SIXTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT among SOVRAN SELF STORAGE, INC. and SOVRAN ACQUISITION LIMITED PARTNERSHIP WELLS FARGO BANK, NATIONAL ASSOCIATION, MANUFACTURERS AND TRADERS TRUST COMPANY, and OTHER LENDERS WHICH ARE...
Exhibit 10.1
EXECUTION VERSION
SIXTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT
among
SOVRAN SELF STORAGE, INC. and
SOVRAN ACQUISITION LIMITED PARTNERSHIP
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
MANUFACTURERS AND TRADERS TRUST COMPANY,
and
OTHER LENDERS WHICH ARE OR MAY BECOME
PARTIES TO THIS CREDIT AGREEMENT
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
with
XXXXX FARGO SECURITIES, LLC
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
and each of
U.S. BANK NATIONAL ASSOCIATION,
HSBC BANK USA, NATIONAL ASSOCIATION,
PNC BANK, NATIONAL ASSOCIATION
and,
SUNTRUST BANK,
AS CO-DOCUMENTATION AGENTS
Dated as of December 10, 2014
TABLE OF CONTENTS
Page
§1.
|
DEFINITIONS AND RULES OF INTERPRETATION
|
2
|
|||
§1.1.
|
Definitions
|
2
|
|||
§1.2.
|
Rules of Interpretation
|
28
|
|||
§1.3.
|
Reallocations on Restatement Date
|
29
|
|||
§2.
|
THE REVOLVING CREDIT FACILITY
|
30
|
|||
§2.1.
|
Revolving Credit Loans
|
30
|
|||
§2.2.
|
The Revolving Credit Notes
|
31
|
|||
§2.3.
|
Interest on Revolving Credit Loans
|
31
|
|||
§2.4.
|
Requests for Revolving Credit Loans
|
32
|
|||
§2.5.
|
Conversion Options
|
33
|
|||
§2.6.
|
Funds for Revolving Credit Loans
|
34
|
|||
§2.7.
|
Repayment of the Revolving Credit Loans at Maturity
|
35
|
|||
§2.8.
|
Optional Repayments of Revolving Credit Loans
|
35
|
|||
§2.9.
|
Mandatory Repayments of Revolving Credit Loans and Other Obligations
|
36
|
|||
§2.10.
|
Intentionally Omitted
|
36
|
|||
§2.11.
|
Increase of Total Revolving Credit Commitment
|
36
|
|||
§2.12.
|
Swingline Loans
|
37
|
|||
§3.
|
THE TERM LOAN FACILITY
|
40
|
|||
§3.1.
|
Term Loans
|
40
|
|||
§3.2.
|
The Term Notes
|
40
|
|||
§3.3.
|
Interest on Term Loan
|
41
|
|||
§3.4.
|
Conversion Options
|
41
|
|||
§3.5.
|
Repayment of the Term Loans at Maturity
|
41
|
|||
§3.6.
|
Optional Repayments of Term Loans
|
41
|
|||
§3.7.
|
Additional Term Loans
|
42
|
|||
§4.
|
CERTAIN GENERAL PROVISIONS
|
43
|
|||
§4.1.
|
Fees
|
43
|
|||
§4.2.
|
Funds for Payments
|
43
|
|||
§4.3.
|
Computations
|
45
|
|||
§4.4.
|
Inability to Determine LIB OR Rate
|
46
|
|||
§4.5.
|
Illegality
|
46
|
|||
§4.6.
|
Additional Costs, Etc.
|
46
|
|||
§4.7.
|
Capital Adequacy
|
47
|
|||
§4.8.
|
Certificate
|
48
|
|||
§4.9.
|
Indemnity
|
48
|
|||
§4.10.
|
Interest During Event of Default; Late Charges
|
49
|
|||
§4.11.
|
Concerning Joint and Several Liability of the Borrowers
|
49
|
|||
§4.12
|
Interest Limitation
|
50
|
|||
§4.13.
|
Reasonable Efforts to Mitigate
|
51
|
|||
§4.14.
|
Replacement of Lenders
|
51
|
|||
§4.15.
|
Defaulting Lender
|
52
|
|||
§4.16.
|
Pro Rata Treatment
|
55
|
|||
§5.
|
LETTERS OF CREDIT
|
56
|
|||
§5.1.
|
Commitment to Issue Letters of Credit
|
56
|
|||
§5.2.
|
Letter of Credit Applications
|
57
|
|||
§5.3.
|
Terms of Letters of Credit
|
57
|
|||
§5.4.
|
Reimbursement Obligations of Lenders
|
57
|
|||
§5.5.
|
Participations of Lenders
|
58
|
|||
§5.6.
|
Reimbursement Obligation of the Borrowers
|
58
|
|||
§5.7.
|
Letter of Credit Payments
|
59
|
|||
§5.8.
|
Obligations Absolute
|
59
|
|||
§5.9.
|
Reliance by Issuer
|
60
|
|||
§5.10.
|
Letter of Credit Fees
|
60
|
|||
§5.11.
|
Cash Collateral
|
60
|
|||
§5.12.
|
Extended Letters of Credit
|
61
|
|||
§6.
|
GUARANTIES
|
61
|
|||
§7.
|
REPRESENTATIONS AND WARRANTIES
|
62
|
|||
§7.1.
|
Authority; Etc.
|
62
|
|||
§7.2.
|
Governmental Approvals
|
64
|
|||
§7.3.
|
Title to Properties; Leases
|
65
|
|||
§7.4.
|
Financial Statements
|
65
|
|||
§7.5.
|
Fiscal Year
|
66
|
|||
§7.6.
|
Licenses, Permits, Franchises, Patents, Copyrights, Etc.
|
66
|
|||
§7.7.
|
Litigation
|
66
|
|||
§7.8.
|
No Materially Adverse Contracts, Etc
|
67
|
|||
§7.9.
|
Compliance With Other Instruments, Laws, Etc
|
67
|
|||
§7.10.
|
Tax Status
|
67
|
|||
§7.11.
|
No Event of Default; No Materially Adverse Changes
|
67
|
|||
§7.12.
|
Investment Company Act
|
68
|
|||
§7.13.
|
Absence of UCC Financing Statements, Etc
|
68
|
|||
§7.14.
|
Absence of Liens
|
68
|
|||
§7.15.
|
Certain Transactions
|
68
|
|||
§7.16.
|
Employee Benefit Plans
|
68
|
|||
§7.16.1.
|
In General
|
68
|
|||
§7.16.2.
|
Terminability of Welfare Plans
|
69
|
|||
§7.16.3.
|
Guaranteed Pension Plans
|
69
|
|||
§7.16.4.
|
Multiemployer Plans
|
69
|
|||
§7.17.
|
Regulations U and X
|
70
|
|||
§7.18.
|
Environmental Compliance
|
70
|
|||
§7.19.
|
Subsidiaries
|
72
|
|||
§7.20.
|
Loan Documents
|
72
|
|||
§7.21.
|
REIT Status
|
72
|
|||
§7.22.
|
Solvency
|
72
|
|||
§7.23.
|
Trading Status
|
73
|
|||
§7.24.
|
Existing Indebtedness; Liens
|
73
|
|||
§7.25.
|
Foreign Assets Control Regulations
|
73
|
|||
§8.
|
AFFIRMATIVE COVENANTS OF THE BORROWERS AND THE GUARANTOR
|
74
|
|||
§8.1.
|
Punctual Payment
|
74
|
|||
§8.2.
|
Maintenance of Office
|
74
|
|||
§8.3.
|
Records and Accounts
|
74
|
|||
§8.4.
|
Financial Statements, Certificates and Information
|
75
|
|||
§8.5.
|
Notices
|
77
|
|||
§8.6.
|
Existence of SALP, Holdings and Subsidiary Guarantors; Maintenance of Properties
|
79
|
|||
§8.7.
|
Existence of Sovran; Maintenance of REIT Status of Sovran; Maintenance Properties
|
80
|
|||
§8.8.
|
Insurance
|
80
|
|||
§8.9.
|
Taxes
|
80
|
|||
§8.10.
|
Inspection of Properties and Books; Confidentiality
|
81
|
|||
§8.11.
|
Compliance with Laws, Contracts, Licenses, and Permits
|
82
|
|||
§8.12.
|
Use of Proceeds
|
82
|
|||
§8.13.
|
Acquisition of Unencumbered Properties
|
82
|
|||
§8.14.
|
Additional Guarantors
|
82
|
|||
§8.15.
|
Further Assurances
|
85
|
|||
§8.16.
|
Intentionally Omitted
|
85
|
|||
§ 8.17.
|
Environmental Indemnification
|
85
|
|||
§8.18.
|
Response Actions
|
85
|
|||
§8.19.
|
Environmental Assessments
|
85
|
|||
§8.20.
|
Employee Benefit Plans
|
86
|
|||
§8.21.
|
No Amendments to Certain Documents
|
86
|
|||
§8.22.
|
Intentionally Omitted
|
86
|
|||
§8.23.
|
Management
|
86
|
|||
§8.24.
|
Financial Covenants under Note Purchase Agreement
|
87
|
|||
§9.
|
CERTAIN NEGATIVE COVENANTS OF THE BORROWERS AND THE GUARANTORS
|
87
|
|||
§9.1.
|
Restrictions on Indebtedness
|
87
|
|||
§9.2.
|
Restrictions on Liens, Etc
|
88
|
|||
§9.3.
|
Restrictions on Investments
|
90
|
|||
§9.4.
|
Merger, Consolidation and Disposition of Assets
|
92
|
|||
§9.5.
|
Sale and Leaseback
|
93
|
|||
§9.6.
|
Compliance with Environmental Laws
|
94
|
|||
§9.7.
|
Distributions
|
94
|
|||
§9.8.
|
Employee Benefit Plans
|
94
|
|||
§9.9.
|
Fiscal Year; Nature of Business
|
95
|
|||
§9.10.
|
Negative Pledge
|
95
|
|||
§9.11.
|
Transactions with Affiliates
|
95
|
|||
§9.12.
|
Terrorism Sanctions Regulations
|
96
|
|||
§9.13.
|
Restrictions on Intercompany Transfers
|
96
|
|||
§10.
|
FINANCIAL COVENANTS OF THE BORROWERS
|
96
|
|||
§10.1.
|
Leverage Ratio
|
96
|
|||
§10.2.
|
Priority Debt
|
96
|
|||
§10.3.
|
Tangible Net Worth
|
96
|
|||
§10.4.
|
Fixed Charge Coverage
|
96
|
|||
§10.5.
|
Unimproved Land
|
97
|
|||
§10.6.
|
Construction-in-Process
|
97
|
|||
§10.7.
|
Promissory Notes
|
97
|
|||
§10.8.
|
Unimproved Land, Construction-in-Process and Notes
|
97
|
|||
§10.9.
|
Joint Venture Ownership Interest
|
97
|
|||
§10.10.
|
[Intentionally Omitted]
|
97
|
|||
§10.11.
|
Unsecured Indebtedness
|
97
|
|||
§10.12.
|
Unencumbered Property Debt Service Coverage
|
97
|
|||
§10.13.
|
Covenant Calculations
|
98
|
|||
§11.
|
CONDITIONS TO THE RESTATEMENT DATE
|
99
|
|||
§11.1.
|
Loan Documents
|
99
|
|||
§11.2.
|
Certified Copies of Organization Documents
|
99
|
|||
§11.3.
|
Resolutions
|
99
|
|||
§11.4.
|
Incumbency Certificate; Authorized Signers
|
99
|
|||
§11.5.
|
Note Purchase Agreements
|
100
|
|||
§11.6.
|
Certificates of Insurance
|
100
|
|||
§11.7.
|
Intentionally Omitted
|
100
|
|||
§11.8.
|
Opinion of Counsel Concerning Organization and Loan Documents
|
100
|
|||
§11.9.
|
Tax and Securities Law Compliance
|
100
|
|||
§11.10.
|
Guaranties
|
100
|
|||
§11.11.
|
Certifications from Government Officials
|
100
|
|||
§11.12.
|
Proceedings and Documents
|
101
|
|||
§11.13.
|
Fees
|
101
|
|||
§11.14.
|
Compliance Certificate
|
101
|
|||
§11.15.
|
Existing Indebtedness
|
101
|
|||
§11.16.
|
Subsequent Guarantors
|
101
|
|||
§11.17.
|
No Material Adverse Effect
|
101
|
|||
§11.18.
|
Other Information
|
101
|
|||
§12.
|
CONDITIONS TO ALL BORROWINGS
|
101
|
|||
§12.1.
|
Representations True; No Event of Default; Compliance Certificate
|
102
|
|||
§12.2.
|
No Legal Impediment
|
102
|
|||
§12.3.
|
Governmental Regulation
|
102
|
|||
§13.
|
EVENTS OF DEFAULT; ACCELERATION; ETC
|
102
|
|||
§13.1.
|
Events of Default and Acceleration
|
102
|
|||
§13.2.
|
Termination of Commitments
|
105
|
|||
§13.3.
|
Remedies
|
106
|
|||
§13.4.
|
Distribution of Proceeds
|
106
|
|||
§13.5.
|
Letter of Credit Collateral Account
|
107
|
|||
§14.
|
SET OFF
|
000
|
|||
§00.
|
THE AGENTS
|
109
|
|||
§15.1.
|
Authorization
|
109
|
|||
§15.2.
|
Employees and Agents
|
110
|
|||
§15.3.
|
No Liability
|
110
|
|||
§15.4.
|
No Representations
|
110
|
|||
§15.5.
|
Payments
|
111
|
|||
§15.6.
|
Holders of Notes
|
111
|
|||
§15.7.
|
Indemnity
|
111
|
|||
§15.8.
|
Agents as Lenders
|
111
|
|||
§15.9.
|
Notification of Defaults and Events of Default
|
112
|
|||
§15.10.
|
Duties in the Case of Enforcement
|
112
|
|||
§15.11.
|
Successor Agents
|
112
|
|||
§15.12.
|
Notices
|
113
|
|||
§15.13.
|
Administrative Agent May File Proofs of Claim
|
113
|
|||
§16.
|
EXPENSES
|
114
|
|||
§17.
|
INDEMNIFICATION
|
115
|
|||
§18.
|
XXXXXXXX XX XXXXXXXXX, XXX
|
000
|
|||
§00.
|
ASSIGNMENT; PARTICIPATIONS; ETC
|
116
|
|||
§19.1.
|
Successors and Assigns Generally
|
116
|
|||
§19.2.
|
Assignments by Lenders
|
117
|
|||
§19.3.
|
Register
|
119
|
|||
§19.4.
|
Participations
|
119
|
|||
§19.5.
|
Limitation upon Participant Rights
|
119
|
|||
§19.6.
|
Certain Pledges
|
120
|
|||
§19.7.
|
No Registration
|
120
|
|||
§19.8.
|
Disclosure
|
120
|
|||
§19.9.
|
Syndication
|
000
|
|||
§00.
|
NOTICES, ETC
|
000
|
|||
§00.
|
GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE
|
121
|
|||
§22.
|
HEADINGS
|
000
|
|||
§00.
|
COUNTERPARTS
|
000
|
|||
§00.
|
ENTIRE AGREEMENT, ETC
|
000
|
|||
§00.
|
WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS
|
000
|
|||
§00.
|
CONSENTS, AMENDMENTS, WAIVERS, ETC
|
000
|
|||
§00.
|
INDEPENDENCE OF COVENANTS
|
000
|
|||
§00.
|
SEVERABILITY
|
124
|
|||
§29.
|
USA PATRIOT ACT NOTICE
|
124
|
|||
§30.
|
TRANSITIONAL ARRANGEMENTS
|
124
|
|||
§30.1.
|
Existing Credit Agreement Superseded
|
124
|
|||
§30.2.
|
Return and Cancellation of Notes
|
125
|
|||
§30.3.
|
No Novation
|
125
|
|||
|
|
SCHEDULE 1.1(A)
|
Lenders’ Commitments
|
SCHEDULE 1.1(B)
|
Existing Letters of Credit
|
SCHEDULE 7.1(b)
|
Capitalization
|
SCHEDULE 7.3(a)
|
Unencumbered Properties
|
SCHEDULE 7.3(c)
|
Partially Owned Real Estate Companies
|
SCHEDULE 7.7
|
Litigation
|
SCHEDULE7.15
|
Certain Transactions
|
SCHEDULE 7.18
|
Environmental Matters
|
SCHEDULE 7.19
SCHEDULE 7.24
SCHEDULE 9.2(vi)
|
Subsidiaries
Existing Indebtedness
Existing Liens
|
SCHEDULE 9.3(d)
|
Existing Investments
|
|
|
A-1
|
Form of Revolving Credit Note
|
A-2
|
Form of Term Loan Note
|
B
|
Form of Subsidiary Guaranty
|
C
|
Form of Revolving Credit Loan Request
|
D-1
|
Form of Compliance Certificate (Loan Request)
|
D-2
|
Form of Compliance Certificate (Sovran Financial Statements)
|
D-3
|
Form of Compliance Certificate (SALP Financial Statements)
|
D-4
|
Form of Compliance Certificate (Incurrence of Indebtedness)
|
D-5
|
Form of Compliance Certificate (Merger, Consolidation or Reorganization)
|
D-6
|
Form of Compliance Certificate (Disposition of Unencumbered Property)
|
D-7
|
Form of Compliance Certificate (Closing Condition)
|
E
|
Form of Assignment and Assumption Agreement
|
F
|
Form of Notice of Continuation/Conversion
|
G
|
Form of Notice of Swingline Borrowing
|
H
|
Form of Swingline Note
|
SIXTH AMENDED AND RESTATED
This SIXTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of the 10th day of December, 2014, by and among SOVRAN SELF STORAGE, INC., a Maryland corporation (“Sovran”) and SOVRAN ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership (“SALP”, and together with Sovran, collectively referred to herein as the “Borrowers” and individually as a “Borrower”), each with a principal place of business at 0000 Xxxx Xxxxxx, Xxxxxxxxxxxxx, Xxx Xxxx 00000, XXXXX FARGO BANK, NATIONAL ASSOCIATION (together with is successors and assigns, “Xxxxx Fargo Bank”), MANUFACTURERS AND TRADERS TRUST COMPANY (together with its successors and assigns, “M&T Bank”) and each of the other lending institutions listed on Schedule 1.1(A) hereto or which may become parties hereto pursuant to §19 (individually, a “Lender” and collectively, the “Lenders”), MANUFACTURERS AND TRADERS TRUST COMPANY, as administrative agent for itself and the other Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”), with XXXXX FARGO SECURITIES, LLC and MANUFACTURERS AND TRADERS TRUST COMPANY, as the joint lead arrangers and joint bookrunners, (in such capacities, the “Joint Lead Arrangers”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as syndication agent (in such capacity, the “Syndication Agent”), and each of U.S. BANK NATIONAL ASSOCIATION, HSBC BANK USA, NATIONAL ASSOCIATION, PNC BANK, NATIONAL ASSOCIATION and SUNTRUST BANK, as co-documentation agents (collectively, the “Documentation Agents”).
A. The Borrowers are primarily engaged in the business of owning, purchasing, developing, constructing, renovating and operating self-storage facilities in the United States primarily known as “Uncle Bob’s Self Storage” (for purposes hereof, operation of self-storage facilities shall include owning and renting vehicles which are rented by customers in connection with moving their property to and from storage units).
B. Sovran is a limited partner of SALP, holds in excess of 96% of the partnership interests in SALP, conducts all or substantially all of its business through SALP, and is qualified to elect REIT status for income tax purposes. Sovran Holdings, Inc., a Delaware corporation (“Holdings”), is a wholly-owned Subsidiary of Sovran and the sole general partner of SALP and has agreed to guaranty the obligations of the Borrowers hereunder.
C. Pursuant to that certain Fifth Amended and Restated Revolving Credit and Term Loan Agreement, by and among the Borrowers, the Administrative Agent, the certain lenders party thereto and other parties thereto, dated as of June 4, 2013 (as amended and in effect immediately prior to the Restatement Date, the “Existing Credit Agreement”), such lenders extended to the Borrowers a revolving credit facility in an aggregate principal amount not to exceed $175,000,000, an initial term loan facility in the aggregate principal amount of $225,000,000, and a delayed draw term loan facility in the aggregate principal amount of $100,000,000. The Borrowers have requested that the Lenders amend and restate such revolving credit and term
1
loan facilities, with (i) a revolving credit facility in an aggregate initial principal amount not to exceed $300,000,000, with a sublimit for letters of credit of $15,000,000 and a sublimit for swingline loans in an aggregate principal amount of $25,000,000 and (ii) a term loan facility in an aggregate initial principal amount of $325,000,000. The Lenders are agreeable to providing such an amended and restated revolving credit facility and term loan facility to the Borrowers, with such facilities to be on the terms and conditions set forth in this Credit Agreement.\
§1. DEFINITIONS AND RULES OF INTERPRETATION
§1.1. Definitions. The following terms shall have the meanings set forth in this §1 or elsewhere in the provisions of this Credit Agreement referred to below:
2
Person, (iii) any other Person directly or indirectly holding 10% or more of any class of the capital stock or other equity interests (including options, warrants, convertible securities and similar rights) of that Person and (iv) any other Person 10% or more of any class of whose capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that Person.
Agents. Collectively, the Administrative Agent, each Documentation Agent and the Syndication Agent.
Level
|
Credit Rating
|
Applicable
Margin for Revolving Credit Loans which are LIBOR Rate Loans |
Applicable
Margin for Revolving Credit Loans which are Base Rate Loans |
Applicable Margin
for Term Loans which are LIBOR Rate Loans |
Applicable Margin
for Term Loans which are Base Rate Loans |
5
|
No rating or less than BBB-/Baa3 or equivalent
|
1.600%
|
0.60%
|
1.80%
|
0.80%
|
4
|
BBB-/Baa3 or equivalent
|
1.300%
|
0.30%
|
1.40%
|
0.40%
|
3
|
BBB/Baa2 or equivalent
|
1.100%
|
0.10%
|
1.15%
|
0.15%
|
2
|
BBB+/Baa1 or equivalent
|
0.975%
|
0.00%
|
1.00%
|
0.00%
|
1
|
A-/A3 or equivalent or higher
|
0.875%
|
0.00%
|
0.90%
|
0.00%
|
Approved Fund. Any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
3
Blocked Person. See §7.25.
Borrower Representative. Sovran, acting on behalf of all of the Borrowers. The Agents and the Lenders shall be entitled to rely, and all of the Borrowers hereby agree that the Agents and the Lenders may so rely, on any notice given or received or action taken or not taken by Sovran as being authorized by each of the Borrowers.
4
Capitalization Rate. A rate equal to seven and three-quarters of one percent (7.75%); provided however, that the Capitalization Rate shall be reviewed from time to time by the Administrative Agent and shall be subject to adjustment by the Required Lenders, in their sole discretion, based upon market conditions for comparable property types; provided further that the Capitalization Rate may only be adjusted once during the term of this Credit Agreement, and may only be adjusted at such time by up to 0.50%.
Cash and Cash Equivalents. Collectively, unrestricted (i) cash, (ii) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government; and (iii) domestic and Eurodollar certificates of deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations), which, at the time of acquisition, are rated A-1 (or better) by S&P, P-1 (or better) by Xxxxx’x or F1 (or better) by Fitch provided that the maturities of such Cash and Cash Equivalents shall not exceed one year.
5
CERCLA. See §7.18.
Completed Revolving Credit Loan Request. A loan request accompanied by all information required to be supplied under the applicable provisions of §2.4.
Consolidated Adjusted EBITDA. For any period, an amount equal to the consolidated net income of the Borrowers and their respective Subsidiaries for such period, as determined in accordance with GAAP, excluding (but only to the extent included in determining net income for such fiscal period) (a) gains (or losses) from the sale of real property or interests therein, debt restructurings and other extraordinary items (provided such exclusions shall not include extraordinary items that include liquidated damages, compensatory damages or other obligations arising out of a Borrower’s default under an agreement to purchase or lease Real Estate), (b) minority interest attributable to a Borrower or a Guarantor and (c) income taxes; plus (x) interest expense and (y) depreciation and amortization, minus a recurring capital expense reserve in an amount equal to ten cents ($0.10) per net rentable square foot multiplied by the total net rentable square feet of all Real Estate; all after adjustments for unconsolidated partnerships, joint ventures and other entities. The calculation of Consolidated Adjusted EBITDA shall be further adjusted as set forth in §10.13 hereof.
6
and an annual interest rate equal to the greater of (x) the sum of two percent (2%) plus the imputed ten (10) year United States Treasury xxxx yield as of such date based upon published quotes for Treasury bills having ten (10) years to maturity and (y) 6.0%.
Consolidated Total Interest Expense. For any period, the aggregate amount of interest required to be paid or accrued by the Borrowers and their respective Subsidiaries during such period on all Indebtedness of the Borrowers and their respective Subsidiaries outstanding during all or any part of such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of any Capitalized Lease or any Synthetic Lease, and including commitment fees, agency fees, facility fees, balance deficiency fees and similar fees or expenses in connection with the borrowing of money; provided that such fees paid in connection with the borrowing of money may be amortized over
7
the period of the applicable loan. The calculation of Consolidated Fixed Charges shall be further adjusted as set forth in §10.13 hereof.
Credit Agreement. This Sixth Amended and Restated Revolving Credit and Term Loan Agreement, including the Schedules and Exhibits hereto, as the same may be from time to time amended and in effect.
8
(i) requires notice and time to cure to become an Event of Default and as to which notice has been given to the Borrowers by the Administrative Agent; or
(ii) has occurred and will become an Event of Default (without notice) if such event remains uncured after any grace period specified in §13.1 or, in the case of matters referred to in §13.1(k), in the other applicable Loan Document(s).
9
opinion will require the expenditure of $250,000 or more to remedy or complete such matter and the remediation or completion of which is required by prudent real estate ownership or operation.
Disqualifying Environmental Event. Any Release or threatened Release of Hazardous Substances, any violation of Environmental Laws or any other similar environmental event with respect to a Real Estate that causes (y) the occupancy or rent of such Real Estate to be adversely affected, as compared to what otherwise would have been the occupancy or rent of such Real Estate in the absence of such environmental event or (z) such Real Estate to no longer be financeable on a secured, long-term debt basis under the then generally accepted underwriting standards of national institutional lenders.
Disqualifying Legal Event. Any violation or non-compliance with any applicable law, statute, rule or regulation (other than an Environmental Law) with respect to any Real Estate, which requires cure or compliance for prudent real estate ownership or operation.
(i) SALP, any distribution of cash or other cash equivalent, directly or indirectly, to the partners or other equity interest holders of SALP; or any other distribution on or in respect of any partnership interests of SALP; and
(ii) Sovran, the declaration or payment of any dividend or any other distribution on or in respect of any shares of any class of capital stock of Sovran, other than dividends payable solely in shares of common stock by Sovran.
Dollars or $. Dollars in lawful currency of the United States of America.
Drawdown Date. The date on which any Loan is made or is to be made, and the date on which any Loan is converted or continued in accordance with §2.5 or §3.4.
Environmental Laws. See §7.18(a).
10
Extended Letter of Credit. See §5.3.
11
Level
|
Facility Fee
(% per annum)
|
5
|
0.25
|
4
|
0.20
|
3
|
0.15
|
2
|
0.15
|
1
|
0.10
|
The Facility Fee shall be payable quarterly, in arrears, on the first Business Day of each January, April, July and October, calculated for the immediately preceding calendar quarter (or portion thereof) commencing on the first such day after the Restatement Date.
FASB ASC. The Accounting Standards Codification of the Financial Accounting Standards Board.
FATCA. Sections 1471-1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
Fee Letter. See §4.1.
Fitch. Fitch, Inc., or any successor thereto.
Foreign Lender. Any Lender that is organized under the laws of a jurisdiction other than that in which the Borrowers are a resident for tax purposes. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction
Fronting Exposure. At any time there is a Defaulting Lender who is a Revolving Credit Lender, (a) with respect to the Administrative Agent, such Defaulting Lender’s Revolving Credit Commitment Percentage of the outstanding L/C Obligations with respect to Letters of Credit issued by the Administrative Agent other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Credit Commitment Percentage of outstanding Swingline Loans other than
12
Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders.
GAAP. Generally accepted accounting principles, consistently applied.
Gross Asset Value. The sum of: (a) unrestricted Cash and Cash Equivalents, up to a maximum of $20,000,000; (b) for Real Estate owned in fee simple or subject to a Ground Lease for one fiscal quarter or more, Consolidated Capitalized Value of all such Real Estate; (c) for Real Estate owned in fee simple or leased under a Ground Lease by the Borrower and its Subsidiaries for less than one fiscal quarter, 100% of the acquisition cost of such Real Estate; (d) for Real Estate owned in fee simple or leased under a Ground Lease by an unconsolidated Partially Owned Entity for less than one fiscal quarter, the Borrower’s pro rata share of the acquisition cost of such Real Estate; (e) 100% of the book value of any Construction- in-Process of the Borrower and its Subsidiaries; (f) the Borrower’s pro rata share of the book value of any Construction-in-Process of any unconsolidated Partially-Owned Entity; (g) 100% of the book value of all other non-Real Estate assets of the Borrower and its Subsidiaries, (h) the Borrower’s pro rata share of the book value all other non-Real Estate assets of unconsolidated Partially Owned Entities, exclusive, in the case of clauses (g) and (h) of any goodwill and other intangible assets, related-party receivables, Other Assets (as appearing in SALP’s financial statements), and prepaid expenses. Notwithstanding the foregoing, Real Estate subject to a Ground Lease shall not exceed 10% of Gross Asset Value.
13
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.
Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by any Borrower or any Guarantor, as the case may be, or any ERISA Affiliate of any of them the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.
(a) to purchase such Indebtedness or obligation or any property constituting security therefore primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of any other Person to make payment of the Indebtedness or obligation;
(b) to advance or supply funds (i) for the purchase or payment of such Indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of any other Person to make payment of the Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the obligor under any Guaranty, the Indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor, provided that the amount of such Indebtedness outstanding for purposes of this Credit Agreement shall not be deemed to exceed the maximum amount of Indebtedness that is the subject of such Guaranty.
Hazardous Substances. See §7.18(b).
14
Holdings. As defined in the preamble hereto.
HQ Land. Ten acres of vacant Real Estate near the Sovran headquarter offices in Buffalo, New York.
15
paper, instruments or documents creating or evidencing a right to payment of money or (iii) other receivables (collectively “receivables”), whether pursuant to a purchase facility or otherwise, other than in connection with the disposition of the business operations relating thereto or a disposition of defaulted receivables for collection and not as a financing arrangement, and together with any obligation to pay any discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection therewith; and (k) all obligations in respect of Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent that such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor and such terms are enforceable under applicable law. The calculation of Indebtedness of any Person shall be adjusted as set forth in §10.13; provided that, or purposes of clause (e) hereof, “Derivatives Termination Value” means, in respect of any one or more Derivatives Contract, after taking into account the effect of any legally enforceable netting agreement or provision relating thereto, (a) for any date on or after the date such Derivatives Contracts have been terminated or closed out, the termination amount or value determined in accordance therewith, (b) other than with respect to a Derivatives Contract entered into as a hedge against existing Indebtedness, for any date prior to the date such Derivatives Contracts have been terminated or closed out, the then-current xxxx-to-market value for such Derivatives Contracts, determined based upon one or more mid-market quotations or estimates provided by any recognized dealer in Derivatives Contracts (which may include the Administrative Agent, any Lender or any Affiliate of any thereof) regardless of Section 10.13(d) and (c) with respect to a Derivatives Contract entered into as a hedge against existing Indebtedness, in accordance with GAAP as modified by Section 10.13(d).
Indemnified Lender’s(s’) Group. See §17.
16
Loans); and (b) thereafter, each period commencing at the end of the last day of the immediately preceding Interest Period applicable to such Loan and ending on the last day of the applicable period set forth in (a) above as selected by the Borrowers in a Conversion Request or as otherwise expressly permitted in accordance with this Credit Agreement; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Base Rate Loan would end on a day that is not a Business Day, that Interest Period shall end on the next succeeding Business Day;
(B) if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;
(C) if the Borrowers shall fail to give notice of conversion or continuation as provided in §2.5 or §3.4, the Borrowers shall be deemed to have requested a conversion of the affected LIBOR Rate Loan into a Base Rate Loan on the last day of the then current Interest Period with respect thereto;
(D) any Interest Period relating to any LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to subparagraph (E) below, end on the last Business Day of a calendar month; and
(E) any Interest Period that would otherwise extend beyond the applicable Maturity Date shall end on such Maturity Date.
Joint Lead Arrangers. As defined in the preamble hereto.
17
from Partially-Owned Entities for the most recent two (2) completed fiscal quarters multiplied by two (2), with the product being divided by the Capitalization Rate.
L/C Obligations. As at any date of determination, the Maximum Drawing Amount plus the aggregate of all Unpaid Reimbursement Obligations. For all purposes of this Credit Agreement, (a) if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn, and (b) a Revolving Credit Lender (other than the Revolving Credit Lender then acting as the Administrative Agent) shall be deemed to hold an L/C Obligation in an amount equal to its participation interest under §5.5 in the related Letter of Credit, and the Revolving Credit Lender then acting as Administrative Agent shall be deemed to hold an L/C Obligation in an amount equal to its interest in such Letter of Credit after giving effect to the acquisition by the Revolving Credit Lenders of their participation interests under §5.5.
(i)
|
First, the Administrative Agent shall determine the amount by which (a) the total amount of interest which would have otherwise accrued hereunder on each installment of principal prepaid or not so drawn, during the period beginning on the date of such prepayment or failure to draw and ending on the last day of the applicable LIBOR Rate Loan Interest Period the “Reemployment Period”), exceeds (b) the total amount of interest which would accrue, during the Reemployment Period, on any readily marketable bond or other obligation of the United States of America designated by the Administrative Agent in its sole discretion at or about the time of such payment, such bond or other obligation of the United States of America to be in an amount equal (as nearly as may be) to the amount of principal so paid or not drawn after elected and to have maturity at the end of the Reemployment Period, and the interest to accrue thereon to take account of amortization of any discount from par or accretion of premium above par at which the same is selling at the time of designation. Each such amount is hereinafter referred to as an “Installment Amount”.
|
|
(ii)
|
Second, each Installment Amount shall be treated as payable on the last day of the LIBOR Rate Loan Interest Period which would have been applicable had such principal installment not been prepaid or not borrowed.
|
|
(iii)
|
Third, the amount to be paid on each such breakage date shall be the present value of the Installment Amount determined by discounting the amount thereof from the date on which such Installment Amount is to be treated as payable, at the same yield to maturity as that payable upon the bond or other obligation of the United States of America designated as aforesaid by the Administrative Agent.
|
|
If by reason of an Event of Default the Administrative Agent elects to declare a LIBOR Rate Loan to be immediately due and payable, then any breakage fee with respect to such LIBOR Rate Loan shall become due and payable in the same manner as though the Borrowers had exercised such right of prepayment.
|
18
Business Day prior to the first day of such Interest Period; provided that if such rate of interest is less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement, divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve Rate. In the event that the Administrative Agent is unable to obtain any such quotation as provided above, it will be considered that the LIBOR Rate pursuant to a LIBOR Rate Loan cannot be determined.
LIBOR Rate Loan(s). Those Loans bearing interest calculated by reference to the LIBOR Rate.
Loans. The Revolving Credit Loans, the Term Loans, and as the context requires, the Swingline Loans.
M&T Bank. As defined in the preamble hereto.
Material Adverse Effect. A materially adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Borrowers and their Subsidiaries taken as a whole, (b) the ability of the Borrowers to perform their respective obligations under this Credit Agreement and any of the Loan Documents, (c) the ability of any Guarantor to perform its obligations under the Guaranty to which it is a party, or (d) the validity or enforceability of this Credit Agreement, the Guaranties or any of the other Loan Documents.
19
Multiemployer Plan. Any multiemployer plan within the meaning of Section 3(37) of ERISA maintained or contributed to by any Borrower or any Guarantor as the case may be or any ERISA Affiliate.
Net Cash Proceeds. The net cash proceeds received by any Person in respect of any asset sale, equity issuance or debt issuance less (i) all reasonable out-of-pocket fees, commissions and other expenses incurred in connection with such sale or issuance, including the amount (estimated in good faith by such Person) of income, franchise, sales and other applicable taxes required to be paid by such Person in connection with such sale or issuance, (ii) repayment of Indebtedness that is required to be repaid in connection with such asset sale to the extent permitted under this Credit Agreement; (iii) required amounts to be provided by the Borrowers or any Subsidiary, as the case may be, as a reserve, in accordance with generally accepted accounting principles, against any liabilities associated with such asset sale including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with any such asset sale and consented to by the Lenders or otherwise permitted hereunder.
Notes. Collectively or individually, as applicable, the Revolving Credit Notes, the Term Notes and the Swingline Note.
OFAC. See §7.25.
OFAC Listed Person. See §7.25.
20
Permits. All governmental permits, licenses, and approvals necessary or useful for the lawful operation and maintenance of the Real Estate.
Permitted Liens. Liens, security interests and other encumbrances permitted by §9.2.
RCRA. See §7.18.
21
at such time of reference, and (ii) the real estate assets owned by each of the Partially-Owned Entities at such time of reference.
Release. See §7.18(c)(iii).
22
Obligations to the extent such Revolving Credit Lender has acquired a participation therein under the terms of this Credit Agreement and has not failed to perform its obligations in respect of such participation, and the Revolving Credit Lender then acting as the Swingline Lender and/or Administrative Agent shall hold a Swingline Loan or L/C Obligation, respectively, in an amount equal to its interest in the Swingline Loan or the related Letters of Credit, after giving effect to the acquisition by the Revolving Credit Lenders of their participation interests therein.
Required Term Loan Lenders. As of any date, one or more Lenders holding more than fifty percent (50%) of the aggregate outstanding principal amount of the Term Loans; provided that in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded.
Revolving Credit Loan(s). Each and every revolving credit loan made or to be made by the Lenders to the Borrowers pursuant to §2.
Revolving Credit Note Record. A Record with respect to the Revolving Credit Notes.
23
SALP. As defined in the preamble hereto.
Sovran. As defined in the preamble hereto.
subsidiary. Any entity required to be consolidated with its direct or indirect parent in accordance with GAAP.
Swingline Lender. M&T Bank, together with its respective successors and assigns.
Swingline Loan. A loan made by the Swingline Lender to the Borrowers pursuant to §2.12.
24
Term Maturity Date. June 4, 2020, or such earlier date on which the Term Loans shall become due and payable pursuant to the terms hereof.
Term Note Record. A Record with respect to a Term Note.
Term Notes. Collectively, the separate promissory notes of the Borrowers in favor of each of the Lenders with respect to the Term Loans in substantially the form of Exhibit A-2 hereto, in the aggregate principal amount of the Total Term Loan Commitment dated as of the date hereof, dated as of the applicable Drawdown Date or, in each case, as of such later date as any Person becomes a Lender under this Credit Agreement, and completed with appropriate insertions, as each of such notes may be amended and/or restated from time to time.
25
26
Xxxxx Fargo Bank. As defined in the preamble hereto.
wholly-owned Subsidiary. Any Subsidiary of which Sovran and/or SALP shall at any time own directly or indirectly through a Subsidiary or Subsidiaries at least a majority (by number of votes or controlling interests) of the outstanding voting interests and one hundred percent (100%) of the economic interests, of which at least ninety-nine percent (99%) of the economic interests shall be owned by SALP.
(i)
|
A reference to any document or agreement shall include such document or agreement as amended, modified or supplemented from time to time in accordance with its terms or the terms of this Credit Agreement.
|
|
(ii)
|
singular includes the plural and the plural includes the singular.
|
|
(iii)
|
A reference to any law includes any amendment or modification to such law.
|
|
(iv)
|
A reference to any Person includes its permitted successors and permitted assigns.
|
|
(v)
|
Accounting terms not otherwise defined herein have the meanings assigned to them by GAAP applied on a consistent basis by the accounting entity to which they refer. Except as otherwise specifically provided herein, (i) all computations made pursuant to this Credit Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be prepared in accordance with GAAP.
|
|
(vi)
|
The words “include”, “includes” and “including” are not limiting.
|
|
(vii)
|
All terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in New York, have the meanings assigned to them therein.
|
|
(viii)
|
Reference to a particular “§” refers to that section of this Credit Agreement unless otherwise indicated.
|
|
(ix)
|
The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this Credit Agreement as a whole and not to any particular section or subdivision of this Credit Agreement.
|
|
(x)
|
Any provision granting any right to any Borrower or any Subsidiary of a Borrower during the continuance of (a) an Event of Default shall not modify, limit, waive or estopp the rights of the Lenders during the continuance of such Event of Default, including the rights of the Lenders to accelerate the Loans under §13.1 and the rights of the Lenders under §§13.2 or 13.3, or (b) a Default, shall not extend the time for curing same or modify any otherwise applicable notice regarding same.
|
27
assignments were evidenced by the applicable Assignments and Assumptions (as defined in the Existing Credit Agreement) under the Existing Credit Agreement but without the payment of any related assignment fee, and no other documents or instruments shall be, or shall be required to be, executed in connection with such assignments (all of which such requirements are hereby waived), (iii) the “Delayed Draw Term Loans” (as defined in the Existing Credit Agreement) and the “Initial Term Loans” (as defined in the Existing Credit Agreement) of each of the existing “Lenders” (as defined in the Existing Credit Agreement) shall be reallocated among the Term Loan Lenders in accordance with their respective Commitment Percentages (determined in accordance with the aggregate amount of their respective Term Loan Commitments as set forth opposite such Term Loan Lender’s name on Schedule 1.1(A) attached hereto), and in order to effect such reallocations, all requisite assignments shall be deemed to be made in amounts from each existing “Lender” (as defined in the Existing Credit Agreement) to each Term Loan Lender, with the same force and effect as if such assignments were evidenced by the applicable Assignments and Assumptions (as defined in the Existing Credit Agreement) under the Existing Credit Agreement but without the payment of any related assignment fee, and no other documents or instruments shall be, or shall be required to be, executed in connection with such assignments (all of which such requirements are hereby waived) and (iv) each assignee Lender shall make full cash settlement with each corresponding assignor Lender, through the Administrative Agent, as the Administrative Agent may direct (after giving effect to any netting effected by the Administrative Agent) with respect to all such assignments and reallocations. On the Restatement Date, the Revolving Credit Commitments of each of Capital One, N.A. and KeyBank National Association (each an “Exiting Lender”) shall be terminated, all outstanding “Revolving Credit Loans”, “Initial Term Loans” and “Delayed Draw Term Loans” (as each such term is defined in the Existing Credit Agreement) held by the Exiting Lenders and all other amounts due and owing to the Exiting Lenders on the Restatement Date shall be paid in full; neither Exiting Lender shall remain a Lender under this Credit Agreement, and the Administrative Agent shall make a portion of the cash settlements referenced in this Section above available to the Exiting Lenders as is necessary to pay in full all outstanding amounts under the Existing Credit Agreement and the other Loan Documents (as defined in the Existing Credit Agreement) that are due and owing to such Exiting Lenders.
28
plus (z) all L/C Obligations, shall not at any time exceed the Total Revolving Credit Commitment in effect at such time.
(b) The Revolving Credit Loans shall be made pro rata in accordance with each Revolving Credit Lender’s Revolving Credit Commitment Percentage. Each request for a Revolving Credit Loan made pursuant to §2.4 hereof, shall constitute a representation and warranty by the Borrowers that the conditions set forth in §11 have been satisfied as of the Restatement Date, and that the conditions set forth in §12 have been satisfied on the date of such request and will be satisfied on the proposed Drawdown Date of the requested Revolving Credit Loan, provided that the making of such representation and warranty by the Borrowers shall not limit the right of any Lender not to lend if such conditions have not been met. No Revolving Credit Loan shall be required to be made by any Lender unless all of the conditions contained in §11 have been satisfied as of the Restatement Date, and all of the conditions set forth in §12 have been met at the time of any request for a Revolving Credit Loan.
29
with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto (unless earlier paid in accordance with §2.8) at a rate equal to the LIBOR Rate determined for such Interest Period plus the Applicable Margin for Revolving Credit Loans which are LIBOR Rate Loans.
The following provisions shall apply to each request by the Borrowers for a Revolving Credit Loan:
(a) The Borrower Representative shall submit a Completed Revolving Credit Loan Request to the Administrative Agent as provided in this §2.4. Except as otherwise provided herein, each Completed Revolving Credit Loan Request shall be in a minimum amount of $2,000,000 or an integral multiple of $100,000 in excess thereof. Each Completed Revolving Credit Loan Request shall be irrevocable and binding on the Borrowers and shall obligate the Borrowers to accept the Revolving Credit Loans requested from the Revolving Credit Lenders on the proposed Drawdown Date, unless such Completed Revolving Credit Loan Request is withdrawn (x) in the case of a request for a Revolving Credit Loan that is a LIBOR Rate Loan, at least four (4) Business Days prior to the proposed Drawdown Date for such Revolving Credit Loan, and (y) in the case of a request for a Revolving Credit Loan that is a Base Rate Loan, at least two (2) Business Days prior to the proposed Drawdown Date for such Revolving Credit Loan.
(b) Each Completed Revolving Credit Loan Request shall be delivered by the Borrower Representative to the Administrative Agent by 10:00 a.m. (New York City time) on any Business Day, and at least two (2) Business Days prior to the proposed Drawdown Date of any Base Rate Loan, and at least four (4) Business Days prior to the proposed Drawdown Date of any LIBOR Rate Loan.
(c) Each Completed Revolving Credit Loan Request shall include a completed writing in the form of Exhibit C hereto specifying: (1) the principal amount of the Revolving Credit Loan requested, (2) the proposed Drawdown Date of such Revolving Credit Loan, (3) the Interest Period applicable to such Revolving Credit Loan, and (4) the Type of such Revolving Credit Loan being requested.
(d) No Lender shall be obligated to fund any Revolving Credit Loan unless:
(i)
|
a Completed Revolving Credit Loan Request has been timely received by the Administrative Agent as provided in subsection (i) above; and
|
|
(ii)
|
both before and after giving effect to the Revolving Credit Loan to be made pursuant to the Completed Revolving Credit Loan Request, all of the conditions contained in §11 shall have been satisfied as of the Restatement Date, and all of the conditions set forth in §12 shall have been met, including, without limitation, the condition under §12.1 that there be no Default or Event of Default under this Credit Agreement; and
|
|
(iii)
|
the Administrative Agent shall have received a certificate in the form of Exhibit D-1 hereto signed by the chief financial officer or treasurer of the Borrower Representative setting forth computations evidencing compliance with the covenants contained in §§10.1, 10.2, 10.3, 10.4 and 10.11 on a pro forma basis after giving effect to such requested Revolving Credit Loan, and, certifying that, both before and after giving effect to such requested Revolving Credit Loan, no Default or Event of Default exists or will exist under this Credit Agreement or any other Loan Document, and that after taking into account such requested Revolving Credit Loan, no default will exist as of the Drawdown Date or thereafter.
|
|
(e) The Administrative Agent will use good faith efforts to cause the Completed Revolving Credit Loan Request to be delivered to each Revolving Credit Lender in accordance with §15.12 and in any event on the same day or the Business Day following the day a Completed Revolving Credit Loan Request is received by the Administrative Agent.
(a) The Borrowers may elect from time to time by written notice in the form of Exhibit F to convert any outstanding Revolving Credit Loan to a Revolving Credit Loan of another Type, provided that (i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate Loan, the Borrower Representative shall give the Administrative Agent at least four (4) Business Days prior written notice of such election; (ii) with respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the Borrower Representative shall give the Administrative Agent at least four (4) LIBOR Business Days prior written notice of such election; (iii) with respect to any such conversion of a LIBOR Rate Loan into a Base Rate Loan, such conversion shall only be made on the last day of the Interest Period with respect thereto unless the Borrowers pay the related LIBOR Breakage Costs at the time of such conversion and (iv) no Revolving Credit Loan may be converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is continuing. All or any part of outstanding Revolving Credit Loans of any Type may be converted into a Revolving Credit Loan of another Type as provided herein, provided that any partial conversion shall be in an aggregate principal amount of $2,000,000 or an integral multiple of $100,000 in excess thereof. Each Conversion Request relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by the Borrowers.
(b) Any Revolving Credit Loan of any Type may be continued as such upon the expiration of the Interest Period with respect thereto (i) in the case of Base Rate Loans, automatically and (ii) in the case of LIBOR Rate Loans by compliance by the Borrower
30
Representative with the notice provisions contained in §2.5(a); provided that no LIBOR Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing but shall be automatically converted to a Base Rate Loan on the last day of the first Interest Period relating thereto ending during the continuance of any Default or Event of Default. The Administrative Agent shall notify the Revolving Credit Lenders promptly when any such automatic conversion contemplated by this §2.5(b) is scheduled to occur.
(c) In the event that the Borrower Representative does not notify the Administrative Agent of its election hereunder with respect to the continuation of any Revolving Credit Loan which is a LIBOR Rate Loan as such, the affected LIBOR Rate Loan shall automatically be converted to a Base Rate Loan at the end of the applicable Interest Period.
(d) The Borrowers may not request or elect a LIBOR Rate Loan pursuant to §2.4, elect to convert a Base Rate Loan to a LIBOR Rate Loan pursuant to §2.5(a), or elect to continue a LIBOR Rate Loan pursuant to §2.5(b) if, after giving effect thereto, there would be greater than eight (8) LIBOR Rate Loans then outstanding (including both Revolving Credit Loans and Term Loans). Any Completed Revolving Credit Loan Request for a LIBOR Rate Loan that would create greater than eight (8) LIBOR Rate Loans outstanding shall be deemed to be a Completed Revolving Credit Loan Request for a Base Rate Loan.
(e) The Administrative Agent will use good faith efforts to cause any notice of continuation or conversion delivered under this §2.5 to be delivered to each Revolving Credit Lender in accordance with §15.12 and in any event on the same day or the Business Day following the day such notice is received by the Administrative Agent.
(a) Subject to the other provisions of this §2, not later than 12:00 p.m. (New York City time) on the proposed Drawdown Date of any Revolving Credit Loan, each of the Revolving Credit Lenders will make available to the Administrative Agent, at the Administrative Agent’s Head Office, in immediately available funds, the amount of such Lender’s Revolving Credit Commitment Percentage of the amount of the requested Revolving Credit Loan; provided that each Revolving Credit Lender shall provide notice to the Administrative Agent of its intent not to make available its Revolving Credit Commitment Percentage of any requested Revolving Credit Loan as soon as possible after receipt of any Completed Revolving Credit Loan Request, and in any event not later than 4:00 p.m. (New York City time) on (x) the Business Day prior to the Drawdown Date of any requested Revolving Credit Loan that is a Base Rate Loan and (y) the third Business Day prior to the Drawdown Date of any requested Revolving Credit Loan that is a LIBOR Rate Loan. Upon receipt from each Revolving Credit Lender of such amount, the Administrative Agent will make available to the Borrowers in the Borrower Representative’s account with the Administrative Agent the aggregate amount of such Revolving Credit Loan made available to the Administrative Agent by the Lenders. All such funds received by the Administrative Agent by 12:00 p.m. (New York City time) on any Business Day will be made available to the Borrowers not later than 2:00 p.m. on the same Business Day. Funds received after such time will be made available by not later than 12:00 p.m. on the next Business Day. The failure or refusal of any Revolving Credit Lender to make available to the Administrative
31
Agent at the aforesaid time and place on any Drawdown Date the amount of its Revolving Credit Commitment Percentage of the requested Revolving Credit Loan shall not relieve any other Lender from its several obligation hereunder to make available to the Administrative Agent the amount of its Revolving Credit Commitment Percentage of any requested Revolving Credit Loan but in no event shall the Administrative Agent (in its capacity as Administrative Agent) have any obligation to make any funding or shall any Lender be obligated to fund more than its Revolving Credit Commitment Percentage of the requested Revolving Credit Loan or to increase its Revolving Credit Commitment Percentage on account of such failure or otherwise.
(b) The Administrative Agent may, unless notified to the contrary by any Revolving Credit Lender prior to a Drawdown Date, assume that such Revolving Credit Lender has made available to the Administrative Agent on such Drawdown Date the amount of such Lender’s Revolving Credit Commitment Percentage of the Revolving Credit Loan to be made on such Drawdown Date, and the Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Borrowers a corresponding amount. If any Revolving Credit Lender makes available to the Administrative Agent such amount on a date after such Drawdown Date, such Lender shall pay to the Administrative Agent on demand an amount equal to the product of (i) the average, computed for the period referred to in clause (iii) below, of the weighted average interest rate paid by the Administrative Agent for federal funds acquired by the Administrative Agent during each day included in such period, multiplied by (ii) the amount of such Lender’s Revolving Credit Commitment Percentage of such Revolving Credit Loan, multiplied by (iii) a fraction, the numerator of which is the number of days that elapsed from and including such Drawdown Date to the date on which the amount of such Lender’s Revolving Credit Commitment Percentage of such Revolving Credit Loan shall become immediately available to the Administrative Agent, and the denominator of which is 360. A statement of the Administrative Agent submitted to such Revolving Credit Lender with respect to any amounts owing under this paragraph shall be prima facie evidence of the amount due and owing to the Administrative Agent by such Lender. If the amount of such Lender’s Revolving Credit Commitment Percentage of such Revolving Credit Loans is not made available to the Administrative Agent by such Lender within three (3) Business Days following such Drawdown Date, the Administrative Agent shall be entitled to recover such amount from the Borrowers on demand, with interest thereon at the rate per annum applicable to the Revolving Credit Loans made on such Drawdown Date.
32
pay any LIBOR Breakage Costs for each LIBOR Rate Loan so prepaid at the time of such prepayment. The Borrower Representative shall give the Administrative Agent, no later than 10:00 a.m., New York City time, at least two (2) Business Days’ prior written notice of any prepayment pursuant to this §2.8 of any Revolving Credit Loans that are Base Rate Loans, and at least four (4) LIBOR Business Days’ notice of any proposed prepayment pursuant to this §2.8 of Revolving Credit Loans that are LIBOR Rate Loans, specifying the proposed date of prepayment of Revolving Credit Loans and the principal amount to be prepaid. Each such partial prepayment of the Revolving Credit Loans shall be in an amount of $2,000,000 or integral multiple of $500,000 in excess thereof, and the outstanding balance of the Revolving Credit Loans then being repaid, shall be accompanied by the payment of all charges outstanding on all Revolving Credit Loans so prepaid and of all accrued interest on the principal prepaid to the date of payment, and shall be applied, in the absence of instruction by the Borrower Representative, first to the principal of Revolving Credit Loans that are Base Rate Loans and then to the principal of Revolving Credit Loans that are LIBOR Rate Loans, at the Administrative Agent’s option.
33
Administrative Agent a certificate in the form of Exhibit D-1 hereto signed by the chief financial officer or treasurer of the Borrower Representative setting forth computations evidencing compliance with the covenants contained in §§10.1, 10.2, 10.3, 10.4, and 10.11 as of the last day of the most recently ended fiscal quarter for which financial statements are available and determined on a pro forma basis after giving effect to any such requested increase in the Total Revolving Credit Commitment (and assuming the full utilization of the increased Total Revolving Credit Commitment) and if Additional Term Loans have also been requested pursuant to §3.7 at such time, giving effect to any such requested making of Additional Term Loans, and, certifying that, both before and after giving effect to such requested increase in the Total Revolving Credit Commitment and, if applicable, the requested making of Additional Term Loans, no Default or Event of Default exists or will exist under this Credit Agreement or any other Loan Document, and that after taking into account such requested increase in the Total Revolving Credit Commitment and, if applicable, the making of Additional Term Loans at such time, no default will exist as of the effective date of such increase or thereafter, (c) such increase shall be on the same terms and conditions applicable to this Credit Agreement, (d) any Revolving Credit Lender which is a party to this Credit Agreement prior to such request for such increase, at its sole discretion, may elect to increase its Revolving Credit Commitment but shall not have any obligation to so increase its Revolving Credit Commitment, and (e) in the event that, in the case of a request for increase in the Total Revolving Credit Commitment, each Revolving Credit Lender does not elect to increase its Revolving Credit Commitment, the Joint Lead Arrangers shall use commercially reasonable efforts to locate additional lenders, subject to the Borrowers’ approval of such lenders (such approval not to be unreasonably withheld) willing to hold commitments for the requested increase in the Total Revolving Credit Commitment. In the event that Revolving Credit Lenders commit to such increase in the Total Revolving Credit Commitment, (i) the Revolving Credit Commitment of each such Lender shall be increased (or, in the case of a new lender not previously party hereto, added to the Revolving Credit Commitments), (ii) the pro rata share of each of the Revolving Credit Lenders shall be adjusted subject to the payment of any LIBOR Breakage Costs, (iii) new Revolving Credit Notes shall be issued, (iv) the Borrowers shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Revolving Credit Commitments. In the case of an increase in the Total Revolving Credit Commitment, changes shall be made by way of supplement, amendment or restatement of any of the Loan Documents as may be necessary or desirable to reflect the aggregate amount, if any, by which Revolving Credit Lenders have agreed to increase their respective Revolving Credit Commitments or any other lenders have agreed to make new commitments pursuant to this §2.11 (including the modification of Schedule 1.1(A) to reflect the increase), in each case notwithstanding anything in §26 to the contrary, without the consent of any Lender other than those Lenders increasing their Revolving Credit Commitments (it being understood that the Administrative Agent shall execute any such supplement, amendment or restatement as may be reasonably requested by the Borrowers and necessary or desirable in connection with an increase in the Revolving Credit Commitment permitted pursuant to this §2.11). The fees payable by the Borrowers upon such an increase in the Revolving Credit Commitments shall be agreed upon by the Joint Lead Arrangers and the Borrowers at the time of such increase.
Notwithstanding the foregoing, nothing in this §2.11 shall constitute or be deemed to constitute an agreement by any Lender to increase its Revolving Credit Commitment hereunder.
34
35
all outstanding Swingline Loans (or such other minimum amounts upon which the Swingline Lender and the Borrowers may agree) and in connection with any such prepayment, the Borrower must give the Swingline Lender and the Administrative Agent prior written notice thereof no later than 11:00 a.m. (New York City Time) on the day prior to the date of such prepayment. The Swingline Loans shall, in addition to this Agreement, be evidenced by the Swingline Note.
36
or the termination of any Revolving Credit Lender’s Revolving Credit 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 Administrative Agent, any Lender, either Borrower or any Guarantor, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact made available to the Swingline Lender by any Revolving Credit Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender, together with accrued interest thereon for each day from the date of demand thereof, at the overnight federal funds effective rate as published by the Board of Governors of the Federal Reserve System. If such Revolving Credit Lender does not pay such amount forthwith upon the Swingline Lender’s demand therefor, and until such time as such Revolving Credit 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 Revolving Credit Lenders to purchase a participation therein). Further, such Revolving Credit Lender shall be deemed to have assigned any and all payments made of principal and interest on its Revolving Credit Loans, and any other amounts due it hereunder, to the Swingline Lender to fund Swingline Loans in the amount of the participation in Swingline Loans that such Revolving Credit Lender failed to purchase pursuant to this Section until such amount has been purchased (as a result of such assignment or otherwise). All payments of the Swingline Loans shall be for the account of the Swingline Lender only (except to the extent any Revolving Credit Lender shall have acquired a participating interest in any such Swingline Loan).
37
payments of principal of or interest on any Term Note when due. Upon receipt of an affidavit of an officer of any Lender as to the loss, theft, destruction or mutilation of any Term Note or any other security document which is not of public record, and, in the case of any such loss, theft, destruction or mutilation, upon surrender and cancellation of such Term Note or other security document, the Borrowers will issue, in lieu thereof, a replacement Term Note or other security document in the same principal amount thereof and otherwise of like tenor.
(a) Except as otherwise provided in §4.10, the outstanding amount of each Term Loan shall bear interest during each Interest Period relating to all or any portion of such Term Loan at the following rates:
(i)
|
To the extent that all or any portion of a Term Loan bears interest during such Interest Period at the Base Rate, such Term Loan or such portion shall bear interest during such Interest Period at a rate equal to the Base Rate for such Interest Period plus the Applicable Margin for Term Loans which are Base Rate Loans.
|
|
(ii)
|
To the extent that all or any portion of a Term Loan bears interest during such Interest Period at the LIBOR Rate, such Term Loan or such portion shall bear interest during such Interest Period at a rate equal to the LIBOR Rate for such Interest Period plus the Applicable Margin for Term Loans which are LIBOR Rate Loans.
|
38
prepayment, of LIBOR Breakage Costs for such Term Loans to the extent that they (or any portions thereof) are LIBOR Rate Loans. Each such partial prepayment of the Term Loans shall be in an amount of $2,000,000 or integral multiple of $500,000 in excess thereof and shall be accompanied by the payment of all charges outstanding on such Term Loans and of all accrued interest on the principal of such Term Loans prepaid to the date of payment, and shall be applied, in the absence of instruction by the Borrower Representative, first to the principal of such Term Loans to the extent that they (or any portions thereof) are Base Rate Loans and then to the principal of such Term Loans to the extent that they (or any portions thereof) are LIBOR Rate Loans, at the Administrative Agent’s option. No amount of the Term Loans that is prepaid may be re-borrowed.
39
Additional Term Loans, in each case notwithstanding anything in §26 to the contrary, without the consent of any Lender other than those Lenders making Additional Term Loans (it being understood that the Administrative Agent shall execute any such supplement, amendment or restatement as may be reasonably requested by the Borrowers and necessary or desirable in connection with the making of Additional Term Loans permitted pursuant to this §3.7). The fees payable by the Borrowers upon the making of Additional Term Loans shall be agreed upon by the Joint Lead Arrangers and the Borrowers at the time of such increase.
Notwithstanding the foregoing, nothing in this §3.7 shall constitute or be deemed to constitute an agreement by any Lender to make Additional Term Loans.
(a) All payments of principal, interest, fees, and any other amounts due hereunder or under any of the other Loan Documents shall be made to the Administrative Agent, for the respective accounts of the applicable Lenders or (as the case may be) the Administrative Agent, at the Administrative Agent’s Head Office, in each case in Dollars and in immediately available funds.
(b) All payments by the Borrowers hereunder and under any of the other Loan Documents shall be made without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory liens, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Borrowers are compelled by law to make such deduction or withholding. If any such obligation is imposed upon the Borrowers with respect to any amount payable by them hereunder or under any of the other Loan Documents (an “Indemnified Tax”), the Borrowers shall pay to the Administrative Agent, for the account of the applicable Lenders or (as the case may be) the Administrative Agent, on the date on which such amount is due and payable hereunder or under such other Loan Document, such additional amount in Dollars as shall be necessary to enable the applicable Lenders to receive the same net amount which such Lenders would have received on such due date had no such obligation (including any such obligation applicable to additional sums payable under this Section) been imposed upon the Borrowers. The Borrower Representative will deliver promptly to the Administrative Agent certificates or other valid
40
vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Borrowers hereunder or under such other Loan Document.
(c) The Borrowers shall timely pay to the relevant governmental authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any present or future stamp, court or documentary, intangible, recording, filing or similar taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document.
(d) The Borrowers shall jointly and severally indemnify each Administrative Agent or Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Administrative Agent or Lender or required to be withheld or deducted from a payment to such Administrative Agent or Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Each Foreign Lender agrees that, prior to the first date on which any payment is due to it hereunder, it will deliver to the Borrower Representative and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form W-8BEN or Form W-8ECI or successor applicable form, as the case may be, certifying in each case that such Foreign Lender is entitled to receive payments under this Credit Agreement and the Notes payable to it, without deduction or withholding of any United States federal income taxes. Each Foreign Lender that so delivers a Form W-8BEN or Form W8ECI pursuant to the preceding sentence further undertakes to deliver to each of the Borrower Representative and the Administrative Agent two further copies of Form W-8BEN or Form W-8ECI or successor applicable form, or other manner of certification, as the case may be, on or before the date that any such letter or form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower Representative and the Administrative Agent, and such extensions or renewals thereof as may reasonably be requested by the Borrower Representative and the Administrative Agent, certifying in the case of a Form W-8BEN or Form W-8ECI that such Foreign Lender is entitled to receive payments under this Credit Agreement and the Notes without deduction or withholding of any United States federal income taxes, unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Foreign Lender from duly completing and delivering any such form with respect to it and such Foreign Lender advises the Borrower Representative and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax.
41
(f) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
(g) The Borrowers shall not be required to pay any additional amounts to any Foreign Lender in respect of United States Federal withholding tax pursuant to §4.2(b) to the extent that (i) the obligation to withhold amounts with respect to United States federal withholding tax existed on the date such Foreign Lender became a party to this Credit Agreement or, with respect to payments to a different lending office designated by the Foreign Lender as its applicable lending office (a “New Lending Office”), the date such Foreign Lender designated such New Lending Office with respect to the Loans; provided, however, that this clause (i) shall not apply to any transferee or New Lending Office as a result of an assignment, transfer or designation made at the request of the Borrowers; and provided further, however, that this clause (i) shall not apply to the extent the indemnity payment or additional amounts any transferee, or Lender through a New Lending Office, would be entitled to receive without regard to this clause (i) do not exceed the indemnity payment or additional amounts that the Person making the assignment or transfer to such transferee, or Lender making the designation of such New Lending Office, would have been entitled to receive in the absence of such assignment, transfer or designation; (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Foreign Lender to comply with the provisions of paragraph (e) above or (iii) the obligation to pay such additional amounts would not have arisen but for a failure by such Foreign Lender to comply with the provisions of paragraph (f) above.
42
(a) subject any Lender or the Administrative Agent to any tax, levy, impost, duty, charge, fee, deduction or withholding of any nature with respect to this Credit Agreement, the
43
other Loan Documents, such Lender’s Commitments or the Loans (other than taxes based upon or measured by the income or profits of such Lender or the Administrative Agent), or
(b) materially change the basis of taxation (except for changes in taxes on income or profits) of payments to any Lender of the principal of or the interest on any Loans or any other amounts payable to the Administrative Agent or any Lender under this Credit Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent specifically provided for elsewhere in this Credit Agreement) any special deposit, reserve, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law) against assets held by, or deposits in or for the account of, or loans by, or commitments of an office of any Lender, or
(d) impose on any Lender or the Administrative Agent any other conditions or requirements with respect to this Credit Agreement, the other Loan Documents, any Letters of Credit, the Loans, such Lender’s Commitments, or any class of loans, or commitments of which any of the Loans or such Lender’s Commitments form a part;
and the result of any of the foregoing is
(i)
|
to increase the cost to any Lender of making, funding, issuing, renewing, extending or maintaining any of the Loans or such Lender’s Commitments, or any Letter of Credit, or
|
|
(ii)
|
to reduce the amount of principal, interest, Reimbursement Obligation or other amount payable to such Lender or the Administrative Agent hereunder on account of such Lender’s Commitments or any of the Loans, or
|
|
(iii)
|
to require such Lender or the Administrative Agent to make any payment or to forego any interest or Reimbursement Obligation or other sum payable hereunder, the amount of which payment or foregone interest or Reimbursement Obligation or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by such Lender or the Administrative Agent from the Borrowers hereunder,
|
then, and in each such case, the Borrowers will, within thirty (30) days of demand made by such Lender or (as the case may be) the Administrative Agent at any time and from time to time and as often as the occasion therefor may arise, pay to such Lender such additional amounts as such Lender shall determine in good faith to be sufficient to compensate such Lender for such additional cost, reduction, payment or foregone interest or Reimbursement Obligation or other sum, provided that such Lender is generally imposing similar charges on its other similarly situated borrowers.
44
guideline or directive (whether or not having the force of law) regarding capital requirements for banks or bank holding companies or any change in the interpretation or application thereof by a court or governmental authority with appropriate jurisdiction, or (ii) compliance by such Lender or the Administrative Agent or any Person controlling such Lender or the Administrative Agent with any law, governmental rule, regulation, policy, guideline or directive (whether or not having the force of law) of any such Person regarding capital adequacy (with respect to the foregoing clauses (i) and (ii), regardless of the date enacted, adopted or issued including, without limitation: (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III), has the effect of reducing the return on such Lender’s or the Administrative Agent’s Commitments with respect to any Loans to a level below that which such Lender or the Administrative Agent could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or the Administrative Agent’s then existing policies with respect to capital adequacy and assuming full utilization of such entity’s capital) by any amount deemed by such Lender or (as the case may be) the Administrative Agent to be material, then such Lender or the Administrative Agent may notify the Borrower Representative of such fact. To the extent that the amount of such reduction in the return on capital is not reflected in the Base Rate or the LIBOR Rate, the Borrowers jointly and severally agree to pay such Lender or (as the case may be) the Administrative Agent for the amount of such reduction in the return on capital as and when such reduction is determined within thirty (30) days of presentation by such Lender or (as the case may be) the Administrative Agent of a certificate in accordance with §4.8 hereof. Each Lender shall allocate such cost increases among its customers in good faith and on an equitable basis.
45
payable by the Administrative Agent or a Lender to lenders of funds obtained by it in order to maintain any such LIBOR Rate Loans.
(a) Each of the Borrowers is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by the Lenders under this Credit Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each other Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including, without limitation, any Obligations arising under this §4.11), it being the intention of the parties hereto that all the Obligations shall be the joint and several Obligations of each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the provisions of this §4.11 constitute full recourse Obligations of each of the Borrowers enforceable against each such Person to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of this Credit Agreement or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Credit Agreement, each of the Borrowers hereby waives notice of acceptance of its joint and several liability, notice of any Loans made under this Credit Agreement, notice of any action at any time taken or omitted by the Lenders under or in respect of any of the Obligations, and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Credit Agreement. Each of the Borrowers hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any
46
waiver, consent or other action or acquiescence by the Lenders at any time or times in respect of any default by any of the Borrowers in the performance or satisfaction of any term, covenant, condition or provision of this Credit Agreement, any and all other indulgences whatsoever by the Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any of the Borrowers. Without limiting the generality of the foregoing, each of the Borrowers assents to any other action or delay in acting or failure to act on the part of the Lenders with respect to the failure by any of the Borrowers to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, but for the provisions of this §4.11, afford grounds for terminating, discharging or relieving any of the Borrowers, in whole or in part, from any of its Obligations under this §4.11, it being the intention of each of the Borrowers that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of such Borrowers under this §4.11 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each of the Borrowers under this §4.11 shall not be diminished or rendered unenforceable by any winding up, reorganization, arrangement, liquidation, re-construction or similar proceeding with respect to any of the Borrowers or the Lenders. The joint and several liability of the Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the name, membership, constitution or place of formation of any of the Borrowers or the Lenders.
(f) The provisions of this §4.11 are made for the benefit of the Lenders and their successors and assigns, and may be enforced against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshal any of their claims or to exercise any of their rights against any other Borrower or to exhaust any remedies available to them against any other Borrower or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this §4.11 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this §4.11 will forthwith be reinstated in effect, as though such payment had not been made.
47
to contract in strict compliance with the laws of the State of New York from time to time in effect. If, under or from any circumstances whatsoever, fulfillment of any provision hereof or of any of the other Loan Documents at the time of performance of such provision shall involve transcending the limit of such validity prescribed by applicable law, then the obligation to be fulfilled shall automatically be reduced to the limits of such validity, and if under or from any circumstances whatsoever any Lender should ever receive as interest any amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the principal balance of the Loans and not to the payment of interest. This provision shall control every other provision of all agreements between the Borrowers and the Guarantors and the Lenders and the Administrative Agent.
48
Affected Lender shall assign, in accordance with §19, all of its Revolving Credit Commitment, Loans, Letter of Credit Participations, Notes and other rights and obligations under this Credit Agreement and all other Loan Documents to such Replacement Lender or non-Affected Lenders, as the case may be, in exchange for payment of the principal amount so assigned and all interest and fees accrued on the amount so assigned, plus all other Obligations then due and payable to the Affected Lender; provided, however, that (x) such assignment shall be in accordance with the provisions of §19, shall be without recourse, representation or warranty and shall be on terms and conditions reasonably satisfactory to such Affected Lender and such Replacement Lender and/or non-Affected Lenders, as the case may be, and (y) prior to any such assignment, the Borrowers shall have paid to such Affected Lender all amounts properly demanded and unreimbursed under §§4.5, 4.6, 4.7 and 4.9.
(i)
|
Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Credit Agreement shall be restricted as set forth in the definition of Required Lenders and §26.
|
|
(ii)
|
Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to §13 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to §14 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment of any amounts owing by such Defaulting Lender to the Swingline Lender hereunder; third, if such Defaulting Lender is a Revolving Credit Lender, to Cash Collateralize the Administrative Agent’s Fronting Exposure with respect to such Defaulting Lender in accordance with §5.11; fourth, as the Borrower Representative may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Credit Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Credit Agreement and (y) if such Defaulting Lender is a Revolving Credit Lender, to Cash Collateralize the Administrative Agent’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Credit Agreement, in accordance with §5.11; sixth, to the payment of any amounts owing to the Lenders, the Swingline Lender or the Administrative Agent as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Swingline Lender or the Administrative Agent against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Credit Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by a Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Credit Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in §12 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders holding the applicable Commitments (or Loans of the same class) on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and, as applicable, all unfunded participations in L/C Obligations and Swingline Loans are held by the Revolving Credit Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentages (determined without giving effect to §4.15(a)(iv)). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this §4.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
|
|
(iii)
|
|
|
(A) Each Defaulting Lender shall be entitled to receive a Facility Fee for any period during which that Lender is a Defaulting Lender only to extent allocable to the sum of (1) the outstanding principal amount of the Revolving Credit Loans funded by it, and (2) its Revolving Credit Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to §5.11.
|
||
(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Credit Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral.
|
||
(C) With respect to any Facility Fee or Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrowers shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Administrative Agent and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Administrative Agent’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
|
||
(iv)
|
Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders with Revolving Credit Commitments in accordance with their respective Revolving Credit Commitment Percentages (in each case, calculated without regard to such Defaulting Lender’s Revolving Credit Commitment) but only to the extent that (x) the conditions set forth in §12 are satisfied at the time of such reallocation (and, unless the Borrower Representative shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
|
|
(v)
|
Cash Collateral; Repayment of Swingline Loans. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (y) second Cash Collateralize the Administrative Agent’s Fronting Exposure in accordance with the procedures set forth in §5.11.
|
49
(e) the Conversion and Continuation of Revolving Loans or Term Loans of a particular Type (other than Conversions provided for by §§4.4 and 5.5) shall be made pro rata among the Revolving Credit Lenders or Term Loan Lenders, as applicable, according to the amounts of their respective Revolving Credit Loans or Term Loans, as applicable, and the then current Interest Period for each Lender’s portion of each such Loan of such Type shall be coterminous; (f) the Revolving Credit Lenders’ participation in, and payment obligations in respect of, Swingline Loans under §2.12, shall be in accordance with their respective Revolving Credit Commitment Percentages; and (i) the Revolving Credit Lenders’ participation in, and payment obligations in respect of, Letters of Credit under §5, shall be in accordance with their respective Revolving Credit Commitment Percentages. 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 a participating interest in any such Swingline Loan pursuant to §2.12(e), in which case such payments shall be pro rata in accordance with such participating interests).
50
51
Commitment Percentage, to reimburse the Administrative Agent on demand for the amount of each draft paid by the Administrative Agent under each Letter of Credit to the extent that such amount is not reimbursed by the Borrowers pursuant to §5.6 (such agreement for a Revolving Credit Lender being called herein the “Letter of Credit Participation” of such Lender).
(a) except as otherwise expressly provided in §5.6(b), on each date that any draft presented under such Letter of Credit is honored by the Administrative Agent, or the Administrative Agent otherwise makes a payment with respect thereto, (i) the amount paid by the Administrative Agent under or with respect to such Letter of Credit, and (ii) the amount of any taxes, fees, charges or other costs and expenses whatsoever incurred by the Administrative Agent or any Revolving Credit Lender in connection with any payment made by the Administrative Agent or any such Lender under, or with respect to, such Letter of Credit (it being understood that such payment to the Administrative Agent shall, subject to the satisfaction of the conditions set forth herein, be made from the proceeds of a Revolving Credit Loan made to the Borrowers pursuant to §2.4);
(b) upon the reduction (but not termination) of the Total Revolving Credit Commitment to an amount less than the Maximum Drawing Amount on all Letters of Credit, an amount equal to such difference, which amount shall be held by the Administrative Agent for the ratable benefit of the Revolving Credit Lenders and the Administrative Agent as cash collateral for all L/C Obligations; and
(c) upon the termination of the Total Revolving Credit Commitment, or the acceleration of the Reimbursement Obligations with respect to all Letters of Credit in accordance with §13, an amount equal to the then Maximum Drawing Amount on all Letters of Credit, which amount shall be held by the Administrative Agent for the ratable benefit of the Revolving Credit Lenders and the Administrative Agent as cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the Administrative Agent’s Head Office in immediately available funds or (in the case of clause (a) of this §5.6) from the direct application of the proceeds of a Revolving Credit Loan made pursuant to §2.4 hereof. In the event that the obligations of the Borrowers under §5.6(a) cannot, in compliance with the
52
provisions of this Credit Agreement, be satisfied in full by the making of a Revolving Credit Loan pursuant to §2.4, the Administrative Agent shall so notify the Borrowers, in which case the obligations of the Borrowers under §5.6(a) shall be immediately due and payable to the Administrative Agent. Interest on any and all amounts remaining unpaid by the Borrowers under this §5.6 at any time from the date such amounts become due and payable (whether as stated in this §5.6, by acceleration or otherwise) until payment in full (whether before or after judgment) shall be payable to the Administrative Agent on demand at the rate then in effect for overdue principal on the Revolving Credit Loans. Notwithstanding anything contained in this Credit Agreement or any other Loan Document to the contrary, all amounts payable by the Borrowers under this §5.6 as a result of the occurrence of an Event of Default under §13.1(g) or (h) shall automatically become due and payable by the Borrowers without any notice or demand by the Administrative Agent, any Lender or any other Person.
53
thereon, even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among the Borrowers, the beneficiary of any Letter of Credit or any financing institution or other party to which any Letter of Credit may be transferred or any claims or defenses whatsoever of the Borrowers against the beneficiary of any Letter of Credit or any such transferee. The Administrative Agent and the Lenders shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit. The Borrowers agree that any action taken or omitted by the Administrative Agent or any Lender under or in connection with each Letter of Credit and the related drafts and documents, if done in good faith, shall be binding upon the Borrowers and shall not result in any liability on the part of the Administrative Agent or any Lender to the Borrowers.
54
Administrative Agent the Borrowers shall Cash Collateralize the Administrative Agent’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to §4.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Fronting Exposure of the Administrative Agent with respect to Letters of Credit issued and outstanding at such time (the “Minimum Collateral Amount”).
55
(i)
|
SALP is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware; Holdings is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; each of SALP and Holdings has all requisite partnership or corporate, as the case may be, power to own its respective properties and conduct its respective business as now conducted and as presently contemplated; and each of SALP and Holdings is in good standing as a foreign entity and is duly authorized to do business in the jurisdictions where the Real Estate owned by it is located and in each other jurisdiction where such qualification is necessary except where a failure to be so qualified in such other jurisdiction would not have a Material Adverse Effect.
|
|
(ii)
|
Sovran is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland; each Subsidiary of Sovran is duly organized, validly existing and in good standing as a corporation or partnership or other entity, as the case may be, under the laws of the state of its organization; Sovran and each of its Subsidiaries has all requisite corporate or partnership or other entity, as the case may be, power to own its respective properties and conduct its respective business as now conducted and as presently contemplated; and Sovran and each of its Subsidiaries is in good standing as a foreign entity and is duly authorized to do business in the jurisdictions where such qualification is necessary (including, as to Sovran, in the State of New York) except where a failure to be so qualified in such other jurisdiction would not have a materially adverse effect on the business, assets or financial condition of Sovran or such Subsidiary.
|
|
(iii)
|
As to each subsequent Guarantor, a provision similar, as applicable, to (a)(i) or (ii) above shall be included in each such subsequent Guarantor’s Subsidiary Guaranty, and the Borrowers shall be deemed to make for itself and on behalf of each such subsequent Guarantor a representation and warranty as to such provision regarding such subsequent Guarantor.
|
56
(i)
|
The outstanding equity of SALP is comprised of a general partner interest and limited partner interests, all of which have been duly issued and are outstanding and fully paid and non-assessable as set forth in Schedule 7.1(b) hereto. All of the issued and outstanding general partner interests of SALP are owned and held of record by Holdings; all of the limited partner interests of SALP are owned and held of record as set forth in Schedule 7.1(b) hereto. Except as set forth in the Agreement of Limited Partnership of SALP or as disclosed in Schedule 7.1(b) hereto, as of the Restatement Date there are no outstanding securities or agreements exchangeable for or convertible into or carrying any rights to acquire any equity interests in SALP. Except as disclosed in Schedule 7.1(b), as of the Restatement Date there are no outstanding commitments, options, warrants, calls or other agreements (whether written or oral) binding on SALP or Sovran which require or could require SALP or Sovran to sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any equity interests of SALP. No general partnership interests of SALP are subject to any restrictions on transfer or any partner agreements, voting agreements, trust deeds, irrevocable proxies, or any other similar agreements or interests (whether written or oral).
|
|
(ii)
|
As of the Restatement Date, the authorized capital stock of, or any other equity interests in Holdings are as set forth in Schedule 7.1(b), and the issued and outstanding voting and nonvoting shares of the common stock of Holdings, and all of the other equity interests in Holdings, all of which have been duly issued and are outstanding and fully paid and non-assessable, are owned and held of record by Sovran. Except as disclosed in Schedule 7.1(b), as of the Restatement Date there are no outstanding securities or agreements exchangeable for or convertible into or carrying any rights to acquire any equity interests in Holdings, and there are no outstanding options, warrants, or other similar rights to acquire any shares of any class in the capital of or any other equity interests in Holdings. As of the Restatement Date there are no outstanding commitments, options, warrants, calls or other agreements or obligations (whether written or oral) binding on Holdings to issue, sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any shares of any class in the capital of or other equity interests in Holdings. No shares of, or equity interests in Holdings held by Sovran are subject to any restrictions on transfer pursuant to any of Holding’s applicable charter, bylaws or any shareholder agreements, voting agreements, voting trusts, trust agreements, trust deeds, irrevocable proxies or any other similar agreements or instruments (whether written or oral).
|
57
(i)
|
Each of the Loan Documents to which any of the Borrowers or any of the Guarantors is a party has been duly executed and delivered and constitutes the legal, valid and binding obligations of each such Borrower and each such Guarantor, as the case may be, subject only to applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and to the fact that the availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
|
|
(ii)
|
The Intercreditor Agreement is in full force and effect as of the Restatement Date and the Indebtedness and each other payment Obligation hereunder or arising under any Loan Document constitute “Loans” and, consequently, “Subject Obligations” (as each such term is defined in the Intercreditor Agreement) under the Intercreditor Agreement and remain subject to the terms of the Intercreditor Agreement.
|
58
governmental agency or authority other than those already obtained, or (ii) filing with any governmental agency or authority, other than filings which will be made with the SEC when and as required by law.
(a) As of the Restatement Date (with respect to Unencumbered Properties designated as such on the Restatement Date) or the date of designation as an Unencumbered Property (with respect to Unencumbered Properties acquired and/or designated as such after the Restatement Date), and in each case to the best of its knowledge thereafter, (i) a Borrower or (if after the Restatement Date) a Guarantor holds good and clear record and marketable title to the Unencumbered Properties, subject to no rights of others (except, with respect to a Ground Lease, the rights of the lessor), including any mortgages, conditional sales agreements, title retention agreements, liens or encumbrances, except for Permitted Liens, and (ii) the Unencumbered Properties satisfy the requirements for an Unencumbered Property set forth in the definition thereof. Schedule 7.3(a) sets forth a list of all Unencumbered Properties as of the Restatement Date.
(b) Each of the Borrowers and each of the then Guarantors and their respective Subsidiaries will, as of the Restatement Date, own all of the assets as reflected in the financial statements of the Borrowers described in §7.4 or acquired since the date of such financial statements (except property and assets sold or otherwise disposed of in the ordinary course of business since that date).
(c) Each of the direct or indirect interests of the Borrowers or Holdings in any Partially-Owned Entity is set forth on Schedule 7.3(c) hereto, including the type of entity in which the interest is held, the percentage interest owned by such Borrower or Holdings in such entity, the capacity in which such Borrower or Holdings holds the interest, and such Borrower’s or Holdings’ ownership interest therein.
(a) The audited consolidated balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP) as of December 31, 2013, and the related consolidated statement of operations, shareholders’ equity and cash flows for the fiscal year ended December 31, 2012, and the audited consolidated statement of operations, shareholders’ equity and cash flows for the fiscal year then ended, certified by the chief financial officer of Sovran. Such financial statements have been prepared in accordance with GAAP and fairly present the financial condition of Sovran and its Subsidiaries as of the close of business on the dates thereof and the results of operations for the fiscal periods then ended. There are no contingent liabilities of Sovran or any of its Subsidiaries as of such dates involving material amounts, known to the officers of the Borrowers, not disclosed in said financial statements and the related notes thereto.
59
(b) The unaudited consolidated balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP) as of September 30, 2014, and the related consolidated statement of operations and cash flows for the three fiscal quarter period ended September 30, 2013, and the unaudited consolidated statement of operations and cash flows for the three fiscal quarter periods then ended, certified by the chief financial officer of Sovran. Such financial statements have been prepared in accordance with GAAP and fairly present the financial condition of Sovran and its Subsidiaries as of the close of business on the dates thereof and the results of operations for the fiscal periods then ended (subject to changes resulting from normal year-end audit adjustments). There are no contingent or other liabilities of Sovran or any of its Subsidiaries as of such dates involving material amounts, known to the officers of the Borrowers, not disclosed in said financial statements and the related notes thereto.
(a) Each Borrower, each Guarantor and each of their respective Subsidiaries own and possesses all franchises, patents, copyrights, trademarks, trade names, service marks, licenses, authorizations and permits, and rights in respect of the foregoing, adequate for the conduct of their respective businesses substantially as now conducted without known conflict with any rights of others, including all Permits.
(b) To the best knowledge of each Borrower, no product or service of either Borrower or any Guarantor or Subsidiary infringes in any material respect any license, permit, franchise, authorization, patent, copyright, service xxxx, trademark, trade name or other right owned by any other Person.
(c) To the best knowledge of each Borrower, there is no material violation by any Person of any right of either Borrower or any Guarantor or Subsidiary with respect to any patent, copyright, service xxxx, trademark, trade name or other right owned or used by either Borrower or any Guarantor or Subsidiary.
60
restriction, or any judgment, decree, order, rule or regulation that has or is expected in the future to have a Material Adverse Effect. None of any Borrower, any Guarantor or any of their respective Subsidiaries is a party to any contract or agreement that has or is expected, in the judgment of their respective officers, to have a Material Adverse Effect.
(a) (i) Each of the Borrowers, the Guarantors and their respective Subsidiaries (A) has timely made or filed all federal, state and local income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (B) has paid all taxes and other governmental assessments and charges shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and by appropriate proceedings, and (C) has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply, and (ii) there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the respective officers of the Borrowers and the Guarantors and their respective Subsidiaries know of no basis for any such claim. The federal income tax liabilities of the Borrowers and their Subsidiaries have been determined by the Internal Revenue Service and paid for all fiscal years up to and including the fiscal year ended December 31, 2009.
(b) To the best of the Borrowers’ knowledge, each Partially-Owned Entity (i) has timely made or filed all federal, state and local income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and by appropriate proceedings, and (iii) has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. To the best of the Borrowers’ knowledge, except as otherwise disclosed in writing to the Administrative Agent, there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction from any Partially-Owned Entity, and the officers of the Borrowers know of no basis for any such claim.
61
other than changes in the ordinary course of business that have not had, and could not reasonably be expected to have, a Material Adverse Effect.
|
|
|
|
|
|
|
(a) None of any Borrower, any Guarantor, any of their respective Subsidiaries or any operator of the Real Estate or any portion of such Real Estate, or any operations thereon is in violation, or alleged violation, of any judgment, decree, order, law, license, rule or regulation pertaining to environmental matters, including without limitation, those arising under the Resource Conservation and Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986 (“XXXX”), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state or local statute, regulation, ordinance, order or decree relating to health, safety or the environment (hereinafter “Environmental Laws”), which violation or alleged violation has, or its remediation would have, by itself or when aggregated with all such other violations or alleged violations, a Material Adverse Effect, or constitutes a Disqualifying Environmental Event with respect to any Unencumbered Property.
(b) None of any Borrower, any Guarantor or any of their respective Subsidiaries has received notice from any third party, including, without limitation, any federal, state or local governmental authority, (i) that it has been identified by the United States Environmental Protection Agency (“EPA”) as a potentially responsible party under CERCLA with respect to a site listed on the National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986), (ii) that any hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances as defined by 42 U.S.C. §9601(14), any pollutant or contaminant as defined by 42 U.S.C. §9601(33) or any toxic substances, oil or hazardous materials or other chemicals or substances regulated by any Environmental Laws (“Hazardous Substances”) which it has generated, transported or disposed of has been found at any site at which a federal, state or local agency or other third party has conducted or has ordered that any Borrower, any Guarantor or any of their respective Subsidiaries conduct a remedial investigation, removal or other response action pursuant to any
62
Environmental Law, or (iii) that it is or shall be a named party to any claim, action, cause of action, complaint, or legal or administrative proceeding (in each case, contingent or otherwise) arising out of any third party’s incurrence of costs, expenses, losses or damages of any kind whatsoever in connection with the release of Hazardous Substances; which event described in any such notice would have a material adverse effect on the business, assets or financial condition of any Borrower, any Guarantor or any of their respective Subsidiaries, or constitutes a Disqualifying Environmental Event with respect to any Unencumbered Property.
(c) Except as set forth on Schedule 7.18, (i) no portion of the Real Estate has been used for the handling, processing, storage or disposal of Hazardous Substances except in accordance with applicable Environmental Laws; and no underground tank or other underground storage receptacle for Hazardous Substances is located on any portion of any Real Estate except in accordance with applicable Environmental Laws, (ii) in the course of any activities conducted by the Borrowers, the Guarantors, their respective Subsidiaries or the operators of their respective properties, or any ground or space tenants on any Real Estate, no Hazardous Substances have been generated or are being used on such Real Estate except in accordance with applicable Environmental Laws, (iii) there has been no present or past releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, disposing or dumping (a “Release”) or threatened Release of Hazardous Substances on, upon, into or from the Real Estate, (iv) there have been no Releases on, upon, from or into any real property in the vicinity of any of the Real Estate which, through soil or groundwater contamination, may have come to be located on such Real Estate, and (v) any Hazardous Substances that have been generated on any of the Real Estate during ownership thereof by a Borrower or a Guarantor or any of their respective Subsidiaries have been transported off-site only by carriers having an identification number issued by the EPA, treated or disposed of only by treatment or disposal facilities maintaining valid permits as required under applicable Environmental Laws, which transporters and facilities have been and are, to the best of the Borrowers’ knowledge, operating in compliance with such permits and applicable Environmental Laws; any of which events described in clauses (i) through (v) above would have a material adverse effect on the business, assets or financial condition of any Borrower, any Guarantor or any of their respective Subsidiaries, or constitutes a Disqualifying Environmental Event with respect to any Unencumbered Property. Notwithstanding that the representations contained herein are limited to the knowledge of the Borrowers, any such limitation shall not affect the covenants specified in §8.11 or elsewhere in this Credit Agreement.
(d) None of the Borrowers, the Guarantors, their respective Subsidiaries or the Real Estate is subject to any applicable Environmental Law requiring the performance of Hazardous Substances site assessments, or the removal or remediation of Hazardous Substances, or the giving of notice to any governmental agency or the recording or delivery to other Persons of an environmental disclosure document or statement, by virtue of the transactions set forth herein and contemplated hereby, or as a condition to the effectiveness of any other transactions contemplated hereby.
(e) There has been no change in the status of the information disclosed on Schedule 7.18, that, individually or in the aggregate, has resulted in, or materially increased the
63
likelihood of, a Material Adverse Effect (after taking into account any indemnities, escrows or other similar protections provided by a third party for the matters set forth in Schedule 7.18).
In addition, the Borrowers represent and warrant that (i) each of (x) that certain Guaranty of Recourse Obligations of Borrower dated as of November 28, 2001by SALP for the benefit of GMAC Commercial Mortgage Corporation and (y) that certain Non-Recourse Indemnification Agreement dated as of February 12, 2002 by SALP for the benefit of PNC Bank, National Association (for purposes of this paragraph, clauses (x) and (y) collectively, the “SALP Terminated Obligations”) has terminated and is of no further force and effect, and (ii) that no Borrower nor any Guarantor or other Subsidiary has any surviving or otherwise outstanding obligations under or with respect to the SALP Terminated Obligations.
(a) hinder, delay or defraud any entity to which any of them is, or will become, on or after the Restatement Date, indebted, or
(b) incur debts that would be beyond any of their ability to pay as they mature.
64
(a) Schedule 7.24 sets forth a complete and correct list of all outstanding Indebtedness of the Borrowers, the Guarantors and their respective Subsidiaries as of Restatement Date (including a description of the obligors and obligees, principal amount outstanding and collateral therefor, if any and Guaranty thereof, if any). Neither of the Borrowers nor any Guarantor or Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of the Borrowers or such Guarantor or Subsidiary, and no event or condition exists with respect to any Indebtedness of the Borrowers, the Guarantors or any of their respective Subsidiaries, that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 7.24, neither of the Borrowers nor any Guarantor or Subsidiary has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by §9.2.
(c) Neither any Borrower nor any Guarantor or Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of such Person, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of the Borrowers, any Guarantor or any Subsidiary, except as expressly provided in §9.10.
(a) Neither any Borrower nor any Guarantor or Subsidiary or Affiliate of the Borrower or any Guarantor (each Guarantor, Subsidiary and Affiliate of the Borrower or any Guarantor, a “Controlled Entity”) (i) is a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of Treasury (“OFAC”) (an “OFAC Listed Person”) or (ii) is a department, agency or instrumentality of, or is otherwise controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (ii), a “Blocked Person”) or (iii) has any investments in, or knowingly (as such term is defined in Section 101(6) of CISADA) engages in any dealings or transactions with, any Blocked Person.
(b) No part of the proceeds from the Loans or Letters of Credit made or issued hereunder constitute or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly by the Borrowers or indirectly through any Controlled Entity, in connection with any investment in, or any transactions or dealings with, any Blocked Person.
65
(c) To the Borrowers’ actual knowledge after making due inquiry, neither any Borrower nor any Controlled Entity (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Borrowers have taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that each Borrower and each Controlled Entity is and will continue to be in compliance with all applicable current and future Anti-Money Laundering Laws.
(d) No part of the proceeds from the Loans or Letters of Credit made or issued hereunder will be used, directly or indirectly, for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage. The Borrowers have taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that each Borrower and each Controlled Entity is and will continue to be in compliance with all applicable current and future anti-corruption laws and regulations.
66
accounts and reserves for all taxes (including income taxes), contingencies, depreciation and amortization of its properties and the properties of its Subsidiaries and (c) at all times engage Ernst & Young LLP or other Accountants as the independent certified public accountants of Sovran, SALP and their respective Subsidiaries and will not permit more than thirty (30) days to elapse between the cessation of such firm’s (or any successor firm’s) engagement as the independent certified public accountants of Sovran, SALP and their respective Subsidiaries and the appointment in such capacity of a successor firm as Accountants.
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years (or such shorter period as is 15 days greater than the period applicable to the filing of Sovran’s Annual Report on Form 10-K with the SEC regardless of whether Sovran is subject to the filing requirements thereof):
(i)
|
in the case of SALP, if prepared, the audited consolidated balance sheet of SALP and its Subsidiaries at the end of such year, and the related audited consolidated statements of operations, funds available for distribution and cash flows for the year then ended, in each case (except for cash flow statements) with supplemental consolidating schedules provided by SALP; and
|
|
(ii)
|
in the case of Sovran, the audited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP and its Subsidiaries) at the end of such year, and the related audited consolidated and consolidating (for Subsidiaries which own Real Estate) statements of operations, cash flows and shareholders’ equity for the year then ended;
|
each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, accompanied by (x) a certification by the principal financial officer of SALP or Sovran, as applicable, that the information contained in such financial statements fairly presents the financial position of SALP or Sovran (as the case may be) and its Subsidiaries on the date thereof and (y) an auditor’s report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its fiscal quarters (or such shorter period as is 15 days greater than the period applicable to the filing of Sovran’s Quarterly Report on Form 10-Q with the SEC regardless of whether Sovran is subject to the filing requirements thereof):
(i)
|
in the case of SALP, if prepared, copies of the unaudited consolidated balance sheet of SALP and its Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements of operations, funds available for distribution and cash flows for the portion of SALP’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to cash flow statements) provided by SALP; and
|
|
(ii)
|
in the case of Sovran, copies of the unaudited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of Sovran and its Subsidiaries (including, without limitation, SALP and its Subsidiaries) as at the end of such quarter, and the related unaudited consolidated and consolidating (for Subsidiaries which own Real Estate) statements of operations and cash flows for the portion of Sovran’s fiscal year then elapsed;
|
Setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial officer of SALP or Sovran, as applicable, that the information contained in such financial statements fairly presents the financial position of SALP or Sovran (as the case may be) and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of Exhibit D-2, or Exhibit D-3, as the case may be, signed by the chief financial officer of SALP or Sovran, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since September 30, 2014; and, in the case of Sovran, setting forth in reasonable detail computations evidencing compliance with the covenants contained in §10 hereof and a list of all Excluded Subsidiaries as of such date and including a description of each such Excluded Subsidiary’s Real Estate and Indebtedness;
(d) promptly as they become available, a copy of each report (including any so-called management letters) submitted to any Borrower or any Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of any Borrower or any Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of any Borrower or any Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of any Borrower, any Guarantor or any Subsidiary (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a Material Adverse Effect;
(f) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of Sovran;
67
(g) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of Sovran, copies of the Form 10-K statement filed by Sovran with the SEC for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter of Sovran, copies of the Form 10-Q statement filed by Sovran with the SEC for such fiscal quarter;
(h) within 30 days after the end of each fiscal year of Sovran and SALP, a five-year capital plan of SALP and its Subsidiaries; and
(i) from time to time such other financial data and information about the Borrowers, the Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities which is prepared by such Person in the normal course of its business or is required for securities and tax law compliance as the Administrative Agent or any Lender may reasonably request, including without limitation occupancy information and insurance certificates with respect to the Real Estate (including the Unencumbered Properties) and tax returns.
68
into any Real Estate, or (C) investigation or remediation of off-site locations at which such Borrower, such Guarantor any Subsidiary or any of their respective predecessors are alleged to have directly or indirectly disposed of Hazardous Substances, or (iv) upon such Borrower’s or such Guarantor’s obtaining knowledge that any expense or loss has been incurred by such governmental authority in connection with the assessment, containment, removal or remediation of any Hazardous Substances with respect to which such Borrower , such Guarantor any Subsidiary or any Partially-Owned Entity may be liable or for which a lien may be imposed on any Real Estate; any of which events described in clauses (i) through (iv) above could reasonably be expected to have a Material Adverse Effect, or constitutes a Disqualifying Environmental Event with respect to any Unencumbered Property.
69
principal terms of any financing for such Real Estate, and a statement as to whether such Real Estate qualifies as an Unencumbered Property.
70
be a wholly-owned Subsidiary of Sovran and the sole general partner of SALP and shall be the owner of at least 1% of the outstanding partnership interests in SALP.
71
governmental charges against the Real Estate before the same become delinquent and will duly pay and discharge, or cause to be paid and discharged, before the same shall become overdue, all taxes, assessments and other governmental charges imposed upon its sales and activities, or any part thereof, or upon the income or profits therefrom, as well as all claims for labor, materials, or supplies that if unpaid might by law become a lien or charge upon any of the Real Estate; provided that any such tax, assessment, charge, levy or claim need not be paid if the validity or amount thereof shall currently be contested in good faith by appropriate proceedings and if such Borrower, such Guarantor or such Subsidiary shall have set aside on its books adequate reserves with respect thereto; and provided further that such Borrower, such Guarantor or such Subsidiary will pay all such taxes, assessments, charges, levies or claims forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor. If requested by the Administrative Agent, the Borrowers will provide evidence of the payment of real estate taxes, other taxes, assessments and other governmental charges against the Real Estate in the form of receipted tax bills or other form reasonably acceptable to the Administrative Agent. Each Borrower will, and will cause each Guarantor and each of its Subsidiaries to file all tax returns required to be filed in any jurisdiction unless the non-filing thereof could not reasonably be expected to have a Material Adverse Effect.
72
Affiliates, legal counsel and independent auditors, (ix) to any actual or proposed participant or Eligible Assignee of all or part of its rights hereunder, and (x) as otherwise required by law.
(a) At all times prior to either of the Borrowers or any of the Borrowers’ Subsidiaries becoming obligated in respect of any Capital Markets Indebtedness, the Borrowers will cause (i) each of their Subsidiaries (other than Excluded Subsidiaries), including each of their Subsidiaries (other than Excluded Subsidiaries) first formed or acquired after the date hereof, to enter into a Subsidiary Guaranty (or after the Restatement Date, promptly and in any
73
event, within 30 days after the formation or acquisition of such Subsidiary, to enter into a joinder agreement in respect of the existing Subsidiary Guaranty and deliver to the Administrative Agent and the Lenders the other items required to be delivered under §8.14(c)), and (ii) each Subsidiary that had previously been an Excluded Subsidiary that ceases to be an Excluded Subsidiary to enter into a joinder agreement in respect of the Subsidiary Guaranty and deliver to the Administrative Agent and each Lender all of the documents required under §8.14(c). In addition to, and without limiting the requirement in the immediately preceding sentence, at all times prior to either of the Borrowers or any of the Borrowers’ Subsidiaries becoming obligated in respect of any Capital Markets Indebtedness, the Borrowers will cause any Subsidiary which is required by the terms of any Note Purchase Agreement (or any other agreement pursuant to which Indebtedness for borrowed money of a Borrower is outstanding) to become a party to, or otherwise guarantee, Indebtedness outstanding under a Note Purchase Agreement (or the Notes relating thereto) or such other agreement, to enter into the Subsidiary Guaranty and deliver to each of the Administrative Agent and each Lender (concurrently with the incurrence of any such obligation pursuant to a Note Purchase Agreement or such other agreement) all of the documents required under §8.14(c).
(b) On and after the date either of the Borrowers or any of the Borrowers’ Subsidiaries becomes obligated in respect of any Capital Markets Indebtedness, the Borrowers shall cause each of their Subsidiaries that is not already a Guarantor and to which any of the following conditions applies to execute and deliver to the Administrative Agent a joinder agreement in respect of the existing Subsidiary Guaranty (or if the Subsidiary Guaranty has previously been terminated because all Guarantors party to it have been released pursuant to §8.14(d) below, a Subsidiary Guaranty) and deliver to the Administrative Agent and the Lenders the other items required to be delivered under §8.14(c):
(i)
|
such Subsidiary of a Borrower Guarantees, or otherwise becomes obligated in respect of any Indebtedness of a Borrower or any Subsidiary of a Borrower (other than an Excluded Subsidiary guaranteeing or otherwise becoming obligated in respect of the Indebtedness of another Excluded Subsidiary); or
|
|
(ii)
|
(A) such Subsidiary owns an Unencumbered Property and (B) such Subsidiary, or any other Subsidiary of a Borrower that directly or indirectly owns any stock or other equity interests in such Subsidiary has incurred, acquired or suffered to exist any Indebtedness that is Recourse.
|
(c) Each joinder agreement in respect of the Subsidiary Guaranty or new Subsidiary Guaranty delivered by a Subsidiary of the Borrowers under the immediately preceding subsections (a) and (b) shall be accompanied by each of the following in form and substance satisfactory to the Administrative Agent:
(i)
|
a certificate, in form and substance satisfactory to the Administrative Agent, signed by an authorized, responsible officer of the Borrowers making representations and warranties to the effect of those contained in §7 hereof, with respect to such Subsidiary and the Subsidiary Guaranty, as applicable;
|
|
(ii)
|
a certificate of the Secretary (or other appropriate officer) of the new Subsidiary Guarantor as to due authorization, charter documents, board resolutions and the incumbency of officers;
|
|
(iii)
|
an opinion of counsel (who may be in-house counsel for the Borrowers) addressed to the Administrative Agent and each Lender satisfactory to the Administrative Agent, to the effect that the Subsidiary Guaranty has been duly authorized, executed and delivered by such additional Subsidiary Guarantor and that the Subsidiary Guaranty constitutes the legal, valid and binding contract and agreement of such Subsidiary Guarantor enforceable in accordance with its terms, except as any enforcement of such terms may be limited by bankruptcy, insolvency, fraudulent conveyance and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles;
|
|
(iv)
|
if the Intercreditor Agreement is still in effect at such time, a counterpart of the Intercreditor Agreement, signed by such Subsidiary Guarantor or, if the Intercreditor Agreement is not in effect, but an intercreditor agreement would be required at such time under any Note Purchase Agreement, a counterpart of such intercreditor agreement signed by such Subsidiary Guarantor; and
|
|
(v)
|
(if the Intercreditor Agreement is still in effect at such time and to the extent not already a party to the Intercreditor Agreement) a joinder to the Intercreditor Agreement signed by each of the holders of Indebtedness for borrowed money of the Borrowers which is a beneficiary of a guaranty of such Subsidiary Guarantor, or if the Intercreditor Agreement is not in effect, but an intercreditor agreement would be required at such time under any Note Purchase Agreement, a counterpart of such intercreditor agreement signed by each of the holders of Indebtedness for borrowed money of the Borrowers which is a beneficiary of a guaranty of such Subsidiary Guarantor.
|
(d) The Borrower Representative may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release a Guarantor from the Subsidiary Guaranty so long as: (i) such Guarantor is not required to be a party to the Subsidiary Guaranty under §8.14(a) or §8.14(b); (ii) no Default or Event of Default shall have occurred and be continuing at the time of such request or the effectiveness of such request, (iii) all of the representations and warranties of the Borrowers contained in §7 of this Credit Agreement and in any other Loan Document (other than representations and warranties which expressly speak as of a different time) shall be true and correct in all material respects at the time of such request and at the time of the effectiveness of such request; and (iv) the Administrative Agent shall have received such written request at least ten (10) Business Days (or
74
such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower Representative of any such request shall constitute a representation by each Borrower that the matters set forth in the preceding sentence (both as of the date of giving such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.
75
making such determination, the Administrative Agent shall give the Borrower Representative reasonable notice and the opportunity to obtain one or more environmental assessments or audits of such Unencumbered Property prepared by a hydrogeologist, an independent engineer or other qualified consultant or expert approved by the Administrative Agent, which approval will not be unreasonably withheld, to evaluate or confirm (i) whether any Release of Hazardous Substances has occurred in the soil or water at such Unencumbered Property and (ii) whether the use and operation of such Unencumbered Property materially complies with all Environmental Laws (including not being subject to a matter that is a Disqualifying Environmental Event). Such assessment will then be used by the Administrative Agent to determine whether a Disqualifying Environmental Event has in fact occurred with respect to such Unencumbered Property. All such environmental assessments shall be at the sole cost and expense of the Borrowers.
76
more senior positions with requisite greater responsibilities), of Sovran; provided, however, if at least two (2) of the Key Management Individuals are not so active in such positions and with such responsibilities (except by reason of death or incapacity as aforesaid), then within ninety (90) days of the occurrence of such event, Sovran shall propose and appoint such individual(s) of comparable experience, reputation and otherwise reasonably acceptable to the Required Lenders to such position(s) such that, after such appointment, such acceptable replacement individuals, together with the Key Management Individuals remaining so active with Sovran in such positions and with such responsibilities, total at least two (2). For purposes hereof, “Key Management Individuals” shall mean and include Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx.
(a) Intentionally Omitted;
77
(b) Indebtedness which would result in a Default or Event of Default under §10 hereof or under any other provision of this Credit Agreement;
(c) An aggregate amount in excess of $5,000,000 at any one time in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies for which payment therefor is required to be made in accordance with the provisions of §8.9 and has not been timely made;
(d) An aggregate amount in excess of $5,000,000 at any one time in respect of uninsured judgments or awards, with respect to which the applicable periods for taking appeals have expired, or with respect to which final and unappealable judgments or awards have been rendered; and
(e) Current unsecured liabilities incurred in the ordinary course of business, which (i) are overdue for more than sixty (60) days, (ii) exceed $5,000,000 in the aggregate at any one time, and (iii) are not being contested in good faith.
For the avoidance of doubt, the terms and provisions of this §9.1 are in addition to, and not in limitation of, the covenants set xxxxx xx §00 of this Credit Agreement.
Notwithstanding anything contained herein to the contrary, the Borrowers and the Guarantors will not, and will not permit any Subsidiary to, incur any Indebtedness for borrowed money which, together with other Indebtedness for borrowed money incurred by any Borrower, any Guarantor, and any Subsidiary since the date of the most recent compliance certificate delivered to the Administrative Agent in accordance with this Credit Agreement, exceeds $5,000,000 in the aggregate unless the Borrowers shall have delivered a compliance certificate in the form of Exhibit D-4 hereto to the Administrative Agent evidencing covenant compliance at the time of delivery of the certificate and on a pro-forma basis after giving effect to such proposed Indebtedness. The Administrative Agent will use good faith efforts to cause any compliance certificate delivered under this Credit Agreement to be delivered to each Lender in accordance with §15.12 and in any event on the same day or the Business Day following the day such compliance certificate is received by the Administrative Agent.
To the extent not already a party to the Intercreditor Agreement, the Borrowers will cause each holder of Indebtedness for borrowed money of the Borrowers which is a beneficiary of a Guaranty by a Subsidiary Guarantor, to sign and deliver to the Administrative Agent a joinder to the Intercreditor Agreement.
78
retention or purchase money security agreement, device or arrangement; (d) suffer to exist for a period of more than thirty (30) days after the same shall have been incurred any Indebtedness or claim or demand against it that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be given any priority whatsoever over its general creditors; or (e) sell, assign, pledge or otherwise transfer any accounts, contract rights, general intangibles, chattel paper or instruments, with or without recourse (the foregoing items (a) through (e) being sometimes referred to in this §9.2 collectively as “Liens”), provided that the Borrowers, the Guarantors and any Subsidiary may create or incur or suffer to be created or incurred or to exist:
(i)
|
Liens securing taxes, assessments, governmental charges or levies or claims for labor, material and supplies, the Indebtedness with respect to which is not prohibited by §9.1(c);
|
|
(ii)
|
deposits or pledges made in connection with, or to secure payment of, worker’s compensation, unemployment insurance, old age pensions or other social security obligations; and deposits with utility companies and other similar deposits made in the ordinary course of business;
|
|
(iii)
|
Liens (other than affecting the Unencumbered Properties) in respect of judgments or awards, the Indebtedness with respect to which is not prohibited by §9.1(d);
|
|
(iv)
|
encumbrances on properties consisting of easements, rights of way, covenants, restrictions on the use of real property and defects and irregularities in the title thereto; landlord’s or lessor’s Liens under Leases to which any Borrower, any Guarantor, or any Subsidiary is a party or bound; purchase options granted at a price not less than the market value of such property; and other minor Liens or encumbrances on properties, none of which interferes materially and adversely with the use of the property affected in the ordinary conduct of the business of the owner thereof, and which matters (x) do not individually or in the aggregate have a Material Adverse Effect or (y) do not make title to such property unmarketable by the conveyancing standards in effect where such property is located;
|
|
(v)
|
any Leases (excluding Synthetic Leases) entered into good faith with Persons that are not Affiliates; provided that Leases with Affiliates on market terms and with monthly market rent payments required to be paid are Permitted Liens;
|
|
(vi)
|
Liens and other encumbrances or rights of others which exist on the Restatement Date, are described in Schedule 9.2(vi) hereto and do not otherwise constitute a breach of this Credit Agreement; provided that nothing in this clause (vi) shall be deemed or construed to permit an Unencumbered Property to be subject to a Lien to secure Indebtedness;
|
|
(vii)
|
as to Real Estate which is acquired after the Restatement Date, Liens and other encumbrances or rights of others which exist on the date of acquisition and which do not otherwise constitute a breach of this Credit Agreement; provided that nothing in this clause (vii) shall be deemed or construed to permit an Unencumbered Property to be subject to a Lien to secure Indebtedness;
|
|
(viii)
|
Liens affecting the Unencumbered Properties in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal, so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review; provided that the Borrowers shall have obtained a bond or insurance with respect thereto to the Administrative Agent’s reasonable satisfaction, and, provided further, such Lien does not constitute a Disqualifying Environmental Event, a Disqualifying Building Event or a Disqualifying Legal Event;
|
|
(ix)
|
Liens securing Indebtedness for the purchase price of capital assets (other than Real Estate but including Indebtedness in respect of Capitalized Leases for equipment and other equipment leases) to the extent not otherwise prohibited by §9.1; and
|
|
(x)
|
other Liens (other than affecting the Unencumbered Properties) in connection with any Indebtedness permitted under §9.1 which do not otherwise result in a Default or Event of Default under this Credit Agreement; provided that notwithstanding the foregoing, no Borrower, Guarantor or any Subsidiary shall in any event secure any Indebtedness outstanding under any Note Purchase Agreement within the provisions of this §9.2 unless concurrently therewith such Borrower, Guarantor or Subsidiary shall equally and ratably secure the Obligations upon terms and conditions reasonably satisfactory to the Administrative Agent.
|
Notwithstanding the foregoing provisions of this §9.2, the failure of any Unencumbered Property to comply with the covenants set forth in this §9.2 shall result in such Unencumbered Property’s disqualification as an Unencumbered Property under this Credit Agreement, but such disqualification shall not by itself constitute a Default or Event of Default, unless such disqualification causes a Default or an Event of Default under another provision of this Credit Agreement.
79
(a) marketable direct or guaranteed obligations of the United States of America that mature within one (1) year from the date of purchase;
(b) demand deposits, certificates of deposit, bankers acceptances and time deposits of United States banks having total assets in excess of $1,000,000,000;
(c) securities commonly known as “commercial paper” issued by a corporation organized and existing under the laws of the United States of America or any state thereof that at the time of purchase have been rated and the ratings for which are not less than “P1” if rated by Xxxxx’x, not less than “A -1” if rated by S&P and not less than “F1” if rated by Fitch;
(d) Investments existing on the Restatement Date and listed on Schedule 9.3(d) hereto;
(e) So long as no Default or Event of Default has occurred and is continuing or would occur after giving effect thereto, acquisitions of Real Estate consisting of self storage facilities, warehouses and mini-warehouses and the equity of Persons whose primary operations consist of the ownership, development, operation and management of self storage facilities, warehouses and mini-warehouses; provided, however that (i) the Borrowers shall not, and shall not permit any Guarantor or any of its Subsidiaries to, acquire any such Real Estate without the prior written consent of the Administrative Agent if the environmental investigation for such Real Estate determines that the potential environmental remediation costs and other environmental liabilities associated with such Real Estate exceed $200,000; and (ii) the Borrowers shall not permit any of their Subsidiaries which is not a Borrower or a Guarantor, or which does not become a Borrower or a Guarantor, to acquire any Unencumbered Property, and in all cases such Guarantor shall be a wholly-owned Subsidiary of SALP or Sovran;
(f) any Investments now or hereafter made in any Guarantor and, so long as no Default or Event of Default has occurred and is continuing hereunder, Investments now or hereafter made in any other Subsidiary;
(g) Investments in respect of (i) equipment, inventory and other tangible personal property acquired in the ordinary course of business, (ii) current trade and customer accounts receivable for services rendered in the ordinary course of business and payable in accordance with customary trade terms, (iii) advances to employees for travel expenses, drawing accounts and similar expenditures, and (iv) prepaid expenses made in the ordinary course of business;
(h) any other Investments made in the ordinary course of business and consistent with past business practices in an aggregate amount not to exceed $20,000,000 outstanding at any time;
(i) a Hedge Agreement or other interest rate xxxxxx in connection with Indebtedness;
80
(j) shares of so-called “money market funds” registered with the SEC under the Investment Company Act of 1940 which maintain a level per-share value, invest principally in marketable direct or guaranteed obligations of the United States of America and agencies and instrumentalities thereof, and have total assets in excess of $50,000,000;
(k) Investments consisting of Distributions permitted under §9.7(a) hereof;
(l) Investments consisting of the Sovran Treasury Stock not to exceed 25% (by value) of the consolidated assets of Sovran, for purposes of Regulations U and X of the Board of Governors of the Federal Reserve System (as referred to in §7.17 hereof). For the avoidance of doubt, Sovran Treasury Stock shall not be deemed to constitute an asset of the Borrowers for any other purpose hereunder.
(a) Become a party to any merger, consolidation or reorganization without the prior written consent of the Lenders, except that so long as no Default or Event of Default has occurred and is continuing, or would occur after giving effect thereto, the merger, consolidation or reorganization of one or more Persons with and into such Borrower, such Guarantor, or such Subsidiary, shall be permitted if such action is not hostile, any Borrower, any Guarantor, or any Subsidiary, as the case may be, is the surviving entity and such merger, consolidation or reorganization does not cause a breach of §8.14; provided that (i) for any such merger, consolidation or reorganization (other than (w) the merger or consolidation of one or more Subsidiaries of SALP with and into SALP, (x) the merger or consolidation of two or more Subsidiaries of SALP, (y) the merger or consolidation of one or more Subsidiaries of Sovran with and into Sovran, or (z) the merger or consolidation of two or more Subsidiaries of Sovran), the Borrowers shall provide to the Administrative Agent a statement in the form of Exhibit D-5 hereto signed by the chief financial officer or treasurer of the Borrower Representative and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §10 hereof and certifying that no Default or Event of Default has occurred and is continuing, or would occur and be continuing after giving effect to such merger, consolidation or reorganization and all liabilities, fixed or contingent, pursuant thereto and (ii) for any such merger, consolidation or reorganization (x) involving a Borrower, a Borrower shall be the survivor and (y) involving a Guarantor, a Guarantor shall be the survivor;
(b) Sell, transfer or otherwise dispose of (collectively and individually, “Sell” or a “Sale”) or xxxxx x Xxxx to secure Indebtedness (an “Indebtedness Lien”) on any of its now owned or hereafter acquired assets without obtaining the prior written consent of the Required Lenders except for:
(i)
|
the Sale of or granting of an Indebtedness Lien on any Unencumbered Property so long as no Default or Event of Default has then occurred and is continuing, or would occur and be continuing after giving effect to such Sale or Indebtedness Lien; provided, that prior to any Sale of any Unencumbered Property or the granting of an Indebtedness Lien on any Unencumbered Property under this clause (i), the Borrowers shall provide to the Administrative Agent a certificate in the form of Exhibit D-6 hereto signed by the chief financial officer or treasurer of the Borrower Representative and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §10 hereof and certifying that no Default or Event of Default has occurred and is continuing, or would occur and be continuing after giving effect to such proposed Sale or Indebtedness Lien and all liabilities, fixed or contingent, pursuant thereto; and
|
|
(ii)
|
the Sale of or the granting of an Indebtedness Lien on any of its now owned or hereafter acquired assets (other than any Unencumbered Property) so long as no Event of Default has then occurred and is continuing and no Default or Event of Default would occur and be continuing after giving effect to such Sale or Indebtedness Lien and all other Sales (to be) made and Indebtedness Liens (to be) granted under this clause (ii); provided, that (x) if such Sale or Indebtedness Lien is made or granted under this clause (ii) while a Default is continuing, such Sale or Indebtedness Lien (together with other Sales and Indebtedness Liens under this clause (ii)) cures (or would cure) such Default before it becomes an Event of Default, (y) if multiple Sales or grantings of Indebtedness Liens are undertaken pursuant to the foregoing subclause (x) to cure a Default, the Borrowers shall apply the net proceeds of each such Sale or Indebtedness Lien remaining after application to such cure to the repayment of the Loans until such Default has been fully cured, and (z) prior to the Sale of any asset or the granting of an Indebtedness Lien on any asset under this clause (ii), the Borrowers shall provide to the Administrative Agent a statement in the form of Exhibit D-6 hereto signed by the chief financial officer or treasurer of the Borrower Representative and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §10 hereof and certifying that no Default or Event of Default would occur and be continuing after giving effect to all such proposed Sales or Indebtedness Liens and all liabilities, fixed or contingent, pursuant thereto.
|
For the avoidance of doubt, (i) the terms and provisions of this §9.4 are in addition to, and not in limitation of, the covenants set forth in §9.2 of this Credit Agreement and (ii) no Borrower, Guarantor or any Subsidiary shall in any event secure any Indebtedness outstanding under any Note Purchase Agreement within the provisions of this §9.4 unless concurrently therewith such Borrower, Guarantor or Subsidiary shall equally and ratably secure the Obligations upon terms and conditions reasonably satisfactory to the Administrative Agent.
81
any Borrower, any Guarantor or any of their respective Subsidiaries shall sell or transfer any property owned by it in order then or thereafter to lease such property.
(a) The Borrowers will not in any period of four (4) consecutive completed fiscal quarters make (i) any Distributions in such period in excess of 95% of Funds from Operations for such period, or (ii) any Distributions during any period when any Default or Event of Default has occurred and is continuing; provided, however, that the Borrowers may at all times make Distributions to the extent (after taking into account all available funds of Sovran from all other sources) required in order to enable Sovran to continue to qualify as a REIT; and provided further that subject to the requirements of Section 9.3(l), the Borrowers will not at any time during the term of this Credit Agreement make Distributions in connection with the purchase, redemption or retirement of capital stock of such Borrower that exceed (x) $10,000,000 in the aggregate in any fiscal quarter, (y) $20,000,000 in the aggregate in any fiscal year or (z) the sum of $50,000,000 plus an amount equal to 12 ½% of the Net Cash Proceeds received by Sovran resulting from the sale of any equity securities of Sovran in the aggregate during the term of this Credit Agreement. Such repurchased capital stock of such Borrower shall be then held by such Borrower as treasury stock, reissued or cancelled.
(b) Sovran will not, during any period when any Event of Default has occurred and is continuing, make any Distributions in excess of the Distributions required to be made by Sovran in order to maintain its status as a REIT.
(a) engage in any “prohibited transaction” within the meaning of §406 of XXXXX xx §0000 of the Code which could result in a material liability for any Borrower, any Guarantor or any of their respective Subsidiaries; or
82
(b) [reserved]
(c) fail to contribute to any Guaranteed Pension Plan to an extent which, or terminate any Guaranteed Pension Plan in a manner which, could result in the imposition of a lien or encumbrance on the assets of any Borrower, any Guarantor or any of their respective Subsidiaries pursuant to Section 302(f) or Section 4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the posting of security pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code; or
(e) permit or take any action which would result in the aggregate benefit liabilities (with the meaning of Section 4001 of ERISA) of all Guaranteed Pension Plans exceeding the value of the aggregate assets of such Plans, disregarding for this purpose the benefit liabilities and assets of any such Plan with assets in excess of benefit liabilities.
83
84
§10.9. Joint Venture Ownership Interest. As at the end of any fiscal quarter and at all other times, the Borrowers shall not permit Joint Venture Ownership Interest Value to exceed 20% of Gross Asset Value.
85
(a) For purposes of the calculations to be made pursuant to §§10.1-10.12 (and the defined terms relevant thereto, including, without limitation, those relating to “fixed charges” or “debt service”), references to Indebtedness or liabilities of the Borrowers shall mean Indebtedness or liabilities (including, without limitation, Consolidated Total Liabilities) of the Borrowers, plus (but without double-counting):
(i)
|
all Indebtedness or liabilities of the Operating Subsidiaries, the Guarantors and any Subsidiary (excluding any such Indebtedness or liabilities owed to the Borrowers or any Guarantor),
|
|
(ii)
|
all Indebtedness or liabilities of each unconsolidated Partially-Owned Entity (including Capitalized Leases), but only to the extent, if any, that said Indebtedness or liability (or a portion thereof) is Recourse to any of the Borrowers, the Guarantors or their respective Subsidiaries or any of their respective assets (other than their respective interests in such Partially-Owned Entity), and
|
|
(iii)
|
Indebtedness or liabilities of each unconsolidated Partially-Owned Entity to the extent of the pro-rata share of such Indebtedness or liability allocable to any of the Borrowers, the Guarantors or their respective Subsidiaries, if the Indebtedness or liability of such Partially-Owned Entity (or a portion thereof) is Without Recourse to such Person or its assets (other than its interest in such Partially-Owned Entity).
|
(b) For purposes of §10 hereof, Consolidated Adjusted EBITDA and Adjusted Unencumbered Property NOI (and all defined terms and calculations using such terms) shall be adjusted to (i) deduct the actual results of any Real Estate disposed of by a Borrower, a Guarantor or any of their respective Subsidiaries during the relevant fiscal period, and (ii) include the pro forma results of any Real Estate acquired by a Borrower, a Guarantor or any of their respective Subsidiaries during the relevant fiscal period, with such pro forma results being calculated by (x) using the Borrowers’ pro forma projections for such acquired property, subject to the Administrative Agent’s reasonable approval, if such property has been owned by a Borrower, a Guarantor or any of their respective Subsidiaries for less than one complete fiscal quarter or (y) using the actual results for such acquired property and adjusting such results for the appropriate period of time required by the applicable financial covenant, if such property has been owned by a Borrower, a Guarantor or any of their respective Subsidiaries for at least one complete fiscal quarter.
(c) For purposes of §§10.1-10.12 hereof, Consolidated Adjusted EBITDA (and the defined terms and calculations using such term) shall be adjusted, to the extent applicable, to include the pro rata share of results attributable to the Borrowers from unconsolidated
86
Subsidiaries of the Borrowers and their respective Subsidiaries and from unconsolidated Partially-Owned Entities.
(d) For purposes of the calculations to be made pursuant to §§10.1-10.12 (and the defined terms relevant thereto, including, without limitation, those relating to “fixed charges” or “debt service”), any election to measure an item of Indebtedness using fair value (as permitted by FASB ASC 000-00-00 (formerly known as Statement of Financial Accounting Standards No. 159) or any similar accounting standard) shall be disregarded and such determination shall be made instead using the par value of such Xxxxxxxxxxxx.
87
the Borrowers; and (c) in the case of the Borrower Representative, to give notices and to take other action on behalf of the Borrowers and the Guarantors under the Loan Documents.
88
became a party to the Loan Documents (as defined in the Existing Credit Agreement) to which it is a party and delivered such certificate of limited partnership, certificate of incorporation or other comparable organizational document to the Administrative Agent, a certificate from a duly authorized officer of such Person certifying that there have been no changes to such documents delivered by such Guarantor in connection with the Existing Credit Agreement.
89
(a) the Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment (including, without limitation, amounts due under §2.7 and §3.5);
(b) the Borrowers shall fail to pay any interest on the Loans, or any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure continues for five (5) days;
(c) any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with any of their respective covenants contained in §§8.1, 8.6, 8.7, 8.8, 8.9, 8.12, 8.21, 8.22, 8.23, 9 or 10;
(d) any Borrower or any Guarantor or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any other Loan
90
Document (other than those specified elsewhere in this §13) and such failure continues for thirty (30) days;
(e) any representation or warranty of any Borrower or any Guarantor or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) any Borrower or any Guarantor or any of their respective Subsidiaries shall (i) fail to pay when due and payable (including at maturity) after giving effect to any applicable period of grace, any obligation for borrowed money or credit received, any obligation in respect of any Capitalized Leases, Recourse obligations or credit, or Without Recourse obligations or credit having an aggregate outstanding principal amount, in each case individually or in the aggregate with all other such obligations or credit as to which such a failure exists, in excess of $10,000,000; or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases, any Recourse obligations or credit or any Without Recourse obligations or credit having an aggregate outstanding principal amount, in each case individually or in the aggregate with all other such obligations or credit as to which such a failure exists, in excess of $10,000,000, in each case for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or an “Event of Default” shall occur and be continuing under the Note Purchase Agreement that permits acceleration; or (iii) default in any payment obligation under a Hedge Agreement, and such default shall continue after any applicable grace period contained in such Hedge Agreement or any other agreement or instrument relating thereto; or (iv) becomes obligated to purchase or repay Indebtedness (other than the Obligations) before its regular maturity or before its regularly scheduled dates of payment in an aggregate principal amount of at least $10,000,000, as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into equity interests or the exercise by either Borrower or any Subsidiary of a contractual right to prepay such Indebtedness).
(g) any Borrower, any Guarantor or any of their respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of any Borrower, any Guarantor or any of their respective Subsidiaries or of any substantial part of the properties or assets of any Borrower, any Guarantor or any of their respective Subsidiaries or shall commence any case or other proceeding relating to any Borrower, any Guarantor or any of their respective Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against any Borrower, any Guarantor or any of their respective Subsidiaries and (i) any Borrower, any Guarantor or any of their respective Subsidiaries shall indicate its approval thereof, consent
91
thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days;
(h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or adjudicating any Borrower, any Guarantor or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any Borrower, any Guarantor or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against any Borrower, any Guarantor or any of their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any Borrower, any Guarantor or any of their respective Subsidiaries exceeds in the aggregate $10,000,000;
(j) any of the Loan Documents or any material provision of any Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Required Lenders (or all Lenders if required under §26), or any Guaranty shall be cancelled, terminated, revoked or rescinded at any time or for any reason whatsoever, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its Subsidiaries or any Guarantor or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof;
(k) any “Event of Default” or default (after notice and expiration of any period of grace, to the extent provided, and if none is specifically provided, then for a period of thirty (30) days after notice), as defined or provided in any of the other Loan Documents, shall occur and be continuing;
(l) any Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 302 and Section 303 of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of any Borrower or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000, and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment
92
by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan; or
(m) (i) any person or group of persons (within the meaning of Sections 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of (a) 20% or more of the outstanding shares of common stock of Sovran, or (b) 33% or more in the aggregate of the outstanding limited partnership interests of SALP (other than by Sovran and its wholly-owned Subsidiaries); (ii) Holdings ceasing to be the sole general partner and sole investment manager of SALP; (iii) Sovran and its wholly-owned Subsidiaries cease to beneficially own 100% of the capital stock of Holdings; or (iv) during any period of twelve consecutive calendar months, individuals who were directors of Sovran on the first day of such period (together with directors whose election by the Board of Directors or whose nomination for election by Sovran’s stockholders was approved by a vote of at least two-thirds of the members of the Board of Directors then in office who either were members of the Board of Directors on the Restatement Date or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of Sovran;
then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Borrower and each Guarantor; provided that in the event of any Event of Default specified in §13.1(g) or §13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the Administrative Agent or action by the Lenders or the Administrative Agent.
93
(a) First, to the payment of, or (as the case may be) the reimbursement of the Administrative Agent for or in respect of all reasonable costs, expenses, disbursements and losses which shall have been incurred or sustained by the Administrative Agent in connection with the collection of such monies by the Administrative Agent, for the exercise, protection or enforcement by the Administrative Agent of all or any of the rights, remedies, powers and privileges of the Administrative Agent or the Lenders under this Credit Agreement or any of the other Loan Documents or in support of any provision of adequate indemnity to the Administrative Agent against any taxes or liens which by law shall have, or may have, priority over the rights of the Administrative Agent to such monies;
(b) Second, to payment of, or (as the case may be) the reimbursement of the Administrative Agent for, that portion of the Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such and as the issuer of Letters of Credit and the Swingline Lender in its capacity as such, ratably among the Administrative Agent and Swingline Lender in proportion to the respective amounts described in this clause (b) payable to them;
(c) Third, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders under the Loan Documents, including attorney fees, ratably among the Lenders in proportion to the respective amounts described in this clause (c) payable to them;
(d) Fourth, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Swingline Loans;
94
(e) Fifth, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and Reimbursement Obligations, ratably among the Lenders and the Administrative Agent in proportion to the respective amounts described in this clause (e) payable to them;
(f) Sixth, to payment of that portion of the Obligations constituting unpaid principal of the Swingline Loans;
(g) Seventh, to payment of that portion of the Obligations constituting unpaid principal of the Loans, Reimbursement Obligations, and other L/C Obligations, ratably among the Lenders and the Administrative Agent in proportion to the respective amounts described in this clause (g) payable to them; provided, however, to the extent that any amounts available for distribution pursuant to this clause are attributable to the issued but undrawn amount of an outstanding Letter of Credit, such amounts shall be paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account;
(h) Eighth, to all other Obligations pro rata based on the proportion of the obligation holder’s interest in such Obligations; provided, however, that the Administrative Agent may in its discretion make proper allowance to take into account any Obligations not then due and payable; and
(i) Ninth, the excess, if any, shall be returned to the Borrowers or to such other Persons as are entitled thereto.
(a) As collateral security for the prompt payment in full when due of all L/C Obligations and the other Obligations, each Borrower hereby pledges and grants to the Administrative Agent, for the ratable benefit of the Administrative Agent and the Lenders as provided herein, a security interest in all of its right, title and interest in and to the Letter of Credit Collateral Account and the balances from time to time in the Letter of Credit Collateral Account (including the investments and reinvestments therein provided for below). The balances from time to time in the Letter of Credit Collateral Account shall not constitute payment of any L/C Obligations until applied by the Administrative Agent as provided herein. Anything in this Agreement to the contrary notwithstanding, funds held in the Letter of Credit Collateral Account shall be subject to withdrawal only as provided in this Section.
(b) Amounts on deposit in the Letter of Credit Collateral Account shall be invested and reinvested by the Administrative Agent in such Cash Equivalents as the Administrative 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 Administrative Agent for the ratable benefit of the Administrative Agent and the Lenders; provided, that all earnings on such investments will be credited to and retained in the Letter of Credit Collateral Account. The Administrative Agent shall exercise reasonable care in the custody and preservation of any funds held in the Letter of Credit Collateral Account and shall be deemed to have exercised such care if
95
such funds are accorded treatment substantially equivalent to that which the Administrative Agent accords other funds deposited with the Administrative Agent, it being understood that the Administrative 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 Letter of Credit 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 Borrowers and the Lenders authorize the Administrative Agent to use the monies deposited in the Letter of Credit Collateral Account to reimburse the Administrative Agent for the payment made by the Issuing Bank to the beneficiary with respect to such drawing.
(d) If an Event of Default exists, the Administrative Agent may (and, if instructed by the Required Lenders, shall) in its (or their) discretion at any time and from time to time elect to liquidate any such investments and reinvestments and apply the proceeds thereof to the Obligations in accordance with §13.4. Notwithstanding the foregoing, the Administrative Agent shall not be required to liquidate and release any such amounts if such liquidation or release would result in the amount available in the Letter of Credit Collateral Account to be less than the Maximum Drawing Amount of all Extended Letters of Credit that remain outstanding.
(e) So long as no Default or Event of Default exists, and to the extent amounts on deposit in or credited to the Letter of Credit Collateral Account exceed the aggregate amount of the L/C Obligations, the Administrative Agent shall, from time to time, at the request of the Borrower Representative, deliver to the Borrowers within ten (10) Business Days after the Administrative Agent’s receipt of such request from the Borrower Representative, against receipt but without any recourse, warranty or representation whatsoever, such amount of the credit balances in the Letter of Credit Collateral Account as exceeds the aggregate amount of L/C Obligations at such time. Upon the expiration, termination or cancellation of an Extended Letter of Credit for which the Lenders reimbursed (or funded participations in) a drawing deemed to have occurred under the third sentence of §5.3 for deposit into the Letter of Credit Collateral Account but in respect of which the Revolving Credit Lenders have not otherwise received payment for the amount so reimbursed or funded, the Administrative Agent shall promptly remit to the Revolving Credit Lenders the amount so reimbursed or funded for such Extended Letter of Credit that remains in the Letter of Credit Collateral Account, pro rata in accordance with the respective unpaid reimbursements or funded participations of the Revolving Credit Lenders in respect of such Extended Letter of Credit, against receipt but without any recourse, warranty or representation whatsoever. When all of the Obligations shall have been indefeasibly paid in full and no Letters of Credit remain outstanding, the Administrative Agent shall deliver to the Borrowers, against receipt but without any recourse, warranty or representation whatsoever, the balances remaining in the Letter of Credit Collateral Account.
(f) The Borrowers shall pay to the Administrative Agent from time to time such fees as the Administrative Agent normally charges for similar services in connection with the Administrative Agent’s administration of the Letter of Credit Collateral Account and investments and reinvestments of funds therein.
96
(a) The Administrative Agent is authorized to take such action on behalf of each of the Lenders and to exercise all such powers as are hereunder and under any of the other Loan
97
Documents and any related documents delegated to the Administrative Agent, together with such powers as are reasonably incident thereto, including, without limitation, to enter into the Intercreditor Agreement (or any amendment thereto) as agent for the Lenders (to which the Lenders agree to be bound), provided that no duties or responsibilities not expressly assumed herein or therein shall be implied to have been assumed by the Administrative Agent. The relationship between the Administrative Agent and the Lenders is and shall be that of agent and principal only, and nothing contained in this Credit Agreement or any of the other Loan Documents shall be construed to constitute the Administrative Agent as a trustee or fiduciary for any Lender.
(b) Each Borrower and each Guarantor, without further inquiry or investigation, shall, and is hereby authorized by the Lenders to, assume that all actions taken by the Administrative Agent hereunder and in connection with or under the Loan Documents are duly authorized by the Lenders. The Lenders shall notify the Borrowers of any successor to Administrative Agent by a writing signed by Required Lenders, which successor shall be reasonably acceptable to the Borrowers so long as no Default or Event of Default has occurred and is continuing.
98
express or implied, nor does it assume any liability to the Lenders, with respect to the credit worthiness or financial condition of any Borrower or any of its Subsidiaries or any Guarantor or any of the Subsidiaries or any tenant under a Lease or any other entity. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based upon such information and documents as it has deemed appropriate, made its own credit analysis and decision to enter into this Credit Agreement.
(a) The Administrative Agent agrees to distribute to each applicable Lender such Lender’s pro rata share of payments received by the Administrative Agent for the account of the Lenders, as provided herein or in any of the other Loan Documents. All such payments shall be made on the date received, if before 1:00 p.m., and if after 1:00 p.m., on the next Business Day. If payment is not made on the day received, interest thereon at the overnight federal funds effective rate shall be paid pro rata to the Lenders entitled to such payments.
(b) If in the reasonable opinion of the Administrative Agent the distribution of any amount received by it in such capacity hereunder, under the Notes or under any of the other Loan Documents might involve it in material liability, it may refrain from making distribution until its right to make distribution shall have been adjudicated by a court of competent jurisdiction, provided that interest thereon at the overnight federal funds effective rate shall be paid pro rata to the Lenders who would otherwise be entitled to such distribution. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Administrative Agent is to be repaid, each Person to whom any such distribution shall have been made shall either repay to the Administrative Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such Persons as shall be determined by such court.
99
and the Loans made by it, and as the holder of any of the Notes and as the purchaser of any Letter of Credit Participations, as it would have were it not also an Agent.
100
the retiring or removed Administrative Agent, and the retiring or removed Administrative Agent shall be discharged from all further duties and obligations as Administrative Agent under this Credit Agreement. After any Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this §15 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Credit Agreement. Any resignation by, or removal of an Administrative Agent shall also constitute the resignation or removal as the issuer of Letters of Credit and Swingline Lender by the Lender then acting as Administrative Agent (the “Resigning Lender”). Upon the acceptance of a successor’s appointment as Administrative Agent hereunder (i) the Resigning Lender shall be discharged from all duties and obligations of the issuer of Letters of Credit and the Swingline Lender hereunder and under the other Loan Documents and (ii) the successor Administrative Agent shall issue letters of credit in substitution for all Letters of Credit issued by the Resigning Lender outstanding at the time of such succession (which letters of credit issued in substitutions shall be deemed to be Letters of Credit issued hereunder) or make other arrangements satisfactory to the Resigning Lender to effectively assume the obligations of the Resigning Lender with respect to such Letters of Credit.
(a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial, administrative or like proceeding or any assignment for the benefit of creditors relative to the Borrowers or any of their Subsidiaries, the Administrative Agent (irrespective of whether the principal of any Loan, Reimbursement Obligation or Unpaid Reimbursement Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding, under any such assignment or otherwise:
(i)
|
to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Reimbursement Obligations or Unpaid Reimbursement Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under §§2.3, 3.3, 4.1, 5.10, and 16) allowed in such proceeding or under any such assignment; and
|
|
(ii)
|
for itself and for the ratable benefit of the Lenders, to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same in accordance with the provisions of this Credit Agreement.
|
(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding or under any such assignment is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, nevertheless to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under §§2.3, 3.3, 4.1, 5.10, and 16.
(c) Nothing contained herein shall authorize the Administrative Agent to consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations owed to such Lender or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding or under any such assignment.
101
preservation of rights under any of the Loan Documents against any Borrower or any of its Subsidiaries or any Guarantor or the administration thereof after the occurrence and during the continuance of a Default or Event of Default (including, without limitation, expenses incurred in any restructuring and/or “workout” of the Loans), and (ii) subject to the limitation set forth in §17 hereof, any litigation, proceeding or dispute whether arising hereunder or otherwise, in any way related to any Lender’s or the Administrative Agent’s relationship with any Borrower or any of its Subsidiaries or any Guarantor, (f) all reasonable fees, expenses and disbursements of the Administrative Agent incurred in connection with UCC searches and (g) all costs incurred by the Administrative Agent in the future in connection with its inspection of the Unencumbered Properties after the occurrence and during the continuance of an Event of Default. The covenants of this §16 shall survive payment or satisfaction of payment of amounts owing with respect to the Notes.
102
(iii) the Borrower Representative authorizes each Agent and Lender to employ separate counsel at the Borrowers’ expense. If and to the extent that the obligations of the Borrowers under this §17 are unenforceable for any reason, the Borrowers hereby agree to make the maximum contribution to the payment in satisfaction of such obligations which is permissible under applicable law. The provisions of this §17 shall survive the repayment of the Loans and the termination of the obligations of the Lenders hereunder and shall continue in full force and effect as long as the possibility of any such claim, action, cause of action or suit exists.
103
(i)
|
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
|
|
(ii)
|
in any case not described in the immediately preceding subsection (i), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000 in the case of any assignment in respect of a Revolving Credit Commitment, or $1,000,000 in the case of any assignment in respect of a Term Loan, unless each of the Administrative Agent and, so long as no Default or Event of Default shall exist, the Borrowers otherwise consent (each such consent not to be unreasonably withheld or delayed).
|
(b) Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Credit Agreement with respect to the Loan or the Commitment assigned, except that this subsection (b) shall not prohibit any Lender from assigning all or a portion of its rights and obligations between the Revolving Credit Loans and Revolving Credit Commitment and Term Loans on a non-pro rata basis.
(c) No consent shall be required for any assignment except to the extent required by clause (ii) of the immediately preceding subsection (a) and, in addition:
(i)
|
the consent of the Borrowers (such consent not to be unreasonably withheld or delayed) shall be required unless (x) a Default or Event of Default shall exist at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrowers shall be deemed to have consented to any such assignment unless the Borrower Representative shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof;
|
|
(ii)
|
the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (x) a Revolving Credit Commitment if such assignment is to a Person that is not already a Lender with a Revolving Credit Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (y) a Term Loan to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund; and
|
|
(iii)
|
the consent of the Swingline Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of a Revolving Credit Commitment.
|
(d) No such assignment shall be made to the Borrowers, any of the Borrowers’ Affiliates or Subsidiaries or any Defaulting Lender.
(e) No such assignment shall be made to a natural person.
(f) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Credit Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to §19.3, from and after the effective date specified in each Assignment and Assumption and upon delivery to the Administrative Agent of a processing and recordation fee of $3,500, the assignee thereunder shall be a party to this Credit Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Credit Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Credit Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of §4.6, §16 and §17 and the other provisions of this Credit Agreement and the other Loan Documents as provided in with respect to facts and
104
circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Credit Agreement that does not comply with this paragraph shall be treated for purposes of this Credit Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with §19.4.
105
Participant and such Participant agrees, for the benefit of the Borrowers and the Administrative Agent, to comply with §4.2(c) as though it were a Lender.
(a) if to any Borrower or any Guarantor, to the Borrower Representative at Sovran Self Storage, Inc., 0000 Xxxx Xxxxxx, Xxxxxxxxxxxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxx X. Xxxxxxxx, Chief Financial Officer, with a copy to Xxxxxxxx Xxxxx LLP, One Canalside, 000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, or to such other address for notice as the Borrower Representative or any Guarantor shall have last furnished in writing to the Administrative Agent;
(b) if to the Administrative Agent, Manufacturers and Traders Trust Company, 00 X. Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxxx, or such other address for notice as the Administrative Agent shall have last furnished in writing to the
106
Borrowers; and additionally, for any Completed Revolving Credit Loan Request, to Manufacturers and Traders Trust Company, Xxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000; and
(c) if to any Lender, at such Lender’s address set forth on Schedule 1.1(A) hereto, or such other address for notice as such Lender shall have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to have become effective (i) if delivered by hand, overnight courier or facsimile to the party to which it is directed, at the time of the receipt thereof by such party or the sending of such facsimile with electronic confirmation of receipt and (ii) if sent by registered or certified first-class mail, postage prepaid, on the fifth Business Day following the mailing thereof.
107
Credit Agreement nor any term hereof may be changed, waived, discharged or terminated, except as provided in §26.
Notwithstanding the foregoing, the written consent of each Lender directly and adversely affected thereby (or the Administrative Agent at the written direction of such Lenders) shall be required for any amendment, waiver, modification or consent that does any of the following:
(i)
|
reduces or forgives any principal of any unpaid Loan or Reimbursement Obligations or any interest thereon (including any interest “breakage” costs) or any fees due any Lender hereunder; or
|
|
(ii)
|
changes the unpaid principal amount of any Loan or reduces the rate of interest on any Loan; or
|
|
(iii)
|
changes the date fixed for any payment of principal of or interest on any Loan (including, without limitation, any extension of any Maturity Date) or any fees payable hereunder; or
|
|
(iv)
|
changes the amount of such Lender’s Commitment (other than pursuant to an assignment permitted under §19.1 hereof), extends the expiration date of such Lender’s Commitment or increases the amount of the Total Revolving Credit Commitment (except for the increases in the Total Revolving Credit Commitment as provided in §2.11) or ; or
|
|
(v)
|
with respect to the Lenders holding Term Loans makes any alteration to §3.5 or §3.7 hereof;
|
|
(vi)
|
changes the definition of “Required Revolving Credit Lenders”, or “Required Term Loan Lenders”;
|
|
(vii)
|
modifies provisions of §4.16;
|
|
(viii)
|
modifies any provision of §5.3 or §13.5 regarding Cash Collateral with respect to Extended Letters of Credit, or releases any such Cash Collateral except in accordance with §13.5;
|
provided that Unanimous Lender Approval shall be required for any amendment, modification or waiver of this Credit Agreement that:
(1)
|
releases or reduces the liability of any Guarantor pursuant to its Guaranty other than as provided in §8.14(d); or
|
||
(2)
|
modifies this §26 or any other provision herein or in any other Loan Document which by the terms thereof expressly requires Unanimous Lender Approval; or
|
||
(3)
|
changes the definitions of Required Lenders or
Unanimous Lender Approval.
|
Provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent; provided further that changes adversely affecting the rights of one class of Lenders differently from any other class of Lenders will require the consent of the Required Revolving Credit Lenders and/or the Required Term Loan Lenders, as the case may be; provided further that any amendment, waiver or consent relating to §2.11 shall, in addition to the Lenders required hereinabove to take such action, require the written consent of the Swingline Lender.
108
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each Lender directly and adversely affected thereby may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitments of any Defaulting Lender may not be increased, reinstated or extended without the written consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each Lender directly and adversely affected thereby that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the written consent of such Defaulting Lender.
No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the part of the Administrative Agent or the Lenders or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial to such right or any other rights of the Administrative Agent or the Lenders. No notice to or demand upon any Borrower shall entitle any Borrower to other or further notice or demand in similar or other circumstances.
§30.1. Existing Credit Agreement Superseded. This Credit Agreement shall on the Restatement Date supersede the Existing Credit Agreement in its entirety, except as provided in this §30. On the Restatement Date, the rights and obligations of the parties evidenced by the Existing Credit Agreement shall be evidenced by this Credit Agreement and the other Loan
109
Documents, the “Loans” as defined in the Existing Credit Agreement shall be converted to Loans as defined herein as provided in §1.3.
§30.2. Return and Cancellation of Notes. As soon as reasonably practicable after its receipt of its Notes hereunder on the Restatement Date, each Lender hereunder which was a lender under the Existing Credit Agreement, will promptly return to the Borrowers, marked “Substituted” or “Cancelled”, as the case may be, any promissory notes of the Borrowers held by such Lender pursuant to the Existing Credit Agreement.
§30.3. No Novation. Upon this Credit Agreement becoming effective pursuant to §11 and the reallocation and other transactions described in §1.3, from and after the Restatement Date (i) all terms and conditions of the Existing Credit Agreement and any other “Loan Document” as defined therein, as amended by this Credit Agreement and the other Loan Documents being executed and delivered on the Restatement Date, shall be and remain in full force and effect, as so amended, and shall constitute the legal, valid, binding and enforceable obligations of the parties thereto; (ii) the terms and conditions of the Existing Credit Agreement shall be amended as set forth herein and, as so amended, shall be restated in their entirety, but shall be amended only with respect to the rights, duties and obligations among the Borrowers, Lenders and Administrative Agent accruing from and after the Restatement Date; (iii) this Credit Agreement shall not in any way release or impair the rights, duties, Obligations or Liens, if any, created pursuant to the Existing Credit Agreement or any other Loan Document or affect the relative priorities thereof, in each case to the extent in force and effect thereunder as of the Restatement Date, except as modified hereby or as modified hereafter in accordance with the terms hereof or by documents, instruments and agreements executed and delivered in connection herewith, and all of such rights, duties, Obligations and Liens, if any, are assumed, ratified and affirmed by the Borrowers; (iv) all indemnification obligations of the Borrowers and their Subsidiaries under the Existing Credit Agreement and any other Loan Documents shall survive the execution and delivery of this Credit Agreement and shall continue in full force and effect for the benefit of Lenders, Administrative Agent, and any other Person indemnified under the Existing Credit Agreement or any other Loan Document at any time prior to the Restatement Date; (v) the Obligations incurred under the Existing Credit Agreement shall, to the extent outstanding on the Restatement Date, continue outstanding under this Credit Agreement to the extent and as set forth in §1.3 hereof and shall not be deemed to be paid, released, discharged or otherwise satisfied by the execution of this Credit Agreement, and this Credit Agreement shall not constitute a refinancing, substitution or novation of such Obligations or any of the other rights, duties and obligations of the parties hereunder; (vi) the execution, delivery and effectiveness of this Credit Agreement shall not operate as a waiver of any right, power or remedy of Lenders or Administrative Agent under the Existing Credit Agreement, nor constitute a waiver of any covenant, agreement or obligation under the Existing Credit Agreement, except to the extent that any such covenant, agreement or obligation is no longer set forth herein or is modified hereby; and (vii) any and all references in the Loan Documents to the Existing Credit Agreement shall, without further action of the parties, be deemed a reference to the Existing Credit Agreement, as amended and restated by this Credit Agreement, and as this Credit Agreement shall be further amended or amended and restated from time to time hereafter.
[Remainder of page intentionally left blank]
110
SOVRAN SELF STORAGE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Secretary
|
|
SOVRAN ACQUISITION LIMITED
PARTNERSHIP
By: Sovran Holdings, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer and Secretary
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Xxxxx Xxxxx-Xxxxxxxxxx
Name: Xxxxx Xxxxx-Xxxxxxxxxx
Title: Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
HSBC BANK USA, NATIONAL
ASSOCIATION
By: /s/ Xx Xxxxxxxxx
Name: Xx Xxxxxxxxx
Title: Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
SUNTRUST BANK
By: /s/ Xxxxx X. XxXxxxxxx
Name: Xxxxx X. XxXxxxxxx
Title: Senior Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
BRANCH BANKING AND TRUST
COMPANY
By: /s/ Ahaz Xxxxxxxxx
Name: Ahaz Xxxxxxxxx
Title: Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
FIRST NIAGARA BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
MEGA INTERNATIONAL
COMMERCIAL BANK CO., LTD
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxx
Name: XXXXXX XXXX
Title: VP & DGM
|
|
[Signatures Continue on Next Page]
Signature Page to Sixth Amended and Restated Revolving Credit and Term Loan Agreement
Schedule 1.1(A)
Lenders’ Commitments
Lender
|
Revolving
Credit
Commitment
|
Revolving
Credit
Commitment
Percentage |
Term
Commitment
|
Term
Commitment
Percentage |
Xxxxx Fargo Bank, National Association
|
$42,000,000
|
14.00000000%
|
$48,125,000
|
14.80769231%
|
Manufacturers and Traders Trust Company
|
$42,000,000
|
14.00000000%
|
$48,125,000
|
14.00000000%
|
U.S. Bank National Association
|
$40,500,000
|
13.50000000%
|
$42,875,000
|
13.00000000%
|
HSBC Bank USA, National Association
|
$40,500,000
|
13.50000000%
|
$42,875,000
|
13.00000000%
|
PNC Bank, National Association
|
$40,500,000
|
13.50000000%
|
$42,875,000
|
13.00000000%
|
SunTrust Bank
|
$40,500,000
|
13.00000000%
|
$42,875,000
|
13.00000000%
|
Branch Banking and Trust Company
|
$34,000,000
|
11.33333333%
|
$36,000,000
|
11.07692308%
|
First Niagara Bank, N.A.
|
$15,000,000
|
5.00000000%
|
$16,250,000
|
5.00000000%
|
Mega International Commercial Bank Co., Ltd. New York Branch
|
$5,000,000
|
1.66666667%
|
$5,000,000
|
1.53846154%
|
TOTAL:
|
$300,000,000
|
100%
|
$325,000,000
|
100%
|
Schedule 1.1(B)
Existing Letters of Credit
Issuer
|
Instrument ID
|
Beneficiary
|
Expiry Date
|
Stated Amount
|
M&T Bank
|
SB1651870001
|
Nassau Co. Industrial Dev. Agency
|
12/27/2105
|
$651,618.49
|
M&T Bank
|
SB1701370001
|
New Jersey Department of Environmental Protection
|
04/08/2015
|
$52,500.00
|
Schedule 7.1(b)
Capitalization; Outstanding Securities
SALP and Holdings
A. Sovran Acquisition Limited Partnership - as of December 8, 2014
Partner’s Names and Addresses
|
Number
of Units
|
Percentage Interest
in the Partnership
|
|
1.
|
General Partner:
|
||
Sovran Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
|
340,778.580
|
1.0000%
|
|
2.
|
Limited Partners:
|
||
Sovran Self Storage, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
|
33,581,595.42
|
98.5437%
|
|
Xxxxxx Xxxxxxx and Xxxx Xxxxxxx,
Co-Trustees of the Samloff
Revocable Trust,
Dated May 16, 2011
10040 E. Happy Valley Road, #2026
Xxxxxxxxxx, XX 00000
|
25,000.000
|
0.0734%
|
|
Xxxxxxxx X. Xxxxxx
0 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
|
5,857.425
|
0.0172%
|
|
Xxxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
|
1,275.000
|
0.0037%
|
|
Xxxxxx X. Xxxxxxxx Revocable
Living Trust
00000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
|
7,000.000
|
0.0205%
|
|
Xxxxxxx X. Xxxxxxxx Revocable
Living Trust
00000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
|
7,000.000
|
0.0205%
|
|
Survivor Trust u/Xxxxxxx Family
Wealth Trust
000 Xxxx Xxxx Xxxx
Xxxx Xxxxx, XX 00000
|
71,911.35
|
0.2210%
|
|
Xxxxxxxx X. Xxxxxxx, Trustee of
The Xxxxxxx Non-Exempt
Family Trust u/Xxxxxxx Family
Wealth Trust
000 Xxxx Xxxx Xxxx
Xxxx Xxxxx, XX 00000
|
8,959.580
|
0.0263%
|
|
2850 Storage Properties, LLC
000 X. Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
|
28,480.858
|
0.0836%
|
|
TOTAL
|
34,077,858.213
|
100.0000%
|
B. Sovran Holdings, Inc.
Authorized Shares: 1,500
Shares Issued: 100
Shares owned by Sovran Self Storage Inc.: 100
Percentage of Issued Shares owned by Sovran Self Storage Inc.: 100%
Schedule 7.3(a)
Unencumbered Xxxxxxxxxx
Xxxxx #
|
Xxxxxx
|
Xxxx
|
Xxxxx
|
Xxx
|
0
|
0000 Xxxxxx Xx Xxxxxxxxx
|
Xx Xxxxxxxx
|
XX
|
00000
|
2
|
0000 XX Xxxxxxx 00 X
|
Xxxxxxxx
|
XX
|
00000
|
3
|
000 Xxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
5
|
000 Xxxxxxxxxx Xx
|
X Xxxxxxxxx
|
XX
|
00000
|
7
|
0000 Xxxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
9
|
00000 Xxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
11
|
0000 X Xxxxxxx Xxx
|
Xxxx Xxxxx Xxxxx
|
XX
|
00000
|
12
|
0000 Xxxxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
13
|
00 Xxxxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
14
|
00 Xxx Xxxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
15
|
0000 Xxxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
20
|
0000 000xx Xx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
21
|
0000 Xxx Xxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
22
|
000 Xxxxxxxx Xxxxxx Xxxx
|
Xxxx Xxxx
|
XX
|
00000
|
23
|
0000 Xxxxxxxx Xxxxxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
Townline Rd
|
||||
24
|
00 Xxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
25
|
00000 Xxxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
26
|
0000 X Xxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
27
|
0000 XxXxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
28
|
00 Xxxxxxxx Xx
|
Xxxxx Xxxxx
|
XX
|
00000
|
29
|
0000 Xxxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
30
|
000 Xxxxxxx 000 XX
|
Xxxxxxxxx
|
XX
|
00000
|
31
|
0000 Xxxx Xx
|
Xxxxxxxxxxxxx
|
XX
|
00000
|
32
|
0000 X Xxxxxxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
33
|
0000 Xxxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
34
|
0000 X Xxx Xxxx Xxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
35
|
00000 Xxx Xxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
36
|
0000 Xxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
37
|
00000 X Xxxxxx Xxxxxxx Xxxxx
|
Xxxxxxx
|
XX
|
00000
|
39
|
000 Xxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
40
|
00000 XX 00xx Xx
|
Xxxxxxx
|
XX
|
00000
|
41
|
0000 Xxxx Xxxxx Xx
|
Xxxx Xxxxx
|
XX
|
00000
|
42
|
0000 Xxxxxx Xx XX
|
Xxxxxxxx
|
XX
|
00000
|
43
|
0000 Xxxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
44
|
0000 Xxxxxxx Xxx 00
|
Xxxxxxxxx
|
XX
|
00000
|
45
|
000 Xxxxxxx'x Xxxxxxxx Xxx
|
Xxxxxxxx
|
XX
|
00000
|
46
|
0000 Xxxxxxx
|
Xxxxxxxx
|
XX
|
00000
|
47
|
0000 X Xxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
48
|
00 Xxxx Xxxxxxx Xxxxxx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
51
|
0000 X Xxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
52
|
00000 Xxxxxxxxx Xxx
|
Xxxxxxx Xxxx
|
XX
|
00000
|
53
|
000 X Xxxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
55
|
000 Xxxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
56
|
0000 Xxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
57
|
0000 Xxxxxxx Xxxxx Xxx
|
Xxxxxxxxxx
|
XX
|
00000
|
58
|
000 X Xxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
59
|
0000 X Xxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
60
|
0000 Xxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
61
|
0000 Xxx Xxxxxxxx Xxx
|
Xxxxxxx
|
XX
|
00000
|
62
|
0000 Xxxx Xxxxxxxxxx Xxx
|
Xxxxxxx
|
XX
|
00000
|
64
|
0000 Xxxxxx Xxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
65
|
0000 Xxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
66
|
0000 Xxxxxx Xxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
67
|
000 Xxxxxxxx Xxxx
|
Xxxxxx Xxxx
|
XX
|
00000
|
68
|
0000 X Xxxxxxxx Xxx
|
Xxxxxxxxx
|
XX
|
00000
|
69
|
000 X Xxxx Xxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
70
|
0000 X Xxxxxxxx Xxx
|
Xxxxxxxxx
|
XX
|
00000
|
71
|
0000 X Xxxxxxxx Xx
|
Xxxxx
|
XX
|
00000
|
72
|
000 Xxxxxxxx Xxxx
|
Xxxxx
|
XX
|
00000
|
73
|
0000 Xxxxx Xxxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
74
|
0000 X-00
|
Xxxxxxx
|
XX
|
00000
|
75
|
0000 XxXxxxxx Xxxx Xxxxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
76
|
0000 Xxxxxxx Xxxxxx
|
Xxxxxxxx
|
XX
|
00000
|
77
|
0000 Xxxxxx Xxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
78
|
00 Xxxx Xxx
|
Xxxxxxxxxx
|
XX
|
00000
|
80
|
0000 Xxxxxxx Xxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
81
|
000 Xxxxx Xxxxxx Xx
|
Xxxxxxxxxxxxx
|
XX
|
00000
|
82
|
0000 Xxxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
83
|
0000 Xxxxxxx Xxxxxx
|
Xxxx Xxxxx
|
XX
|
00000
|
84
|
0000 Xxxxxxx Xxxx
|
Xx Xxxxxx
|
XX
|
00000
|
85
|
000 X Xxxxx Xxxxxx Xxxx
|
Xxxxxxx Xxxx
|
XX
|
00000
|
86
|
0000 Xxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
87
|
000 Xxx Xxxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
88
|
0000 X Xxxxxx Xxx
|
Xxxxx
|
XX
|
00000
|
89
|
0000 X. Xxxxxx Xxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
90
|
0000 Xxxxxx Xxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
91
|
0000 Xxxxxxx Xxxxxx Xxxx
|
Xxxx Xxxxx
|
XX
|
00000
|
92
|
0000 Xxxxxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
93
|
0000 Xxxxx Xx
|
Xxx Xxxxxxx
|
XX
|
00000
|
94
|
0000 Xxxxx Xxxx Xxxx
|
X Xxxxxxxx
|
XX
|
00000
|
95
|
0000 Xxxxxxxx Xxxx.
|
Xxxxxxxxxx
|
XX
|
00000
|
96
|
0000 Xxxxxxx Xx
|
Xxxx Xxxxx
|
XX
|
00000
|
97
|
0000 X Xxxxx Xx
|
Xx Xxxxxx
|
XX
|
00000
|
99
|
0000 X Xxxxxxxxx Xx
|
Xxxxx Xxxx
|
XX
|
00000
|
100
|
000 Xxxxxxxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
101
|
0000 Xxxxxxxxxx Xx
|
Xx Xxxxxx
|
XX
|
00000
|
102
|
00000 Xxxxxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
104
|
0000 Xxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
105
|
0000 Xxxxxxx Xxx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
106
|
0000 Xxx Xxxxxxx Xx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
108
|
0000 Xxx Xxxx Xxxx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
109
|
0000 Xxxxxxx Xxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
110
|
0000 X XX Xxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
111
|
000 Xxxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
112
|
0000 Xxxxxxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
113
|
000 Xxxxxxxx-Xxxxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
115
|
0000 Xxxxxxxx Xxx
|
Xxxxxxx
|
XX
|
00000
|
116
|
0000 X 000xx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
117
|
00000 Xxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
118
|
00000 XxXxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
119
|
00000 Xxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
120
|
0000 Xxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
121
|
0000 Xxxx Xxx
|
Xxxxxx
|
XX
|
00000
|
127
|
0000 Xxxxxxxxx Xxxxxxxx Xx
|
Xxx Xxxxxxx
|
XX
|
00000
|
128
|
0000 Xxx Xxxxxx Xx
|
Xxxxxxxxx Xxxx
|
XX
|
00000
|
129
|
0000 Xxxxxxx Xx
|
Xxx Xxxxxxx
|
XX
|
00000
|
130
|
0000 Xxxxxx Xxx
|
Xxxxxxxx
|
XX
|
00000
|
131
|
0000 Xxx 00
|
Xxxx Xxxxxx
|
XX
|
00000
|
132
|
0000 Xxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
133
|
0000 Xxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
134
|
0000 Xxxxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
135
|
0000 X Xxxxxxx Xxx
|
Xxxxxxx Xxxxxxx
|
XX
|
00000
|
137
|
0000 Xxxxxxxxxxx Xxxx X
|
Xxxxxxxxxx
|
XX
|
00000
|
139
|
0000 X 00xx Xx
|
Xxxxxxx
|
XX
|
00000
|
140
|
0000 X Xxxxxxxx Xxx
|
Xxxxxx Xxxxx
|
XX
|
00000
|
141
|
5207 Montgomery
|
Xxxxxxxx
|
XX
|
00000
|
142
|
000 X Xxxxxxxx Xxx
|
Xxxxxx Xxxxx
|
XX
|
00000
|
143
|
00000 Xxxxxxx Xx
|
Xxxx
|
XX
|
00000
|
145
|
000 Xxxxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
147
|
0000 Xxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
149
|
0000 Xxxxx Xxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
150
|
0000 Xxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
151
|
0000 Xxxxx Xxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
152
|
0000 Xxxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
153
|
000 Xxxxx Xxxxx Xxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
154
|
00000 Xxxxxxx Xxx
|
Xxxxx Xxxxx
|
XX
|
00000
|
155
|
0000 Xxxxxxx Xxx
|
Xxxxx Xxxxx
|
XX
|
00000
|
156
|
000 Xxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
157
|
0000 X Xxxxxxxx Xxx
|
Xxxxxxxxxx
|
XX
|
00000
|
158
|
000 Xxxxx Xxxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
159
|
0000 Xxxxx Xx
|
Xxxxxxxx Xxxxx
|
XX
|
00000
|
160
|
000 Xxxxxxx Xx
|
Xxxxxxxx Xxxxx
|
XX
|
00000
|
161
|
000 Xxxxx Xxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
162
|
0000 X Xxxxxxxxxxxx
|
Xxxxx
|
XX
|
00000
|
163
|
000 Xxxxxx Xx Xxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
164
|
00 Xxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
165
|
0000 X Xxxx Xxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
166
|
00000 Xxxxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
167
|
0000 Xxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
168
|
000 Xxxxxxxx Xxx
|
Xxxxx
|
XX
|
00000
|
169
|
000 Xxxxxxxxxxxx
|
X. Xxxxxxxxxx
|
XX
|
00000
|
170
|
0000 Xxx Xxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
171
|
0000 Xxxxxxx 00
|
Xxxxxxxxxxx
|
XX
|
00000
|
172
|
0000 Xxxxxxxxxxx Xxxx
|
Xx. Xxxxxxxxxx
|
XX
|
00000
|
173
|
0000 Xxxx Xxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
174
|
0000 Xxxxx Xxxxxx Xxxxx
|
X Xxxxxxxxx
|
XX
|
00000
|
175
|
0000 Xxxxxxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
176
|
0000 X Xxxxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
178
|
000 X Xxxxxx Xx
|
Xxxxx
|
XX
|
00000
|
180
|
0000 Xxx Xxxx Xxxxxxxxx
|
Xxxxxx
|
XX
|
00000
|
181
|
0000 Xxxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
183
|
000 Xxxxxxxx Xx
|
Xxxxxx Xxxxxxx Xxxxx
|
XX
|
00000
|
184
|
5961I-55 Xxxxx
|
Xxxxxxx
|
XX
|
00000
|
185
|
0000 X Xxx Xx
|
Xxxx
|
XX
|
00000
|
186
|
0000 Xxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
187
|
0000 X Xxxxxxxx Xxxx
|
Xxxxxxx Xxxxx
|
XX
|
00000
|
188
|
0000 X Xxxxxx Xx
|
Xxxxxxx Xxxxx
|
XX
|
00000
|
189
|
000 XX 00xx Xx
|
Xxxx Xxxxx
|
XX
|
00000
|
190
|
0000 00xx Xxx
|
Xxxx Xxxxx
|
XX
|
00000
|
191
|
0000 XX 0000 Xxxx
|
Xxxxxx
|
XX
|
00000
|
192
|
00000 Xxx Xxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
193
|
00000 Xxxxxxx 0
|
Xxxxxxx
|
XX
|
00000
|
194
|
0000 Xxx Xxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
195
|
0000 X 00xxXxx
|
Xxxxxxxxx
|
XX
|
00000
|
196
|
0000 Xxxxx XX-00
|
Xxx Xxxxxx
|
XX
|
00000
|
197
|
0000 XxXxxx Xx
|
Xxxxxx
|
XX
|
00000
|
198
|
00000 XX 0000
|
Xxxxxx
|
XX
|
00000
|
202
|
0000 X Xxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
203
|
0000 Xxxxx Xxxx
|
X Xxxxxxxx
|
XX
|
00000
|
204
|
0000 Xxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
205
|
000 X Xxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
206
|
0000 Xxxxx Xx
|
Xxxx
|
XX
|
00000
|
207
|
0 Xxxxx X Xxxxxx Xxx
|
X. Xxxxxxx
|
XX
|
00000
|
208
|
0000 Xxxx Xxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
209
|
0000 Xxxx Xxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
210
|
0000 Xxxxxxxxxx Xxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
211
|
0000 XX Xxxxxxxxxx Xxxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
212
|
000 Xxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
213
|
000 X. Xxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
214
|
00000 X 00xx Xxx
|
Xxxxxxxx
|
XX
|
00000
|
215
|
0000 X. Xxxxxxxx Xx
|
Xxxx
|
XX
|
00000
|
216
|
000 Xxxx Xxxxxxxx Xx
|
Xxxx
|
XX
|
00000
|
217
|
000 X Xxxxxxxx Xx
|
Xxxx
|
XX
|
00000
|
218
|
000 Xxxxx Xxxxxxxxxx
|
Xxxx
|
XX
|
00000
|
219
|
000 Xxxx Xxxxxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
220
|
0000 X. Xxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
221
|
00000 X 00xx
|
Xxxxxxx
|
XX
|
00000
|
222
|
000 Xxxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
223
|
000 X Xxxxx Xxxx XX-0
|
Xxxxx
|
XX
|
00000
|
224
|
000 X Xxxxx Xx
|
Xxxxx Xxxx
|
XX
|
00000
|
225
|
0000 Xxxxx Xxxxx 00X
|
Xxxxxx
|
XX
|
00000
|
226
|
0000 Xxxxxxxx Xx
|
X Xxxxxxx
|
XX
|
00000
|
227
|
0000 Xxxxxxx Xxxx Xxx 000
|
Xxxxxxxx
|
XX
|
00000
|
228
|
0000 X Xxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
229
|
0000 Xxxxxxxx Xxxxx Xxx
|
Xxxxxxxx
|
XX
|
00000
|
230
|
0000 Xxx 00
|
Xxxxxxxx
|
XX
|
00000
|
231
|
0000 Xxxxx Xxxxx
|
Xxxxxx
|
XX
|
00000
|
232
|
0000 X Xxxx Xx #0000
|
Xxxxxx Xxxx
|
XX
|
00000
|
233
|
000 Xxxxxx Xxxx
|
Xxxxxx Xxxxx
|
XX
|
00000
|
234
|
00 Xxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
235
|
000 Xxxxxxxx Xxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
236
|
0000 Xxxxxxx Xxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
237
|
000 Xxxxxx Xx
|
Xxxxxx Xxxxx
|
XX
|
00000
|
238
|
0000 Xxx 00 Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
239
|
0 Xxxxxxxxxx Xxxx Xx
|
Xxxx
|
XX
|
00000
|
240
|
00 Xxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
241
|
0 Xxxxxxxxxx Xxxxxx
|
Xxxxxxxx
|
XX
|
00000
|
242
|
000 Xxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
251
|
0000 Xxxxxxxx Xxxxx
|
Xxxxxxxx
|
XX
|
00000
|
252
|
0000 Xxxxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
253
|
0000 Xxxx Xxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
254
|
0000 XX 0000 Xx X
|
Xxxxxx
|
XX
|
00000
|
255
|
0000 Xxxxxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
256
|
0000 X Xxxx Xx
|
Xxxxxx Xxxx
|
XX
|
00000
|
257
|
00000 Xxx 000 X
|
Xxxxxxxxxx
|
XX
|
00000
|
259
|
0000 X Xxxxxxx 0
|
Xxxxxxx
|
XX
|
00000
|
260
|
000 X XXX Xx
|
Xxxxxxxxx
|
XX
|
00000
|
261
|
00-0 Xxxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
262
|
00 Xxxxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
263
|
000 X Xxxxxxx Xxx
|
Xxxxxx Xxxx
|
XX
|
00000
|
264
|
0 Xxxxxxxxxxxx Xxxxx
|
X Xxxxxxx
|
XX
|
00000
|
265
|
0000 X. Xxxxxxx 00
|
Xxxxxxxxxxx
|
XX
|
00000
|
266
|
0000 Xxxxx Xxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
267
|
000 Xxxxxxxxx
|
Xxxxxxxx
|
XX
|
00000
|
268
|
00000 Xxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
269
|
0000 XX 0000 Xx
|
Xxxxxx
|
XX
|
00000
|
270
|
0000 Xxxxxx Xxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
271
|
0000 Xxxxxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
272
|
0000 XX 0000 Xx
|
Xxxxx
|
XX
|
00000
|
273
|
0000 X XxXxxxxx Xxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
274
|
0000 Xxxxxxxxxx Xx
|
Xxxxxxxx Xxxx
|
XX
|
00000
|
275
|
0000 Xxxxxx Xxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
276
|
0000 Xxxxxx Xxxx 000
|
Xxxxx Xxxx
|
XX
|
00000
|
278
|
0000 Xxxxxxxx Xx
|
Xxxxxx
|
XX
|
00000
|
279
|
000 Xxxxx Xxx
|
Xxx Xxxxx
|
XX
|
00000
|
280
|
00 Xxxxxxxx Xx.
|
Xxxxxxxxxxx
|
XX
|
00000
|
281
|
000 Xxxx Xx.
|
Xxxxxxxx
|
XX
|
00000
|
282
|
0000 Xxxxx Xx.
|
Xxxxxxx
|
XX
|
00000
|
283
|
0000 Xxxxxxx Xx
|
Xxxxxxxxxx
|
XX
|
00000
|
284
|
00 Xxxx Xx
|
Xxxxxx
|
XX
|
00000
|
285
|
0000 XX Xxx 000X
|
Xxxxxx
|
XX
|
00000
|
286
|
00000 Xxxxxxx Xx
|
Xxx Xxxxxxx
|
XX
|
00000
|
287
|
0000 Xxxxx 0xx Xx
|
Xxxxxx
|
XX
|
00000
|
288
|
00000 Xxxxx Xxx 000
|
Xxxxxxxxx
|
XX
|
00000
|
289
|
0000 Xxxxxxx Xx.
|
Xxxxxxxx
|
XX
|
00000
|
290
|
0000 Xxxxxxx Xxxx.
|
Xxxxx Xxxxx
|
XX
|
00000
|
291
|
0000 Xxxxxx Xxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
293
|
0000 Xxx 00X
|
Xxx Xxxxxx
|
XX
|
00000
|
294
|
000 X. Xxxxx Xxxxx-Xxxxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
295
|
0000 Xxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
296
|
00000 Xxxxx Xx.
|
Xxxxxxx
|
XX
|
00000
|
297
|
0000 Xxxxxxx Xxxxxx
|
Xxxxx
|
XX
|
00000
|
298
|
000 Xxxxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
299
|
000 Xxxxxxxxx'x Xxxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
300
|
0000 Xxxx Xxxxxxxx Xxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
301
|
0000 Xxxxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
302
|
000 Xxxx Xxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
303
|
00000 Xxxxxxxx Xxxx.
|
Xxxxx
|
XX
|
00000
|
304
|
00000 XX 00 X
|
Xxxxxxxx Xxxx
|
XX
|
00000
|
305
|
00000 XX 00 X
|
Xxxxxx Xxxxxxx
|
XX
|
00000
|
306
|
0000 Xxxxxxx XxXxxxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
000
|
000Xxxxxxx Xxxxxxx Xx.
|
Xxxxxxx
|
XX
|
00000
|
308
|
00000 Xx. Xxxxxxx Xxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
309
|
000 Xxxxxxxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
310
|
000 X. Xxxxxxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
311
|
0000 Xxxxxxxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
312
|
0000 Xxxxx Xxxxx
|
Xx. Xxxxx
|
XX
|
00000
|
000
|
0000Xxxxxxxxxx Xx
|
Xx. Xxxxx
|
XX
|
00000
|
314
|
0000 Xxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
315
|
00000 Xxxxxxxx Xx.
|
Xxxxxx
|
XX
|
00000
|
316
|
0000 Xxxxxx Xxxxx
|
Xxxxxx
|
XX
|
00000
|
317
|
0000 Xxxxxxxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
318
|
0000 Xxxxxxxxx Xx.
|
Xx. Xxxxx
|
XX
|
00000
|
319
|
00 Xxxxxxxxx Xxx.
|
Xxxxx
|
XX
|
00000
|
320
|
00000 Xxxxxx Xxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
321
|
0000 Xxxxxxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
322
|
00000 Xxxxxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
323
|
0000 Xxx Xxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
324
|
0000 XX Xxxxxxxxxx Xxxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
325
|
0000 Xxxx Xxxxx Xxxxxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
326
|
0000 Xxxxxxxxx Xxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
327
|
0000 Xxxxxxxx Xxxxx
|
Xxxxxx
|
XX
|
00000
|
328
|
0000 Xxxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
329
|
0000 Xxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
330
|
0000 Xxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
331
|
000 Xxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
332
|
00 Xxxxxxx Xxxxx
|
Xxxxxxx
|
XX
|
00000
|
333
|
000 Xxxxxxx Xxxx
|
Xxxx Xxxxxx
|
XX
|
00000
|
334
|
0000 Xxxxxxx Xx
|
Xxxx Xxxxxx
|
XX
|
00000
|
335
|
0000 Xxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
336
|
0000 Xxxxx Xx
|
Xxxxxxxxxxx
|
XX
|
00000
|
337
|
0000 Xxxxxx Xxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
338
|
000 Xxxxx Xxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
339
|
0000 Xxxxxxxx Xx
|
Xxxxxxxxx
|
XX
|
00000
|
340
|
0000 X. Xxxxxxx Xx
|
Xxxxxxxx
|
XX
|
00000
|
341
|
000 Xxxxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
342
|
0000 Xxxx Xxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
343
|
0000 Xxx 00
|
Xxxx Xxxxxx
|
XX
|
00000
|
344
|
000 X. Xxxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
345
|
00000 X. Xxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
346
|
0000 Xxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
347
|
0000 Xxxxxxxxx Xxxx. (Xxx 00)
|
Xxxxx Xxxxxxx
|
XX
|
00000
|
348
|
0000 Xxxxxxx 00 Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
000
|
0000 Xxxxxxx Xxxx.
|
Xxxxxx
|
XX
|
00000
|
000
|
00000 Xxxxxx 00
|
Xxxxxxxx
|
XX
|
00000
|
351
|
0000 Xxxxxxx 00 Xxxx
|
Xxxxxxx
|
XX
|
00000
|
352
|
0000 Xxxxxxx 00 Xxxxx
|
Xxxxx
|
XX
|
00000
|
353
|
0000 Xxxx Xxxx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
354
|
0000 X. Xxxxxxx Xx. (Xxx 00 X.)
|
Xxxxxx
|
XX
|
00000
|
355
|
0000 Xxxxx Xxxxx Xx.
|
Xxxxxx
|
XX
|
00000
|
356
|
0000 Xxxx Xxx. 00
|
Xxxxxxxxx
|
XX
|
00000
|
357
|
000 X. Xxxxxxxxx Xx.
|
Xxxxxxxxxx
|
XX
|
00000
|
358
|
0000 XxXxxxxx Xxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
359
|
0000 X. Xxxxxx Xxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
360
|
0000 X. Xxxxx Xxxxx
|
Xxxxxxxx
|
XX
|
00000
|
361
|
000 Xxxxxxx Xxxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
362
|
0000 Xxxxxx Xxxxx
|
X'xxxxxxxxxx
|
XX
|
00000
|
363
|
0000 Xxxxx Xxxxxxx 00
|
Xxxxx
|
XX
|
00000
|
364
|
000 Xxxxxx Xxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
365
|
0000 X-00 Xxxxx
|
Xxxxxxx
|
XX
|
00000
|
366
|
0000 Xxxxxxxxx Xxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
367
|
0000 X. Xxxxxx Xxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
368
|
0000 Xxxxxxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
369
|
0000 Xxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
370
|
000 Xxxxx Xxxxxx Xxxxx
|
Xxxx
|
XX
|
00000
|
371
|
9225 Xxxxxxxxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
372
|
0000 Xxxxxxxx Xxxxxxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
373
|
0000 Xxxxxxx xxxxx
|
Xxxx
|
XX
|
00000
|
374
|
00000 Xxx Xxxxxx Xxx
|
Xxxx Xxxx
|
XX
|
00000
|
375
|
000 Xxxxxxx Xx.
|
Xxxx Xxxx
|
XX
|
00000
|
376
|
000 Xxxxx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
377
|
000 Xxxxxxxxxx Xx.
|
Xxxx Xxxxx
|
XX
|
00000
|
378
|
0000 Xxxxx Xxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
379
|
00000 Xxxxxxxxx Xxxxx Xxxxx
|
Xxxxxx
|
XX
|
00000
|
380
|
0000 Xxxxxxx Xxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
381
|
0000 Xxxxxxx 0X
|
Xxxxxxx
|
XX
|
00000
|
382
|
000 Xxxxx Xxxx Xxxx
|
Xxxxx Xxxx
|
XX
|
00000
|
383
|
0000 Xxxxx Xxxxx Xxxx
|
Xxxx
|
XX
|
00000
|
384
|
0000 Xxxxxx Xxxxxx
|
Xxxx Xxxx
|
XX
|
00000
|
385
|
00000 X. Xxxxxx Xxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
386
|
0000 Xxxxxxx Xxxxx Xxxxx
|
Xxxxxxxx
|
XX
|
00000
|
387
|
000 XX 0000 Xxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
388
|
0000 Xxxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
389
|
0000 X Xxx Xxxxxxx Xxxx X
|
Xxxxxxx
|
XX
|
00000
|
390
|
00000 Xxxx Xxxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
391
|
0000 Xxxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
392
|
000 X X-00
|
Xxxxx Xxxx
|
XX
|
00000
|
393
|
0000 Xxxxxxxxx Xxxxx
|
Xxxxxxx
|
XX
|
00000
|
394
|
00000 Xxx 0 X
|
Xxxxxxxxx
|
XX
|
00000
|
395
|
00000 Xxxxxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
396
|
0000 Xxxxxxxx Xxxxx
|
Xxxxxxx
|
XX
|
00000
|
397
|
0000 Xxxxxxx Xxxxx Xxxxx
|
Xxxxxxxxx (Xxxxxx)
|
XX
|
00000
|
398
|
0000 Xxxxx Xxxx
|
Xxxxxxxxx (Xxxxxx)
|
XX
|
00000
|
399
|
0000 Xxxx Xxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
401
|
000 Xxxxx Xxxx Xxxx
|
Xxxxxxx Xxxx
|
XX
|
00000
|
402
|
0000 Xxxxx Xxxxxxx Xxxxxx
|
Xxxxxxxxx
|
XX
|
00000
|
403
|
0000 XX 00xx Xxxxxxx
|
Xxxxx
|
XX
|
00000
|
404
|
0000 X. Xxxxxx Xxx.
|
Xxxx Xxxxxx
|
XX
|
00000
|
405
|
0000 X. Xxxx Xxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
406
|
0000 Xxxx Xxxxxx Xxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
407
|
000 0xx Xxxxxx XX
|
Xxxxxxx
|
XX
|
00000
|
408
|
0000 Xxxxxxxx Xxxx.
|
Xxxxxxxxxx
|
XX
|
00000
|
409
|
000 Xxxxxxxx Xxxx
|
Xxxxxx Xxxx
|
XX
|
00000
|
410
|
0000 XX Xxx. 0 Xxxxx
|
Xx. Xxxxxxxxx
|
XX
|
00000
|
411
|
0000 Xxxxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
412
|
0000 Xxxxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
413
|
000 Xxxxxxxx Xxxxxxx
|
Xxxxxxxxxxxxx
|
XX
|
00000
|
414
|
00 Xxxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
415
|
000 Xxxxxxxxx Xxxxx
|
Xxxx
|
XX
|
00000
|
416
|
00000 X. Xxxxx Xxxx Xxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
417
|
00000 000xx Xxxxx
|
Xxxxxx Xxxx
|
XX
|
00000
|
418
|
0000 Xxxxxxx Xxxxxx X
|
Xxxxxxxxx
|
XX
|
00000
|
419
|
0000 Xxxxxxxxx Xxxxxx
|
Xx. Xxxxxx
|
XX
|
00000
|
420
|
0000 Xxxx Xxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
421
|
000 Xxxxx Xxxxxx Xxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
422
|
000 Xxxxx Xxxx Xxxxxx
|
Xxxxxx
|
XX
|
00000
|
423
|
0000 X. 00xx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
424
|
0000 Xxxxx Xxxxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
425
|
000 Xxxxx Xxxxxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
426
|
000 Xxxx Xxxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
427
|
0000 X. Xxxxxxxxxx Xxxx.
|
Xxxxx Xxxx
|
XX
|
00000
|
428
|
000 Xxxx Xxxxxxx Xxxxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
429
|
0000 Xxx Xxxx Xxxx
|
Xxxxx Xxxx
|
XX
|
00000
|
430
|
0000 Xxxxxx Xxxxx Xxxxx
|
Xxxxx Xxxx
|
XX
|
00000
|
431
|
0000 Xxxxxxx Xxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
432
|
0000 Xxxxx Xxxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
433
|
00 XxXxxxx Xxxxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
434
|
000 Xxxxx Xxxx.
|
Xxxx Xxxx
|
XX
|
00000
|
435
|
00 Xxxxxxxx Xxxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
436
|
0000 Xxxxxxx Xxxxx
|
Xxxxxxxx Xxxxxxx
|
XX
|
00000
|
441
|
0000 X Xxxxxxxx Xxxxx
|
Xxxx Xxxxx
|
XX
|
00000
|
442
|
0000 Xxxx Xxxx Xxxxxx
|
Xx. Xxxxxxx
|
XX
|
00000
|
443
|
0000 Xxxxx 00 Xxxx
|
Xxxx Xxxxx
|
XX
|
00000
|
444
|
00000 Xxxxxxxxxx Xxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
445
|
0000 Xxxxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
446
|
0000 Xxxxx XX Xxxxxx Xxxx
|
Xxxxx Xxxx
|
XX
|
00000
|
447
|
000 Xxxxxxx 00
|
Xxxxxxx
|
XX
|
00000
|
448
|
000 0xx Xxxxxx
|
Xxxxxx Xxxx
|
XX
|
00000
|
449
|
00 Xxxxxx Xxxxx Xxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
450
|
0000 Xxxxx Xxxxx 00
|
Xxxxxxxx
|
XX
|
00000
|
451
|
00 Xxxxxx Xxxx
|
Xxxxx Xxxxxxxx
|
XX
|
00000
|
452
|
00 Xxxx Xxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
453
|
000 Xxxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
454
|
0000 Xxx Xxxxxxxxx Xxx
|
Xxxxxxxxxx
|
XX
|
00000
|
455
|
000 X.X. Xxxxx Xxxxxx
|
Xxxx Xxxxxxxxxx
|
XX
|
00000
|
456
|
0000 Xxxxxx Xxxxxx
|
Xxxx Xxxx Xxxxx
|
XX
|
00000
|
457
|
0000 Xxxxxx Xxxxxx
|
Xxxxxxxxx Xxxx
|
XX
|
00000
|
458
|
0000 Xxxxxx Xxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
459
|
0000 Xxxxxxx Xxxx
|
Xx. Xxxxx
|
XX
|
00000
|
460
|
0000 Xxxxxx Xxxxxx
|
Xx. Xxxxxx
|
XX
|
00000
|
461
|
0000 Xxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
462
|
0000 Xxxxxxxx Xxxx
|
Xx. Xxxxx
|
XX
|
00000
|
463
|
0000 Xxxxxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
464
|
000 Xxxxx Xxxxxxx Xxxxx
|
Xxxxxx
|
XX
|
00000
|
465
|
0000 Xxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
466
|
00 Xxxxxxxxxxx Xxxx
|
Xxxxx
|
XX
|
00000
|
467
|
0000 X Xxxxxxx Xxx
|
Xxxxxxx
|
XX
|
00000
|
468
|
0000 Xxxxxxxxxxxx Xxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
469
|
00 Xxxxxxx xxxx
|
Xxxxxxxx
|
XX
|
00000
|
470
|
00000 Xxxxx Xxxx.
|
Xx Xxxxxxxxxx
|
XX
|
00000
|
471
|
0000 Xxxxx Xxxxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
472
|
0000 Xxxxxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
473
|
0000 Xxxxxx Xxxx
|
Xxx Xxxxxxx
|
XX
|
00000
|
Schedule 7.3(c)
Sovran Acquisition Limited Partnership owns a 49% interest in Iskalo Office Holdings, LLC as a Member, a 20% interest in Sovran HHF Storage Holdings LLC as a Member, and a 15% interest in Sovran HHF Storage Holdings II LLC, as a Member.
Schedule 7.7
Litigation
Xxxxxx v. Sovran Self Storage, Inc.
On or about August 25, 2014, a putative class action was filed against Sovran Self Storage, Inc. in the Superior Court of New Jersey Law Division Burlington County. The action seeks to obtain declaratory, injunctive and monetary relief for a class of consumers based upon alleged violations by the Company of the New Jersey Truth in Customer Contract, Warranty and Notice Act, the New Jersey Consumer Fraud Act and the New Jersey Insurance Producer Licensing Act. On October 17, 2014, the action was removed from the Superior Court of New Jersey Law Division Burlington County to the United States District Court for the District of New Jersey. Sovran Self Storage, Inc. intends to vigorously defend the action.
Schedule 7.15
1.
|
Xxxxxxx X. Xxxxxx, a director of Sovran Holdings, Inc., rents an office from Sovran Acquisition Limited Partnership (“SALP”) at the headquarters of SALP on a month-to-month basis at a market rate ($1,000 per month).
|
2.
|
Xxxxxxxxx X. Xxxxx is an Assistant Secretary of Sovran Self Storage, Inc. and is a partner in Xxxxxxxx Xxxxx LLP, the law firm which represents Sovran Self Storage, Inc., Sovran Holdings, Inc., SALP and certain of their subsidiaries and affiliates including The Xxxxx Group LLC, Uncle Bob’s Management, LLC, Sovran Grapevine, LLC, Sovran Meramac, LLC, Sovran Washington, LLC, Sovran Xxxxxxxxxxx, LLC, Sovran Manchester, LLC, Sovran Seminole, LLC, Sovran DeGaulle, LLC, Sovran Little Road, LLC, Sovran Granbury, LLC, Sovran Xxxxxxx, LLC, Sovran Congress, LLC, Sovran Cameron, LLC, Xxxxx Sovran I L.L.C., Xxxxx Sovran II L.L.C. and Sovran Xxxxx Road, LLC.
|
Schedule 7.18
Environmental Matters
None.
Schedule 7.19
Subsidiaries
A. Subsidiaries of Sovran Self Storage, Inc. (all Delaware Entities):
Sovran Holdings, Inc. – 100% Owned
Sovran Acquisition Limited Partnership – 98.33% Limited Partnership Interest
B. Subsidiaries of Sovran Acquisition Limited Partnership:
100% Owned Delaware Entities
|
100% Owned New York Entities
|
Sovran Xxxxx Road, LLC
Sovran Cameron, LLC
Sovran Congress, LLC
Sovran Xxxxxxx, LLC
Sovran Little Road, LLC
Sovran Granbury, LLC
Sovran Xxxxxxxxxxx, LLC
Sovran Manchester, LLC
Sovran DeGaulle, LLC
Sovran Grapevine, LLC
Sovran Washington, LLC
Sovran Meramac, LLC
Sovran Seminole, LLC
The Xxxxx Group LLC
|
Iskalo Land Holdings LLC
Xxxxx Sovran I L.L.C.
Xxxxx Sovran II L.L.C.
Uncle Bob’s Management, LLC (fka Xxxxx Leasing LLC)
|
C. Guarantors:
Sovran Holdings, Inc.
Sovran Xxxxx Road, LLC
Sovran Xxxxxxx, LLC
Sovran Little Road, LLC
Sovran Granbury, LLC
Sovran Xxxxxxxxxxx, LLC
Sovran Manchester, LLC
Sovran DeGaulle, LLC
Sovran Grapevine, LLC
Sovran Washington, LLC
Sovran Meramac, LLC
Sovran Seminole, LLC
The Xxxxx Group LLC
Xxxxx Sovran I L.L.C.
Xxxxx Sovran II L.L.C.
Uncle Bob’s Management, LLC (fka Xxxxx Leasing LLC)
Sovran Cameron, LLC
Sovran Congress, LLC
Schedule 7.24
Existing Indebtedness
As of December 10, 2014, 2014
A. Notes
The Borrowers are the co-obligors on $150,000,000 principal amount of 6.38% Senior Guaranteed Notes, Series C, due April 26, 2016, issued pursuant to the Note Purchase Agreement dated as of April 26, 2006, among Sovran, SALP, and the several Purchasers identified therein, as amended prior to the date hereof (the “2006 NPA”). All of the indebtedness under the 2006 NPA is guaranteed by Sovran Holdings, Inc. (“Holdings”), The Xxxxx Group LLC (“Xxxxx LLC”), Uncle Bob’s Management LLC and each of the following entities (collectively, the “Designated Subsidiaries”): Sovran Grapevine, LLC, Sovran Meramac, LLC, Sovran Washington, LLC, Sovran Xxxxxxxxxxx, LLC, Sovran Manchester, LLC, Sovran Seminole, LLC, Sovran DeGaulle, LLC, Sovran Little Road, LLC, Sovran Granbury, LLC, Sovran Xxxxxxx, LLC, Xxxxx Sovran I L.L.C., Xxxxx Sovran II L.L.C., Sovran Xxxxx Road, LLC, Sovran Cameron, LLC and Sovran Congress, LLC.
The Borrowers are the co-obligors on $100,000,000 principal amount of 5.54% Senior Guaranteed Notes, Series D, due August 5, 2021, issued pursuant to the Note Purchase Agreement dated as of August 5, 2011, among Sovran, SALP, and the several Purchasers identified therein (the “2011 NPA”). Holdings, Xxxxx LLC, Uncle Bob’s Management LLC and each of the Designated Subsidiaries guaranty all of the indebtedness under the 2011 NPA.
The Borrowers are the co-obligors on $175,000,000 principal amount of 4.533% Senior Guaranteed Notes, Series E, due April 8, 2024 , issued pursuant to the Note Purchase Agreement dated as of April 8, 2014, among Sovran, SALP, and the several Purchasers identified therein (the “2014 NPA”). Holdings, Xxxxx LLC, Uncle Bob’s Management LLC and each of the Designated Subsidiaries guaranty all of the indebtedness under the 2014 NPA.
B. Indemnity and Guaranty Agreements
SALP and Xxxxx Sovran I L.L.C. are co-indemnitors under an Environmental Indemnity Agreement dated as of November 28, 2001 in favor of GMAC Commercial Mortgage Corporation in connection with a $30,500,000 securitized loan which has been fully repaid.
Xxxxx Sovran II L.L.C. is an indemnitor under an Environmental Indemnity Agreement dated as of February 12, 2002 in favor of PNC Bank, National Association in connection with a $48,000,000 securitized loan which has been fully repaid.
SALP is an indemnitor under a Loan Assumption Agreement and Amendment of Loan Documents dated as of April 13, 2006 in favor of Xxxxx Fargo Bank, N.A. (“Xxxxx”) in connection with a $1,100,000 securitized loan to Sovran Cameron, LLC. by Xxxxx, which has been fully repaid.
SALP is an indemnitor under a Loan Assumption Agreement and Amendment of Loan Documents dated as of April 13, 2006 in favor of Xxxxx in connection with a $1,200,000 securitized loan to Sovran Congress, LLC by Xxxxx, which has been fully repaid.
SALP is a co-indemnitor with SH 729-744 LLC under an Environmental Indemnity
Agreement dated as of July 13, 2011 in favor of PNC in connection with a $74,600,000 securitized loan (the “SH 729-744 Securitized Loan”) from PNC to SH 729-744 LLC secured by mortgages granted by SH 729-744 LLC to PNC. SALP is also a guarantor under a Guaranty of Recourse Obligations of Borrower dated as of July 13, 2011 in connection with the SH 729-744 Securitized Loan.
SALP is a co-indemnitor with each of XX 000 XXX, XX 000 LLC and SH 728 LLC in connection with the assumption of their respective securitized loans in the principal amounts of $6,040,884.60, $3,480,344.61 and $4,433,296.74 (collectively, the “XX 000-000 Xxxxxxxxxxx Loans”) from U.S. Bank National Association, as Trustee, Successor-in-Interest to Bank of America, N.A. as Trustee, Successor to Xxxxx Fargo Bank, N.A. as Trustee, for the Registered Holders of CN 2006 - CN2 Commercial Mortgage Pass-through Certificates (the “Lender”) dated as of August 1, 2011 and separately secured by mortgages granted by each of XX 000 XXX, XX 000 LLC and SH 728 LLC to the Lender.
SALP is an indemnitor under a Loan Assumption Agreement and Amendment of Loan Documents dated September 22, 2011 in favor of Sun Life Assurance Company of Canada (“Sun Life”) in connection with a $3,000,000 securitized loan to SALP by Sun Life dated as of September 22, 2011 secured by a mortgage on property on Nassau Road, Webster, Texas.
SALP is a co-indemnitor with SH 746-755 LLC under a loan agreement dated as of March 28, 2012 in favor of PNC in connection with a $16,620,000 securitized loan (the “SH 746-755 Securitized Loan”) from PNC to SH 746-755 LLC secured by mortgages granted by SH 746-755 LLC to PNC. SALP is also a guarantor under a Guaranty of Recourse Obligations of Borrower dated as of March 28, 2012 in connection with the SH 746-755 Securitized Loan.
SALP and/or certain of the Designated Subsidiaries (as defined in this Schedule 7.24) are indemnitors under certain environmental indemnity agreements made in connection with certain securitized loans which have been fully repaid.
Certain joint ventures in which SALP has a minority interest have entered into securitized loan transactions secured by mortgage loans on property owned by the joint ventures or special purpose entities owned by the joint ventures, and non-recourse guaranty agreements and environmental indemnities have been provided or assumed in connection with such securitized loans.
C. Swap Agreements
Interest rate swap agreement made by Sovran and SALP with SunTrust Bank dated June 4, 2013 with a notional amount of $25,000,000.
Interest rate swap agreement made by Sovran and SALP with SunTrust Bank dated September 6, 2013 with a notional amount of $30,000,000.
Interest rate swap agreement made by Sovran and SALP with SunTrust Bank dated June 29, 2011 with a notional amount of $75,000,000.
Interest rate swap agreement made by Sovran and SALP with PNC Bank, National Association dated September 19, 2011 with a notional amount of $25,000,000.
Interest rate swap agreement made by Sovran and SALP with PNC Bank, National Association dated June 4, 2013 with a notional amount of $25,000,000.
Interest rate swap agreement made by Sovran and SALP with PNC Bank, National Association dated September 6, 2013 with a notional amount of $30,000,000.
Interest rate swap agreement made by Sovran and SALP with First Niagara Bank, N.A. dated September 19, 2011 with a notional amount of $25,000,000.
Interest rate swap agreement made by Sovran and SALP with First Niagara Bank, N.A. dated September 6, 2013 with a notional amount of $50,000,000.
Interest rate swap agreement made by Sovran and SALP with U.S. Bank, National Association dated September 19, 2011 with a notional amount of $50,000,000.
Interest rate swap agreement made by Sovran and SALP with U.S. Bank, National Association dated June 4, 2013 with a notional amount of $25,000,000.
Interest rate swap agreement made by Sovran and SALP with Capital One, National Association dated September 6, 2013 in notional amount of $50,000,000.
Interest rate swap agreement made by Sovran and SALP with HSBC Bank USA, National Association dated September 1, 2011 with a notional amount of $50,000,000.
Interest rate swap agreement made by Sovran and SALP with HSBC Bank USA, National Association dated September 6, 2013 with a notional amount of $65,000,000.
Interest rate swap agreement made by Sovran and SALP with HSBC Bank USA, National Association dated June 4, 2013 with a notional amount of $25,000,000.
Schedule 9.2(vi)
Existing Liens
None.
Schedule 9.3(d)
Existing Investments
49% membership interest in Iskalo Office Holdings LLC
20% membership interest in Sovran HHF Storage Holdings LLC
15% membership interest in Sovran HHF Storage Holdings II LLC
Exhibit A-1
|
[Form of Revolving Credit Note]
REVOLVING CREDIT NOTE
$_________________
|
______________ __, 20__
|
FOR VALUE RECEIVED, the undersigned SOVRAN SELF STORAGE, INC., a Maryland corporation (“Sovran”), and the undersigned SOVRAN ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership (“SALP” and together with Sovran, collectively referred to herein as the “Borrowers” and individually as a “Borrower”), hereby jointly and severally promise to pay to the order of _______________, [a national banking association] (the “Lender”) at the Administrative Agent’s Head Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Revolving Credit Loan Maturity Date the principal amount of _________________ Dollars ($_______________) or, if less, the aggregate unpaid principal amount of Revolving Credit Loans advanced by the Lender to the Borrowers pursuant to the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”), among the Borrowers, Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents; and
(b) interest on the principal balance hereof from time to time outstanding at the times and at the rate provided in the Credit Agreement.
This Revolving Credit Note, together with the other Revolving Credit Notes issued as of the date hereof under the Credit Agreement (collectively, the “Substitute Revolving Credit Notes”), are issued in substitution for the unpaid principal balances outstanding under all of the Revolving Credit Notes previously issued by the Borrower under the Fifth Amended and Restated Revolving Credit and Term Loan Agreement dated as of June 4, 2013 (the “2013 Revolving Credit Notes”), which 2013 Revolving Credit Notes are outstanding as of the date hereof. Up to the full amount of the principal balances of the Substitute Revolving Credit Notes, the principal balances outstanding under the 2013
Revolving Credit Notes shall continue in all respects to be outstanding under the Substitute Revolving Credit Notes, and this Revolving Credit Note shall not be deemed to evidence a novation or payment and refunding of any part of the outstanding principal balances under the 2013 Revolving Credit Notes. Notwithstanding the date of this Revolving Credit Note, the Substitute Revolving Credit Notes carry all of the rights to unpaid interest that were carried by the 2013 Revolving Credit Notes such that no loss of interest shall result from any such substitution.
This Revolving Credit Note evidences borrowings under and has been issued by the Borrowers in accordance with the terms of the Credit Agreement. The Lender and any holder hereof pursuant to the Credit Agreement or by operation of law is entitled to the benefits of the Credit Agreement and the other Loan Documents, and may enforce the agreements of the Borrower contained therein, and any holder hereof may exercise the respective remedies provided for thereby or otherwise available in respect thereof, all in accordance with the respective terms thereof. All capitalized terms used in this Revolving Credit Note and not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be made, at or about the time of the Drawdown Date of any Revolving Credit Loan or at the time of receipt of any payment of principal of this Revolving Credit Note, an appropriate notation on the grid attached to this Revolving Credit Note, or the continuation of such grid, or any other similar record, including computer records, reflecting the making of such Revolving Credit Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Revolving Credit Loans set forth on the grid attached to this Revolving Credit Note, or the continuation of such grid, or any other similar record, including computer records, maintained by the Lender with respect to any Revolving Credit Loans shall be prima facie evidence of the principal amount thereof owing and unpaid to the Lender, but the failure to record, or any error in so recording, any such amount on any such grid, continuation or other record shall not limit or otherwise affect the obligation of the Borrowers hereunder or under the Credit Agreement to make payments of principal of and interest on this Revolving Credit Note when due to the extent of the unpaid principal and interest amount as of any date of determination.
The Borrowers have the right in certain circumstances and the obligation under certain other circumstances to prepay the whole or part of the principal of this Revolving Credit Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid principal amount of this Revolving Credit Note and all of the unpaid interest accrued thereon and any other charges or amounts due under any of the Loan Documents may become or be declared due and payable in the manner and with the effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other rights of the
Lender or such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of the same or any other right on any further occasion.
The Borrowers and every endorser and guarantor of this Revolving Credit Note or the obligation represented hereby waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Revolving Credit Note, and assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral and to the addition or release of any other party or person primarily or secondarily liable.
THIS REVOLVING CREDIT NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS REVOLVING CREDIT NOTE MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK, NEW YORK OR ANY FEDERAL COURT SITTING IN NEW YORK, NEW YORK AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN §20 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Revolving Credit Note shall be deemed to take effect as a sealed instrument under the laws of the State of New York.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the undersigned has caused this Revolving Credit Note to be sealed and signed in its corporate or partnership name by its duly authorized officer as of the day and year first above written.
WITNESS:
__________________________
|
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
WITNESS:
__________________________
|
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings, Inc., its general partner
By: ______________________________
Name:
Title:
|
Date
|
Amount
of Loan
|
Amount of
Principal Paid
or Prepaid
|
Balance of
Principal
Unpaid
|
Notation
Made By:
|
Exhibit A-2
|
[Form of Term Loan Note]
TERM NOTE
$______________
|
_____________ ___, 20__
|
FOR VALUE RECEIVED, the undersigned SOVRAN SELF STORAGE, INC., a Maryland corporation (“Sovran”), and the undersigned SOVRAN ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership (“SALP” and together with Sovran, collectively referred to herein as the “Borrowers” and individually as a “Borrower”), hereby jointly and severally promise to pay to the order of , [a national banking association] (the “Lender”) at the Administrative Agent’s Head Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Term Maturity Date the principal amount of __________ Dollars ($__________) which principal amount is the portion of the Term Loan advanced by the Lender to the Borrowers pursuant to the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”), among the Borrowers, Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents;
(b) the principal outstanding hereunder from time to time at the times provided in the Credit Agreement; and
(c) interest from the date hereof on the principal balance hereof from time to time outstanding at the times and at the rate or rates provided in the Credit Agreement and any other sums or fees due thereunder, all in accordance with the Credit Agreement.
This Term Note, together with the other Term Notes issued as of the date hereof under the Credit Agreement (collectively, the “Substitute Term Notes”), are issued in substitution for the unpaid principal balances outstanding under all of the Term Notes previously issued by the Borrower under the Fifth Amended and Restated Revolving Credit and Term Loan Agreement dated as of June 4, 2013 (the “2013 Term Notes”), which 2013 Term Notes are outstanding as of the date hereof. Up to the full amount of the principal balances of the Substitute Term Notes, the principal balances outstanding under the 2013 Term Notes shall continue in all respects to be outstanding under the
Substitute Term Notes, and this Term Note shall not be deemed to evidence a novation or payment and refunding of any part of the outstanding principal balances under the 2013 Term Notes. Notwithstanding the date of this Term Note, the Substitute Term Notes carry all of the rights to unpaid interest that were carried by the 2013 Term Notes such that no loss of interest shall result from any such substitution.
This Term Note evidences Term Loan borrowings under and has been issued by the Borrowers in accordance with the terms of the Credit Agreement. The Lender and any holder hereof pursuant to the Credit Agreement or by operation of law is entitled to the benefits of the Credit Agreement and the other Loan Documents, and may enforce the agreements of the Borrower contained therein, and any holder hereof may exercise the respective remedies provided for thereby or otherwise available in respect thereof, all in accordance with the respective terms thereof. All capitalized terms used in this Term Note and not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be made, at or about the time of the Drawdown Date of the Term Loan or at the time of receipt of any payment of principal of this Term Note, an appropriate notation on the grid attached to this Term Note, or the continuation of such grid, or any other similar record, including computer records, reflecting the making of such Term Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Term Loan set forth on the grid attached to this Term Note, or the continuation of such grid, or any other similar record, including computer records, maintained by the Lender with respect to the Term Loan shall be prima facie evidence of the principal amount thereof owing and unpaid to the Lender, but the failure to record, or any error in so recording, any such amount on any such grid, continuation or other record shall not limit or otherwise affect the obligation of the Borrowers hereunder or under the Credit Agreement to make payments of principal of and interest on this Term Note when due to the extent of the unpaid principal and interest amount as of any date of determination.
The Borrowers have the right in certain circumstances and the obligation under certain other circumstances to prepay the whole or part of the principal of this Term Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid principal amount of this Term Note and all of the unpaid interest accrued thereon and any other charges or amounts due under any of the Loan Documents may become or be declared due and payable in the manner and with the effect provided in the Credit Agreement.
No delay or omission on the part of the Lender, or any holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other rights of the Lender or such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of the same or any other right on any further occasion.
The Borrowers and every endorser and guarantor of this Term Note or the
obligations represented hereby waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Term Note, and assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral and to the addition or release of any other party or person primarily or secondarily liable.
THIS TERM NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS TERM NOTE MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK, NEW YORK OR ANY FEDERAL COURT SITTING IN NEW YORK, NEW YORK AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN §20 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Term Note shall be deemed to take effect as a sealed instrument under the laws of the State of New York.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the undersigned has caused this Term Note to be sealed and signed in its corporate or partnership name by its duly authorized officer as of the day and year first above written.
WITNESS:
______________________________
|
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
WITNESS:
_____________________________
|
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings, Inc., its general partner
By: ______________________________
Name:
Title:
|
Date
|
Amount
of Term
Loan
|
Amount of
Principal Paid
or Prepaid
|
Balance of
Principal
Unpaid
|
Notation
Made By:
|
Exhibit B
|
[FORM OF SUBSIDIARY GUARANTY]
This Guaranty, dated as of ___________ __, 20__ by each of the undersigned and the other Persons from time to time party hereto pursuant to the execution and delivery of a joinder agreement in the form of Annex I hereto (all of the undersigned, together with such other Persons, each, a “Guarantor” and collectively, the “Guarantors”), is made in favor of Manufacturers and Traders Trust Company, as administrative agent (in such capacity, together with its successors and assigns, the “Administrative Agent”) for itself and the Lenders (as defined herein) under the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), Sovran Acquisition Limited Partnership, a Delaware limited partnership (together with Sovran, collectively referred to herein as the “Borrowers”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), the Administrative Agent, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
1. Guaranty of Payment and Performance of Obligations. In consideration of the Lenders’ extending credit or otherwise in their discretion giving time, financial or banking facilities or accommodations to the Borrowers, each Guarantor hereby unconditionally guarantees to the Administrative Agent and each Lender that the Borrowers will duly and punctually pay or perform, at the place specified therefor, or if no place is specified, at the Administrative Agent’s Head Office, (i) all Obligations and all indebtedness, obligations and liabilities of the Borrowers to any of the Lenders and the Administrative Agent, individually or collectively, under the Credit Agreement or any of the other Loan Documents or in respect of any of the Loans or the Notes or other instruments at any time evidencing any thereof, whether existing on the date of the Credit Agreement or arising or incurred thereafter, direct or indirect, secured or unsecured, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, arising by contract, operation of law or otherwise; and (ii) without limitation of the foregoing, all reasonable fees, costs and expenses incurred by the Administrative Agent or the Lenders in attempting to collect or enforce any of the foregoing, accrued in each case to the date of payment hereunder (collectively the “Guaranteed Obligations” and individually a “Guaranteed Obligation”). This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of the Guaranteed Obligations and not of their collectability only and is in no way conditioned upon any requirement that any Lender or the Administrative Agent first attempt to collect any of the Guaranteed Obligations from the Borrowers or any other Loan Party or resort to any security or other means of obtaining payment of any of the Guaranteed Obligations which any Lender or the Administrative Agent now has or may acquire after the date hereof or upon any other contingency whatsoever. Upon any Event of Default which is continuing by the Borrowers in the full and punctual payment and performance of the Guaranteed Obligations, the liabilities and obligations of each Guarantor hereunder shall, at the option of the Administrative Agent, become forthwith due and payable to the Administrative Agent and to the Lender or Lenders owed the same without demand or notice of any nature, all of which are expressly waived by each Guarantor, except for notices required to be given to the Borrowers under the Loan Documents. Payments by each Guarantor hereunder may be required by any Lender or the Administrative Agent on any number of occasions.
2. Guarantor’s Further Agreements to Pay. Each Guarantor further agrees, as the principal obligor and not as a guarantor only, to pay to each Lender and the Administrative Agent forthwith upon demand, in funds immediately available to such Lender or the Administrative Agent, all costs and expenses (including court costs and legal fees and expenses) incurred or expended by the Administrative Agent or such Lender in connection with this Guaranty and the enforcement hereof, together with interest on amounts recoverable under this Guaranty from the time after such amounts become due at the default rate of interest set forth in the Credit Agreement; provided that
if such interest exceeds the maximum amount permitted to be paid under applicable law, then such interest shall be reduced to such maximum permitted amount.
3. Payments. Each Guarantor covenants and agrees that the Guaranteed Obligations will be paid strictly in accordance with their respective terms regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Lender with respect thereto. Without limiting the generality of the foregoing, each Guarantor’s obligations hereunder with respect to any Guaranteed Obligation shall not be discharged by a payment in a currency other than the currency in which the Guaranteed Obligation is denominated (the “Obligation Currency”) or at a place other than the place specified for the payment of the Guaranteed Obligation, whether pursuant to a judgment or otherwise, to the extent that the amount so paid on conversion to the Obligation Currency and transferred to New York, New York, U.S.A., under normal banking procedures does not yield the amount of Obligation Currency due thereunder.
4. Taxes.
(a) All payments hereunder shall be made without any counterclaim or set-off, free and clear of, and without reduction by reason of, any taxes, levies, imposts, charges and withholdings, restrictions or conditions of any nature (“Taxes”), which are now or may hereafter be imposed, levied or assessed by the United States or any political subdivision or taxing authority thereof (or any non-United States jurisdiction in which there is Real Estate) on payments hereunder, all of which will be for the account of and paid by each Guarantor. Subject to paragraph (b), if for any reason, any such reduction is made or any Taxes are paid by the Administrative Agent or any Lender (except for taxes on income or profits of such Administrative Agent or Lender), Guarantors will pay to the Administrative Agent or such Lender such additional amounts as may be necessary to ensure that the Administrative Agent or such Lender receives the same net amount which it would have received had no reduction been made or Taxes paid.
(b) No Guarantor shall be required to pay any additional amounts to any Lender that is not incorporated or organized under the laws of the United States of America or a state thereof or the District of Columbia (a “Non-U.S. Lender”) in respect of United States Federal withholding tax to the extent that (i) the obligation to withhold amounts with respect to United States Federal withholding tax existed on the date such Non-U.S. Lender became a party to the Credit Agreement or, with respect to payments to a different lending office designated by the Non-U.S. Lender as its applicable lending office (a “New Lending Office”), the date such Non-U.S. Lender designated such New Lending Office with respect to the Loans (as defined in the Credit Agreement); provided, however, that this clause (i) shall not apply to any transferee or New Lending Office as a result of an assignment, transfer or designation made at the request of the Borrowers; and provided further, however, that this clause (i) shall not apply to the extent the indemnity payment or additional amounts any transferee, or Lender through a New Lending Office, would be entitled to receive without regard to this clause (i) do not exceed the indemnity payment or additional amounts that the entity making the assignment or transfer to such
transferee, or Lender making the designation of such New Lending Office, would have been entitled to receive in the absence of such assignment, transfer or designation; or (ii) the obligation to pay such additional amounts would not have arisen but for a failure by such Non-U.S. Lender to deliver completed copies of United States Internal Revenue Service Form 1001 or 4224 or to comply with all the other requirements of §4.2(c) of the Credit Agreement.
5. Consent to Jurisdiction. Each Guarantor agrees that any suit for the enforcement of this Guaranty or any of the other Loan Documents may be brought in the courts of the State of New York sitting in New York, New York or any federal court sitting in New York, New York and consents to the non-exclusive jurisdiction of such courts and the service of process in any such suit being made upon such Guarantor by mail at the address specified herein. Except to the extent such waiver is expressly prohibited by law, each Guarantor hereby waives any objection that it may now or hereafter have to the venue of any such suit or any such court or that such suit is brought in an inconvenient court.
6. Liability of the Guarantor. The Administrative Agent and each Lender have and shall have the absolute right to enforce the liability of each Guarantor hereunder without resort to any other right or remedy including any right or remedy under any other guaranty, and the release or discharge of any guarantor of any Guaranteed Obligations shall not affect the continuing liability of such Guarantor hereunder.
7. Representations and Warranties; Covenants. Each Guarantor hereby makes and confirms the representations and warranties made on its behalf by the Borrowers pursuant to §7 of the Credit Agreement, as if such representations and warranties were set forth herein. Each Guarantor hereby agrees to perform the covenants set forth in §§8 and 9 of the Credit Agreement (to the extent such covenants expressly apply to the Guarantor) as if such covenants were set forth herein. Each Guarantor acknowledges that it is, on a collective basis with the Borrowers and all other “Guarantors” (as defined in the Credit Agreement), bound by the covenants set forth in §9 of the Credit Agreement. Each Guarantor hereby confirms that it shall be bound by all acts or omissions of the Borrower Representative pursuant to the Credit Agreement.
8. Effectiveness. The obligations of the Guarantors under this Guaranty shall continue in full force and effect and shall remain in operation until all of the Guaranteed Obligations shall have been paid in full or otherwise fully satisfied, and continue to be effective or be reinstated, as the case may be, if at any time payment or other satisfaction of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of the Borrowers, or otherwise, as though such payment had not been made or other satisfaction occurred. No invalidity, irregularity or unenforceability of the Guaranteed Obligations by reason of applicable bankruptcy laws or any other similar law, or by reason of any law or order of any government or agency thereof purporting to reduce, amend or otherwise affect the Guaranteed Obligations, shall impair, affect, be a defense to or claim against the obligations of the Guarantors under this Guaranty.
9. Freedom of Lender to Deal with Borrowers and Other Parties. The Administrative Agent and each Lender shall be at liberty, without giving notice to or obtaining the assent of any Guarantor and without relieving the Guarantors of any liability hereunder, to deal with the Borrowers and with each other party who now is or after the date hereof becomes liable in any manner for any of the Guaranteed Obligations, in such manner as the Administrative Agent or such Lender in its sole discretion deems fit, and to this end each Guarantor gives to the Administrative Agent and each Lender full authority in its sole discretion to do any or all of the following things: (a) extend credit, make loans and afford other financial accommodations to the Borrowers at such times, in such amounts and on such terms as the Administrative Agent or such Lender may approve, (b) vary the terms and grant extensions of any present or future indebtedness or obligation of the Borrowers or of any other party to the Administrative Agent or such Lender, (c) grant time, waivers and other indulgences in respect thereto, (d) vary, exchange, release or discharge, wholly or partially, or delay in or abstain from perfecting and enforcing any security or guaranty or other means of obtaining payment of any of the Guaranteed Obligations which the Administrative Agent or any Lender now has or may acquire after the date hereof, (e) accept partial payments from the Borrowers or any such other party, (f) release or discharge, wholly or partially, any endorser or guarantor, and (g) compromise or make any settlement or other arrangement with the Borrowers or any such other party.
10. Unenforceability of Guaranteed Obligations Against Borrowers; Invalidity of Security or Other Guaranties. If for any reason the Borrowers have no legal existence or are under no legal obligation to discharge any of the Guaranteed Obligations undertaken or purported to be undertaken by it or on its behalf, or if any of the moneys included in the Guaranteed Obligations have become irrecoverable from the Borrowers by operation of law or for any other reason, this Guaranty shall nevertheless be binding on each Guarantor to the same extent as if such Guarantor at all times had been the principal debtor on all such Guaranteed Obligations. This Guaranty shall be in addition to any other guaranty or other security for the Guaranteed Obligations, and it shall not be prejudiced or rendered unenforceable by the invalidity of any such other guaranty or security.
11. Waivers by Guarantor. Each Guarantor waives notice of acceptance hereof, notice of any action taken or omitted by the Administrative Agent or any Lender in reliance hereon, and any requirement that the Administrative Agent or any Lender be diligent or prompt in making demands hereunder, giving notice of any default by the Borrowers or asserting any other rights of the Administrative Agent or any Lender hereunder. Each Guarantor also irrevocably waives, to the fullest extent permitted by law, all defenses in the nature of suretyship that at any time may be available in respect of the Guarantor’s obligations hereunder by virtue of any statute of limitations, valuation, stay, moratorium law or other similar law now or hereafter in effect.
12. Waiver of Subrogation Rights. Notwithstanding any other provision to the contrary contained herein or provided by applicable law, unless and until all of the
Guaranteed Obligations have been indefeasibly paid in full in cash and satisfied in full, each Guarantor hereby irrevocably waives any and all rights it may have at any time (whether arising directly or indirectly, by operation of law or by contract) to assert any claim against the Borrowers on account of payments made under this Guaranty, including, without limitation, any and all rights of or claims for subrogation, contribution, reimbursement, exoneration and indemnity, and further waives any benefit of and any right to participate in any collateral which may be held by the Administrative Agent or any Lender or any affiliate of the Administrative Agent or any Lender. In addition, no Guarantor will claim any set-off or counterclaim against the Borrowers in respect of any liability it may have to the Borrowers unless and until all of the Guaranteed Obligations have been indefeasibly paid in full in cash and satisfied in full.
13. Demands. Any demand on or notice made or required to be given pursuant to this Guaranty shall be in writing and shall be delivered in hand, mailed by United States registered or certified first class mail, postage prepaid, return receipt requested, sent by overnight courier, or sent by telegraph, telecopy, telefax or telex and confirmed by delivery via courier or postal service, addressed as follows:
(a)
|
if to any Guarantor, at
|
|||
Sovran Self Storage, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
|
||||
or at such other address for notice as the Guarantors shall last have furnished in writing to the Administrative Agent with a copy to:
|
||||
|
||||
Xxxxxxxx Xxxxx LLP
One Canalside000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
|
||||
or at such other address for notice as the Guarantors shall last have furnished in writing to the Administrative Agent; and
|
||||
(b)
|
if to the Administrative Agent, at
|
|||
Manufacturers and Traders Trust Company
00 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
|
||||
or at such other address for notice as the Administrative Agent shall last have furnished in writing to the Guarantors; and
|
||||
(c)
|
if to any Lender, at such Lender’s address as set forth in Schedule 1.2 to the Credit Agreement or as shall have last been furnished in writing to the Person giving the notice.
|
Any such notice or demand shall be deemed to have been duly given or made and to have become effective (i) if delivered by hand, overnight courier or facsimile to the party to which it is directed, at the time of the receipt thereof by such party or the sending of such facsimile with electronic confirmation of receipt or (ii) if sent by registered or certified first-class mail, postage prepaid, return receipt requested, on the fifth Business Day following the mailing thereof.
14. Amendments, Waivers, Etc. No provision of this Guaranty can be changed, waived, discharged or terminated except by an instrument in writing signed by the Administrative Agent and each Guarantor expressly referring to the provision of this Guaranty to which such instrument relates; and no such waiver shall extend to, affect or impair any right with respect to any Guaranteed Obligation which is not expressly dealt with therein. No course of dealing or delay or omission on the part of the Administrative Agent or the Lenders or any of them in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
15. Further Assurances. Each Guarantor at its sole cost and expense agrees to do all such things and execute, acknowledge and deliver all such documents and instruments as the Administrative Agent from time to time may reasonably request in order to give full effect to this Guaranty and to perfect and preserve the rights and powers of the Administrative Agent and the Lenders hereunder.
16. Reinstatement of Guaranteed Obligations. If claim is ever made on the Administrative Agent or any Lender for repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations, and the Administrative Agent or such Lender repays all or part of said amount by reason of (a) any judgment, decree or order of any court or administrative body of competent jurisdiction, or (b) any settlement or compromise of any such claim effected by the Administrative Agent or such Lender with any such claimant (including either Borrower or a trustee in bankruptcy for either Borrower), then and in such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding on it, notwithstanding any revocation hereof or the cancellation of any of the Loan Documents and each Guarantor shall be and remain liable to the Administrative Agent or such Lender for the amounts so repaid or recovered to the same extent as if such amount had never originally been paid to the Administrative Agent or such Lender.
17. Miscellaneous Provisions. This Guaranty is intended to take effect as a sealed instrument to be governed by and construed in accordance with the laws of the
State of New York and shall inure to the benefit of the Administrative Agent, each Lender and its respective successors in title and assigns permitted under the Credit Agreement, and shall be binding on each Guarantor and such Guarantor’s successors in title, assigns and legal representatives. The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement. The invalidity or unenforceability of any one or more sections of this Guaranty shall not affect the validity or enforceability of its remaining provisions. Captions are for ease of reference only and shall not affect the meaning of the relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally applicable to the singular and plural forms of the terms defined.
18. WAIVER OF JURY TRIAL. EXCEPT TO THE EXTENT SUCH WAIVER IS EXPRESSLY PROHIBITED BY LAW, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY JURISDICTION AND IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS GUARANTY, THE GUARANTEED OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT HERETO OR THERETO OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING, AMONG EACH GUARANTOR, THE BORROWERS, THE ADMINISTRATIVE AGENT AND/OR THE LENDERS. THIS WAIVER OF JURY TRIAL SHALL BE EFFECTIVE FOR EACH AND EVERY DOCUMENT EXECUTED BY THE GUARANTOR, THE ADMINISTRATIVE AGENT OR THE LENDERS AND DELIVERED TO THE ADMINISTRATIVE AGENT OR THE LENDERS, AS THE CASE MAY BE, WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN SUCH A WAIVER OF JURY TRIAL. EACH GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.
19. Right of Contribution. The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess Payment, such Guarantor shall have a right of contribution from each other Guarantor in an amount equal to such other Guarantor’s Contribution Share of such Excess Payment. The payment obligations of any Guarantor under this Section shall be subordinate and subject in right of payment to the Guaranteed Obligations until such time as the Guaranteed Obligations have been indefeasibly paid and performed in full and the Commitments have expired or terminated, and none of the Guarantors shall exercise any right or remedy under this Section against any other Guarantor until such Guaranteed Obligations have been indefeasibly paid and performed in full and the Commitments have expired or terminated. Subject to Section 12 of this Guaranty, this Section shall not be deemed to affect any right of subrogation, indemnity, reimbursement or contribution that any Guarantor may have under Applicable Law against any other Loan Party in respect of any payment of Guaranteed Obligations. Notwithstanding the foregoing, all rights of contribution against any Guarantor shall terminate from and after such time, if ever, that such Guarantor shall cease to be a Guarantor in accordance with the applicable provisions of the Loan Documents.
20. Effect on Existing Guaranty.
(a) Existing Guaranty. Upon the execution of this Guaranty by the Guarantors party hereto, this Guaranty shall exclusively control and govern the mutual rights and obligations of the parties hereto with respect to that certain (i) Guaranty dated June 4, 2013 by the Guarantors (as defined therein party thereto) in favor of Administrative Agent (the “Subsidiaries Guaranty”), (ii) Guaranty dated June 4, 2013 by Sovran Holdings, Inc., a Delaware corporation, in favor of Administrative Agent (the “Holdings Guaranty”), (iii) Guaranty dated April 1, 2014 by Sovran Cameron, LLC, a Delaware limited liability company, in favor of Administrative Agent (the “Cameron Guaranty”) and (iv) Guaranty dated April 1, 2014 by Sovran Congress, LLC, a Delaware limited liability company, in favor of Administrative Agent (the “Congress Guaranty”; together with the Subsidiaries Guaranty, Holdings Guaranty and Cameron Guaranty, collectively, the “Existing Guaranty”), and the Existing Guaranty shall be superseded by this Guaranty in all respects.
(b) NO NOVATION. THE PARTIES HERETO HAVE ENTERED INTO THIS GUARANTY SOLELY TO AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS OWING UNDER AND IN CONNECTION WITH, THE EXISTING GUARANTY. THE PARTIES DO NOT INTEND THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY ANY GUARANTOR UNDER OR IN CONNECTION WITH THE EXISTING GUARANTY.
“Contribution Share” means, for any Guarantor in respect of any Excess Payment made by any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all assets and other properties of the Loan Parties other than the maker of such Excess Payment exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Loan Parties) of the Loan Parties other than the maker of such Excess Payment; provided, however, that, for purposes of calculating the Contribution Shares of the Guarantors in respect of any Excess Payment, any Guarantor that became a Guarantor subsequent to the date of any such Excess Payment shall be deemed to have been a Guarantor on the date of such Excess Payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such Excess Payment.
“Excess Payment” means the amount paid by any Guarantor in excess of its Ratable Share of any Guaranteed Obligations.
“Proceeding” means any of the following: (i) a voluntary or involuntary case concerning any Guarantor shall be commenced under the Bankruptcy Code; (ii) a custodian (as defined in such Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or takes charge of, all or any substantial part of the property of any Guarantor; (iii) any other proceeding under any Applicable Law, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up or composition for adjustment of debts, whether now or hereafter in effect, is commenced relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any order of relief or other order approving any such case or proceeding is entered by a court of competent jurisdiction; (vi) any Guarantor makes a general assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay, or shall state that it is unable to pay, or shall be unable to pay, its debts generally as they become due; (viii) any Guarantor shall call a meeting of its creditors with a view to arranging a composition or adjustment of its debts; (ix) any Guarantor shall by any act or failure to act indicate its consent to, approval of or acquiescence in any of the foregoing; or (x) any corporate action shall be taken by any Guarantor for the purpose of effecting any of the foregoing.
“Ratable Share” means, for any Guarantor in respect of any payment of Guaranteed Obligations, the ratio (expressed as a percentage) as of the date of such payment of Guaranteed Obligations of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all assets and other properties of all of the Loan Parties exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Loan Parties hereunder) of the Loan Parties; provided, however, that, for purposes of calculating the Ratable Shares of the Guarantors in respect of any payment of Guaranteed Obligations, any Guarantor that became a Guarantor subsequent to the date of any such payment shall be deemed to have been a Guarantor on the date of such payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such payment.
[Remainder of Page Intentionally Left Blank]
GUARANTORS:
_____________________________
By: ______________________________
Name:
Title:
|
ANNEX I
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT dated as of ____________, ____, executed and delivered by ______________________, a _____________ (the “New Guarantor”) in favor of MANUFACTURERS AND TRADERS TRUST COMPANY, in its capacity as Administrative Agent (the “Administrative Agent”) under that certain Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), Sovran Acquisition Limited Partnership, a Delaware limited partnership (together with Sovran, collectively referred to herein as the “Borrowers”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), and the Administrative Agent, (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”).
Section 1. Accession to Guaranty. The New Guarantor hereby agrees that it is a “Guarantor” under the Guaranty dated as of ___________, 20__ (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”), made by the
Guarantors party thereto in favor of the Administrative Agent, for itself and the Lenders, and assumes all obligations of a “Guarantor” thereunder, all as if the New Guarantor had been an original signatory to the Guaranty. Without limiting the generality of the foregoing, the New Guarantor hereby:
(a) irrevocably and unconditionally guarantees the due and punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all Guaranteed Obligations (as defined in the Guaranty);
(b) makes to the Administrative Agent and the Lenders as of the date hereof each of the representations and warranties contained in Section 7 of the Guaranty and agrees to be bound by each of the covenants contained in Section 7 of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
[Signatures on Following Page]
[NEW GUARANTOR]
By: __________________________
Name: _____________________
Title: ______________________
|
|
([CORPORATE] SEAL)
|
|
Address for Notices:
|
|
c/o [NAME OF BORROWER]
____________________________
____________________________
Attention:______________________
Telecopier: (_____) ______________
Telephone: (_____) ______________
|
|
Accepted:
|
|
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Administrative Agent
By: ________________________________
Name: ___________________________
Title: ____________________________
|
Exhibit C
|
[Form of Revolving Credit Loan Request]
Manufacturers and Traders Trust Company
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: ______________________
This Revolving Credit Loan Request (this “Loan Request”) is made pursuant to §2.4 of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), Sovran Acquisition Limited Partnership, a Delaware limited partnership (“SALP” and together with Sovran, collectively referred to herein as the “Borrowers” and individually as a “Borrower”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Loan Request have the meanings given them in the Credit Agreement.
1. Sovran, as Borrower Representative, hereby requests a Revolving Credit Loan in the principal amount of $_______________.
2. The proposed Drawdown Date of the Revolving Credit Loan is:
_________ ____, 20__
3. The Interest Period requested for the Revolving Credit Loan requested in this Loan Request (if any) is:
___________________
4. The Type of Revolving Credit Loan being requested in this Loan Request is:
_____ Base Rate Loan
_____ LIBOR Rate Loan
Sovran, as Borrower Representative, hereby certifies to the Administrative Agent and the Lenders that (i) each of the representations and warranties of the Borrowers and the Guarantors contained in the Credit Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with the Credit Agreement are true as of the date hereof (except to the extent that such representations and warranties relate expressly to an earlier date), (ii) no Default or Event of Default under the Credit Agreement has occurred and is
continuing on the date hereof, and (iii) the Borrowers have concurrently furnished to the Administrative Agent a Compliance Certificate pursuant to §2.4(d)(iii) of the Credit Agreement.
[Signature on following page.]
WITNESS my hand this ___ day of _______, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
Exhibit D-1
|
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE OF
[CHIEF FINANCIAL OFFICER][TREASURER]
(Loan Request)
The undersigned [Chief Financial Officer][Treasurer] of Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), as the Borrower Representative (as defined in the Credit Agreement defined below) HEREBY CERTIFIES THAT:
This compliance certificate is furnished pursuant to [§2.4(d)(iii), §2.11] and/or §12.1 of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran, Sovran Acquisition Limited Partnership, a Delaware limited partnership (together with Sovran, collectively referred to herein as the “Borrowers”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate and Schedule 1 attached hereto have the meanings given them in the Credit Agreement.
Schedule 1 attached hereto sets forth the financial data and computations evidencing the Borrowers’ compliance with the covenants contained in §10.1, §10.2, §10.3, §10.4, and §10.11 of the Credit Agreement on a pro-forma basis after giving effect to the requested [Revolving Credit Loan] [increase of the Total Revolving Credit Commitment], all of which data and computations, to the knowledge and belief of the [Chief Financial Officer][Treasurer] executing and delivering this Compliance Certificate on behalf of Sovran, as Borrower Representative, are true, complete and correct.
Pursuant to §8.24 of the Credit Agreement, to the extent that (i) any “financial covenant” in the Note Purchase Agreement is more restrictive on the Borrowers and their Subsidiaries or more beneficial to the holders of the notes issued under the Note Purchase Agreement than the financial covenants set xxxxx xx §00 of the Credit Agreement (and the definitions relating thereto) or (ii) any additional financial covenant not set forth in the Credit Agreement is included in any Note Purchase Agreement, attached hereto as Schedule 2 are financial data and computations evidencing the Borrowers’ compliance
with the such “financial covenants.”
The activities of the Borrowers, each Guarantor and their respective Subsidiaries and subsidiaries since the date of the last Compliance Certificate submitted by the Borrowers to the Administrative Agent have been reviewed by the [Chief Financial Officer][Treasurer] and/or by employees or agents under his/her immediate supervision. Based upon such review, to the knowledge and belief of the [Chief Financial Officer][Treasurer], both before and after giving effect to the requested [Revolving Credit Loan] [increase of the Total Revolving Credit Commitment], (1) no Default or Event of Default exists on the date hereof or will exist under the Credit Agreement or any other Loan Document on the [Drawdown Date of such Loan][effective date of such increase], and (2) after taking into account [such requested Loan][such requested increase], no Default or Event of Default will exist as of the [Drawdown Date of such Loan][effective date of such increase] or thereafter.
To the knowledge and belief of the [Chief Financial Officer][Treasurer], each of the representations and warranties of the Borrowers and each Guarantor contained in the Credit Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with the Credit Agreement was true as of the date as of which they were made, is true at and as of the date hereof, and will be true at and as of the time of the [making of the requested Loan][increase of the Total Revolving Credit Commitment], with the same effect as if made at and as of that time.
The [Chief Financial Officer][Treasurer] certifies that he/she is authorized to execute and deliver this compliance certificate on behalf of Sovran, as Borrower Representative.
[Remainder of Page Intentionally Left Blank]
Executed as of this __ day of ___________, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
Exhibit D-2
|
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE
OF CHIEF FINANCIAL OFFICER
(Sovran Financial Statements)
The undersigned Chief Financial Officer of Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), HEREBY CERTIFIES THAT:
This compliance certificate is furnished pursuant to §8.4(c) of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran, Sovran Acquisition Limited Partnership, a Delaware limited partnership (together with Sovran, collectively referred to herein as the “Borrowers”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate and Schedule 1 attached hereto have the meanings given them in the Credit Agreement.
As required by §8.4(c) of the Credit Agreement, the consolidated (and consolidating, if required under the Credit Agreement) financial statements of Sovran and its respective subsidiaries (as defined in the Credit Agreement) for the [year] [quarter] ended ______, 20__ (the “Financial Statements”), prepared in accordance with GAAP (subject, in the case of quarterly statements, to year-end adjustments none of which are anticipated to be materially adverse, except as specifically disclosed in this compliance certificate) accompany this Compliance Certificate. The Financial Statements present fairly the financial position of Sovran and its subsidiaries as at the date thereof and the results of operations of Sovran and its subsidiaries for the period covered thereby.
Schedule 1 attached hereto sets forth (i) the financial data and computations evidencing the Borrowers’ compliance with the covenants contained in §10 of the Credit Agreement and (ii) a list of all Excluded Subsidiaries as of the date hereof together with a description of each such Excluded Subsidiaries’ Real Estate and Indebtedness, all of which data, computations, and descriptions to the knowledge and belief of the Chief Financial Officer executing and delivering this Compliance Certificate on behalf of Sovran, as Borrower Representative, are true, complete and correct.
Pursuant to §8.24 of the Credit Agreement, to the extent that (i) any “financial covenant” in the Note Purchase Agreement is more restrictive on the Borrowers and their Subsidiaries or more beneficial to the holders of the notes issued under the Note Purchase Agreement than the financial covenants set xxxxx xx §00 of the Credit Agreement (and the definitions relating thereto) or (ii) any additional financial covenant not set forth in the Credit Agreement is included in any Note Purchase Agreement, attached hereto as Schedule 2 are financial data and computations evidencing the Borrowers’ compliance with the such “financial covenants.”
The activities of Sovran and its subsidiaries during the period covered by the Financial Statements have been reviewed by the Chief Financial Officer and/or by employees or agents under his immediate supervision. Based upon such review, during the period covered by the Financial Statements, and as of the date of this Certificate, no Default or Event of Default has occurred and is continuing, except as specifically disclosed in this compliance certificate.
The Chief Financial Officer certifies that he is authorized to execute and deliver this Compliance Certificate on behalf of Sovran, as Borrower Representative.
[Remainder of Page Intentionally Left Blank]
Executed as of this __ day of ___________, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title: Chief Financial Officer
|
Exhibit D-3
|
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE
OF CHIEF FINANCIAL OFFICER
(SALP Financial Statements)
The undersigned Chief Financial Officer of Sovran Acquisition Limited Partnership, a Delaware limited partnership (“SALP”), HEREBY CERTIFIES THAT:
This compliance certificate is furnished pursuant to §8.4(c) of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among SALP, Sovran Self Storage, Inc., a Maryland corporation (together with SALP, collectively referred to herein as the “Borrowers”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate and Schedule 1 attached hereto have the meanings given them in the Credit Agreement.
As required by §8.4(c) of the Credit Agreement, attached hereto as Schedule 1 are financial statements of SALP and its subsidiaries (as defined in the Credit Agreement) for the [year] [quarter] ended ______, 20__ (the “Financial Statements”) prepared in accordance with GAAP (subject, in the case of quarterly statements, to year-end adjustments none of which are anticipated to be materially adverse, except as specifically disclosed in this compliance certificate). The Financial Statements delivered herewith present fairly the financial position of SALP and its subsidiaries as at the date thereof and the results of operations of SALP and its subsidiaries for the period covered thereby.
The activities of SALP and its subsidiaries during the period covered by the Financial Statements have been reviewed by the chief financial officer of SALP and/or by employees or agents under his immediate supervision. Based upon such review, during the period covered by the Financial Statements, and as of the date of this compliance certificate, no Default or Event of Default has occurred and is continuing, except as specifically disclosed in this compliance certificate.
[Remainder of Page Intentionally Left Blank]
The undersigned Chief Financial Officer of SALP certifies that he is authorized to execute and deliver this compliance certificate on behalf of SALP.
Executed as of this __ day of ___________, 20__.
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings, Inc., its general partner
By: ______________________________
Name:
Title: Chief Financial Officer
|
Exhibit D-4
|
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE
OF CHIEF FINANCIAL OFFICER
(Incurrence of Indebtedness)
The undersigned, being the Chief Financial Officer of Sovran Self Storage, Inc. a Maryland corporation (“Sovran” and together with Sovran Acquisition Limited Partnership, a Delaware limited partnership, collectively referred to herein as the “Borrowers”), HEREBY CERTIFIES THAT:
This compliance certificate is furnished pursuant to §9.1 of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among the Borrowers, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this compliance certificate and Schedule 1 attached hereto have the meanings given them in the Credit Agreement.
The Borrowers hereby give the Administrative Agent notice that a Borrower, a Guarantor or a Subsidiary plans to incur Indebtedness for borrowed money which will cause the aggregate amount of Indebtedness for borrowed money incurred since delivery of the most recent compliance certificate to exceed $5,000,000.
Schedule 1 attached hereto sets forth the financial data and computations evidencing the Borrowers’ compliance with the covenants contained in §10 of the Credit Agreement on a pro forma basis after giving effect to such Indebtedness for borrowed money, all of which data and computations, to the best knowledge and belief of the Chief Financial Officer executing and delivering this compliance certificate on behalf of Sovran, as Borrower Representative, are true, complete and correct.
Pursuant to §8.24 of the Credit Agreement, to the extent that (i) any “financial covenant” in the Note Purchase Agreement is more restrictive on the Borrowers and their Subsidiaries or more beneficial to the holders of the notes issued under the Note Purchase Agreement than the financial covenants set xxxxx xx §00 of the Credit Agreement (and the
definitions relating thereto) or (ii) any additional financial covenant not set forth in the Credit Agreement is included in any Note Purchase Agreement, attached hereto as Schedule 2 are financial data and computations evidencing the Borrowers’ compliance with the such “financial covenants.”
The activities of the Borrower, the Guarantor or the Subsidiary, as applicable, have been reviewed by the Chief Financial Officer and/or by employees or agents under his immediate supervision. The Chief Financial Officer certifies that he is authorized to execute and deliver this compliance certificate on behalf of Sovran, as Borrower Representative.
[Remainder of Page Intentionally Left Blank]
Executed as of this __ day of ___________, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title: Chief Financial Officer
|
Exhibit D-5
|
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE OF
[CHIEF FINANCIAL OFFICER][TREASURER]
(Merger, Consolidation or Reorganization)
The undersigned, being the [Chief Financial Officer][Treasurer] of Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), HEREBY CERTIFIES THAT:
This compliance certificate is furnished pursuant to §9.4(a) of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran, Sovran Acquisition Limited Partnership, a Delaware limited partnership (“SALP” and together with Sovran, collectively referred to herein as the “Borrowers”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this compliance certificate and Schedule 1 attached hereto have the meanings given them in the Credit Agreement.
The undersigned hereby gives the Administrative Agent notice that a Borrower, a Guarantor, or a Subsidiary plans to become a party to a merger, consolidation or reorganization requiring a compliance certificate under §9.4(a) of the Credit Agreement.
Schedule 1 attached hereto sets forth the financial data and computations evidencing the Borrowers’ compliance with the covenants contained in §10 of the Credit Agreement on a pro forma basis, all of which data and computations, to the best knowledge and belief of the [Chief Financial Officer][Treasurer] executing and delivering this compliance certificate, are true, complete and correct. Furthermore, the undersigned certifies that no Default or Event of Default has occurred and is continuing, or would occur and be continuing after giving effect to such merger, consolidation or reorganization and all liabilities, fixed or contingent, pursuant thereto;
Pursuant to §8.24 of the Credit Agreement, to the extent that (i) any “financial covenant” in the Note Purchase Agreement is more restrictive on the Borrowers and their Subsidiaries or more beneficial to the holders of the notes issued under the Note Purchase
Agreement than the financial covenants set xxxxx xx §00 of the Credit Agreement (and the definitions relating thereto) or (ii) any additional financial covenant not set forth in the Credit Agreement is included in any Note Purchase Agreement, attached hereto as Schedule 2 are financial data and computations evidencing the Borrowers’ compliance with the such “financial covenants.”
The activities of the Borrower, the Guarantor, the Operating Subsidiary or the wholly-owned Subsidiary, as applicable, have been reviewed by the [Chief Financial Officer][Treasurer] and/or by employees or agents under his immediate supervision. The [Chief Financial Officer][Treasurer] certifies that he is authorized to execute and deliver this compliance certificate on behalf of the Borrower Representative.
[Remainder of Page Intentionally Left Blank]
Executed as of this __ day of ___________, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
Exhibit D-6
|
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE OF
[CHIEF FINANCIAL OFFICER][TREASURER]
(Disposition of Unencumbered Property)
The undersigned [Chief Financial Officer][Treasurer] of Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), HEREBY CERTIFIES THAT:
This compliance certificate is furnished pursuant to §9.4(b)(i) or §9.4(b)(ii) of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran, Sovran Acquisition Limited Partnership, a Delaware limited partnership (together with Sovran, collectively referred to herein as the “Borrowers”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Sovran, as Borrower Representative hereby gives the Administrative Agent notice of the intention of a Borrower, a Guarantor, or a Subsidiary to Sell or to grant an Indebtedness Lien on an Unencumbered Property or other asset pursuant to §9.4(b)(i) or §9.4(b)(ii) of the Credit Agreement. Unless otherwise defined herein, the terms used in this Compliance Certificate and Schedule 1 attached hereto have the meanings described in the Credit Agreement.
Schedule 1 attached hereto sets forth the financial data and computations evidencing the Borrowers’ compliance with the covenants contained in §10 of the Credit Agreement on a pro forma basis after giving effect to such proposed Sale or Indebtedness Lien and all liabilities, fixed or contingent, pursuant thereto, all of which data and computations, to the knowledge and belief of the [Chief Financial Officer][Treasurer] executing and delivering this compliance certificate on behalf of Sovran, are true, complete and correct.
Pursuant to §8.24 of the Credit Agreement, to the extent that (i) any “financial covenant” in the Note Purchase Agreement is more restrictive on the Borrowers and their Subsidiaries or more beneficial to the holders of the notes issued under the Note Purchase Agreement than the financial covenants set xxxxx xx §00 of the Credit Agreement (and the definitions relating thereto) or (ii) any additional financial covenant not set forth in the
Credit Agreement is included in any Note Purchase Agreement, attached hereto as Schedule 2 are financial data and computations evidencing the Borrowers’ compliance with the such “financial covenants.”
The activities of the Borrowers, the Guarantor, or the Subsidiaries, as applicable, have been reviewed by the [Chief Financial Officer][Treasurer] and/or by employees or agents under his immediate supervision. Based upon such review, to the best knowledge and belief of the [Chief Financial Officer][Treasurer], both before and after giving effect to the proposed Sale or Indebtedness Lien and all liabilities, fixed or contingent, pursuant thereto, no Default or Event of Default exists or will exist under any Loan Document.
The [Chief Financial Officer][Treasurer] certifies that he is authorized to execute and deliver this Compliance Certificate on behalf of Sovran, as Borrower Representative.
[Remainder of Page Intentionally Left Blank]
Executed as of this __ day of ___________, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
Exhibit D-7
|
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE
OF CHIEF FINANCIAL OFFICER
(Closing Condition)
Each of the undersigned, being the Chief Financial Officers of Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), and Sovran Acquisition Limited Partnership, a Delaware limited partnership (“SALP” and together with Sovran, collectively referred to herein as the “Borrowers”), HEREBY CERTIFIES THAT:
This Compliance Certificate is furnished pursuant to §11.14 of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among the Borrowers, Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate and Schedule 1 attached hereto have the meanings given them in the Credit Agreement.
Schedule 1 attached hereto sets forth the financial data and computations evidencing the Borrowers’ compliance with the covenants contained in §10 of the Credit Agreement after giving pro forma effect to the transactions contemplated therein, all of which data and computations, to the best knowledge and belief of each Chief Financial Officers executing and delivering this compliance certificate on behalf of the Borrowers, are true, complete and correct.
Pursuant to §8.24 of the Credit Agreement, to the extent that (i) any “financial covenant” in the Note Purchase Agreement is more restrictive on the Borrowers and their Subsidiaries or more beneficial to the holders of the notes issued under the Note Purchase Agreement than the financial covenants set xxxxx xx §00 of the Credit Agreement (and the definitions relating thereto) or (ii) any additional financial covenant not set forth in the Credit Agreement is included in any Note Purchase Agreement, attached hereto as Schedule 2 are financial data and computations evidencing the Borrowers’ compliance with the such “financial covenants.”
Each of the Chief Financial Officers hereby certifies, in accordance with the provisions of §11.14 of the Credit Agreement, that the representations and warranties of the Borrowers contained in the Credit Agreement and in each document and instrument delivered pursuant to or in connection therewith are true as of the date hereof and that no Default or Event of Default has occurred and is continuing on the date hereof.
Each of the Chief Financial Officers certifies that he is authorized to execute and deliver this compliance certificate on behalf of Sovran or SALP, as the case may be.
Executed as of this __ day of ___________, 20__.
SOVRAN SELF STORAGE, INC.
By: __________________________
Name:
Title: Chief Financial Officer
|
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings, Inc., its general partner
By: __________________________
Name:
Title: Chief Financial Officer
|
Exhibit E
|
[Form of Assignment and Assumption Agreement]
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]1 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]2 hereunder are several and not joint.]3 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any Letters of Credit and Guarantees included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
1.
|
Assignor[s]:
|
________________________________
________________________________
|
[Assignor [is] [is not] a Defaulting Lender]
|
||
2.
|
Assignee[s]:
|
________________________________
________________________________
|
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]
|
||
3.
|
Borrowers:
|
Sovran Self Storage, Inc., a Maryland corporation, and Sovran Acquisition Limited Partnership, a Delaware limited partnership
|
4.
|
Manufacturers and Traders Trust Company, as the Administrative Agent under the Credit Agreement
|
|
5.
|
Credit Agreement:
|
That certain Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran Self Storage, Inc., a Maryland corporation, Sovran Acquisition Limited Partnership, a Delaware limited partnership, Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof, Manufacturers and Traders Trust Company, as administrative agent for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents
|
6.
|
Assigned Interest[s]:
|
Assignor[s]
|
Assignee[s]
|
Aggregate Amount
of Commitment/Loans for all Lenders |
Amount of
Commitment/ Loans Assigned
|
Percentage
Assigned of Commitment/ Loans
|
|
$
|
$
|
%
|
|||
$
|
$
|
%
|
|||
$
|
$
|
%
|
4 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., “Revolving Credit Commitment”, Term Loans,” etc.).
[7. Trade Date: ______________]5
[Page break]
5 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]
[NAME OF ASSIGNOR]
By:______________________________
Title:
|
|
[NAME OF ASSIGNOR]
By:______________________________
Title:
|
|
ASSIGNEE[S]
[NAME OF ASSIGNEE]
By:______________________________
Title:
|
|
[NAME OF ASSIGNEE]
By:______________________________
Title:
|
[Consented to and]6 and Accepted:
|
|
MANUFACTURERS AND TRADERS TRUST COMPANY,
acting in its capacity as Administrative
Agent
By:
Name:
Title:
|
|
[Consented to:]7
|
|
SOVRAN SELF STORAGE, INC.
By:
Name:
Title:
|
|
[Consented to:]8
|
|
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings Inc., its general partner
By:_______________________________
Name:
Title:
|
6 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
ANNEX 1
|
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to such Effective Date or with respect to the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with the law of the State of New York.
Exhibit F
|
[Form of Notice of Continuation/Conversion]
____________ ___, 20__
Manufacturers and Traders Trust Company
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: ______________________
Ladies and Gentlemen:
Reference is made to that certain Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014 (such agreement, as it may be or may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein without definition shall have the respective meanings assigned to those terms in the Credit Agreement), among Sovran Self Storage, Inc., a Maryland corporation, Sovran Acquisition Limited Partnership, a Delaware limited partnership, Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). The Borrowers hereby give you notice pursuant to [§2.5] [§3.4] of the Credit Agreement for the [Revolving Credit Loans] [Term Loans] specified below that they elect to:
1. [Continue [Revolving Credit Loans] [the Term Loans] as LIBOR Rate Loans, and the aggregate principal amount of the [Revolving Credit Loans] [Term Loans] subject to the requested continuation is $__________________ and was originally borrowed by the Borrowers on ______________, 20__, the current Interest Period of which ends on ______________, 20__.]
2. [Convert [Revolving Credit Loans] [the Term Loans] to [Base Rate Loans] [LIBOR Rate Loans] and the aggregate principal amount of the [Revolving Credit Loans] [Term Loans] subject to the requested conversion is $__________________ and was originally borrowed by the Borrowers on ______________, 20__, the current Interest Period of which ends on ______________, 20__.].
3. The date for such [continuation] [conversion] shall be _______________.
4. [The Interest Period for such continued or converted (as applicable) LIBOR Rate Loans is requested to be a [1][2][3][6] month period] .
The Borrower Representative hereby certifies to the Administrative Agent and each of the Lenders on behalf of each Borrower that it is authorized to execute this notice on behalf of the Borrowers, no Default or Event of Default has occurred and is continuing, on the date hereof there are no other prohibitions under the Credit Agreement to the requested [conversion][continuation], no such prohibitions will exist on the date of the requested [conversion][continuation], and the requested [conversion][continuation] is in accordance with the provisions of [§2.5] [§3.7] of the Credit Agreement.
[Signatures on following page.]
Executed as of this _____ day of _____________, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
|
SOVRAN ACQUISITION LIMITED
PARTNERSHIP
By: Sovran Holdings Inc., its general partner
By: _______________________________
Name:
Title:
|
Exhibit G
|
[Form of Notice of Swingline Borrowing]
____________ ___, 20__
Manufacturers and Traders Trust Company
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: ______________________
Ladies and Gentlemen:
This Notice of Swingline Borrowing is made pursuant to §2.12(b) of the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014, among Sovran Self Storage, Inc., a Maryland corporation (“Sovran”), Sovran Acquisition Limited Partnership, a Delaware limited partnership (“SALP” and together with Sovran, collectively referred to herein as the “Borrowers” and individually as a “Borrower”), Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (collectively, the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, the terms used in this Notice of Swingline Borrowing shall have the meaning given to them in the Credit Agreement.
1. Sovran, as Borrower Representative, hereby requests a Swingline Loan in the principal amount of: $_______________.9
2. The proposed Drawdown Date of the Swingline Loan is:_________ ____, 20__10
Sovran, as Borrower Representative, hereby certifies to the Administrative Agent,
9 Each Swingline Loan shall be in the minimum amount of $500,000 and integral multiples of $250,000 in excess thereof, or such other minimum amounts agreed to by the Swingline Lender and the Borrowers.
10 Each Notice of Swingline Borrowing shall be delivered to the Swingline Lender no later than 10:00 a.m. (New York City time) on the proposed date of such borrowing.
the Swingline Lender and the other Lenders that (i) each of the representations and warranties of the Borrowers and the Guarantors contained in the Credit Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with the Credit Agreement are true as of the date hereof (except to the extent that such representations and warranties relate expressly to an earlier date), (ii) no Default or Event of Default under the Credit Agreement has occurred and is continuing on the date hereof, (iii) on the date hereof there are no other prohibitions under the Credit Agreement to the requested Swingline Loan, (iv) no such prohibitions will exist on the date of the requested Swingline Loan and (v) the requested Swingline Loan is in accordance with the provisions of §2.12 of the Credit Agreement.
[Signature on following page.]
WITNESS my hand this ___ day of _______, 20__.
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
Exhibit H
|
Exhibit H
[Form of Swingline Note]
SWINGLINE NOTE
$_________________
|
____________ ___, 20__
|
FOR VALUE RECEIVED, the undersigned SOVRAN SELF STORAGE, INC., a Maryland corporation (“Sovran”), and the undersigned SOVRAN ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership (“SALP” and together with Sovran, collectively referred to herein as the “Borrowers” and individually as a “Borrower”), hereby jointly and severally promise to pay to the order of _______________, [a national banking association] (the “Lender”) at the Administrative Agent’s Head Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Swingline Maturity Date the principal amount of _________________ Dollars ($_______________) or, if less, the aggregate unpaid principal amount of Swingline Loans advanced by the Lender to the Borrowers pursuant to the Sixth Amended and Restated Revolving Credit and Term Loan Agreement dated as of December 10, 2014 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”), among the Borrowers, Xxxxx Fargo Bank, National Association, Manufacturers and Traders Trust Company and the other lending institutions which are or may become parties thereto pursuant to §19 thereof (the “Lenders”), Manufacturers and Traders Trust Company, as administrative agent (together with its successors and assigns, the “Administrative Agent”) for the Lenders, with Xxxxx Fargo Securities, LLC and Manufacturers and Traders Trust Company, as the joint lead arrangers and joint bookrunners, and Xxxxx Fargo Bank, National Association, as syndication agent, and each of U.S. Bank National Association, HSBC Bank USA, National Association, PNC Bank, National Association and SunTrust Bank, as co-documentation agents; and
(b) interest on the principal balance hereof from time to time outstanding at the times and at the rate provided in the Credit Agreement.
This Swingline Note evidences borrowings under and has been issued by the Borrowers in accordance with the terms of the Credit Agreement. The Lender and any holder hereof pursuant to the Credit Agreement or by operation of law is entitled to the benefits of the Credit Agreement and the other Loan Documents, and may enforce the agreements of the Borrower contained therein, and any holder hereof may exercise the respective remedies provided for thereby or otherwise available in respect thereof, all in
accordance with the respective terms thereof. All capitalized terms used in this Swingline Note and not otherwise defined herein shall have the same meanings herein as in the Credit Agreement.
The Borrowers irrevocably authorize the Lender to make or cause to be made, at or about the time of the Drawdown Date of any Swingline Loan or at the time of receipt of any payment of principal of this Swingline Note, an appropriate notation on the grid attached to this Swingline Note, or the continuation of such grid, or any other similar record, including computer records, reflecting the making of such Swingline Loan or (as the case may be) the receipt of such payment. The outstanding amount of the Swingline Loans set forth on the grid attached to this Swingline Note, or the continuation of such grid, or any other similar record, including computer records, maintained by the Lender with respect to any Swingline Loans shall be prima facie evidence of the principal amount thereof owing and unpaid to the Lender, but the failure to record, or any error in so recording, any such amount on any such grid, continuation or other record shall not limit or otherwise affect the obligation of the Borrowers hereunder or under the Credit Agreement to make payments of principal of and interest on this Swingline Note when due to the extent of the unpaid principal and interest amount as of any date of determination.
The Borrowers have the right in certain circumstances and the obligation under certain other circumstances to prepay the whole or part of the principal of this Swingline Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid principal amount of this Swingline Note and all of the unpaid interest accrued thereon and any other charges or amounts due under any of the Loan Documents may become or be declared due and payable in the manner and with the effect provided in the Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other rights of the Lender or such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar or waiver of the same or any other right on any further occasion.
The Borrowers and every endorser and guarantor of this Swingline Note or the obligation represented hereby waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Swingline Note, and assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral and to the addition or release of any other party or person primarily or secondarily liable.
THIS SWINGLINE NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS SWINGLINE NOTE MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK, NEW YORK OR ANY FEDERAL COURT SITTING IN NEW YORK, NEW YORK AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN §20 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Swingline Note shall be deemed to take effect as a sealed instrument under the laws of the State of New York.
WITNESS:
_______________________________
|
SOVRAN SELF STORAGE, INC.
By: ______________________________
Name:
Title:
|
WITNESS:
_______________________________
|
SOVRAN ACQUISITION LIMITED PARTNERSHIP
By: Sovran Holdings, Inc., its general partner
By: ______________________________
Name:
Title:
|
Date
|
Amount
of Loan
|
Amount of
Principal Paid
or Prepaid
|
Balance of
Principal
Unpaid
|
Notation
Made By:
|