enforceability. The Parent, the Borrower or any other Loan
Party shall disavow, revoke or terminate (or attempt to terminate) any Loan
Document to which it is a party or shall otherwise challenge or contest in any
action, suit or proceeding in any court or before any Governmental Authority the
validity or enforceability of this Agreement, or any other Loan Document or this
Agreement or any other Loan Document shall cease to be in full force and effect
(except as a result of the express terms thereof).
(i) Judgment. A judgment or order for the payment of money or for an
injunction shall be entered against the Parent, the Borrower, any other Loan
Party or any other Subsidiary, by any court or other tribunal and (i) such
judgment or order shall continue for a period of 30 days without being paid,
stayed or dismissed through appropriate appellate proceedings and (ii) either
(A) the amount of such judgment or order for which insurance has not been
acknowledged in writing by the applicable insurance carrier (or the amount as to
which the insurer has denied liability) exceeds, individually or together with
all other such outstanding
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judgments or orders entered against (X) the Parent, the Borrower and the other
Loan Parties, $10,000,000 or (Y) other Subsidiaries, $50,000,000 or (B) in the
case of an injunction or other non-monetary judgment, such injunction or
judgment could reasonably be expected to have a Material Adverse Effect.
(j) Attachment. A warrant, writ of attachment, execution or similar process
shall be issued against any property of the Parent, the Borrower, any other Loan
Party or any other Subsidiary which exceeds, individually or together with all
other such warrants, writs, executions and processes, (i) for the Parent, the
Borrower and the other Loan Parties $10,000,000 or (ii) for all other
Subsidiaries $50,000,000, and such warrant, writ, execution or process shall not
be discharged, vacated, stayed or bonded for a period of 30 days; provided,
however, that if a bond has been issued in favor of the claimant or other Person
obtaining such warrant, writ, execution or process, the issuer of such bond
shall execute a waiver or subordination agreement in form and substance
satisfactory to the Agent pursuant to which the issuer of such bond subordinates
its right of reimbursement, contribution or subrogation to the Obligations and
waives or subordinates any Lien it may have on the assets of any Loan Party.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Liabilities in excess of $10,000,000
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer, any Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur a current payment obligation in excess
of $10,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents.
(m) Change of Control/Change in Management.
(i) Any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person will be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 25.0% of the total
voting power of the then outstanding voting stock of the Parent;
(ii) During any period of 12 consecutive months ending after the
Agreement Date, individuals who at the beginning of any such 12-month
period constituted the
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Board of Directors of the Parent (together with any new directors whose
election by such Board or whose nomination for election by the shareholders
of the Parent was approved by a vote of a at least two-thirds of the
directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved but excluding any director whose initial nomination for, or
assumption of office as, a director occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal
of one or more directors by any person or group other than a solicitation
for the election of one or more directors by or on behalf of the Board of
Directors) cease for any reason to constitute a majority of the Board of
Directors of the Borrower then in office;
(iii) The Parent or a Wholly Owned Subsidiary of the Parent shall
cease to be the sole general partner of the Borrower or shall cease to have
the sole and exclusive power to exercise all management and control over
the Borrower; or
(iv) The Parent shall cease to own and control, directly or
indirectly, of record and beneficially, at least 75% of the outstanding
Equity Interests of the Borrower free and clear of all Liens (other than
Permitted Liens of the types referred to in clauses (a), (b), (c) and (e)
of the definition of Permitted Lien).
SECTION 11.2. REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default the following provisions shall
apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default specified in
Section 11.1.(f) or 11.1.(g), (A)(i) the principal of, and all accrued
interest on, the Loans and the Notes at the time outstanding, (ii) an
amount equal to the Stated Amount of all Letters of Credit outstanding as
of the date of the occurrence of such Event of Default for deposit into the
Collateral Account pursuant to Section 11.5. and (iii) all of the other
Obligations of the Borrower, including, but not limited to, the other
amounts owed to the Lenders, the Swingline Lender and the Agent under this
Agreement, the Notes or any of the other Loan Documents shall become
immediately and automatically due and payable by the Borrower without
presentment, demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower and (B) all of the Commitments, the
obligation of the Lenders to make Revolving Loans, the Swingline
Commitment, the obligation of the Swingline Lender to make Swingline Loans,
and the obligation of the Agent to issue Letters of Credit hereunder, shall
all immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall exist, the Agent
shall, at the direction of the Requisite Lenders: (A) declare (1) the
principal of, and accrued interest on, the Loans and the Notes at the time
outstanding, (2) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of such other Event of
Default for deposit into the Collateral Account pursuant to Section 11.5.
and (3) all of the other Obligations, including, but not limited to, the
other amounts owed to
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the Lenders and the Agent under this Agreement, the Notes or any of the
other Loan Documents to be forthwith due and payable, whereupon the same
shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived by
the Borrower and (B) terminate the Commitments, the Swingline Commitment,
the obligation of the Lenders to make Loans hereunder and the obligation of
the Agent to issue Letters of Credit hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise any and all of its rights under any and all
of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise all other rights and remedies it may have
under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law, the
Agent and the Lenders shall be entitled to the appointment of a receiver for the
assets and properties of the Borrower and its Subsidiaries, without notice of
any kind whatsoever and without regard to the adequacy of any security for the
Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
SECTION 11.3. REMEDIES UPON DEFAULT.
Upon the occurrence of a Default specified in Section 11.1.(g), the
Commitments shall immediately and automatically terminate.
SECTION 11.4. ALLOCATION OF PROCEEDS.
If an Event of Default shall exist and maturity of any of the Obligations
has been accelerated, all payments received by the Agent under any of the Loan
Documents, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower hereunder or thereunder, shall be applied
in the following order and priority:
(a) amounts due the Agent in respect of fees and expenses due under
Section 13.2.;
(b) amounts due the Lenders in respect of fees and expenses due under
Section 13.2., pro rata in the amount then due each Lender;
(c) payments of interest on Swingline Loans;
(d) payments of interest on all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(e) payments of principal of Swingline Loans;
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(f) payments of principal of all other Loans, Reimbursement
Obligations and other Letter of Credit Liabilities, to be applied for the
ratable benefit of the Lenders; provided, however, to the extent that any
amounts available for distribution pursuant to this subsection are
attributable to the issued but undrawn amount of an outstanding Letter of
Credit, such amounts shall be paid to the Agent for deposit into the
Collateral Account;
(g) amounts due the Agent and the Lenders pursuant to Sections 12.7.
and 13.9.;
(h) payment of all other Obligations and other amounts due and owing
by the Borrower and the other Loan Parties under any of the Loan Documents,
if any, to be applied for the ratable benefit of the Lenders; and
(i) any amount remaining after application as provided above, shall be
paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 11.5. COLLATERAL ACCOUNT.
(a) As collateral security for the prompt payment in full when due of all
Letter of Credit Liabilities and the other Obligations, the Borrower hereby
pledges and grants to the Agent, for the ratable benefit of the Agent and the
Lenders as provided herein, a security interest in all of its right, title and
interest in and to the Collateral Account and the balances from time to time in
the Collateral Account (including the investments and reinvestments therein
provided for below). The balances from time to time in the Collateral Account
shall not constitute payment of any Letter of Credit Liabilities until applied
by the Agent as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to
withdrawal only as provided in this Section.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Agent in such Cash Equivalents as the Agent shall determine in
its sole discretion. All such investments and reinvestments shall be held in the
name of and be under the sole dominion and control of the Agent for the ratable
benefit of the Lenders. The Agent shall exercise reasonable care in the custody
and preservation of any funds held in the Collateral Account and shall be deemed
to have exercised such care if such funds are accorded treatment substantially
equivalent to that which the Agent accords other funds deposited with the Agent,
it being understood that the Agent shall not have any responsibility for taking
any necessary steps to preserve rights against any parties with respect to any
funds held in the Collateral Account.
(c) If a drawing pursuant to any Letter of Credit occurs on or prior to the
expiration date of such Letter of Credit, the Borrower and the Lenders authorize
the Agent to use the monies deposited in the Collateral Account and proceeds
thereof to make payment to the beneficiary with respect to such drawing or the
payee with respect to such presentment.
(d) If an Event of Default exists, the Requisite Lenders may, in their
discretion, at any time and from time to time, instruct the Agent to liquidate
any such investments and reinvestments and apply proceeds thereof to the
Obligations in accordance with Section 11.4.
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(e) So long as no Default or Event of Default exists, and to the extent
amounts on deposit in or credited to the Collateral Account exceed the aggregate
amount of the Letter of Credit Liabilities then due and owing, the Agent shall,
from time to time, at the request of the Borrower, deliver to the Borrower
within 10 Business Days after the Agent's receipt of such request from the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, such amount of the credit balances in the Collateral Account as
exceeds the aggregate amount of the Letter of Credit Liabilities at such time.
(f) The Borrower shall pay to the Agent from time to time such fees as the
Agent normally charges for similar services in connection with the Agent's
administration of the Collateral Account and investments and reinvestments of
funds therein.
SECTION 11.6. PERFORMANCE BY AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may, after notice to the
Borrower, perform or attempt to perform such covenant, duty or agreement on
behalf of the Borrower after the expiration of any cure or grace periods set
forth herein. In such event, the Borrower shall, at the request of the Agent,
promptly pay any amount reasonably expended by the Agent in such performance or
attempted performance to the Agent, together with interest thereon at the
applicable Post-Default Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, neither the Agent nor any Lender shall have any
liability or responsibility whatsoever for the performance of any obligation of
the Borrower under this Agreement or any other Loan Document.
SECTION 11.7. RIGHTS CUMULATIVE.
The rights and remedies of the Agent and the Lenders under this Agreement
and each of the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies which any of them may otherwise have under Applicable
Law. In exercising their respective rights and remedies the Agent and the
Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE XII. THE AGENT
SECTION 12.1. AUTHORIZATION AND ACTION.
Each Lender hereby appoints and authorizes the Agent to take such action as
contractual representative on such Lender's behalf and to exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Not in limitation of the foregoing, each Lender
authorizes and directs the Agent to enter into the Loan Documents for the
benefit of the Lenders. In addition, each Lender authorizes the Agent to execute
and deliver such documents, instruments and agreements as may be necessary to
effectuate or evidence the termination or release of any Lien purportedly
securing any obligations owing by the Borrower or any of its Subsidiaries under
the Existing Credit Agreement immediately prior to its
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amendment and restatement by this Agreement. Each Lender hereby agrees that,
except as otherwise set forth herein, any action taken by the Requisite Lenders
in accordance with the provisions of this Agreement or the Loan Documents, and
the exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender or to impose
on the Agent duties or obligations other than those expressly provided for
herein. At the request of a Lender, the Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the Agent
pursuant to this Agreement or the other Loan Documents. The Agent will also
furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Agent by the Borrower, any other Loan
Party or any other Affiliate of the Borrower, pursuant to this Agreement or any
other Loan Document not already delivered to such Lender pursuant to the terms
of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of any of the Obligations), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Requisite Lenders (or all
of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders and all
holders of any of the Obligations; provided, however, that, notwithstanding
anything in this Agreement to the contrary, the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or Applicable Law. Not in
limitation of the foregoing, the Agent shall not exercise any right or remedy it
or the Lenders may have under any Loan Document upon the occurrence of a Default
or an Event of Default unless the Requisite Lenders (or all of the Lenders if
explicitly required under any provision of this Agreement) have so directed the
Agent to exercise such right or remedy.
SECTION 12.2. AGENT'S RELIANCE, ETC.
Notwithstanding any other provisions of this Agreement or any other Loan
Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any other Loan
Document, except for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment. Without limiting the generality of the foregoing, the Agent: (a) may
treat the payee of any Note as the holder thereof until the Agent receives
written notice of the assignment or transfer thereof signed by such payee and in
form satisfactory to the Agent; (b) may consult with legal counsel (including
its own counsel or counsel for the Borrower or any other Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or any other Person and shall not be
responsible to any Lender or any other Person for any statements, warranties or
representations made by any Person in or in connection with this Agreement or
any other Loan Document; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any of this Agreement or any other Loan Document or the satisfaction of any
conditions precedent under this Agreement or any Loan Document on the part of
the Borrower or other Persons (except for the delivery to it of any
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certificate or document specifically required to be delivered to it pursuant to
Section 6.1.) or inspect the property, books or records of the Borrower or any
other Person; (e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document, any other instrument or document furnished
pursuant thereto or any collateral covered thereby or the perfection or priority
of any Lien in favor of the Agent on behalf of the Lenders in any such
collateral; and (f) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone or
telecopy) believed by it to be genuine and signed, sent or given by the proper
party or parties. Unless set forth in writing to the contrary, the making of its
initial Loan by a Lender shall constitute a certification by such Lender to the
Agent and the other Lenders that the Borrower has satisfied the conditions
precedent for initial Loans set forth in Sections 6.1. and 6.2. that have not
previously been waived by the Requisite Lenders.
SECTION 12.3. NOTICE OF DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the occurrence
of a Default or Event of Default unless the Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing with reasonable
specificity such Default or Event of Default and stating that such notice is a
"notice of default." If any Lender (excluding the Lender which is also serving
as the Agent) becomes aware of any Default or Event of Default, it shall
promptly send to the Agent such a "notice of default." Further, if the Agent
receives such a "notice of default", the Agent shall give prompt notice thereof
to the Lenders.
SECTION 12.4. AGENT AS LENDER.
The Lender acting as Agent shall have the same rights and powers under this
Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include the Lender then acting as Agent in
each case in its individual capacity. Such Lender and its affiliates may each
accept deposits from, maintain deposits or credit balances for, invest in, lend
money to, act as trustee under indentures of, serve as financial advisor to, and
generally engage in any kind of business with, the Borrower, any other Loan
Party or any other affiliate thereof as if it were any other bank and without
any duty to account therefor to the other Lenders. Further, such Lender and any
affiliate may accept fees and other consideration from the Borrower for services
in connection with this Agreement and otherwise without having to account for
the same to the other Lenders. The Lenders acknowledge that, pursuant to such
activities, the Lender acting as Agent or its affiliates may receive information
regarding the Borrower, other Loan Parties, other Subsidiaries and other
Affiliates (including information that may be subject to confidentiality
obligations in favor of such Person) and acknowledge that the Agent shall be
under no obligation to provide such information to them.
SECTION 12.5. APPROVALS OF LENDERS.
All communications from the Agent to any Lender requesting such Lender's
determination, consent, approval or disapproval (a) shall be given in the form
of a written notice to such Lender, (b) shall be accompanied by a description of
the matter or issue as to which such
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determination, approval, consent or disapproval is requested, or shall advise
such Lender where information, if any, regarding such matter or issue may be
inspected, or shall otherwise describe the matter or issue to be resolved, (c)
shall include, if reasonably requested by such Lender and to the extent not
previously provided to such Lender, written materials and a summary of all oral
information provided to the Agent by the Borrower in respect of the matter or
issue to be resolved, and (d) shall include the Agent's recommended course of
action or determination in respect thereof. Each Lender shall reply promptly,
but in any event within 10 Business Days (or such lesser or greater period as
may be specifically required under the Loan Documents) of receipt of such
communication. Except as otherwise provided in this Agreement, unless a Lender
shall give written notice to the Agent that it specifically objects to the
recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within the applicable time
period for reply, such Lender shall be deemed to have conclusively approved of
or consented to such recommendation or determination.
SECTION 12.6. LENDER CREDIT DECISION, ETC.
Each Lender expressly acknowledges and agrees that neither the Agent nor
any of its officers, directors, employees, agents, counsel, attorneys-in-fact or
other affiliates has made any representations or warranties as to the financial
condition, operations, creditworthiness, solvency or other information
concerning the business or affairs of the Borrower, any other Loan Party, any
Subsidiary or any other Person to such Lender and that no act by the Agent
hereafter taken, including any review of the affairs of the Borrower, any other
Loan Party or any other Subsidiary, shall be deemed to constitute any such
representation or warranty by the Agent to any Lender. Each Lender acknowledges
that it has made its own credit and legal analysis and decision to enter into
this Agreement and the transactions contemplated hereby, independently and
without reliance upon the Agent, any other Lender or counsel to the Agent, or
any of their respective officers, directors, employees and agents, and based on
the financial statements of the Borrower, the Subsidiaries or any other
Affiliate thereof, and inquiries of such Persons, its independent due diligence
of the business and affairs of the Borrower, the other Loan Parties, the
Subsidiaries and other Persons, its review of the Loan Documents, the legal
opinions required to be delivered to it hereunder, the advice of its own counsel
and such other documents and information as it has deemed appropriate. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent, any other Lender or counsel to the Agent or any of their respective
officers, directors, employees and agents, and based on such review, advice,
documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under the Loan Documents.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Agent under this Agreement or any
of the other Loan Documents, the Agent shall have no duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Borrower, any other Loan Party or any other Affiliate thereof which may come
into possession of the Agent, or any of its officers, directors, employees,
agents, attorneys-in-fact or other affiliates. Each Lender acknowledges that the
Agent's legal counsel in connection with the transactions contemplated by this
Agreement is only acting as counsel to the Agent and is not acting as counsel to
such Lender.
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SECTION 12.7. INDEMNIFICATION OF AGENT.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so) pro
rata in accordance with such Lender's respective Commitment Percentage, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, reasonable out-of-pocket costs and expenses, or
disbursements of any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against the Agent (in its capacity as Agent but not
as a Lender) in any way relating to or arising out of the Loan Documents, any
transaction contemplated hereby or thereby or any action taken or omitted by the
Agent under the Loan Documents (collectively, "Indemnifiable Amounts");
provided, however, that no Lender shall be liable for any portion of such
Indemnifiable Amounts to the extent resulting from the Agent's gross negligence
or willful misconduct as determined by a court of competent jurisdiction in a
final, non-appealable judgment or if the Agent fails to follow the written
direction of the Requisite Lenders (or all of the Lenders if expressly required
hereunder) unless such failure results from the Agent following the advice of
counsel to the Agent of which advice the Lenders have received notice. Without
limiting the generality of the foregoing but subject to the preceding proviso,
each Lender agrees to reimburse the Agent (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees of the counsel(s) of the Agent's own choosing) incurred by the
Agent in connection with the preparation, negotiation, execution, or enforcement
of, or legal advice with respect to the rights or responsibilities of the
parties under, the Loan Documents, any suit or action brought by the Agent to
enforce the terms of the Loan Documents and/or collect any Obligations, any
"lender liability" suit or claim brought against the Agent and/or the Lenders,
and any claim or suit brought against the Agent, and/or the Lenders arising
under any Environmental Laws. Such out-of-pocket expenses (including counsel
fees) shall be advanced by the Lenders on the request of the Agent
notwithstanding any claim or assertion that the Agent is not entitled to
indemnification hereunder upon receipt of an undertaking by the Agent that the
Agent will reimburse the Lenders if it is actually and finally determined by a
court of competent jurisdiction that the Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder or under the other Loan Documents
and the termination of this Agreement. If the Borrower shall reimburse the Agent
for any Indemnifiable Amount following payment by any Lender to the Agent in
respect of such Indemnifiable Amount pursuant to this Section, the Agent shall
share such reimbursement on a ratable basis with each Lender making any such
payment.
SECTION 12.8. SUCCESSOR AGENT.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. The Agent may be
removed as Agent under the Loan Documents for good cause by all of the Lenders
(other than the Lender then acting as Agent) upon 30-days' prior written notice
to the Agent. Upon any such resignation or removal, the Requisite Lenders (other
than the Lender then acting as Agent, in the case of the removal of the Agent
under the immediately preceding sentence) shall have the right to appoint a
successor Agent which appointment shall, provided no Default or Event of Default
exists, be subject to the Borrower's approval, which approval shall not be
unreasonably withheld or delayed (except that
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the Borrower shall, in all events, be deemed to have approved each Lender and
its affiliates as a successor Agent). If no successor Agent shall have been so
appointed in accordance with the immediately preceding sentence, and shall have
accepted such appointment, within 30 days after the resigning Agent's giving of
notice of resignation or the Lenders' removal of the resigning Agent, then the
resigning or removed Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a Lender, if any Lender shall be willing to serve, and
otherwise shall be a commercial bank having total combined assets of at least
$50,000,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent, and the retiring or removed Agent shall be discharged from its
duties and obligations under the Loan Documents. Such successor Agent shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or shall make other arrangements
satisfactory to the current Agent, in either case, to assume effectively the
obligations of the current Agent with respect to such Letters of Credit. After
any Agent's resignation or removal hereunder as Agent, the provisions of this
Article XII. shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under the Loan Documents.
SECTION 12.9. TITLED AGENTS.
Each of the Titled Agents in each such respective capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Loans, or for any duties as
an agent hereunder for the Lenders. The titles of "Co-Lead Arranger",
"Syndication Agent" and "Documentation Agent" are solely honorific and imply no
fiduciary responsibility on the part of the Titled Agents to the Agent, the
Borrower or any Lender and the use of such titles does not impose on the Titled
Agents any duties or obligations greater than those of any other Lender or
entitle the Titled Agents to any rights other than those to which any other
Lender is entitled.
ARTICLE XIII. MISCELLANEOUS
SECTION 13.1. NOTICES.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
U-Store-It, L.P.
c/o U-Store-It Trust
6745 Engle Road, Suite 300
Cleveland, Ohio 44130
Attn: Steven G. Osgood
Telephone: (440) 260-2223
Telecopy: (440) 234-8776
with a copy to:
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Hogan & Hartson, L.L.P
8300 Greensboro Drive
Suite 1100
McLean, Virginia 22102
Attn: Lee E. Berner, Esq.
Telephone: (703) 610-6137
Telecopy: (703) 610-6200
If to the Agent:
Wachovia Bank, National Association
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Attn: Rex E. Rudy
Telephone: (704) 383-6506
Telecopy: (704) 383-6205
If to a Lender:
To such Lender's address or telecopy number, as applicable,
set forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement;
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered or sent by overnight courier, when delivered. Notwithstanding the
immediately preceding sentence, all notices or communications to the Agent or
any Lender under Article II. shall be effective only when actually received.
Neither the Agent nor any Lender shall incur any liability to any Loan Party
(nor shall the Agent incur any liability to the Lenders) for acting upon any
telephonic notice referred to in this Agreement which the Agent or such Lender,
as the case may be, believes in good faith to have been given by a Person
authorized to deliver such notice or for otherwise acting in good faith
hereunder. Failure of a Person designated to get a copy of a notice to receive
such copy shall not affect the validity of notice properly given to any other
Person.
SECTION 13.2. EXPENSES.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses and
travel expenses relating to closing), and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of counsel
to the Agent and costs and expenses in connection with the use of IntraLinks,
Inc., SyndTrak or other similar information transmission systems in connection
with the Loan Documents, (b) to
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pay or reimburse the Agent and the Lenders for all their reasonable costs and
expenses incurred in connection with the enforcement or preservation of any
rights under the Loan Documents, including the reasonable fees and disbursements
of their respective counsel (including the allocated fees and expenses of
in-house counsel) and any payments in indemnification or otherwise payable by
the Lenders to the Agent pursuant to the Loan Documents, (c) to pay, and
indemnify and hold harmless the Agent and the Lenders from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp, excise
and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay or
reimburse the Agent and the Lenders for all their costs and expenses incurred in
connection with any bankruptcy or other proceeding of the type described in
Section 11.1.(f) or 11.1.(g), including the reasonable fees and disbursements of
counsel to the Agent and any Lender, whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding. If the Borrower shall fail to
pay any amounts required to be paid by it pursuant to this Section, the Agent
and/or the Lenders may pay such amounts on behalf of the Borrower and either
deem the same to be Loans outstanding hereunder or otherwise Obligations owing
hereunder.
SECTION 13.3. SETOFF.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Borrower hereby authorizes the Agent, each Lender, and each affiliate of the
Agent or any Lender, at any time while an Event of Default exists, without prior
notice to the Borrower or to any other Person, any such notice being hereby
expressly waived, but in the case of a Lender or an affiliate of a Lender
subject to receipt of the prior written consent of the Agent exercised in its
sole discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any such
affiliate of the Agent or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 11.2., and although such obligations shall be contingent or unmatured.
SECTION 13.4. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR
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AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER
LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF ANY
KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.
(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT ANY
FEDERAL DISTRICT COURT AND ANY STATE COURT LOCATED IN CHARLOTTE, NORTH CAROLINA,
SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR
AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY
OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER
AND EACH OF THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT
TO SUCH CLAIMS OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM,
AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN
THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY ANY
PARTY OR THE ENFORCEMENT BY ANY PARTY OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH
THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES
THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS
PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
SECTION 13.5. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Agreement without the prior written consent
of all Lenders and any such assignment or other transfer to which all of the
Lenders have not so consented shall be null and void.
(b) Any Lender may make, carry or transfer Loans at, to or for the account
of any of its branch offices or the office of an affiliate of such Lender except
to the extent such transfer would result in increased costs to the Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations
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owing to such Lender; provided, however, (i) any such participating interest
must be for a constant and not a varying percentage interest and (ii) after
giving effect to any such participation by a Lender (other than to an affiliate
of such Lender), the amount of its Commitment, or if the Commitments have been
terminated, the aggregate outstanding principal balance of Notes held by it, in
which it has not granted any participating interests must be equal to at least
$10,000,000. No Participant shall have any rights or benefits under this
Agreement or any other Loan Document. A Participant shall not be entitled to
receive any greater payment under Section 3.12. than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section
3.12. unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower and the
Agent, to comply with Section 3.12.(c) as though it were a Lender. In the event
of any such grant by a Lender of a participating interest to a Participant, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any Lender may
grant such a participating interest shall provide that such Lender shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided, however,
such Lender may agree with the Participant that it will not, without the consent
of the Participant, agree to (i) increase, or extend the term or extend the time
or waive any requirement for the reduction or termination of, such Lender's
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the Loans or portions thereof owing to such Lender, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which interest
is payable thereon or (v) release any Guarantor (except as otherwise permitted
under Section 8.12.(c)). An assignment or other transfer which is not permitted
by subsection (d) or (e) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (c). Upon request from the Agent, a Lender shall notify the
Agent of the sale of any participation hereunder and, if requested by the Agent,
certify to the Agent that such participation is permitted hereunder and that the
requirements of Section 3.12. (c) have been satisfied.
(d) Any Lender may with the prior written consent of the Agent and, so long
as no Default or Event of Default exists, the Borrower (which consent, in each
case, shall not be unreasonably withheld (it being agreed that the Borrower's
withholding of consent to an assignment which would result in the Borrower
having to pay amounts under Section 3.12. shall be deemed to be reasonable)),
assign to one or more Eligible Assignees (each an "Assignee") all or a portion
of its rights and obligations under this Agreement and the Notes (including all
or a portion of its Commitments and the Loans owing to such Lender); provided,
however, (i) no such consent by the Borrower shall be required in the case of
any assignment to another Lender or any affiliate of such Lender or another
Lender and no such consent by the Agent shall be required in the case of any
assignment by a Lender to any affiliate of such Lender; (ii) unless the Borrower
and the Agent otherwise agree, after giving effect to any partial assignment by
a Lender, the Assignee shall hold, and the assigning Lender shall retain, a
Commitment, or if the Commitments have been terminated, Loans having an
outstanding principal balance, of at least
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$10,000,000 (or such lesser amount as may be acceptable to the Agent and the
Borrower); and (iii) each such assignment shall be effected by means of an
Assignment and Acceptance Agreement. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such
Assignee (and receipt of the Borrower's consent, if required), such Assignee
shall be a Lender party to this Agreement with respect to the assigned interest
as of the effective date of the Assignment and Acceptance Agreement and shall
have all the rights and obligations of a Lender with respect to the assigned
interest as set forth in such Assignment and Acceptance Agreement, and the
transferor Lender shall be released from its obligations hereunder with respect
to the assigned interest to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection, the transferor Lender, the Agent and the Borrower
shall make appropriate arrangements so that new Notes are issued to the Assignee
and such transferor Lender, as appropriate. In connection with any such
assignment, the transferor Lender or Assignee shall pay to the Agent an
administrative fee for processing such assignment in the amount of $3,500.
Anything in this Section to the contrary notwithstanding, no Lender may assign,
or grant a participating interest in, its Commitment or any Loan held by it to
the Borrower, any Subsidiary or any Affiliate of the Borrower.
(e) The Agent shall maintain at the Principal Office a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The Agent shall
give each Lender and the Borrower notice of the assignment by any Lender of its
rights as contemplated by this Section. The Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under the
foregoing provisions of this Section, any Lender may assign and pledge all or
any portion of its Loans and its Notes to any Federal Reserve Bank. No such
assignment shall release the assigning Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower, any other
Loan Party or any of their respective Subsidiaries in the possession of such
Lender from time to time to Assignees and Participants (including prospective
Assignees and Participants) subject to compliance with Section 13.8.
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(h) Anything in this Section to the contrary notwithstanding, no Lender may
assign or participate any interest in any Loan held by it hereunder to the
Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment hereunder in any manner
or under any circumstances that would require registration or qualification of,
or filings in respect of, any Loan or Note under the Securities Act or any other
securities laws of the United States of America or of any other jurisdiction.
SECTION 13.6. AMENDMENTS.
(a) Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or any other Loan Document
to be given by the Lenders may be given, and any term of this Agreement or of
any other Loan Document may be amended, and the performance or observance by the
Borrower or any other Loan Party or any Subsidiary of any terms of this
Agreement or such other Loan Document or the continuance of any Default or Event
of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Requisite Lenders (and, in the case of an amendment to any Loan Document,
the written consent of each Loan Party a party thereto).
(b) Notwithstanding the foregoing, without the prior written consent of
each Lender adversely affected thereby, no amendment, waiver or consent shall do
any of the following:
(i) increase the Commitments of the Lenders (except for any increase
in the Commitments effectuated pursuant to Section 2.15.) or subject the
Lenders to any additional obligations;
(ii) reduce the principal of, or interest that has accrued or the
rates of interest that will be charged on the outstanding principal amount
of, any Loans or other Obligations;
(iii) reduce the amount of any Fees payable hereunder or postpone any
date fixed for payment thereof;
(iv) modify the definition of the term "Termination Date" (except as
contemplated under Section 2.12.) or otherwise postpone any date fixed for
any payment of any principal of, or interest on, any Loans or any other
Obligations (including the waiver of any Default or Event of Default as a
result of the nonpayment of any such Obligations as and when due), or
extend the expiration date of any Letter of Credit beyond the Termination
Date;
(v) amend or otherwise modify the provisions of Section 3.2.;
(vi) modify the definition of the term "Requisite Lenders" or
otherwise modify in any other manner the number or percentage of the
Lenders required to make any
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determinations or waive any rights hereunder or to modify any provision
hereof, including without limitation, any modification of this Section
13.6. if such modification would have such effect;
(vii) release any Guarantor from its obligations under the Guaranty
(except as otherwise permitted under Section 8.12.(c));
(viii) amend or otherwise modify the provisions of Section 2.14.; or
(ix) increase the number of Interest Periods permitted with respect to
Loans under Section 2.5.
(c) No amendment, waiver or consent, unless in writing and signed by the
Agent, in such capacity, in addition to the Lenders required hereinabove to take
such action, shall affect the rights or duties of the Agent under this Agreement
or any of the other Loan Documents. Any amendment, waiver or consent relating to
Section 2.2. or the obligations of the Swingline Lender under this Agreement or
any other Loan Document shall, in addition to the Lenders required hereinabove
to take such action, require the written consent of the Swingline Lender.
(d) No waiver shall extend to or affect any obligation not expressly waived
or impair any right consequent thereon and any amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
set forth therein. Except as otherwise provided in Section 12.5., no course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Any Event of Default occurring hereunder shall continue to
exist until such time as such Event of Default is waived in writing in
accordance with the terms of this Section, notwithstanding any attempted cure or
other action by the Borrower, any other Loan Party or any other Person
subsequent to the occurrence of such Event of Default. Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrower shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
SECTION 13.7. NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower and the Lenders and the Agent shall
be solely that of borrower and lender. Neither the Agent nor any Lender shall
have any fiduciary responsibilities to the Borrower or any other Loan Party and
no provision in this Agreement or in any of the other Loan Documents, and no
course of dealing between or among any of the parties hereto, shall be deemed to
create any fiduciary duty owing by the Agent or any Lender to any Lender, the
Borrower, any Subsidiary or any other Loan Party. Neither the Agent nor any
Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations.
SECTION 13.8. CONFIDENTIALITY.
The Agent and each Lender shall use reasonable efforts to assure that
information about the Parent, the Borrower, the other Loan Parties and other
Subsidiaries, and the respective properties thereof and their operations,
affairs and financial condition, not generally disclosed to
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the public, which is furnished to the Agent or any Lender pursuant to the
provisions of this Agreement or any other Loan Document, is used only for the
purposes of this Agreement and the other Loan Documents and shall not be
divulged to any Person other than the Agent, the Lenders, and their respective
agents who are actively and directly participating in the evaluation,
administration or enforcement of the Loan Documents and other transactions
between the Agent or such Lender, as applicable, and the Borrower, but in any
event the Agent and the Lenders may make disclosure: (a) to any of their
respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section 13.8.); (b) as
reasonably requested by any potential or actual Assignee, Participant or other
transferee in connection with the contemplated transfer of any Commitment or
participations therein as permitted hereunder (provided they shall agree to keep
such information confidential in accordance with the terms of this Section); (c)
as required or requested by any Governmental Authority or representative thereof
or pursuant to legal process or in connection with any legal proceedings or as
otherwise required by Applicable Law; provided, however, if the Agent or a
Lender receives a summons or subpoena to disclose any such confidential
information to any Person, the Agent or such Lender, as applicable, shall, if
legally permitted, endeavor to notify the Borrower thereof as soon as possible
after receipt of such request, summons or subpoena and the Borrower shall be
afforded an opportunity to seek protective orders, or such other confidential
treatment of such disclosed information, as the Borrower and the Agent or such
Lender, as applicable, may deem reasonable; (d) to the Agent's or such Lender's
independent auditors and other professional advisors (provided they shall be
notified of the confidential nature of the information); (e) after the happening
and during the continuance of an Event of Default, to any other Person, in
connection with the exercise by the Agent or the Lenders of rights hereunder or
under any of the other Loan Documents; (f) upon Borrower's prior consent (which
consent shall not be unreasonably withheld), to any contractual counter-parties
to any swap or similar hedging agreement or to any rating agency; and (g) to the
extent such information (x) becomes publicly available other than as a result of
a breach of this Section actually known to such Lender to be such a breach or
(y) becomes available to the Agent or any Lender on a nonconfidential basis from
a source other than the Borrower or any Affiliate. Notwithstanding the
foregoing, the Agent and each Lender may disclose any such confidential
information, without notice to the Borrower or any other Loan Party, to
Governmental Authorities in connection with any regulatory examination of the
Agent or such Lender or in accordance with the regulatory compliance policy of
the Agent or such Lender.
SECTION 13.9. INDEMNIFICATION.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, each of the Lenders, any affiliate of the Agent or any
Lender, and their respective directors, officers, shareholders, agents,
employees and counsel (each referred to herein as an "Indemnified Party") from
and against any and all of the following (collectively, the "Indemnified
Costs"): losses, costs, claims, damages, liabilities, deficiencies, judgments or
reasonable expenses of every kind and nature (including, without limitation,
amounts paid in settlement, court costs and the reasonable fees and
disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection
therewith, but excluding losses, costs, claims, damages, liabilities,
deficiencies, judgments or expenses indemnification in respect of which is
specifically covered by Section 3.12. or 5.1. or expressly excluded from the
coverage of such Section 3.12. or 5.1.)
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incurred by an Indemnified Party in connection with, arising out of, or by
reason of, any suit, cause of action, claim, arbitration, investigation or
settlement, consent decree or other proceeding (the foregoing referred to herein
as an "Indemnity Proceeding") which is in any way related directly or indirectly
to: (i) this Agreement or any other Loan Document or the transactions
contemplated thereby; (ii) the making of any Loans or issuance of Letters of
Credit hereunder; (iii) any actual or proposed use by the Borrower of the
proceeds of the Loans or Letters of Credit; (iv) the Agent's or any Lender's
entering into this Agreement; (v) the fact that the Agent and the Lenders have
established the credit facility evidenced hereby in favor of the Borrower; (vi)
the fact that the Agent and the Lenders are creditors of the Borrower and have
or are alleged to have information regarding the financial condition, strategic
plans or business operations of the Borrower and the Subsidiaries; (vii) the
fact that the Agent and the Lenders are material creditors of the Borrower and
are alleged to influence directly or indirectly the business decisions or
affairs of the Borrower and the Subsidiaries or their financial condition;
(viii) the exercise of any right or remedy the Agent or the Lenders may have
under this Agreement or the other Loan Documents; (ix) any civil penalty or fine
assessed by the OFAC against, and all reasonable costs and expenses (including
counsel fees and disbursements) incurred in connection with defense thereof by,
the Agent or any Lender as a result of conduct of the Borrower, any other Loan
Party or any Subsidiary that violates a sanction enforced by the OFAC; or (x)
any violation or non-compliance by the Borrower or any Subsidiary of any
Applicable Law (including any Environmental Law) including, but not limited to,
any Indemnity Proceeding commenced by (A) the Internal Revenue Service or state
taxing authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to cause
the Borrower or its Subsidiaries (or its respective properties) (or the Agent
and/or the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws; provided, however, that the Borrower shall not be obligated
to indemnify any Indemnified Party for (A) any acts or omissions of such
Indemnified Party in connection with matters described in this subsection to the
extent arising from the gross negligence or willful misconduct of such
Indemnified Party, as determined by a court of competent jurisdiction in a
final, non-appealable judgment or (B) Indemnified Costs to the extent arising
directly out of or resulting directly from claims of one or more Indemnified
Parties against another Indemnified Party.
(b) The Borrower's indemnification obligations under this Section 13.9.
shall apply to all Indemnity Proceedings arising out of, or related to, the
foregoing whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this regard, this indemnification shall cover all Indemnified
Costs of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority. If
indemnification is to be sought hereunder by an Indemnified Party, then such
Indemnified Party shall notify the Borrower of the commencement of any Indemnity
Proceeding; provided, however, that the failure to so notify the Borrower shall
not relieve the Borrower from any liability that it may have to such Indemnified
Party pursuant to this Section 13.9.
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(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder, upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense of,
and may formulate its own strategy with respect to, any Indemnity Proceeding
covered by this Section and, as provided above, all Indemnified Costs incurred
by such Indemnified Party shall be reimbursed by the Borrower. No action taken
by legal counsel chosen by an Indemnified Party in investigating or defending
against any such Indemnity Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that if (i) the Borrower is
required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower
has provided evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnity
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnity Proceeding without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed). Notwithstanding the
foregoing, an Indemnified Party may settle or compromise any such Indemnity
Proceeding without the prior written consent of the Borrower where (x) no
monetary relief is sought against such Indemnified Party in such Indemnity
Proceeding or (y) there is an allegation of a violation of law by such
Indemnified Party.
(f) If and to the extent that the obligations of the Borrower under this
Section are unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations which
is permissible under Applicable Law.
(g) The Borrower's obligations under this Section shall survive any
termination of this Agreement and the other Loan Documents and the payment in
full in cash of the Obligations, and are in addition to, and not in substitution
of, any other of their obligations set forth in this Agreement or any other Loan
Document to which it is a party.
SECTION 13.10. TERMINATION; SURVIVAL.
At such time as (a) all of the Commitments have been terminated, (b) all
Letters of Credit have terminated or expired (or the Borrower's obligations in
respect of all outstanding Letters of Credit have been cash collateralized on
terms acceptable to the Agent and the Borrower has executed and delivered a
reimbursement agreement in form and substance acceptable to the Agent and such
other documents requested by the Agent evidencing the Borrower's reimbursement
obligations in respect of such Letters of Credit), (c) none of the Lenders is
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obligated any longer under this Agreement to make any Loans and (d) all
Obligations (other than obligations which survive as provided in the following
sentence) have been paid and satisfied in full, this Agreement shall terminate.
The indemnities to which the Agent, the Lenders and the Swingline Lender are
entitled under the provisions of Sections 3.12., 5.1., 5.4., 12.7., 13.2. and
13.9. and any other provision of this Agreement and the other Loan Documents,
and the provisions of Section 13.4., shall continue in full force and effect and
shall protect the Agent, the Lenders and the Swingline Lender (i)
notwithstanding any termination of this Agreement, or of the other Loan
Documents, against events arising after such termination as well as before and
(ii) at all times after any such party ceases to be a party to this Agreement
with respect to all matters and events existing on or prior to the date such
party ceased to be a party to this Agreement.
SECTION 13.11. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 13.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
SECTION 13.13. PATRIOT ACT.
The Lenders and the Agent each hereby notifies the Borrower that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)), it is required to obtain, verify and record
information that identifies the Borrower and the other Loan Parties, which
information includes the name and address of the Borrower and the other Loan
Parties and other information that will allow such Lender or the Agent, as
applicable, to identify the Borrower and the other Loan Parties in accordance
with such Act.
SECTION 13.14. COUNTERPARTS.
This Agreement and any amendments, waivers, consents or supplements may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
SECTION 13.15. OBLIGATIONS WITH RESPECT TO LOAN PARTIES.
The obligations of the Parent and the Borrower to direct or prohibit the
taking of certain actions by the other Loan Parties as specified herein shall be
absolute and not subject to any
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defense the Parent or the Borrower may have that the Parent or the Borrower does
not control such Loan Parties.
SECTION 13.16. LIMITATION OF LIABILITY.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases, and agrees not to sue
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. The Borrower hereby waives, releases, and agrees
not to sue the Agent or any Lender or any of the Agent's or any Lender's
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
SECTION 13.17. ENTIRE AGREEMENT.
This Agreement, the Notes, and the other Loan Documents referred to herein
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and thereof and
may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
SECTION 13.18. CONSTRUCTION.
The Borrower, the Parent, each Lender and the Agent acknowledge that each
of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Borrower, the Parent, each
Lender and the Agent.
SECTION 13.19. NO NOVATION.
THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SOLELY TO AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS OWING
UNDER AND IN CONNECTION WITH, THE EXISTING CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT AGREEMENT). ACCORDINGLY, THE
PROVISIONS OF THIS AGREEMENT SUPERSEDE THE PROVISIONS OF THE EXISTING CREDIT
AGREEMENT. THE PARTIES DO NOT INTEND THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED
HEREBY SHALL NOT BE DEEMED OR CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING BY THE
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BORROWER OR ANY OTHER LOAN PARTY UNDER OR IN CONNECTION WITH THE EXISTING CREDIT
AGREEMENT OR SUCH LOAN DOCUMENTS.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their authorized officers all as of
the day and year first above written.
U-STORE-IT, L.P.
By: U-Store-It Trust, its sole general
partner
By: /s/ Steven G. Osgood
--------------------------------------
Name: Steven G. Osgood
--------------------------------------
Title: President and Chief Financial Officer
--------------------------------------
U-STORE-IT TRUST
By: /s/ Steven G. Osgood
--------------------------------------
Name: Steven G. Osgood
--------------------------------------
Title: President and Chief Financial Officer
--------------------------------------
[Signatures Continued on Next Page]
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[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent, as a Lender and as Swingline Lender
By: /s/ Rex Rudy
--------------------------------------
Name: Rex Rudy
------------------------------------
Title: Managing Director
-----------------------------------
Commitment Amount:
$30,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
Wachovia Bank, National Association
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Attn: Cynthia A. Bean
---------------
Telephone: (704) 383-7534
--------
Telecopy: (704) 383-6205
--------
[Signatures Continued on Next Page]
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[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
[LENDER]
By: /s/ Kevin Murray
--------------------------------------
Name: Kevin Murray
------------------------------------
Title: Vice President
-----------------------------------
Commitment Amount:
$27,000,000
----------
LENDING OFFICE (ALL TYPES OF LOANS):
127 Puglie Square, 8th Floor
-----------------------------
Cleveland, Ohio 44114
-----------------------------
__________________________________________
__________________________________________
Attn: Kevin Murray, Vice President
----------------------------
Telephone: (216) 689-4660
--- --------
Telecopy: (216) 689-4997
--- --------
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[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
BANK OF MONTREAL
By: /s/ Virginia Neale
-----------------------------------------------
Name: Virginia Neale
Title: Vice President
Commitment Amount:
$24,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
111 West Monroe Street
10th Floor West
Chicago, Illinois 60603
Attn: Virginia Neale, Vice President
Telephone: (312) 461-3994
Telecopy: (312) 293-4856
K-3
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Luke D. Elsass
-----------------------------------------------
Name: Luke D. Elsass
Title: Vice President
Commitment Amount:
$24,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
1300 E. 9th Street
Suite 1000
Cleveland, Ohio 44114
Attn: Luke Elsass, Vice President
Telephone: (216) 802-2208
Telecopy: (216) 802-2233
K-4
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
SUNTRUST BANK
By: /s/ Nancy B. Richards
-----------------------------------------------
Name: Nancy B. Richards
Title: Senior Vice President
Commitment Amount:
$24,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
8330 Boone Blvd., 8th Floor
Vienna, VA 22182
Attn: Nancy B. Richard, Senior Vice President
Telephone: (703) 442-1557
Telecopy: (703) 442-1570
K-5
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
CHARTER ONE BANK, NATIONAL ASSOCIATION
By: /s/ Suzanne Hamilton
-----------------------------------------------
Name: Suzanne Hamilton
Title: Vice President
Commitment Amount:
$24,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
1215 Superior Avenue
Cleveland, Ohio 44114
Attn: Suzanne Hamilton, Vice President
Telephone: (216) 277-0556
Telecopy: (216) 566-7577
K-6
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
COMPASS BANK, an ALABAMA BANKING CORPORATION
By: /s/ Johanna Duke Paley
-----------------------------------------------
Name: Johanna Duke Paley
Title: Senior Vice President
Commitment Amount:
$24,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
15 South 20th Street
15th Floor
Birmingham, AL 35223
Attn: Jo Paley, Senior, Vice President
Telephone: (205) 297-3851
Telecopy: (205) 297-7994
K-7
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
HUNTINGTON NATIONAL BANK
By: /s/ A. Geraldi Perry
-------------------------------
Name: A. Geraldi Perry
Title: Vice President
Commitment Amount:
$24,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
917 Euclid Avenue CM17
Cleveland, OH 44115
Attn: Perry D. Quick, Senior Vice President
Telephone: (216) 515-6882
Telecopy: (216) 515-6369
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Gregory W. Ward
------------------------------------------
Name: Gregory W. Ward
Title: Vice President
Commitment Amount:
$24,000,000
LENDING OFFICE (ALL TYPES OF LOANS):
200 Public Square
Suite 1200
Cleveland, Ohio 44114
Attn: Gerald W. Ward, Vice President
Telephone: (216) 344-6945
Telecopy: (216) 344-6971
K-2
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
FIRSTMERIT BANK, N.A.
By: /s/ Jonathan M. Isaacs
------------------------------------------
Name: Jonathan M. Isaacs
Title: Vice President
Commitment Amount:
$12,500,000
LENDING OFFICE (ALL TYPES OF LOANS):
101 W. Prospect Ave. #350
Cleveland, Ohio 44115
Attn: Jonathan M. Isaacs, Vice President
Telephone: (216) 802-6514
Telecopy: (216) 694-5668
K-3
[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2006 WITH U-STORE-IT, L.P.]
NATIONAL CITY BANK
By: /s/ Daniel J. Mullinger
------------------------------------------
Name: Daniel J. Mullinger
Title: Senior Vice President
Commitment Amount:
$12,500,000
LENDING OFFICE (ALL TYPES OF LOANS):
One Chagrin Highlands
2000 Auburn Drive
Suite 400
Beachwood, OH 44122-4327
Attn: Patricia J. Goodhill,
Assistant Vice President
Telephone: (216) 488-8195
Telecopy: (216) 488-0214
K-4