EX-10.2 3 lsi-ex102_263.htm EX-10.2 lsi-ex102_263.htm

 

 

Exhibit 10.2

 

 

Execution Version

 

SEVENTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT

Dated as of October 30, 2018

among

LIFE STORAGE, INC. and
LIFE STORAGE LP,

as Borrowers

 

THE FINANCIAL INSTITUTIONS PARTY HERETO

AND THEIR ASSIGNEES UNDER SECTION §19.2,

as Lenders

and

 

MANUFACTURERS AND TRADERS TRUST COMPANY,
                                                                          as Administrative Agent

 

WELLS FARGO SECURITIES, LLC,

MANUFACTURERS AND TRADERS TRUST COMPANY

and

CITIBANK, N.A.,

                                                                             as Joint Lead Arrangers  

                                                                           and Joint Bookrunners

WELLS FARGO BANK, NATIONAL ASSOCIATION

and

CITIBANK, N.A.,
                                                                          as Syndication Agents

 

U.S. BANK NATIONAL ASSOCIATION,

HSBC BANK USA, NATIONAL ASSOCIATION,

PNC BANK, NATIONAL ASSOCIATION

and

SUNTRUST BANK,

                                                                              as Documentation Agents

 

 

 


 

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

30 

§2. 

THE REVOLVING CREDIT FACILITY

31 

 

§2.1. 

Revolving Credit Loans.

31 

 

§2.2. 

The Revolving Credit Notes

31 

 

§2.3. 

Interest on Revolving Credit Loans.

32 

 

§2.4. 

Requests for Revolving Credit Loans.

32 

 

§2.5. 

Conversion Options

34 

 

§2.6. 

Funds for Revolving Credit Loans

35 

 

§2.7. 

Repayment of the Revolving Credit Loans at Maturity.

36 

 

§2.8. 

Optional Repayments of Revolving Credit Loans.

36 

 

§2.9. 

Mandatory Repayments of Revolving Credit Loans and Other Obligations.

36 

 

§2.10. 

Extension Options.

37 

 

§2.11. 

Increase of Total Revolving Credit Commitment

38 

 

§2.12. 

Swingline Loans

39 

§3. 

THE TERM LOAN FACILITY.

42 

 

§3.1. 

Term Loans.

42 

 

§3.2. 

The Term Notes

42 

 

§3.3. 

Interest on Term Loan

42 

 

§3.4. 

Conversion Options

43 

 

§3.5. 

Repayment of the Term Loans at Maturity.

43 

 

§3.6. 

Optional Repayments of Term Loans.

43 

 

§3.7. 

Additional Term Loans.

43 

§4. 

CERTAIN GENERAL PROVISIONS.

44 

 

§4.1 

Fees.

44 

 

§4.2. 

Funds for Payments

44 

 

§4.3. 

Computations.

47 

 

§4.4. 

Inability to Determine LIBOR Rate.

47 

 

§4.5. 

Illegality.

47 

 

§4.6. 

Additional Costs, Etc.

48 

 

§4.7. 

Capital Adequacy.

50 

 

§4.8. 

Certificate

50 

 

§4.9. 

Indemnity.

50 

 

§4.10. 

Interest During Event of Default; Late Charges.

51 

 

§4.11. 

Concerning Joint and Several Liability of the Borrowers

51 

 

§4.12 

Interest Limitation

52 

 

§4.13. 

Reasonable Efforts to Mitigate.

53 

(ii)

 


§Page

 

 

§4.14. 

Replacement of Lenders

53 

 

§4.15. 

Defaulting Lender.

54 

 

§4.16. 

Pro Rata Treatment.

57 

§5. 

LETTERS OF CREDIT

57 

 

§5.1. 

Commitment to Issue Letters of Credit

57 

 

§5.2 

Letter of Credit Applications.

58 

 

§5.3 

Terms of Letters of Credit

58 

 

§5.4 

Reimbursement Obligations of Lenders

59 

 

§5.5 

Participations of Lenders.

59 

 

§5.6 

Reimbursement Obligation of the Borrowers.

59 

 

§5.7 

Letter of Credit Payments.

60 

 

§5.8 

Obligations Absolute

61 

 

§5.9 

Reliance by Issuer.

61 

 

§5.10 

Letter of Credit Fees

61 

 

§5.11 

Cash Collateral.

62 

 

§5.12 

Extended Letters of Credit.

63 

§6. 

GUARANTIES.

63 

§7. 

REPRESENTATIONS AND WARRANTIES

63 

 

§7.1. 

Authority; Etc

63 

 

§7.2. 

Governmental Approvals.

65 

 

§7.3. 

Title to Properties; Leases

67 

 

§7.4. 

Financial Statements.

67 

 

§7.5 

Fiscal Year.

67 

 

§7.6. 

Licenses, Permits, Franchises, Patents, Copyrights, Etc

67 

 

§7.7. 

Litigation.

67 

 

§7.8. 

No Materially Adverse Contracts, Etc.

67 

 

§7.9. 

Compliance With Other Instruments, Laws, Etc.

68 

 

§7.10. 

Tax Status

68 

 

§7.11. 

No Event of Default; No Materially Adverse Changes.

69 

 

§7.12. 

Investment Company Act

69 

 

§7.13. 

Absence of UCC Financing Statements, Etc.

69 

 

§7.14. 

Absence of Liens

70 

 

§7.15. 

Certain Transactions

70 

 

§7.16. 

Employee Benefit Plans.

70 

 

 

§7.16.1. 

In General.

70 

 

 

§7.16.2. 

Terminability of Welfare Plans.

70 

 

 

§7.16.3. 

Guaranteed Pension Plans.

70 

 

 

§7.16.4. 

Multiemployer Plans.

70 

 

§7.17. 

Regulations U and X.

71 

 

§7.18. 

Environmental Compliance

71 

 

§7.19. 

Subsidiaries.

73 

 

§7.20. 

Loan Documents

72 

 

§7.21. 

REIT Status.

72 

(iii)

 


§Page

 

 

§7.22. 

Solvency

73 

 

§7.23. 

Trading Status.

74 

 

§7.24. 

Existing Indebtedness; Liens

74 

 

§7.25. 

Sanctions.

75 

 

 

 

§8. 

AFFIRMATIVE COVENANTS OF THE BORROWERS AND THE GUARANTORS.

75 

 

§8.1. 

Punctual Payment

75 

 

§8.2. 

Maintenance of Office

76 

 

§8.3. 

Records and Accounts

76 

 

§8.4. 

Financial Statements, Certificates and Information.

76 

 

§8.5. 

Notices

79 

 

§8.6.  

Existence of LSLP, Holdings and Subsidiary Guarantors; Maintenance of Properties.

81 

 

§8.7. 

Existence of LSI; Maintenance of REIT Status of LSI; Maintenance of Properties

81 

 

§8.8. 

Insurance

82 

 

§8.9. 

Taxes

82 

 

§8.10. 

Inspection of Properties and Books; Confidentiality

83 

 

§8.11. 

Compliance with Laws, Contracts, Licenses, and Permits

83 

 

§8.12.  

Use of Proceeds

84 

 

§8.13. 

Acquisition of Unencumbered Properties

84 

 

§8.14. 

Additional Guarantors

84 

 

§8.15.  

Further Assurances

86 

 

§8.16. 

Intentionally Omitted

86 

 

§8.17. 

Environmental Indemnification

86 

 

§8.18.  

Response Actions

86 

 

§8.19.  

Environmental Assessments

87 

 

§8.20.  

Employee Benefit Plans

87 

 

§8.21.  

No Amendments to Certain Documents

87 

 

§8.22. 

Anti-Corruption Laws

88 

 

§8.23.  

Management

88 

 

§8.24.  

Financial Covenants under Note Purchase Agreement

88 

 

 

 

§9. 

CERTAIN NEGATIVE COVENANTS OF THE BORROWERS AND THE GUARANTORS

89

 

§9.1.  

Restrictions on Indebtedness

89 

 

§9.2.  

Restrictions on Liens, Etc

90 

 

§9.3.  

Restrictions on Investments

91 

 

§9.4. 

Merger, Consolidation and Disposition of Assets

93 

 

§9.5. 

Sale and Leaseback

94 

 

§9.6. 

Compliance with Environmental Laws

94 

 

§9.7. 

Distributions

95 

 

§9.8. 

Employee Benefit Plans

95 

 

§9.9. 

Fiscal Year; Nature of Business

95 

 

§9.10. 

Negative Pledge

96 

(iv)

 


§Page

 

 

§9.11. 

Transactions with Affiliates

96 

 

§9.12. 

Terrorism Sanctions Regulations

96 

 

§9.13. 

Restrictions on Intercompany Transfers

96 

§10. 

FINANCIAL COVENANTS OF THE BORROWERS

96 

 

§10.1. 

Leverage Ratio

97 

 

§10.2. 

Maximum Secured Indebtedness

97 

 

§10.3. 

[reserved]

97 

 

§10.4. 

Fixed Charge Coverage

97 

 

§10.5. 

[reserved]

97 

 

§10.6. 

[reserved]

97 

 

§10.7. 

[reserved]

97 

 

§10.8. 

[reserved]

97 

 

§10.9. 

[reserved

97 

 

§10.10. 

[reserved]

97 

 

§10.11. 

Unsecured Indebtedness

97 

 

§10.12. 

Unencumbered Property Debt Service Coverage

98 

 

§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

100 

 

§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. 

KYC

101 

 

§11.19. 

Beneficial Ownership Certification

101 

 

§11.20. 

Other Information

102 

§12. 

CONDITIONS TO ALL BORROWINGS

102 

 

§12.1. 

Representations True; No Event of Default; Compliance Certificate

102 

 

§12.2. 

No Legal Impediment

102 

 

§12.3. 

Governmental Regulation

102 

 

 

 

(v)

 


§Page

 

§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

109 

§15. 

THE AGENTS

110 

 

§15.1. 

Authorization

110 

 

§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

112 

 

§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. 

SURVIVAL OF COVENANTS, ETC

116 

§19. 

ASSIGNMENT; PARTICIPATIONS; ETC

116 

 

§19.1. 

Successors and Assigns Generally

116 

 

§19.2. 

Assignments by Lenders

116 

 

§19.3. 

Register

119 

 

§19.1. 

Participations

119 

 

§19.1. 

Limitation upon Participant Rights

119 

 

§19.6. 

Certain Pledges

119 

 

§19.7. 

No Registration

120 

 

§19.8. 

Disclosure

120 

 

§19.9. 

Syndication

120 

(vi)

 


§Page

 

§20. 

NOTICES, ETC

120 

§21. 

GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE

121 

§22. 

HEADINGS

121 

§23. 

COUNTERPARTS.

121 

§24. 

ENTIRE AGREEMENT, ETC.

121 

§25. 

WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.

121 

§26. 

CONSENTS, AMENDMENTS, WAIVERS, ETC

122 

§27. 

INDEPENDENCE OF COVENANTS

124 

§28. 

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

124 

 

§30.3. 

No Novation

124 

 

 

 

§31. 

ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL

INSTITUTIONS

125

§32. 

NO FIDUCIARY DUTIES

126 

 

 

 

 

(vii)

 


 

 

Schedules to Revolving Credit Agreement

 

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

 

 

 

EXHIBITS

 

A-1

Form of Revolving Credit Note

A-2

Form of Term Loan Note

B

Form of Guaranty

C

Form of Revolving Credit Loan Request

D-1

Form of Compliance Certificate (Loan Request)

D-2

Form of Compliance Certificate (LSI Financial Statements)

D-3

Form of Compliance Certificate (LSLP 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

 

 

 

 

 

(viii)

 


 

SEVENTH AMENDED AND RESTATED

REVOLVING CREDIT AND TERM LOAN AGREEMENT

 

 

This SEVENTH AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of the 30th day of October, 2018, by and among LIFE STORAGE, INC., a Maryland corporation (“LSI”) and LIFE STORAGE LP, a Delaware limited partnership (“LSLP”, and together with LSI, collectively referred to herein as the “Borrowers” and individually as a “Borrower”), each with a principal place of business at 6467 Main Street, Williamsville, New York 14221, WELLS FARGO BANK, NATIONAL ASSOCIATION (together with is successors and assigns, “Wells 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 WELLS FARGO SECURITIES, LLC, MANUFACTURERS AND TRADERS TRUST COMPANY and CITIBANK, N.A., as the joint lead arrangers and joint bookrunners, (in such capacities, the “Joint Lead Arrangers”), and WELLS FARGO BANK, NATIONAL ASSOCIATION and CITIBANK, N.A., as syndication agents (each 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”).

PREAMBLE

A.The Borrowers are primarily engaged in the business of owning, purchasing, developing, constructing, renovating and operating self-storage facilities in the United States (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.LSI is a limited partner of LSLP, holds in excess of 96% of the partnership interests in LSLP, conducts all or substantially all of its business through LSLP, and is qualified to elect REIT status for income tax purposes.  Life Storage Holdings, Inc., a Delaware corporation (“Holdings”), is a wholly-owned Subsidiary of LSI and the sole general partner of LSLP and has agreed to guaranty the obligations of the Borrowers hereunder.

C.Pursuant to that certain Sixth 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 December 10, 2014 (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 $500,000,000 and a term loan facility in the aggregate principal amount of $225,000,000.  The Borrowers have requested that the Lenders amend and restate such revolving credit and term loan facilities, with (i) a revolving credit facility in an aggregate initial principal amount not to exceed $500,000,000, with a sublimit for letters of credit of $15,000,000 and a sublimit for

 

 


- 2 -

swingline loans in an aggregate principal amount of $25,000,000 and (ii) a term loan facility in an aggregate principal amount of $100,000,000, which was previously funded under the Existing Credit Agreement.  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.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree that on the Restatement Date, the Existing Credit Agreement shall be amended and restated as follows:

§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:

Accountants.  In each case, nationally-recognized, independent certified public accountants reasonably acceptable to the Administrative Agent.  The Administrative Agent hereby acknowledges that the Accountants may include Ernst & Young, LLP.

Additional Term Loan. See §3.7.

Adjusted Unencumbered Property NOI.  With respect to any fiscal period for any Unencumbered Property, the net income of such Unencumbered Property during 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 debt restructurings or 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) relating to such Unencumbered Property and (b) income taxes relating to such Unencumbered Property; plus (x) interest expense relating to such Unencumbered Property and (y) depreciation and amortization relating to such Unencumbered Property; minus a recurring capital expense reserve equal to ten cents ($0.10) per annum per net rentable square foot multiplied by the total net rentable square feet of such Unencumbered Property.

Administration Fee.  See §4.1.

Administrative Agent.  M&T Bank acting as administrative agent for the Lenders, or any successor agent, as permitted by §15.

Administrative Agent’s Head Office.  The Agent’s office located at One Fountain Plaza, Buffalo, New York, 14203, or at such other location as the Agent may designate from time to time pursuant to §20 hereof, or the office of any successor Agent permitted under §15 hereof.

Affiliate.  With reference to any Person, (i) any director or executive officer of that Person, (ii) any other Person controlling, controlled by or under direct or indirect common control of that 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

 

 


- 3 -

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.

Anti-Corruption Laws.   All laws, rules, and regulations of any jurisdiction applicable to the Borrowers or their Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.

 

Anti-Money Laundering Laws.  All laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to a Loan Party, its Subsidiaries or Affiliates related to terrorism financing or money laundering, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959).

Applicable Margin.  With respect to each Loan, the respective percentages per annum determined based on the level (each a “Level”) into which LSLP’s Credit Rating then falls, in accordance with the following table.  As of the Restatement Date, the Applicable Margin is determined based on Level 4.  LSLP shall notify the Administrative Agent in writing promptly after becoming aware of any change in any of its Credit Ratings.  The Applicable Margin shall be determined based on the lower of the highest two Credit Ratings; provided, that if the highest two Credit Ratings are from S&P and Moody’s, then the Applicable Margin shall be determined based on the highest of such two Credit Ratings.  During any period for which LSLP has received a Credit Rating from only one Rating Agency, then the Applicable Margin shall be determined based on such Credit Rating so long as such Credit Rating is from either S&P or Moody’s.  During any period that LSLP has (a) not received a Credit Rating from any Rating Agency or (b) received a Credit Rating from only one Rating Agency that is neither S&P nor Moody’s, the Applicable Margin shall be determined based on Level 6.  Any change in LSLP’s Credit Rating which would cause it to move to a different Level shall be effective as of the first day of the first calendar month immediately following such change.

 

 

 

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

 

 

 

 

 

 

6

No rating or less than BBB-/Baa3 or equivalent

 

 

1.450%

 

0.450%

 

1.65%

 

0.65%

5

BBB-/Baa3 or equivalent

 

1.100%

 

 

0.100%

 

1.25%

 

0.25%

4

BBB/Baa2 or equivalent

 

0.950%

 

0.000%

 

1.00%

 

0.00%

3

BBB+/Baa1 or equivalent

 

0.825%

 

0.000%

 

0.90%

 

0.00%

 

 


- 4 -

2

A-/A3 or equivalent

 

0.775%

 

0.000%

 

0.85%

 

0.00%

1

A/A2 or higher

 

0.750%

 

0.000%

 

0.80%

 

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.

Assignment and Assumption.  An Assignment and Assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by §19.2), and accepted by the Administrative Agent, substantially in the form of Exhibit E or any other form approved by the Administrative Agent.

Availability Period.  The period from and including the Restatement Date to but excluding the earlier of the Revolving Credit Loan Maturity Date and the date of termination of the Revolving Credit Commitments.

Bail-In Action. The exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation. With respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Base Rate.  The highest of (a) the variable annual rate of interest designated from time to time by M&T Bank at its head office in Buffalo, New York or any successor Agent at its principal office, as its “prime rate” (which is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer) (b) one half of one percent (.50%) above the overnight federal funds effective rate as published by the Board of Governors of the Federal Reserve System, as in effect from time to time or (c) LIBOR Rate for a 30 day Interest Period, determined on a daily basis, plus one percent (1.00%).  Any change in the Base Rate during an Interest Period shall result in a corresponding change on the same day in the rate of interest accruing from and after such day on the unpaid balance of principal of the Base Rate Loans, if any, applicable to such Interest Period, effective on the day of such change in the Base Rate.  If the Base Rate determined as provided above would be less than zero, the Base Rate shall be deemed to be zero.

Base Rate Loans.  Those Loans bearing interest calculated by reference to the Base Rate.  

Beneficial Ownership Certification. A certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation.  31 CFR § 1010.230.

 

 


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Borrower Representative.  LSI, 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 LSI as being authorized by each of the Borrowers.

Borrowers.  As defined in the preamble hereto.

Budgeted Project Costs.  With respect to Construction-In-Process, the total budgeted project cost of such Construction-In-Process shown on schedules submitted by the Borrower Representative to the Administrative Agent from time to time; provided that for Construction-In-Process owned by any unconsolidated Partially-Owned Entity, the Budgeted Project Cost of such Construction-In-Process shall be the applicable Borrower’s pro-rata share of the total budgeted project cost of such Construction-In-Process (based on the greater of (x) such Borrower’s percentage equity interest in such unconsolidated Partially-Owned Entity or (y) the Borrower’s obligation to provide, or liability for providing, funds to such unconsolidated Partially-Owned Entity).

Building.  Individually and collectively, the buildings, structures and improvements now or hereafter located on the Real Estate and intended for income production.

Business Day.  Any day on which banking institutions in New York, New York are open for the transaction of banking business and, in the case of LIBOR Rate Loans, also a day which is a LIBOR Business Day.

Capitalization Rate.  A rate equal to six and three-quarters of one percent (6.75%).

Capitalized Leases.  Leases under which any Borrower or any of its Subsidiaries or any Partially-Owned Entity is the lessee or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.

Capitalized Unencumbered Property Value.  As of any date of determination with respect to an Unencumbered Property, an amount equal to Adjusted Unencumbered Property NOI for such Unencumbered Property for the most recent two (2) complete fiscal quarters multiplied by two (2), with the product being divided by the Capitalization Rate.  The calculation of Capitalized Unencumbered Property Value shall be adjusted as set forth in §10.13 hereof.

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 Moody’s or F1 (or better) by Fitch provided that the maturities of such Cash and Cash Equivalents shall not exceed one year.

 

 


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Cash Collateralize.  The Borrowers’ pledge and deposit with, or deliver to, the Administrative Agent, for the benefit of itself and the Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent.  Cash Collateral shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

CERCLA.  See §7.18.

Code.  The Internal Revenue Code of 1986, as amended and in effect from time to time.

Commitment.  With respect to each Lender, its Revolving Credit Commitment or Term Commitment, as applicable.  “Commitments” shall refer, collectively, with respect to each Lender, to such Lender’s Revolving Credit Commitment and/or Term Commitment, as applicable.

Commitment Percentage.  With respect to each Lender, its Revolving Credit Commitment Percentage or Term Commitment Percentage, as applicable.  “Commitment Percentages” shall refer collectively, with respect to each Lender, to such Lender’s Revolving Credit Commitment Percentage and/or Term Commitment Percentage, as applicable.

Completed Revolving Credit Loan Request.  A loan request accompanied by all information required to be supplied under the applicable provisions of §2.4.

Consolidated or consolidated.  With reference to any term defined herein, shall mean that term applied to the accounts of LSI and its Subsidiaries (including the Guarantors) or LSLP and its Subsidiaries, as the case may be, consolidated in accordance with GAAP.

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.

Consolidated Capitalized Value.  As of any date of determination, an amount equal to Revised Consolidated Adjusted EBITDA for the most recent two (2) completed fiscal quarters multiplied by two (2), with the product being divided by the Capitalization Rate.  The calculation of Consolidated Capitalized Value shall be adjusted as set forth in §10.13 hereof.

 

 


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Consolidated Fixed Charges.  With respect to the Borrowers and their respective Subsidiaries and for any period, the sum, without duplication, of (a) Consolidated Total Interest Expense for such period plus (b) any and all scheduled repayments of principal (excluding balloon payments of principal due upon the stated maturity of an Indebtedness) during such period in respect of Indebtedness that becomes due and payable or that are to become due and payable during such period pursuant to any agreement or instrument to which the Borrowers or any of their respective Subsidiaries is a party relating to (i) the borrowing of money or the obtaining of credit, including the issuance of notes or bonds, (ii) the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business), (iii) in respect of any Synthetic Leases or any Capitalized Leases, (iv) in respect of any reimbursement obligations in respect of letters of credit due and payable during such period, and (v) Indebtedness of the type referred to above of another Person guaranteed by the Borrowers or any of their respective Subsidiaries, plus (c) Preferred Dividends for such period.  Demand obligations shall be deemed to be due and payable during any fiscal period during which such obligations are outstanding. The calculation of Consolidated Fixed Charges shall be further adjusted as set forth in §10.13 hereof.

Consolidated Secured Indebtedness.  As of any date of determination, the aggregate principal amount of all Indebtedness of the Borrowers and their respective Subsidiaries for borrowed money or in respect of reimbursement obligations for letters of credit, guaranty obligations or Capitalized Leases, whether direct or contingent, which is outstanding at such date and which is secured by a Lien on properties or other assets of such Persons, without regard to Recourse.  The calculation of Consolidated Secured Indebtedness shall be further adjusted as set forth in §10.13 hereof (including, without limitation, the inclusion of a pro-rata share of Indebtedness of unconsolidated Partially-Owned Entities pursuant to §10.13(a)(ii)).

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 the period of the applicable loan.  The calculation of Consolidated Total Interest Expense shall be further adjusted as set forth in §10.13 hereof.

Consolidated Total Liabilities.  As of any date of determination, all liabilities of the Borrowers and their respective Subsidiaries determined on a consolidated basis in accordance with GAAP and classified as such on the consolidated balance sheet of the Borrowers and their respective Subsidiaries, and all Indebtedness of the Borrowers and their respective Subsidiaries, whether or not so classified.  The calculation of Consolidated Total Liabilities shall be adjusted as set forth in §10.13 hereof.

Consolidated Unsecured Indebtedness.  As of any date of determination, the aggregate principal amount of all Unsecured Indebtedness of the Borrowers and their respective Subsidiaries for borrowed money or in respect of reimbursement obligations for letters of credit, guaranty obligations or Capitalized Leases, whether direct or contingent, which is outstanding at

 

 


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such date, including without limitation the aggregate principal amount of all the Obligations under this Credit Agreement as of such date determined on a consolidated basis in accordance with GAAP, without regard to Recourse.  The calculation of Consolidated Unsecured Indebtedness shall be further adjusted as set forth in §10.13 hereof.

Construction-In-Process.  Any Real Estate for which any Borrower, any Guarantor, any of the Borrowers’ Subsidiaries or any Partially-Owned Entity is actively pursuing construction, renovation, or expansion of Buildings, all pursuant to such Person’s ordinary course of business.

Conversion Request.  A notice given by the Borrower Representative to the Administrative Agent of its election to convert or continue a Loan in accordance with §2.5 or §3.4, as applicable.

Credit Agreement.  This Seventh 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.

Credit Rating.  The long-term unsecured, non-credit enhanced debt ratings assigned by a Rating Agency to LSLP.

Debtor Relief Laws. The Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

 

default.  When used with reference to this Credit Agreement or any other Loan Document, any of the events or conditions specified in §13.1, whether or not any requirement for the giving of notice, the lapse of time or both, has been satisfied.

Default.  As of the relevant time of determination, an event or occurrence which:

(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).

Defaulting Lender.   Any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower Representative in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days

 

 


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of the date when due, (b) has notified the Borrower Representative, the Swingline Lender or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower Representative, to confirm in writing to the Administrative Agent and the Borrower Representative that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower Representative), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a governmental authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such governmental authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower Representative, the Swingline Lender and each Lender.

Disqualifying Building Event.  Any structural or repair and maintenance matter (other than a Release) as to any Building or any Real Estate that in the Administrative Agent’s reasonable 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.

Distribution.  With respect to:

 

 


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(i)LSLP, any distribution of cash or other cash equivalent, directly or indirectly, to the partners or other equity interest holders of LSLP; or any other distribution on or in respect of any partnership interests of LSLP; and

(ii)LSI, 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 LSI, other than dividends payable solely in shares of common stock by LSI.

Documentation Agent.  As defined in the preamble.

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.

EEA Financial Institution.  (a) Any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country.  Any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority.  Any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Assignee.  Means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent and (ii) unless a Default or Event of Default shall exist, the Borrowers (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries.

Employee Benefit Plan.  Any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by any Borrower or any ERISA Affiliate, other than a Multiemployer Plan.

Environmental Laws.  See §7.18(a).

ERISA.  The Employee Retirement Income Security Act of 1974, as amended and in effect from time to time.

ERISA Affiliate.  Any Person which is treated as a single employer with any Borrower under §414 of the Code.

 

 


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ERISA Reportable Event.  A reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.

EU Bail-In Legislation Schedule.  The EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

Eurocurrency Reserve Rate.  For any day with respect to a LIBOR Rate Loan, the weighted average of the rates (expressed as a decimal) at which all of the Lenders subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar regulations relating to such reserve requirements) against “Eurocurrency Liabilities” (as that term is used in Regulation D), if such liabilities were outstanding.  The Eurocurrency Reserve Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Rate.

Event of Default.  See §13.1.

Excluded Subsidiaries.  (a) A Subsidiary that  (i) has Indebtedness outstanding secured by a Lien on its Real Estate, which Indebtedness was incurred (or assumed) in connection with such Subsidiary’s acquisition or improvement of such Real Estate (referred to hereinafter as “Mortgage Debt”) and (ii) is prohibited pursuant to the loan or other financing documents evidencing such Mortgage Debt from guaranteeing Indebtedness of other Persons (other than the Indebtedness of another Subsidiary that is an Excluded Subsidiary by virtue of this clause (a)); provided that the principal amount of such Mortgage Debt may not be increased and the original scheduled maturity date thereof may not be extended (including, in each case, in connection with an amendment or modification or refinancing of such Mortgage Debt), and if there is any such increase in principal amount or extension of maturity, then such Subsidiary shall no longer be considered an Excluded Subsidiary, (b) a Subsidiary if the only property or asset owned by such entity is the HQ Land, Iskalo Land Holdings LLC and (c) a Subsidiary that is a controlled foreign corporation (as that term is defined in the Code) if providing a Guaranty by such Subsidiary with respect to the Obligations would result in adverse tax consequences to the Borrowers and their Subsidiaries. Notwithstanding the foregoing, any Subsidiary that either (i) provides a Guaranty or otherwise becomes obligated in respect of any Indebtedness (including, without limitation, Indebtedness under the Note Purchase Agreements) of any Borrower or any Subsidiary of the Borrowers or (ii) at any time owns an Unencumbered Property, shall not, or, if previously an Excluded Subsidiary, shall immediately cease to, be an “Excluded Subsidiary” hereunder.  

Existing Credit Agreement.  As defined in the preamble.

Existing Letters of Credit.  The letters of credit described on Schedule 1.1(B).

Extended Letter of Credit.  See §5.3.

Facility Fee.  The facility fee payable by the Borrowers jointly and severally to the Administrative Agent for the account of the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages, which facility fee shall be equal to the

 

 


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aggregate Revolving Credit Commitments multiplied by the respective percentages per annum corresponding to the Level at which the “Applicable Margin” is determined in accordance with the definition thereof:

Level

Facility Fee

(% per annum)

6

 

0.300%

5

 

0.250%

4

 

0.150%

3

 

0.150%

 

2

 

0.125%

1

 

0.100%

 

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 Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders.

 

 


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Fund.  Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

GAAP.  Generally accepted accounting principles, consistently applied.

Gross Asset Value.  The sum of: (a) unrestricted Cash and Cash Equivalents; (b) Consolidated Capitalized Value; (c) for Real Estate owned in fee simple by a Borrower or any of its Subsidiaries or leased under a Ground Lease by any Borrower or any of 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 by an unconsolidated Partially-Owned Entity for less than one fiscal quarter or leased under a Ground Lease by an unconsolidated Partially-Owned Entity for less than one fiscal quarter, the Borrowers’ pro rata share of the acquisition cost of such Real Estate; (e) 100% of the book value of any Construction- in-Process of the Borrowers and their Subsidiaries; (f) the Borrowers’ 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 Borrowers and their Subsidiaries, (h) the Borrowers’ 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 (i) goodwill and other  intangible assets, (ii) related-party receivables, (iii) Other Assets (as appearing in LSLP’s financial statements) and Investments made pursuant to §9.3(k), (iv) prepaid expenses and (v) Management Fee Value. Notwithstanding the foregoing, (i) Real Estate subject to a Ground Lease shall not exceed 10% of Gross Asset Value and (ii) to the extent the amount of Gross Asset Value attributable to (A) the book value of Unimproved Land would exceed 10.0% of Gross Asset Value, (B) aggregate Budgeted Project Costs of all Construction-in-Process would exceed 10.0% of Gross Asset Value, (C) the book value of Promissory Notes would exceed 10.0% of Gross Asset Value, (D) Consolidated Capitalized Value attributable to Management Fee Value would exceed 5.0% of Gross Asset Value, (E) the book value of Unimproved Land, the aggregate Budgeted Projected Costs of all Construction-in-Process, the book value of Promissory Notes and Consolidated Capitalized Value attributable to Management Fee Value collectively would exceed 25.0% of Gross Asset Value, or (F) Partially-Owned Entities would exceed 20.0% of Gross Asset Value, in each case, such excess shall be excluded.

Ground Lease.  A ground lease containing the following terms and conditions: (a) a remaining term (exclusive of any unexercised extension options) of 40 years or more from the Restatement Date; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor; (c) the obligation of the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) reasonable transferability of the lessee’s interest under such lease, including ability to sublease; and (e) such other rights customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease.

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.

 

 


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Guaranties.  Collectively, all guaranties of the Obligations made by Holdings and any other Affiliate of a Borrower in favor of the Administrative Agent and the Lenders.

Guarantors.  Collectively, Holdings and any other Affiliate of a Borrower executing a Guaranty, provided, however, when the context so requires, Guarantor shall refer to Holdings or such Affiliate, as appropriate.  Any Guarantor that is the owner of an Unencumbered Property shall be a wholly-owned Subsidiary.

Guaranty.  The Guaranty Agreement and with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any Indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:

(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.

Guaranty Agreement.  The form of Guaranty to be entered into by Holdings and each Subsidiary Guarantor required to be a party thereto pursuant to Section §8.14 substantially in the form of Exhibit B hereto.

Hazardous Substances.  See §7.18(b).

Hedge Agreement.  An interest rate swap, cap or collar agreement or any arrangement similar to any of the foregoing between any Borrower and any Lender relating to indebtedness under this Credit Agreement, each as providing for the transfer or mitigation of interest rate risk either generally or under specific contingencies.

 

 


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Holdings.  As defined in the preamble hereto.

HQ Land.  Ten acres of vacant Real Estate near the LSI headquarter offices in Buffalo, New York.

Indebtedness.  With respect to any Person, all obligations, contingent and otherwise, that in accordance with GAAP should be classified upon such Person’s balance sheet as liabilities, including, without limitation:  (a) all obligations for borrowed money and similar monetary obligations, whether direct or indirect; (b) all liabilities secured by any mortgage, pledge, negative pledge, security interest, lien, charge, or other encumbrance existing on property owned or acquired subject thereto, whether or not the liability secured thereby shall have been assumed; (c) all obligations (i) under any Capitalized Lease or (ii) under any Synthetic Lease or (iii) in respect of “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act of 1933, as amended from time to time, together with all rules and regulations issued thereunder); (d) all obligations to purchase, redeem, retire, or otherwise acquire for value any shares of capital stock of any class issued by such Person or any rights to acquire such shares; (e) net obligations under any Hedge Agreement, forward contract, futures contract, swap, option or other financing arrangement, the value of which is dependent upon interest rates, currency exchange rates, commodities, any such Person’s present or future beneficial interest, shares or security trading value, or other indices (for purposes of this definition, collectively each a “Derivatives Contract”) in each case  in an amount equal to the Derivatives Termination Value as defined immediately below; (f) the amount of payments received by such person in any forward equity transaction by which such payments are received by such Person in consideration for the sale of stock or partnership units in such Person when the delivery and/or the determination of the amount of the stock or units so sold occurs later than one (1) month after such Person receives such payment, but only to the extent that the obligation to deliver such stock or units is not payable solely in the stock or units of such Person; (g) all guarantees for borrowed money, endorsements and other contingent obligations, whether direct or indirect, in respect of indebtedness or obligations of others, including any obligation to supply funds (including partnership obligations and capital requirements) to or in any manner to invest in, directly or indirectly, the debtor, to purchase indebtedness, or to assure the owner of indebtedness against loss, through an agreement to purchase goods, supplies, or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise, and the reimbursement obligations in respect of any letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person; (h) all obligations evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; (i) all obligations issued or assumed as the deferred purchase price of property or services (including securities repurchase agreements but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business which are not overdue or which are being contested in good faith); (j) all sales of (i) accounts or general intangibles for money due or to become due, (ii) chattel 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

 

 


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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 mark-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 §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 §10.13(d).

Indebtedness Lien.  See §9.4(b).

Indemnified Lender’s(s’) Group.  See §17.

Intercreditor Agreement.  The Second Amended and Restated Intercreditor agreement dated as of August 5, 2011 among the Administrative Agent on behalf of the Lenders and the Noteholders (as defined therein), as amended, restated, supplemented or otherwise modified from time to time.

Interest Payment Date.  (i) As to any Base Rate Loan, the last day of each calendar month, including the month in which the Drawdown Date occurs; and (ii) as to any LIBOR Rate Loan in respect of which the Interest Period is (A) 3 months or less, the last day of such Interest Period and (B) more than 3 months, the date that is 3 months from the first day of such Interest Period, each date that is 3 months thereafter, and, in addition, the last day of such Interest Period.

Interest Period.  With respect to each Loan, (a) initially, the period commencing on the Drawdown Date of such Loan and ending on the last day of one of the following periods (as selected by the Borrowers in a Completed Revolving Credit Loan Request or as otherwise in accordance with the terms of this Credit Agreement):  (i) for any Base Rate Loan, the last day of the calendar month, and (ii) for any LIBOR Rate Loan, 1, 2, 3, or 6 months (provided that the Interest Period for LIBOR Rate Loans may be shorter than 1 month (x) for the period from the Restatement Date to December 1, 2018, or (y) in order to consolidate 2 or more LIBOR Rate 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

 

 


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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.

Investments.  All expenditures made and all liabilities incurred (contingently or otherwise, but without double-counting):  (i) for the acquisition of stock, partnership or other equity interests or Indebtedness of, or for loans, advances, capital contributions or transfers of property to, any Person; and (ii) for the acquisition of any other obligations of any Person.  In determining the aggregate amount of Investments outstanding at any particular time:  (a) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (b) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (c) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (a) may be deducted when paid; and (d) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof.

Joint Lead Arrangers.  As defined in the preamble hereto.

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

 

 


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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.

Leases.  Leases, licenses and agreements, whether written or oral, relating to the use or occupation of space in or on the Buildings or on the Real Estate by Persons other than the Borrowers, their Subsidiaries or any Partially-Owned Entity.

Lenders.  Collectively the lending institutions listed on Schedule 1.1(A) hereto and, as the context requires, the Swingline Lender and any other lenders (including Term Loan Lenders and Revolving Credit Lenders) which may provide additional commitments and become parties to this Credit Agreement, and any other Person who becomes an assignee of any rights of a Lender pursuant to §19 or a Person who acquires all or substantially all of the stock or assets of a Lender.

Letter of Credit.  See §5.1.

Letter of Credit Application.  See §5.1.

Letter of Credit Collateral Account.  See §13.5.

Letter of Credit Fee.  See §5.10.

Letter of Credit Participation.  See §5.4.

Leverage Ratio.  As at the end of any fiscal quarter and at all other times, the ratio, of Consolidated Total Liabilities to Gross Asset Value, expressed in percentage terms by using Gross Asset Value as the denominator and Consolidated Total Liabilities as the numerator.

LIBOR Breakage Costs.  With respect to any LIBOR Rate Loan to be prepaid or not drawn after elected or converted prior to the last day of the applicable Interest Period, a prepayment “breakage” fee in an amount determined by the Administrative Agent in the following manner:

(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

 

 


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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.

LIBOR Business Day.  Any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London or such other eurodollar interbank market as may be selected by the Administrative Agent in its sole discretion acting in good faith.

LIBOR Rate.  Subject to implementation of a replacement rate in accordance with §4.5(b), for any Interest Period with respect to a LIBOR Rate Loan, the rate of interest equal to (i) the rate determined by the Administrative Agent at which Dollar deposits for such Interest Period are offered based on information presented on Reuters Screen LIBOR01 Page (or any successor thereto or substitute therefore providing rate quotations comparable to those currently provided on such services or if such page or services ceases to display such information from such other services or method, as the Administrative Agent may select) with a term equivalent to such Interest Period, as of 11:00 a.m. London time on the second LIBOR 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.

Lien.  See §9.2.

 

 


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Loan Documents.  Collectively, this Credit Agreement, the Notes, the Letter of Credit Applications, the Letters of Credit, the Guaranties, the Intercreditor Agreement, the Fee Letter and any and all other agreements, instruments or documents now or hereafter evidencing or otherwise relating to the Loans and executed or delivered by or on behalf of any Borrower or its Subsidiaries or any Guarantor or its Subsidiaries in connection with the Loans, or referred to herein or therein and delivered to the Administrative Agent or the Lenders by or on behalf of any Borrower, any Guarantor or any of their respective Subsidiaries, and all schedules, exhibits and annexes hereto or thereto, as the same may from time to time be amended and in effect, and any other document identified thereon as a “Loan Document” under this Credit Agreement.

Loans.  The Revolving Credit Loans, the Term Loans, and as the context requires, the Swingline Loans.

LSI.  As defined in the preamble hereto.

LSI Treasury Stock.   LSI capital stock repurchased and held by LSI as treasury stock.

LSLP.  As defined in the preamble hereto.

M&T Bank.  As defined in the preamble hereto.

Management Fee Value.  Management fee revenue received by the Borrowers and their Subsidiaries during any applicable period minus operating expenses incurred in connection with management services provided by the Borrowers and their Subsidiaries during such period.

Material Acquisition. Any acquisition (whether by direct purchase, merger or otherwise and whether in one or more related transactions) by a Borrower or any Subsidiary of a Borrower in which the purchase price of the assets acquired exceeds 10.0% of the consolidated total assets of LSI and its Subsidiaries (including, without limitation, LSLP) determined under GAAP as of the last day of the most recently ending fiscal quarter of LSI for which financial statements are publicly available.

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 Agreement, or (d) the validity or enforceability of this Credit Agreement, the Guaranties or any of the other Loan Documents.

Maturity Date.  The Revolving Credit Loan Maturity Date or the Term Maturity Date, as applicable.

Maximum Drawing Amount.  The maximum aggregate amount that the beneficiaries may at any time draw under outstanding Letters of Credit, as such aggregate amount may be reduced from time to time pursuant to the terms of the Letters of Credit.

Minimum Collateral Amount.  See §5.11.

 

 


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Moody’s.  Moody’s Investors Service, Inc., and its successors.

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.

Non-Defaulting Lender.  At any time, each Lender that is not a Defaulting Lender at such time.

Note Purchase Agreement.  Collectively or individually, as the context may require, (i)(a) that certain Note Purchase Agreement dated as of August 5, 2011, (b) that certain Note Purchase Agreement dated as of April 8, 2014 and (c) that certain Note Purchase Agreement dated as of July 21, 2016, in each case, by and among the Borrowers and the note purchasers thereunder or any successors thereto and (ii) that certain Indenture dated as of June 20, 2016, by and among the Borrowers and Wells Fargo Bank, as Trustee, as each such agreement described in clauses (i) and (ii) hereof may be amended, renewed, restated, modified replaced, refunded, or refinanced from time to time and any successor note purchase agreements, supplemental indentures or successor indentures.

Notes.  Collectively or individually, as applicable, the Revolving Credit Notes, the Term Notes and the Swingline Note.

Notice of Swingline Borrowing.  A notice substantially in the form of Exhibit G to be delivered to the Swingline Lender pursuant to §2.12(b), evidencing the Borrower Representative’s request for a Swingline Loan.

Obligations.  All indebtedness, obligations and liabilities of the Borrowers and their Subsidiaries to any of the Lenders and the Administrative Agent, individually or collectively, under this Credit Agreement or any of the other Loan Documents or in respect of any of the Loans made or the Reimbursement Obligations incurred, or any of the Notes, Letter of Credit Applications, Letters of Credit, or other instruments at any time evidencing any thereof, whether existing on the date of this Credit Agreement or arising or incurred hereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise.

 

 


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Operating Subsidiaries.  Any Subsidiaries of a Borrower that, at any time of reference, provide management, construction, design or other services (excluding any such Subsidiary which may provide any such services which are only incidental to that Subsidiary’s ownership of one or more Real Estate).

Partially-Owned Entity(ies).  Any of the partnerships, joint ventures and other entities owning real estate assets in which LSLP and/or LSI collectively, directly or indirectly through its full or partial ownership of another entity, does not own a majority of the equity interests, whether or not such entity is required in accordance with GAAP to be consolidated with LSI for financial reporting purposes.

PBGC.  The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.

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.

Person.  Any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any government (or any governmental agency or political subdivision thereof).

Preferred Dividends.  Any dividend, distribution, redemption, or payment upon liquidation paid to one class of stockholders of the capital stock of any Person in priority to that to be paid to any other class of stockholders of the capital stock of such Person, including any such dividends paid on preferred operating partnership units.

RCRA.  See §7.18.

Rating Agency.  Moody’s, S&P, Fitch or another nationally-recognized rating agency reasonably satisfactory to the Administrative Agent.

Real Estate.  The fixed and tangible properties consisting of land, buildings and/or other improvements owned in fee simple or leased under a ground lease by any Borrower, by any Guarantor or by any other entity in which a Borrower is the holder of an equity interest at the relevant time of reference thereto, including, without limitation, (i) the Unencumbered Properties at such time of reference, and (ii) the real estate assets owned by each of the Partially-Owned Entities at such time of reference.

Record.  The grid attached to any Note, or the continuation of such grid, or any other similar record, including computer records, maintained by any Lender with respect to any Loan.

Recourse.  With reference to any obligation or liability, any liability or obligation that is not Without Recourse to the obligor thereunder, directly or indirectly.  For purposes hereof, a Person shall not be deemed to be “indirectly” liable for the liabilities or obligations of an obligor

 

 


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solely by reason of the fact that such Person has an ownership interest in such obligor, provided that such Person is not otherwise legally liable, directly or indirectly, for such obligor’s liabilities or obligations (e.g., by reason of a guaranty or contribution obligation, by operation of law or by reason of such Person’s being a general partner of such obligor).

Reimbursement Obligation.  The Borrowers’ joint and several obligation to reimburse the Administrative Agent and the Lenders on account of any drawing under any Letter of Credit as provided in §5.6.

REIT.  A “real estate investment trust”, as such term is defined in Section 856 of the Code.

Release.  See §7.18(c)(iii).

Required Lenders.  As of any date, one or more Lenders holding more than fifty percent (50%) of the sum of (a) the outstanding principal amount of the Term Loans plus (b) the amount of the Total Revolving Credit Commitments (or if the Revolving Credit Commitments have been terminated, then the outstanding principal of the Revolving Credit Loans plus the outstanding L/C Obligations plus the outstanding principal amount of the Swingline Loans); provided that (i) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and (ii) if no principal amount of any Loan is outstanding, “Required Lenders” shall mean one or more Lenders whose aggregate Revolving Credit Commitments constitute more than fifty percent (50%) of the Total Revolving Credit Commitment.  For purposes of this definition, a Lender shall be deemed to hold a Swingline Loan or L/C Obligations to the extent such 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 Swingline Lender and the Revolving Credit Lender then acting as 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 Revolving Credit Lenders.  As of any date, one or more Lenders holding more than fifty percent (50%) of the aggregate amount of the Total Revolving Credit Commitments (or if the Revolving Credit Commitments have been terminated, then the outstanding principal of the Revolving Credit Loans plus the outstanding principal of the Swingline Loans plus the outstanding L/C Obligations); provided that in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded.  For purposes of this definition, a Revolving Credit Lender shall be deemed to hold a Swingline Loan or L/C 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.

 

 


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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.

Restatement Date.  The date on which all of the conditions set forth in §11 have been satisfied or waived in accordance with the terms of this Credit Agreement.

Revised Consolidated Adjusted EBITDA.  For any period, Consolidated Adjusted EBITDA for such period solely with respect to Real Estate owned in fee simple or subject to a Ground Lease by one or more of the Borrowers or one or more of their Subsidiaries for one fiscal quarter or more and Management Fee Value; plus actual general and administrative expenses of the Borrowers and their Subsidiaries for such period to the extent included in Consolidated Adjusted EBITDA (but excluding operating expenses incurred in connection with management services provided by the Borrowers and their Subsidiaries during such period deducted in determining Management Fee Value), minus an implied, management fee in an amount equal to five percent (5%) of consolidated total revenues from Real Estate.

Revolving Credit Commitment.  With respect to each Revolving Credit Lender, the amount set forth on Schedule 1.1(A) attached hereto, or as set forth in any applicable Assignment and Assumption, as the case may be, as the amount of such Lender’s commitment to make a portion of the Revolving Credit Loans to the Borrowers and to participate in the issuance, extension and renewal of Letters of Credit and to participate in Swingline Loans, as the same may be increased or reduced from time to time pursuant to the terms hereof; or if such commitment is terminated pursuant to the provisions hereof, zero.

Revolving Credit Commitment Percentage.  With respect to each Revolving Credit Lender, the percentage set forth on Schedule 1.1(A) hereto as such Lender’s percentage of the Total Revolving Credit Commitment (or, if the Revolving Credit Commitments have terminated or been reduced to zero, the “Revolving Credit Commitment Percentage” in effect immediately prior to such termination or reduction) and any changes thereto from time to time.

Revolving Credit Exposure.  As to any Revolving Credit Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Lender’s participation in L/C Obligations and Swingline Loans at such time.

Revolving Credit Lender.  A Lender having a Revolving Credit Commitment, holding any Revolving Credit Loans or Revolving Credit Exposure.

Revolving Credit Loan Maturity Date.  March 10, 2023 or such later date to which the Revolving Credit Loan Maturity Date may be extended pursuant to §2.10(a).

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.

 

 


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Revolving Credit Notes.  Collectively, the separate promissory notes of the Borrowers in favor of each Revolving Credit Lender in substantially the form of Exhibit A-1 hereto, in the aggregate principal amount of the Total Revolving Credit Commitment, dated as of the date hereof or as of such later date as any Person becomes a Revolving Credit 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.

S&P.  Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or any successor.  

Sanctioned Country.  At any time, a country, territory or region which is, or whose government is, the subject or target of any Sanctions.

Sanctioned Person.  At any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC (including, without limitation, OFAC’s Specially Designated Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in clauses (a) and (b), including Persons that are a target of Sanctions due to their ownership or control by any Sanctioned Persons.

Sanctions.  Economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws, including but not limited to those imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority with jurisdiction over any Lender in each case applicable to activities of the Borrowers or any of their respective Subsidiaries or Affiliates.

SARA.  See §7.18.

SEC.  The United States Security and Exchange Commission.

Sell or Sale.  See §9.4(b).

subsidiary.  Any entity required to be consolidated with its direct or indirect parent in accordance with GAAP.

Subsidiary.  Any corporation, association, partnership, trust, or other business entity of which the designated parent 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 or at least a majority of the economic interests (including, in any case, the Operating Subsidiaries and any entity required to be consolidated with its designated parent in accordance with GAAP).  Unless the context otherwise clearly requires, any reference to “Subsidiary” is a reference to the Subsidiaries of the Borrowers.

Subsidiary Guarantor.  Any Guarantor other than Holdings.

 

 


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Swingline Commitment.  The Swingline Lender’s obligation to make Swingline Loans pursuant to §2.12(a) in an amount up to, but not exceeding, the amount set forth in the first sentence of §2.12(a), as such amount may be reduced in accordance with the terms hereof.

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.

Swingline Maturity Date.  The date that is 7 Business Days prior to the Revolving Credit Loan Maturity Date.

Swingline Note.  The promissory note of the Borrowers in favor of the Swingline Lender in substantially the form of Exhibit H hereto, payable to the Swingline Lender in the principal amount of the Swingline Commitment as originally in effect and otherwise duly completed, as amended and/or restated from time to time.

Syndication Agent.  Collectively, Wells Fargo Bank, National Association and Citibank, N.A., acting as syndication agents for the Lenders, or any successor agents.

Synthetic Lease.  Any lease of goods or other property, whether real or personal, which is treated as an operating lease under GAAP and as a loan or financing for U.S. income tax purposes.

Term Commitment.  With respect to each Term Loan Lender, the amount set forth on Schedule 1.1(A) attached hereto as the amount of such Lender’s commitment to make a Term Loan to the Borrowers.

Term Commitment Percentage.  With respect to each Term Loan Lender, the percentage set forth on Schedule 1.1(A) hereto as such Lender’s percentage of the Total Term Loan Commitment (or, if the Term Commitments have terminated or reduced to zero, the percentage of the aggregate amount of Term Loans) and any changes thereto from time to time.

Term Loan.  Each of the term loans held by the Term Loan Lenders on the Restatement Date pursuant to §3.1 or made by any Term Loan Lender pursuant to §3.7.

Term Loan Lender.  A Lender having a Term Commitment or holding a Term Loan.

Term Maturity Date.  June 4, 2020 or such later date to which the Term Maturity Date may be extended pursuant to §2.10(b).

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 Term Loan Lenders with respect to the Term Loans in substantially the form of Exhibit A-2 hereto,  in the aggregate principal amount of the Term Loans dated as of the date hereof, dated as of the applicable Drawdown Date or, in each case, as of such later date as any

 

 


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Person becomes a Term Loan 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.

Total Term Loan Commitment.  As of any date, the sum of the then-current Term Commitments of the Lenders to provide Term Loans.  The Total Term Loan Commitment in effect on the Restatement Date is $0.  In accordance with §3.1, upon completion of the reallocation described in §1.3, the Total Term Loan Commitment shall terminate.

Total Revolving Credit Commitment.  As of any date, the sum of the then-current Revolving Credit Commitments of the Lenders to provide Revolving Credit Loans.  The Total Revolving Credit Commitment in effect on the Restatement Date is $500,000,000.

Tower Lease.  A Lease with a communication carrier or a tower development firm pursuant to which such carrier or firm will occupy a portion of a self-storage property for the purpose of using and/or constructing a monopole or tower or other structure thereon to which will be attached communications equipment and antennae, provided that any such Lease shall contain a relocation clause permitting relocation of the demised premises on the Real Estate site where the demised premises are located to allow re-use or re-development of such Real Estate site, and further provided that such relocation clause shall not be required (i) in any Tower Lease in existence as of the Restatement Date, or (ii) in any pre-existing Tower Lease on Real Estate acquired after the Restatement Date.

Type.  As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.

Unanimous Lender Approval.  The written consent of each Lender that is a party to this Credit Agreement at the time of reference.

Unencumbered Property.  Any Real Estate owned in fee simple or subject to a Ground Lease located in the contiguous United States that on any date of determination:  (a) is not subject to any Liens (including any such Lien imposed by the organizational documents of the owner of such asset, but excluding certain Permitted Liens as set forth in §9.2), as certified by an officer of the Borrower Representative on the Restatement Date or such later date on which such Real Estate becomes an Unencumbered Property, (b) is not the subject of any matter that could reasonably be expected to have a Material Adverse Effect on the value of such Real Estate, (c) is not the subject of a Disqualifying Environmental Event, a Disqualifying Building Event or a Disqualifying Legal Event, in each case as certified by an officer of the Borrower Representative on the Restatement Date or such later date on which such Real Estate becomes an Unencumbered Property, (d) has been improved with a Building or Buildings which (1) have been issued a certificate of occupancy (where available) or is otherwise lawfully occupied for its intended use and (2) are fully operational, (e) is wholly owned by a Borrower or a wholly-owned Subsidiary and (f) has not been designated by the Borrowers in writing to the Administrative Agent as Real Estate that is not an Unencumbered Property because of a Disqualifying Environmental Event, a Disqualifying Building Event or a Disqualifying Legal Event or the Borrower’s intention to subject such Unencumbered Property to an Indebtedness Lien or to Sell such Unencumbered Property, which designation shall not be permitted during the continuance of a Default (other than if such designation during a Default is made in conjunction with such Real Estate’s being the subject of a

 

 


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Sale or Indebtedness Lien under §9.4(b)(ii) and in compliance therewith) or an Event of Default and shall be accompanied by a compliance certificate in the form of Exhibit D-6 attached hereto.  

Uniform Customs.  See §5.3.

Unimproved Land.  Any Real Estate consisting of raw land which is not improved by Buildings.

Unpaid Reimbursement Obligations.  Any Reimbursement Obligation for which the Borrowers have not reimbursed the Administrative Agent and the Lenders on the date specified in, and in accordance with, §5.6.

Unsecured Indebtedness.  All Indebtedness of any Person that is not secured by a Lien on any asset of such Person.

Wells Fargo Bank.  As defined in the preamble hereto.

wholly-owned Subsidiary.  Any Subsidiary of which LSI and/or LSLP 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 LSLP.

Without Recourse or without recourse.  With reference to any obligation or liability, any obligation or liability for which the obligor thereunder is not liable or obligated other than as to its interest in a designated Real Estate or other specifically identified asset only (which asset is not interests in another Person), subject to such limited exceptions to the non-recourse nature of such obligation or liability, such as fraud, misappropriation, misapplication and environmental indemnities, as are usual and customary in like transactions involving institutional lenders at the time of the incurrence of such obligation or liability.

Write-Down and Conversion Powers.  With respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

§1.2.Rules of Interpretation.

 

(a)

     General Rules of Interpretation.

(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)The singular includes the plural and the plural includes the singular.

 

 


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(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.

(b)Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in this Credit Agreement, and either the Borrower Representative or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

 


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§1.3.Reallocations on Restatement Date.Prior to the Restatement Date, certain loans described in the preamble that were previously made to the Borrowers under the Existing Credit Agreement remain outstanding as of the date of this Credit Agreement.  The Administrative Agent, the Borrowers and each Lender agree that upon the effectiveness of this Credit Agreement, the amount of each of the Commitments of such Lender is as set forth on Schedule 1.1(A) attached hereto.  Subject to the terms and conditions set forth in this Credit Agreement, the Borrowers and each of the Lenders agree that on the Restatement Date, but subject to the satisfaction or waiver of the conditions precedent set forth in §11 and the reallocation and other transactions described in this §1.3: (i) all outstanding “Revolving Credit Loans” (as such term is defined in the Existing Credit Agreement) shall be deemed to be Revolving Credit Loans outstanding hereunder, and all outstanding “Term Loans” (as such term is defined in the Existing Credit Agreement) shall be deemed to be Term Loans outstanding hereunder, (ii) the “Revolving Credit Commitments” (as defined in the Existing Credit Agreement) and “Revolving Credit Loans” (as defined in the Existing Credit Agreement) of each of the existing “Revolving Credit Lenders” (as defined in the Existing Credit Agreement) and the outstanding amount of all “Revolving Credit Loans” (as defined in the Existing Credit Agreement) shall be reallocated among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages (determined in accordance with the aggregate amount of their respective Revolving Credit Commitments as set forth opposite such Revolving Credit 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 “Revolving Credit Lender” (as defined in the Existing Credit Agreement) to each Revolving Credit 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), (iii) the “Term Loans” (as defined in the Existing Credit Agreement) of each of the existing “Term Loan Lenders” (as defined in the Existing Credit Agreement) shall be reallocated among the Term Loan Lenders in accordance with their respective Term Commitment Percentages (determined in accordance with the aggregate amount of their respective Term Loans 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 “Term Loan 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 KeyBank National Association (the “Exiting Lender”) shall be terminated, all outstanding “Revolving Credit Loans” and “Term Loans” (as each such term is defined in the Existing Credit Agreement) held by the Exiting Lender and all other amounts due and owing to the Exiting Lender on the Restatement Date shall be paid in full; the Exiting Lender shall not 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 Lender 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 the Exiting Lender.

§2.THE REVOLVING CREDIT FACILITY.

§2.1.Revolving Credit Loans.

(a)Commitment to Lend Revolving Credit Loans.  Subject to the provisions of §2.4 and the other terms and conditions set forth in this Credit Agreement, each of the Revolving Credit Lenders severally agrees to lend to the Borrowers and the Borrowers may borrow, repay, and reborrow from each Revolving Credit Lender from time to time during the Availability Period upon notice by the Borrower Representative to the Administrative Agent given in accordance with §2.4 hereof, such sums as are requested by the Borrower Representative up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Lender’s Revolving Credit Commitment minus such Lender’s Revolving Credit Commitment Percentage of the sum of (i) L/C Obligations and (ii) outstanding Swingline Loans; provided that the sum of (x) the outstanding amount of the Revolving Credit Loans, (after giving effect to all amounts requested) plus (y) all outstanding Swingline Loans 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.

§2.2.The Revolving Credit Notes. The Revolving Credit Loans shall be evidenced by the Revolving Credit Notes.  A Revolving Credit Note shall be payable to the order of each Revolving Credit Lender in an aggregate principal amount equal to such Lender’s Revolving Credit Commitment.  The Borrowers irrevocably authorize each Revolving Credit 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 on such Lender’s Revolving Credit Notes, an appropriate notation on such Lender’s Revolving Credit Note Record 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 such Lender’s Revolving Credit Note Record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount on such

 

 


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Lender’s Revolving Credit Note Record shall not limit or otherwise affect the obligations of the Borrowers hereunder or under any Revolving Credit Note to make payments of principal of or interest on any Revolving Credit Note when due.  Upon receipt of an affidavit of an officer of any Revolving Credit Lender as to the loss, theft, destruction or mutilation of any Revolving Credit 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 Revolving Credit Note or other security document, the Borrowers will issue, in lieu thereof, a replacement Revolving Credit Note or other security document in the same principal amount thereof and otherwise of like tenor.

§2.3.Interest on Revolving Credit Loans.

(a)Interest on Base Rate Loans.  Except as otherwise provided in §4.10, each Revolving Credit Loan that is a Base Rate Loan shall bear interest for the period commencing 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 Base Rate plus the Applicable Margin for Revolving Credit Loans which are Base Rate Loans.

(b)Interest on LIBOR Rate Loans.  Except as otherwise provided in §4.10, each Revolving Credit Loan that is a LIBOR Rate Loan shall bear interest for the period commencing 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.

(c)Interest Payments.  The Borrowers jointly and severally unconditionally promise to pay interest on each Revolving Credit Loan in arrears on each Interest Payment Date with respect thereto.

§2.4.Requests for Revolving Credit 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 three (3) 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 one (1) Business Day 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)

 

 


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on any Business Day, and at least one (1) Business Day prior to the proposed Drawdown Date of any Base Rate Loan, and at least three (3) 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, 10.4 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.

§2.5.Conversion Options.

(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 three (3) 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

 

 


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Administrative Agent at least three (3) 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 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.

§2.6.Funds for Revolving Credit Loans.

(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

 

 


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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 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.

 

 


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§2.7.Repayment of the Revolving Credit Loans at Maturity.  The Borrowers jointly and severally promise to pay on the Revolving Credit Loan Maturity Date, and there shall become absolutely due and payable on the Revolving Credit Loan Maturity Date, all unpaid principal of the Revolving Credit Loans outstanding on such date, together with any and all accrued and unpaid interest thereon, the unpaid balance of the Facility Fee accrued through such date, and any and all other unpaid amounts due under this Credit Agreement, the Revolving Credit Notes or any other of the Loan Documents.

§2.8.Optional Repayments of Revolving Credit Loans.  The Borrowers shall have the right, at their election, to prepay the outstanding amount of the Revolving Credit Loans, in whole or in part, at any time without penalty or premium; provided that the outstanding amount of any Revolving Credit Loans that are LIBOR Rate Loans may not be prepaid unless the Borrowers 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 one (1) Business Day prior written notice of any prepayment pursuant to this §2.8 of any Revolving Credit Loans that are Base Rate Loans, and at least three (3) 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.

§2.9.Mandatory Repayments of Revolving Credit Loans and Other Obligations.  If at any time the sum of the outstanding amount of the Revolving Credit Loans, the outstanding amount of the Swingline Loans and all L/C Obligations exceeds the lesser of (i) Total Revolving Credit Commitment and (ii) the maximum amount that permits compliance with the terms of §10 hereof, the Borrowers shall immediately pay the amount of such excess to the Administrative Agent for application:  first, to any Unpaid Reimbursement Obligations; second, to the Swingline Loans; third, to the Revolving Credit Loans (first to Base Rate Loans, then to LIBOR Rate Loans in direct order of Interest Period maturities); and fourth, to provide to the Administrative Agent cash collateral for Reimbursement Obligations as contemplated by §5.6(b) and (c).  Each payment of any Unpaid Reimbursement Obligations, or prepayment of Revolving Credit Loans shall be allocated among the Revolving Credit Lenders, in proportion, as nearly as practicable, to each L/C Obligation, or (as the case may be) the respective unpaid principal amount of each Lender’s Revolving Credit Note, with adjustments to the extent practicable to equalize any prior payments or repayments not exactly in proportion.  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 pursuant to §2.12(e), in which case such payments shall be pro rata in accordance with such participating interests).

§2.10.Extension Options.

 

 


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(a)The Borrowers shall have the right, exercisable two times, to extend the current Revolving Credit Loan Maturity Date in effect as of the date each such right is exercised by six months.  The Borrowers may exercise such right only by executing and delivering to the Administrative Agent at least 30 days but not more than 90 days prior to the current Revolving Credit Loan Maturity Date, a written request for such extension (a “Revolving Extension Request”).  The Administrative Agent shall notify the Revolving Credit Lenders if it receives a Revolving Extension Request promptly upon receipt thereof.  Subject to satisfaction of the following conditions, the Revolving Credit Loan Maturity Date shall be extended for six months from the then current Revolving Loan Maturity Date effective upon receipt by the Administrative Agent of the Revolving Extension Request and payment of the fee referred to in the following clause (ii): (i) immediately prior to such extension and immediately after giving effect thereto, (x) no Default or Event of Default shall exist and (y) the representations and warranties made or deemed made by the Borrowers and any Guarantor in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of such extension with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents and (ii) the Borrowers shall have paid the Fees payable under §4.1(b).  At any time prior to the effectiveness of any such extension, upon the Administrative Agent’s request, the Borrowers shall deliver to the Administrative Agent a certificate from the chief executive officer or chief financial officer certifying the matters referred to in the immediately preceding clauses (i)(x) and (i)(y).

(b)The Borrowers shall have the right, exercisable two times, to extend the Term Maturity Date by one year.  The Borrowers may exercise such right only by executing and delivering to the Administrative Agent at least 30 days but not more than 90 days prior to the Term Maturity Date, a written request for such extension (a “Term Extension Request”).  The Administrative Agent shall notify the Term Loan Lenders if it receives a Term Extension Request promptly upon receipt thereof.  Subject to satisfaction of the following conditions, the Term Loan Maturity Date shall be extended for one year from the Term Maturity Date effective upon receipt by the Administrative Agent of the Term Extension Request and payment of the fee referred to in the following clause (ii): (i) immediately prior to such extension and immediately after giving effect thereto, (x) no Default or Event of Default shall exist and (y) the representations and warranties made or deemed made by the Borrowers and any Guarantor in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of such extension with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents and (ii) the Borrowers shall have paid the Fees payable under §4.1(c).  At any time prior to the effectiveness of any such extension, upon the Administrative Agent’s request, the Borrowers shall deliver to the Administrative Agent a certificate from the chief executive

 

 


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officer or chief financial officer certifying the matters referred to in the immediately preceding clauses (i)(x) and (i)(y)

§2.11.Increase of Total Revolving Credit Commitment. Unless a Default or an Event of Default has occurred and is continuing, the Borrowers may request, by written notice to the Administrative Agent at any time during the period beginning on Restatement Date to but excluding the Revolving Credit Maturity Date, that the Total Revolving Credit Commitment be increased; provided, however, that after giving effect to any such increases in the Total Revolving Credit Commitment and the making of any Additional Term Loans pursuant to §3.7, the Total Revolving Credit Commitment and the aggregate outstanding principal balance of the Term Loans shall not exceed $900,000,000.  Each such increase in the Total Revolving Credit Commitment must be in aggregate minimum amounts of $25,000,000; provided that (a) the maturity date of such increase in the Total Revolving Credit Commitment shall be the Revolving Credit Loan Maturity Date, (b) the Borrower Representative shall have delivered to the 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, 10.4, 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 (assuming 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 Additional Term Loans and/or increase to the Total Revolving Credit Commitment 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

 

 


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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.

§2.12.Swingline Loans.

(a)Swingline Loans.  Subject to the terms and conditions hereof, the Swingline Lender agrees to make Swingline Loans to the Borrowers, during the period from the Restatement Date to but excluding the Swingline Maturity Date, in an aggregate principal amount at any one time outstanding up to, but not exceeding, $25,000,000, as such amount may be reduced from time to time in accordance with the terms hereof; provided, that the Swingline Lender shall not be required to make a Swingline Loan if immediately after making such Swingline Loan, the aggregate principal amount of all Revolving Credit Loans and Swingline Loans, together with all L/C Obligations would exceed the Total Revolving Credit Commitment.  If at any time the aggregate principal amount of the Swingline Loans outstanding at such time exceeds the Swingline Commitment in effect at such time, the Borrowers shall immediately pay the Administrative Agent for the account of the Swingline Lender the amount of such excess.  Subject to the terms and conditions of this Agreement, the Borrowers may borrow, repay and reborrow Swingline Loans hereunder.

 

(b)Procedure for Borrowing Swingline Loans.  The Borrower Representative shall give the Administrative Agent and the Swingline Lender notice pursuant to a Notice of Swingline Borrowing or telephonic notice of each borrowing of a Swingline Loan.  Each Notice of Swingline Borrowing shall be delivered to the Swingline Lender no later than 10:00 a.m. (New York City time) on the proposed date of such borrowing.  Any telephonic notice shall include all information to be specified in a written Notice of Swingline Borrowing and shall be promptly confirmed in writing by the Borrower Representative pursuant to a Notice of Swingline Borrowing sent to the Swingline Lender by telecopy on the same day of the giving of such telephonic notice.  Not later than 12:00 p.m. (New York City time) on the date of the requested Swingline Loan and subject to satisfaction of the applicable conditions set forth in §11 as of the Restatement Date and the conditions set forth in §12 on the date of such request and on the proposed Drawdown Date of the requested Swingline Loan, the Swingline Lender will make the proceeds of such Swingline Loan available to the Borrowers in Dollars, in immediately available funds, in the Borrower Representative’s account with the Administrative Agent.

 

(c)Interest.  Swingline Loans shall bear interest at a per annum rate equal to the Base Rate as in effect from time to time plus the Applicable Margin for Revolving Credit Loans that are Base Rate Loans or at such other rate or rates as the Borrowers and the Swingline Lender may

 

 


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agree from time to time in writing.  Interest on Swingline Loans is solely for the account of the Swingline Lender (except to the extent a Revolving Credit Lender acquires a participating interest in a Swingline Loan pursuant to the immediately following subsection (e)).  All accrued and unpaid interest on Swingline Loans shall be payable on the Interest Payment Date for Base Rate Loans (except as the Swingline Lender and the Borrowers may otherwise agree in writing in connection with any particular Swingline Loan).

 

(d)Swingline Loan Amounts, Etc.  Each Swingline Loan shall be in the minimum amount of $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.  Any voluntary prepayment of a Swingline Loan must be in integral multiples of $100,000 or the aggregate principal amount of 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 Representative 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.

 

(e)Repayment and Participations of Swingline Loans.  The Borrowers agree to repay each Swingline Loan within one Business Day of demand therefor by the Swingline Lender and, in any event, within five (5) Business Days after the date such Swingline Loan was made; provided, that the proceeds of a Swingline Loan may not be used to pay a Swingline Loan.  Notwithstanding the foregoing, the Borrowers shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Swingline Loans on the Swingline Maturity Date (or such earlier date as the Swingline Lender and the Borrowers may agree in writing).  In lieu of demanding repayment of any outstanding Swingline Loan from the Borrowers, the Swingline Lender may, on behalf of the Borrowers (which hereby irrevocably direct the Swingline Lender to act on their behalf), request a borrowing of Revolving Credit Loans that are Base Rate Loans from the Revolving Credit Lenders in an amount equal to the principal balance of such Swingline Loan.  The amount limitations contained in §2.4(a) shall not apply to any borrowing of such Revolving Credit Loans made pursuant to this subsection.  The Swingline Lender shall give notice to the Administrative Agent of any such borrowing of Revolving Credit Loans not later than 10:00 a.m. (New York City time) at least one Business Day prior to the proposed date of such borrowing.   Promptly after receipt of such notice of borrowing of Revolving Credit Loans from the Swingline Lender under the immediately preceding sentence, the Administrative Agent shall notify each Revolving Credit Lender of the proposed borrowing.  Not later than 10:00 a.m. (New York City time) on the proposed date of such borrowing, each Revolving Credit Lender will make available to the Administrative Agent at the Administrative Agent’s Head Office for the account of the Swingline Lender, in immediately available funds, the proceeds of the Revolving Credit Loan to be made by such Revolving Credit Lender.  The Administrative Agent shall pay the proceeds of such Revolving Credit Loans to the Swingline Lender, which shall apply such proceeds to repay such Swingline Loan.  If the Revolving Credit Lenders are prohibited from making Revolving Credit Loans required to be made under this subsection for any reason whatsoever, including without limitation, the occurrence of any of the Defaults or Events of Default described in §13.1(g) or §13.1(h), each Revolving Credit Lender shall purchase from the Swingline Lender, without recourse or warranty, an undivided interest and participation to the extent of such Revolving Credit

 

 


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Lender’s Revolving Credit Commitment Percentage of such Swingline Loan, by directly purchasing a participation in such Swingline Loan in such amount and paying the proceeds thereof to the Administrative Agent for the account of the Swingline Lender in Dollars and in immediately available funds.  A Revolving Credit Lender’s obligation to purchase such a participation in a Swingline Loan shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including without limitation, (i) any claim of setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or any other Person may have or claim against the Administrative Agent, the Swingline Lender or any other Person whatsoever, (ii) the occurrence or continuation of a Default or Event of Default (including without limitation, any of the Defaults or Events of Default in §13.1(g) or §13.1(h)), 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).

§3.THE TERM LOAN FACILITY.

§3.1.Term Loans.  Pursuant to the terms of the Existing Credit Agreement, the Term Loan Lenders extended to the Borrowers “Term Loans” (as defined in the Existing Credit Agreement) in the aggregate principal amount of $325,000,000. On the Restatement Date, such Term Loans shall remain outstanding and shall constitute Term Loans under (and as defined in) this Credit Agreement.  As of the Restatement Date, the outstanding principal balance of the Term Loans is $100,000,000.  The Borrowers may not reborrow any portion of the Term Loans once repaid.

§3.2.The Term Notes. Each Term Loan shall be evidenced by the Term Notes.  A Term Note shall be payable to the order of each Term Loan Lender in an aggregate principal amount equal to such Term Loan Lender’s applicable Term Loan.  The Borrowers irrevocably authorize each Term Loan Lender to make or cause to be made at or about the time of such Term Loan Lender’s receipt of any payment of principal on such Term Loan Lender’s Term Note an

 

 


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appropriate notation on such Term Loan Lender’s Term Note of the receipt of such payment.  The outstanding amount of the applicable Term Loan set forth on such Term Loan Lender’s Term Note Record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Term Loan Lender, but the failure to record, or any error in so recording, any such amount on such Term Loan Lender’s Term Note Record shall not limit or otherwise affect the obligations of the Borrowers hereunder or under any Term Note to make payments of principal of or interest on any Term Note when due.  Upon receipt of an affidavit of an officer of any Term Loan 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.

§3.3.Interest on Term Loans.

(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.

(b)Interest Payments.  The Borrowers jointly and severally unconditionally promise to pay interest on the Term Loans in arrears on each Interest Payment Date with respect thereto.

§3.4.Conversion Options. The provisions of §2.5 shall apply mutatis mutandis with respect to all or any portion of a Term Loan so that the Borrowers may have the same interest rate options with respect to all or any portion of a Term Loan as they would be entitled to with respect to the Revolving Credit Loans.

§3.5.Repayment of the Term Loans at Maturity. The Borrowers jointly and severally promise to pay on the Term Maturity Date, and there shall become absolutely due and payable on the Term Maturity Date, all unpaid principal of the Term Loans outstanding on such date, together with any and all accrued and unpaid interest thereon, and any and all other unpaid amounts due under this Credit Agreement, the Term Notes or any other of the Loan Documents in respect of the Term Loans.

 

 


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§3.6.Optional Repayments of Term Loans. The Borrowers shall have the right, at their election, to prepay the outstanding amount of the Term Loans, in whole or in part, subject to (a) the Borrower Representative having given at least fifteen (15) days’ prior written notice to the Administrative Agent of such prepayment, and (b) the payment, simultaneously with such 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.

§3.7.Additional Term Loans. Unless a Default or an Event of Default has occurred and is continuing, the Borrowers may request, by written notice to the Administrative Agent at any time during the period beginning on the Restatement Date to but excluding the Term Maturity Date, that additional Term Loans be made (the “Additional Term Loans”); provided, however, that after giving effect to any increases in the Total Revolving Credit Commitment effected pursuant to §2.11 and the making of such Additional Term Loans, the Total Revolving Credit Commitment and the aggregate outstanding principal balance of the Term Loans shall not exceed $900,000,000.  Each such borrowing of Additional Term Loans must be in aggregate minimum amounts of $25,000,000; provided that (a) the maturity date for the Additional Term Loans shall be the Term Maturity Date, (b) the Borrower Representative shall have delivered to the 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, 10.4, 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 making of Additional Term Loans and if an increase in the Total Revolving Credit Commitment has also been requested pursuant to §2.11 at such time, giving effect to any such requested increase in the Total Revolving Credit Commitment (assuming the full utilization of the increased Total Revolving Credit Commitment), and, certifying that, both before and after giving effect to such requested making of Additional Term Loans and, if applicable, such increase in the Total Revolving Credit Commitment, 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 making of Additional Term Loans at such time and, if applicable, such increase in the Total Revolving Credit Commitment, no default will exist as of the effective date of such increase or thereafter, (c) such Additional Term Loans and/or increase to the Total Revolving Credit Commitment shall be on the same terms and conditions applicable to this Credit Agreement, (d) any Term Loan Lender which is a party to this Credit Agreement prior to a request for Additional Term Loans, at its sole discretion, may elect to make an Additional Term Loan but shall not have an obligation to make an Additional Term Loan, and (e) in the event that, in the case of a request for Additional Term Loans, each Term Loan Lender does not elect to make an Additional Term Loan, 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 making of Additional Term Loans.  In the case of the making of Additional Term Loans,

 

 


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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 Term Lenders have agreed to make 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.

§4.CERTAIN GENERAL PROVISIONS.

§4.1.Fees.  

(a)The Borrowers jointly and severally agree to pay (i) to the Administrative Agent an administration fee (the “Administration Fee”), the upfront fees (the “Upfront Fees”), and the other fees payable to the Administrative Agent and the Joint Lead Arrangers, in each case as set forth in that certain Fee Letter dated as of October 4, 2018, among the Borrowers, Wells Fargo Bank and Wells Fargo Securities, LLC (the “Fee Letter”), (ii) each other respective fee letter by and among the Borrowers and each other Joint Lead Arranger and (iii) to the Administrative Agent for the account of the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages as further set forth in the definition thereof, the Facility Fee.

(b)If the Borrowers exercise their right to extend the Revolving Credit Loan Maturity Date in accordance with §2.10(a), the Borrowers agree to pay to the Administrative Agent for the account of each Revolving Credit Lender a fee equal to 0.0625% of the amount of such Lender’s Revolving Credit Commitment (whether or not utilized) for any such extension.  Such fee shall be due and payable in full on the date the Administrative Agent receives the Extension Request pursuant to such Section.

(c)If the Borrowers exercise their right to extend the Term Maturity Date in accordance with §2.10(b), the Borrowers agree to pay to the Administrative Agent for the account of each Term Loan Lender a fee equal to 0.125% of the amount of such Lender’s Term Loans outstanding.  Such fee shall be due and payable in full on the date the Administrative Agent receives the Extension Request pursuant to such Section.

§4.2.Funds for Payments.

(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.

 

 


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(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 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

 

 


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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.

(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 Representative and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Representative 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 Representative or the Administrative Agent as may be necessary for the Borrowers 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.

(h)For purposes of determining withholding taxes imposed under FATCA, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

 


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§4.3.Computations. All computations of interest on the Loans and of other fees to the extent applicable shall be made on the basis of a 360-day year and the actual number of days elapsed; provided, however, interest on Base Rate Loans shall be computed on the basis of a 365-day or 366-day year, as applicable, and the actual number of days elapsed.  Except as otherwise provided in the definition of the term “Interest Period” with respect to LIBOR Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a day that is not a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and interest shall accrue during such extension.  The outstanding amount of the Loans as reflected on the Note Records from time to time shall constitute prima facie evidence of the principal amount thereof absent manifest error; but the failure to record, or any error in so recording, any such amount on such Lender’s Term Note Record shall not affect the obligations of the Borrowers hereunder or under any Term Note to make payments of principal of and interest on any Term Note when due.

§4.4.Inability to Determine LIBOR Rate. In the event, prior to the commencement of any Interest Period relating to any LIBOR Rate Loan, the Administrative Agent shall reasonably determine that adequate and reasonable methods do not exist for ascertaining the LIBOR Rate that would otherwise determine the rate of interest to be applicable to any LIBOR Rate Loan during any Interest Period, the Administrative Agent shall forthwith give notice of such determination (which shall be conclusive and binding on the Borrowers) to the Borrower Representative and the Lenders.  In such event (a) any Completed Revolving Credit Loan Request with respect to LIBOR Rate Loans shall be automatically withdrawn and shall be deemed a request for Base Rate Loans, (b) each LIBOR Rate Loan will automatically, on the last day of the then current Interest Period thereof, become a Base Rate Loan, and (c) the obligations of the Lenders to make LIBOR Rate Loans shall be suspended until the Administrative Agent reasonably determines that the circumstances giving rise to such suspension no longer exist, whereupon the Administrative Agent shall so notify the Borrower Representative and the Lenders.

§4.5.Illegality.  

(a)Notwithstanding any other provisions herein, if (i) any present or future law, regulation, treaty or directive or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain LIBOR Rate Loans or (ii) the making, maintaining or continuation of its LIBOR Rate Loans has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, such Lender shall forthwith give notice of such circumstances to the Borrower Representative and the other Lenders and thereupon (a) the commitment of such Lender to make LIBOR Rate Loans or convert Base Rate Loans to LIBOR Rate Loans shall forthwith be suspended and (b) such Lender’s LIBOR Rate Loans then outstanding shall be converted automatically to Base Rate Loans on the last day of each Interest Period applicable to such LIBOR Rate Loans or within such earlier period as may be required by law, all until such time as it is no longer unlawful for such Lender to make or maintain LIBOR Rate Loans.  The Borrowers hereby jointly and severally agree to promptly pay the Administrative Agent for the account of such Lender, upon demand, any additional amounts necessary to compensate such Lender for any costs incurred by such Lender in making any conversion required by this §4.5 prior to the last day of an Interest Period with respect to a LIBOR Rate Loan, including

 

 


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any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain its LIBOR Rate Loans hereunder.

(b)LIBOR Rate Replacement.  Subject to any general provisions herein regarding conversion from the LIBOR Rate, including, without limitation, §4.4 and §4.5(a), if for any reason the Administrative Agent shall determine that (i) the LIBOR Rate (as defined herein) no longer exists, substantively, or is otherwise unavailable for an extended period of time (as determined by the Administrative Agent in its sole discretion) including because (a) dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Loan and such circumstances are unlikely to be temporary or (b) reasonable and adequate means do not exist for ascertaining the LIBOR Rate for such Interest Period with respect to a proposed LIBOR Rate Loan and such circumstances are unlikely to be temporary, (ii) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in the United States syndicated loan market in the applicable currency or (iii) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any governmental authority having, or purporting to have, jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the United States syndicated loan market in the applicable currency, then the applicable interest rate for each applicable Interest Period hereunder may be determined by such comparable alternate method designed to measure interest rates in a manner similar to the method in effect prior to LIBOR Rate’s unavailability, all as determined and selected by the Administrative Agent in its sole discretion (subject to the limitations set forth in this §4.5(b)).  Any successor/replacement index and alternate methodology shall be an interest-based index, variations in the value of which can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in United States Dollars, as determined by the Administrative Agent in its sole discretion (subject to the limitations set forth in this §4.5(b)).  In connection with the establishment and application of any successor/replacement index and alternate methodology, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent, as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section.  Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, §26), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the delivery of such amendment to the Lenders, written notices from such Lenders that in the aggregate constitute Required Lenders, with each such notice stating that such Lender objects to such amendment (which such notice shall note with specificity the particular provisions of the amendment to which such Lender objects), in which case the last sentence of §4.4 shall apply following such objection by the Required Lenders.  In order to account for the relationship of the replacement index to the pre-existing and applicable LIBOR Rate, such alternate method, and the amendment referred to above, shall incorporate any additional spread or margin to any replacement index as is necessary, in the Administrative Agent’s sole discretion, in an effort to ensure that the alternate method will measure interest rates in a manner similar to the pre-existing LIBOR Rate.

§4.6.Additional Costs, Etc. If any present or future applicable law, which expression, as used herein, includes statutes, rules and regulations thereunder and interpretations thereof by any competent court or by any governmental or other regulatory body or official charged

 

 


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with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time to time hereafter made upon or otherwise issued to any Lender or the Administrative Agent by any central bank or other fiscal, monetary or other authority (whether or not having the force of law)(including, without limitation, regardless of the date enacted, adopted or issued: (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III) shall:

(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 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,

 

 


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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.

§4.7.Capital Adequacy.  If after the date hereof any Lender or the Administrative Agent determines that (i) the adoption of or change in any law, governmental rule, regulation, policy, guideline or directive (whether or not having the force of law) regarding capital or liquidity 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 or liquidity (with respect to the foregoing clauses (i) and (ii), regardless of the date enacted, adopted or issued including, without limitation: (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or 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 liquidity 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.

§4.8.Certificate.  A certificate setting forth any additional amounts payable pursuant to §§4.5, 4.6 or 4.7 and a brief explanation of such amounts (including the calculation thereof) which are due, submitted by any Lender or the Administrative Agent to the Borrower Representative, shall be prima facie evidence that such amounts are due and owing.

§4.9.Indemnity.  In addition to the other provisions of this Credit Agreement regarding such matters, but without duplication to the extent a Lender has been compensated pursuant thereto, the Borrowers jointly and severally agree to indemnify the Administrative Agent and each Lender and to hold the Administrative Agent and each Lender harmless from and against any loss, cost or expense (including loss of anticipated profits) that the Administrative Agent or such Lender may sustain or incur as a consequence of (a) the failure by the Borrowers to pay any

 

 


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principal amount of or any interest on any LIBOR Rate Loans as and when due and payable, including any such loss or expense arising from interest or fees payable by the Administrative Agent or such Lender to lenders of funds obtained by it in order to maintain its LIBOR Rate Loans, (b) the failure by the Borrowers to make a borrowing or conversion after the Borrowers have given a Completed Revolving Credit Loan Request for a LIBOR Rate Loan or a Conversion Request for a LIBOR Rate Loan, and (c) the making of any payment of a LIBOR Rate Loan or the making of any conversion of any such Loan to a Base Rate Loan on a day that is not the last day of the applicable Interest Period with respect thereto, including interest or fees payable by the Administrative Agent or a Lender to lenders of funds obtained by it in order to maintain any such LIBOR Rate Loans.

§4.10.Interest During Event of Default; Late Charges.  During the continuance of an Event of Default, outstanding principal and (to the extent permitted by applicable law) interest on the Loans (including Swingline Loans) and all other amounts outstanding hereunder, including, without limitation, any fees applicable to Letters of Credit, or under any of the other Loan Documents shall bear interest at a rate per annum equal to two percent (2%) above the interest rate that would otherwise be applicable until such amount shall be paid in full (after as well as before judgment).  In addition, the Borrowers shall pay on demand a late charge equal to five percent (5%) of any amount of principal and/or interest charges on the Loans (including Swingline Loans) which is not paid within ten (10) days of the date when due.

§4.11.Concerning Joint and Several Liability of the Borrowers.

(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.

 

 


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(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 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.

§4.12.Interest Limitation.  All agreements between the Borrowers and the Guarantors, on the one hand, and the Lenders and the Administrative Agent, on the other hand, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of maturity of the Loans or otherwise, shall the amount paid or agreed to be paid to

 

 


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the Lenders for the use or the forbearance of the Loans exceed the maximum permissible under applicable law.  As used herein, the term “applicable law” shall mean the law in effect as of the date hereof; provided, however that in the event there is a change in the law which results in a higher permissible rate of interest, then this Credit Agreement and other Loan Document shall be governed by such new law as of its effective date.  In this regard, it is expressly agreed that it is the intent of the Borrowers and the Guarantors and the Lenders and the Administrative Agent in the execution, delivery and acceptance of this Credit Agreement and the other Loan Documents 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.

§4.13.Reasonable Efforts to Mitigate.  Each Lender agrees that as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that would cause it to be affected under §§4.5, 4.6 or 4.7, such Lender will give notice thereof to the Borrower Representative, with a copy to the Administrative Agent and, to the extent so requested by the Borrower Representative and not inconsistent with regulatory policies applicable to such Lender, such Lender shall use reasonable efforts and take such actions as are reasonably appropriate (including the changing of its lending office or branch) if as a result thereof the additional moneys which would otherwise be required to be paid to such Lender pursuant to such sections would be reduced other than for de minimus amounts, or the illegality or other adverse circumstances which would otherwise require a conversion of such Loans or result in the inability to make such Loans pursuant to such sections would cease to exist, and in each case if, as determined by such Lender in its sole discretion, the taking such actions would not adversely affect such Loans.

§4.14.Replacement of Lenders.  If any Lender (an “Affected Lender”) (i) makes demand upon the Borrowers for (or if the Borrowers are otherwise required to pay) amounts pursuant to §§4.5, 4.6 or 4.7, (ii) is unable to make or maintain LIBOR Rate Loans as a result of a condition described in §4.5, or (iii) does not vote in favor of any amendment, modification or waiver to this Credit Agreement which, pursuant to §26, requires the vote of all of the Lenders or all affected Lenders, and the Required Lenders shall have voted in favor of such amendment, modification or waiver, the Borrower Representative may, within 90 days of receipt of such demand, notice or vote (or the occurrence of such other event causing the Borrowers to be required to pay such compensation or causing §4.5 to be applicable or failure to obtain unanimous consent or approval required by §26) as the case may be, by notice (a “Replacement Notice”) in writing to the Administrative Agent and such Affected Lender (A) request the Affected Lender to cooperate with the Borrowers in obtaining a replacement lender satisfactory to the Administrative Agent and the Borrowers (the “Replacement Lender”); (B) request the non-Affected Lenders with Revolving Credit Commitments, to acquire and assume all of the Affected Lender’s Loans and Revolving Credit Commitment as provided herein, but none of such Lenders shall be under an obligation to

 

 


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do so; or (C) designate a Replacement Lender which is an Eligible Assignee and is reasonably satisfactory to the Administrative Agent other than when an Event of Default has occurred and is continuing and absolutely satisfactory to the Administrative Agent when an Event of Default has occurred and is continuing.  If any satisfactory Replacement Lender shall be obtained, and/or any of the non-Affected Lenders shall agree to acquire and assume all of the Affected Lender’s Loans and Revolving Credit Commitment, then such 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.

§4.15  Defaulting Lender..  

(a)Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

 

(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

 

 


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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)Certain Fees.

 

(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

 

 


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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 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.

 

(b)Defaulting Lender Cure.  If the Borrower Representative, the Administrative Agent and the Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to §4.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

(c)New Swingline Loans/New Letters of Credit.  So long as any Revolving Credit Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) the Administrative Agent shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

 

 


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§4.16  Pro Rata Treatment.  Except to the extent otherwise provided herein: (a) each borrowing from the Revolving Credit Lenders under §§2.1(b), 2.12(e) and 5.7 shall be made from the Revolving Credit Lenders, each payment of the fees under clause (ii) of §4.1, and each payment of the fees under the first sentence of §5.10 shall be made for the account of the Revolving Credit Lenders, pro rata according to the amounts of their respective Revolving Credit Commitments; (b) each payment or prepayment of principal of Revolving Credit Loans shall be made for the account of the Revolving Credit Lenders pro rata in accordance with the respective unpaid principal amounts of the Revolving Credit Loans held by them, provided that, subject to §4.15, if immediately prior to giving effect to any such payment in respect of any Revolving Credit Loans the outstanding principal amount of the Revolving Credit Loans shall not be held by the Revolving Credit Lenders pro rata in accordance with their respective Revolving Credit Commitments in effect at the time such Revolving Credit Loans were made, then such payment shall be applied to the Revolving Credit Loans in such manner as shall result, as nearly as is practicable, in the outstanding principal amount of the Revolving Credit Loans being held by the Revolving Credit Lenders pro rata in accordance with such respective Revolving Credit Commitments; (c) each payment or prepayment of principal of Term Loans shall be made for the account of the Term Loan Lenders pro rata in accordance with the respective unpaid principal amounts of the Term Loans held by them; (d) each payment of interest on Revolving Credit Loans or Term Loans shall be made for the account of the Revolving Credit Lenders or Term Loan Lenders, as applicable, pro rata in accordance with the amounts of interest on such Revolving Loans or Term Loans, as applicable, then due and payable to the respective Lenders; (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).

 

§5.LETTERS OF CREDIT.

§5.1.Commitment to Issue Letters of Credit.  Subject to the terms and conditions hereof and the execution and delivery by the Borrowers of a letter of credit application on the Administrative Agent’s customary form (a “Letter of Credit Application”), the Administrative Agent on behalf of the Revolving Credit Lenders and in reliance upon the agreement of the Revolving Credit Lenders set forth in §5.4 and upon the representations and warranties of the Borrowers contained herein, agrees, in its individual capacity, to issue, extend and renew for the account of the Borrowers one or more standby letters of credit (individually, a “Letter of Credit”), in such form as may be requested from time to time by the Borrowers and agreed to by the Administrative Agent; provided, however, that, at all times, after giving effect to such request, (a)

 

 


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the sum of the aggregate Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not exceed $15,000,000 at any one time, and (b) the sum of (i) all L/C Obligations, and (ii) the amount of all Revolving Credit Loans and Swingline Loans outstanding shall not exceed the Total Revolving Credit Commitment at any time.  Notwithstanding the foregoing, the Administrative Agent shall have no obligation to issue any Letter of Credit to support or secure any Indebtedness of the Borrowers or any of their Subsidiaries to the extent that such Indebtedness was incurred prior to the proposed issuance date of such Letter of Credit, unless in any such case the Borrowers demonstrate to the satisfaction of the Administrative Agent that (x) such prior incurred Indebtedness was then fully secured by a prior perfected and unavoidable security interest in collateral provided by the Borrowers or such Subsidiary to the proposed beneficiary of such Letter of Credit or (y) such prior incurred Indebtedness was then secured or supported by a letter of credit issued for the account of the Borrowers or such Subsidiary and the reimbursement obligation with respect to such letter of credit was fully secured by a prior perfected and unavoidable security interest in collateral provided to the issuer of such letter of credit by the Borrowers or such Subsidiary.  Each Existing Letter of Credit shall, from and after the Restatement Date, be deemed to be a Letter of Credit issued under this Credit Agreement and shall be subject to and governed by the terms and conditions of this Credit Agreement and the other Loan Documents.

§5.2.Letter of Credit Applications.  Each Letter of Credit Application shall be completed to the satisfaction of the Administrative Agent.  In the event that any provision of any Letter of Credit Application shall be inconsistent with any provision of this Credit Agreement, then the provisions of this Credit Agreement shall, to the extent of any such inconsistency, govern.

§5.3.Terms of Letters of Credit.  Each Letter of Credit issued, extended or renewed hereunder shall, among other things, (a) provide for the payment of sight drafts for honor thereunder when presented in accordance with the terms thereof and when accompanied by the documents described therein, and (b) have an expiry date of the earlier of (i) the date one (1) year from its date of issuance and (ii) the date which is thirty (30) days prior to the Revolving Credit Loan Maturity Date; provided, however, a Letter of Credit may contain a provision providing for the automatic extension of the expiration date in the absence of a notice of non-renewal from the Administrative Agent but in no event shall any such provision permit the extension of the expiration date of such Letter of Credit beyond the date that is thirty (30) days prior to the Revolving Credit Loan Maturity Date.  Notwithstanding the foregoing, a Letter of Credit may, as a result of its express terms or as the result of the effect of an automatic extension provision, have an expiration date of not more than one year beyond the Revolving Credit Loan Maturity Date (any such Letter of Credit being referred to as an “Extended Letter of Credit”), so long as the Borrowers deliver to the Administrative Agent for its benefit and the benefit of the Administrative Agent and the Revolving Credit Lenders no later than thirty (30) days prior to the Revolving Credit Loan Maturity Date, Cash Collateral for such Letter of Credit for deposit into the Letter of Credit Collateral Account in an amount equal to the Maximum Drawing Amount of such Letter of Credit; provided, that the obligations of the Borrowers under this Section in respect of such Extended Letters of Credit shall survive the termination of this Agreement and shall remain in effect until no such Extended Letters of Credit remain outstanding.  If the Borrowers fail to provide Cash Collateral with respect to any Extended Letter of Credit by the date thirty (30) days prior to the Revolving Credit Loan Maturity Date, such failure shall be treated as a drawing under such Extended Letter of Credit (in an amount equal to the Maximum Drawing Amount of such Letter

 

 


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of Credit), which shall be reimbursed (or participations therein funded) by the Revolving Credit Lenders in accordance with §5.4 and §5.5, with the proceeds being utilized to provide Cash Collateral for such Letter of Credit.  Each Letter of Credit issued, extended or renewed hereunder shall be subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 or any successor version thereto adopted by the Administrative Agent in the ordinary course of its business as a letter of credit issuer and in effect at the time of issuance of such Letter of Credit (the “Uniform Customs”) or, in the case of a standby Letter of Credit, either the Uniform Customs or the International Standby Practices (ISP98), International Chamber of Commerce Publication No. 590, or any successor code of standby letter of credit practices among banks adopted by the Administrative Agent in the ordinary course of its business as a standby letter of credit issuer and in effect at the time of issuance of such Letter of Credit.

§5.4.Reimbursement Obligations of Lenders.  Each Revolving Credit Lender severally agrees that it shall be absolutely liable, without regard to the occurrence of any Default or Event of Default or any other condition precedent whatsoever or to the delivery of Cash Collateral in respect of any Extended Letter of Credit, to the extent of such Lender’s Revolving Credit 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).

§5.5.Participations of Lenders.  Each payment made by a Lender pursuant to §5.4 above shall be treated as the purchase by such Revolving Credit Lender of a participating interest in the Borrowers’ Reimbursement Obligation under §5.6 in an amount equal to such payment.  Each such Lender shall share in accordance with its participating interest in any interest which accrues pursuant to §5.6.

§5.6.Reimbursement Obligation of the Borrowers.  In order to induce the Administrative Agent to issue, extend and renew each Letter of Credit and the Revolving Credit Lenders to participate therein, the Borrowers hereby agree to reimburse or pay to the Administrative Agent, for the account of the Administrative Agent or (as the case may be) the Lenders, with respect to each Letter of Credit issued, extended or renewed by the Administrative Agent hereunder,

(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);

 

 


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(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 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.

§5.7.Letter of Credit Payments.  If any draft shall be presented or other demand for payment shall be made under any Letter of Credit, the Administrative Agent shall notify the Borrowers of the date and amount of the draft presented or demand for payment and of the date and time when it expects to pay such draft or honor such demand for payment.  If the Borrowers fail to reimburse the Administrative Agent as provided in §5.6 on or before the date that such draft is paid or other payment is made by the Administrative Agent, the Administrative Agent may at any time thereafter notify the Revolving Credit Lenders of the amount of any such Unpaid Reimbursement Obligation.  No later than 3:00 p.m. (New York time) on the Business Day next following the receipt of such notice, each Revolving Credit Lender shall make available to the Administrative Agent, at the Administrative Agent’s Head Office, in immediately available funds, such Lender’s Revolving Credit Commitment Percentage of such Unpaid Reimbursement Obligation, together with an amount equal to the product of (a) the average, computed for the period referred to in clause (c) 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, times (b) the amount equal to such Lender’s Revolving Credit Commitment Percentage of such Unpaid Reimbursement Obligation, times (c) a fraction, the numerator of which is the number of days that elapse from and including the date the

 

 


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Administrative Agent paid the draft presented for honor or otherwise made payment to the date on which such Lender’s Revolving Credit Commitment Percentage of such Unpaid Reimbursement Obligation shall become immediately available to the Administrative Agent, and the denominator of which is 360.  The responsibility of the Administrative Agent to the Borrowers and the Lenders shall be only to determine that the documents (including each draft) delivered under each Letter of Credit in connection with such presentment shall be in conformity in all material respects with such Letter of Credit.

§5.8.Obligations Absolute. The Borrowers’ obligations under this §5 shall be absolute and unconditional under any and all circumstances and irrespective of the occurrence of any Default or Event of Default or any condition precedent whatsoever or any setoff, counterclaim or defense to payment which the Borrowers may have or have had against the Administrative Agent, any Lender or any beneficiary of a Letter of Credit.  The Borrowers further agree with the Administrative Agent and the Lenders that the Administrative Agent and the Lenders shall not be responsible for, and the Borrowers’ Reimbursement Obligations under §5.6 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements 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.

§5.9.Reliance by Issuer. To the extent not inconsistent with §5.8, the Administrative Agent shall be entitled to rely, and shall be fully protected in relying upon, any Letter of Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel, independent accountants and other experts selected by the Administrative Agent.  The Administrative Agent shall be fully justified in failing or refusing to take any action under this Credit Agreement unless it shall first have received such advice or concurrence of the Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its reasonable satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.  The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Credit Agreement in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon the Lenders and all future holders of the Revolving Credit Notes or of a Letter of Credit Participation.

§5.10.Letter of Credit Fees. The Borrowers shall pay a fee, quarterly in arrears on the first Business Day of the following quarter (a “Letter of Credit Fee”), to the Administrative Agent in respect of each Letter of Credit an amount equal to the product of (i) the Applicable

 

 


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Margin for Revolving Credit Loans which are LIBOR Rate Loans and (ii) the face amount of such Letter of Credit.  The Letter of Credit Fee shall be for the accounts of the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages.  The Borrowers shall pay a fee on the first Business Day of the following quarter following the date of issuance or any extension or renewal of any Letter of Credit, equal to one-eighth of one percent (0.125%) of the face amount of each Letter of Credit so issued, extended or renewed for the account of the Administrative Agent, as a fronting fee.  In respect of each Letter of Credit, the Borrowers shall also pay to the Administrative Agent for the Administrative Agent’s own account, at such other time or times as such charges are customarily made by the Administrative Agent, including the Administrative Agent’s customary issuance, amendment, negotiation or document examination and other administrative fees as in effect from time to time.

§5.11.Cash Collateral.At any time that there shall exist a Defaulting Lender with a Revolving Credit Commitment, within one Business Day following the written request of the 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”).  

(a)Grant of Security Interest.  The Borrowers, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of itself, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of L/C Obligations, to be applied pursuant to clause (b) below.  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

(b)Application.  Notwithstanding anything to the contrary contained in this Credit Agreement, Cash Collateral provided under this §5.11 or §4.15 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(c)Termination of Requirement.  Cash Collateral (or the appropriate portion thereof) provided to reduce the Administrative Agent’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this §5.11 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent that there exists excess Cash Collateral; provided that, subject to §4.15 the Person providing Cash Collateral and the Administrative Agent may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.  

 

 


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§5.12.Extended Letters of Credit.Each Revolving Credit Lender confirms that its obligations under §5.4 and §5.5 shall be reinstated in full and apply if the delivery of any Cash Collateral in respect of an Extended Letter of Credit is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise.

§6.GUARANTIES. Each of the Guarantors will jointly and severally guarantee all of the Obligations pursuant to the Guaranty Agreement.  The Obligations are full recourse obligations of each Borrower and each Guarantor, and all of the respective assets and properties of each Borrower and each Guarantor shall be available for the payment in full in cash and performance of the Obligations.  

§7.REPRESENTATIONS AND WARRANTIES. Each of the Borrowers, for itself and for each of the other Borrowers and for each Guarantor insofar as any such statements relate to such Guarantor or its Subsidiaries represents and warrants to the Administrative Agent and the Lenders as follows:

§7.1.Authority; Etc.

(a)Organization; Good Standing.

(i)LSLP 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 LSLP 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 LSLP 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)LSI is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland; each Subsidiary of LSI 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; LSI 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 LSI 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 LSI, in the State of New York) except where a failure to be so qualified in such other jurisdiction would not have a materially

 

 


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adverse effect on the business, assets or financial condition of LSI or such Subsidiary.

(iii)As to each Guarantor, a provision similar, as applicable, to (a)(i) or (ii) above shall be included in each such Guarantor’s Guaranty, and the Borrowers shall be deemed to make for themselves and on behalf of each such subsequent Guarantor a representation and warranty as to such provision regarding such subsequent Guarantor.

(b)Capitalization.

(i)The outstanding equity of LSLP 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 LSLP are owned and held of record by Holdings; all of the limited partner interests of LSLP 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 LSLP 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 LSLP.  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 LSLP or LSI which require or could require LSLP or LSI to sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any equity interests of LSLP.  No general partnership interests of LSLP 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 LSI.  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

 

 


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interests in Holdings held by LSI 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).

(c)Due Authorization.  The execution, delivery and performance of this Credit Agreement and the other Loan Documents to which any of the Borrowers or any Guarantor is or is to become a party and the transactions contemplated hereby and thereby (i) are within the authority of such Borrower and such Guarantor, (ii) have been duly authorized by all necessary proceedings on the part of such Borrower or such Guarantor and any general partner or other controlling Person thereof, (iii) do not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which such Borrower or such Guarantor is subject or any judgment, order, writ, injunction, license or permit applicable to such Borrower or such Guarantor, (iv) do not conflict with any provision of the agreement of limited partnership, any certificate of limited partnership, the charter documents or by-laws of such Borrower or such Guarantor or any general partner or other controlling Person thereof, and (v) do not contravene any provisions of, or constitute a default, Default or Event of Default hereunder or a failure to comply with any term, condition or provision of, any indenture or other material agreement, instrument, judgment, order, decree, permit, license or undertaking binding upon or applicable to such Borrower or such Guarantor or any of such Borrower’s or such Guarantor’s properties or result in the creation of any mortgage, pledge, security interest, lien, encumbrance or charge upon any of the properties or assets of any Borrower, the Operating Subsidiaries or any Guarantor.

(d)Enforceability.  

(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.  

§7.2.Governmental Approvals. The execution, delivery and performance by each Borrower of this Credit Agreement and by each Borrower and each Guarantor of the other Loan Documents to which such Borrower or such Guarantor is or is to become a party and the transactions contemplated hereby and thereby do not require (i) the approval or consent of any 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.

 

 


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§7.3.Title to Properties; Leases.

The Borrowers, the Guarantors and their respective Subsidiaries each has good title to all of its respective properties, assets and rights of every name and nature purported to be owned by it, including, without limitation, that:

(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.

§7.4.Financial Statements.  The following financial statements have been furnished to each of the Lenders:

(a)The audited consolidated balance sheet of LSI and its Subsidiaries (including, without limitation, LSLP) as of December 31, 2017, and the related consolidated statement of operations, shareholders’ equity and cash flows for the fiscal year ended December 31, 2017, 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 LSI.  Such financial statements have been prepared in accordance with GAAP and fairly present the financial condition of LSI 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 LSI 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.

(b)The unaudited consolidated balance sheet of LSI and its Subsidiaries (including, without limitation, LSLP) as of June 30, 2018, and the related consolidated statement of operations and cash flows for the three fiscal quarter period ended June 30, 2018, and the

 

 


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unaudited consolidated statement of operations and cash flows for the three fiscal quarter periods then ended, certified by the chief financial officer of LSI.  Such financial statements have been prepared in accordance with GAAP and fairly present the financial condition of LSI 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 LSI 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.

§7.5.Fiscal Year.  The Borrowers and their respective Subsidiaries each has a fiscal year which is the twelve months ending on December 31 of each calendar year.

§7.6.Licenses, Permits, Franchises, Patents, Copyrights, Etc.  

(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 mark, 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 mark, trademark, trade name or other right owned or used by either Borrower or any Guarantor or Subsidiary.

§7.7.Litigation.  Except as stated on Schedule 7.7 there are no actions, suits, proceedings or investigations of any kind pending or threatened against any Borrower, any Guarantor or any of their respective Subsidiaries before any court, tribunal or administrative agency or board that, could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect or materially impair the right of such Borrower, such Guarantor or their respective Subsidiaries to carry on their respective businesses substantially as now conducted by them, or result in any substantial liability not adequately covered by insurance, or for which adequate reserves are not maintained, as reflected in the applicable financial statements of the Borrowers, or which question the validity of this Credit Agreement or any of the other Loan Documents, or any action taken or to be taken pursuant hereto or thereto.

§7.8.No Materially Adverse Contracts, Etc.  None of any Borrower, any Guarantor or any of their respective Subsidiaries is subject to any charter, corporate, partnership or other legal 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.

 

 


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§7.9.Compliance With Other Instruments, Laws, Etc.  None of any Borrower, any Guarantor or any of their respective Subsidiaries is in violation of any provision of its partnership agreement, charter documents, bylaws or other organizational documents, as the case may be, or any respective agreement or instrument to which it may be subject or by which it or any of its properties may be bound or any decree, order, judgment, statute, license, rule or regulation, in any of the foregoing cases in a manner that could result, individually or in the aggregate, in the imposition of substantial penalties or have a Material Adverse Effect.

§7.10.Tax Status.

(a)(i) Each of the Borrowers, the Guarantors and their respective Subsidiaries (A) has timely made or filed (taking into account all validly filed extensions) all federal, state and local income and all other tax returns, reports and declarations required by any jurisdiction in which it is subject to taxation, (B) has paid all taxes and other governmental assessments and charges shown 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 in writing 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.

(b)To the knowledge of respective officers of the Borrowers, each Partially-Owned Entity (i) has timely made or filed (taking into account all validly filed extensions) all federal, state and local income and all other tax returns, reports and declarations required by any jurisdiction in which it is subject, (ii) has paid all taxes and other governmental assessments and charges shown 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 knowledge of respective officers of the Borrowers, except as otherwise disclosed in writing to the Administrative Agent, there are no unpaid taxes in any material amount claimed in writing to be due by the taxing authority of any jurisdiction from any Partially-Owned Entity, and the respective officers of the Borrowers know of no basis for any such claim.

§7.11.No Event of Default; No Materially Adverse Changes.  No default, Default or Event of Default has occurred and is continuing.  Since December 31, 2017, there has occurred no materially adverse change in the businesses, assets, operations, conditions (financial or otherwise) or prospects of LSI and its Subsidiaries or LSLP and its Subsidiaries from that shown on or reflected in the audited consolidated balance sheet of LSI and its Subsidiaries as of December 31, 2017, or the consolidated statement of income for the fiscal year then ended, 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.

§7.12.Investment Company Act.  None of any Borrower, any Guarantor or any of their respective Subsidiaries is an “investment company”, or an “affiliated company” or a “principal underwriter” of an “investment company”, as such terms are defined in the Investment Company Act of 1940.  

 

 


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§7.13.Absence of UCC Financing Statements, Etc.  Except for Permitted Liens, there will be no financing statement, security agreement, chattel mortgage, real estate mortgage, equipment lease, financing lease, option, encumbrance or other document filed or recorded with any filing records, registry, or other public office, that purports to cover, affect or give notice of any present or possible future lien or encumbrance on, or security interest in, any Unencumbered Property.  Neither any Borrower nor any Guarantor has pledged or granted any lien on or security interest in or otherwise encumbered or transferred any of their respective interests in any Subsidiary (including in the case of LSI, its interests in LSLP, and in the case of any Borrower, its interests in the Operating Subsidiaries) or in any Partially-Owned Entity.

§7.14.Absence of Liens. A Borrower or a Guarantor is the owner of the Unencumbered Properties free from any lien, security interest, encumbrance and any other claim or demand, except for Permitted Liens.

§7.15.Certain Transactions. Except as set forth on Schedule 7.15, none of the officers, partners, directors, or employees of any Borrower or any Guarantor or any of their respective Subsidiaries is presently a party to any transaction with any Borrower, any Guarantor or any of their respective Subsidiaries (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, partner, director or such employee or, to the knowledge of the Borrowers, any corporation, partnership, trust or other entity in which any officer, partner, director, or any such employee or natural Person related to such officer, partner, director or employee or other Person in which such officer, partner, director or employee has a direct or indirect beneficial interest has a substantial interest or is an officer, director, trustee or partner.

§7.16.Employee Benefit Plans.

§7.16.1.In General.  Each Employee Benefit Plan and each Guaranteed Pension Plan has been maintained and operated in compliance in all material respects with the provisions of ERISA and, to the extent applicable, the Code, including but not limited to the provisions thereunder respecting prohibited transactions and the bonding of fiduciaries and other persons handling plan funds as required by Section 412 of ERISA.  The Borrowers have heretofore delivered to the Administrative Agent the most recently completed annual report, Form 5500, with all required attachments, and actuarial statement required to be submitted under  Section 103(d) of ERISA, with respect to each Guaranteed Pension Plan.  The expected post-retirement benefit obligation (determined as of the last day of each Borrower’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by Section 4980B of the Code) of each Borrower and its Subsidiaries is not material.    

§7.16.2.Terminability of Welfare Plans.  No Employee Benefit Plan, which is an employee welfare benefit plan within the

 

 


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meaning of Section 3(1) or Section 3(2)(B) of ERISA, provides benefit coverage subsequent to termination of employment, except as required by Title I, Part 6 of ERISA or the applicable state insurance laws.  The Borrowers may terminate each such employee welfare benefit plan at any time (or at any time subsequent to the expiration of any applicable bargaining agreement) in the discretion of the Borrowers without liability to any Person other than for claims arising prior to termination.

§7.16.3.Guaranteed Pension Plans.  Each contribution required to be made to a Guaranteed Pension Plan, whether required to be made to avoid the incurrence of an accumulated funding deficiency, the notice or lien provisions of Section 302(f) of ERISA, or otherwise, has been timely made.  No waiver of an accumulated funding deficiency or extension of amortization periods has been received with respect to any Guaranteed Pension Plan, and neither any Borrower or any Guarantor nor any ERISA Affiliate is obligated to or has posted security in connection with an amendment to a Guaranteed Pension Plan pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code.  No liability to the PBGC (other than required insurance premiums, all of which have been paid) has been incurred by any Borrower or any Guarantor or any ERISA Affiliate with respect to any Guaranteed Pension Plan and there has not been any ERISA Reportable Event (other than an ERISA Reportable Event as to which the requirement of thirty (30) days' notice has been waived), or any other event or condition which presents a material risk of termination of any Guaranteed Pension Plan by the PBGC.  Based on the latest valuation of each Guaranteed Pension Plan (which in each case occurred within twelve months of the date of this representation), and on the actuarial methods and assumptions employed for that valuation, the aggregate benefit liabilities of all such Guaranteed Pension Plans within the meaning of Section 4001 of ERISA did not exceed the aggregate value of the assets of all such Guaranteed Pension Plans, disregarding for this purpose the benefit liabilities and assets of any Guaranteed Pension Plan with assets in excess of benefit liabilities, by more than $500,000.

§7.16.4.Multiemployer Plans. Neither any Borrower nor any Guarantor nor any ERISA Affiliate has incurred any material liability (including secondary liability) to any Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan under Section 4201 of ERISA or as a result of a sale of assets described in Section 4204 of ERISA.  Neither any Borrower nor any Guarantor nor any ERISA Affiliate has been notified that any Multiemployer Plan is in reorganization or insolvent under and within the meaning of Section 4241 or Section 4245 of ERISA or is at risk of entering reorganization or becoming insolvent, or that any Multiemployer Plan intends to terminate or has been terminated under Section 4041A of ERISA.

 

 


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§7.17.Regulations U and X.  The proceeds of the Loans and the Letters of Credit shall be used for the purposes described in §8.12.  No portion of any Loan is to be used, and no portion of any Letter of Credit is to be obtained, for the purpose of purchasing or carrying any “margin security” or “margin stock” in violation of (and, as such terms are used in) Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.

§7.18.Environmental Compliance.  The Borrowers have caused environmental assessments to be conducted and/or taken other steps to investigate the past and present environmental condition and usage of the Real Estate and the operations conducted thereon.  Based upon such assessments and/or investigation, except as set forth on Schedule 7.18, the Borrowers represent and warrant that:

(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 (“SARA”), 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 300 Appendix B (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 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

 

 


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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, any 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, any 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 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).

 

 


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§7.19.Subsidiaries.  Schedule 7.19 sets forth all of the respective Subsidiaries of LSI or LSLP, and Schedule 7.19 will be updated to reflect any subsequent Guarantor and its Subsidiaries, if any.

§7.20.Loan Documents.  All of the representations and warranties of the Borrowers and the Guarantors made in this Credit Agreement and in the other Loan Documents or any document or instrument delivered to the Administrative Agent or the Lenders pursuant to or in connection with any of such Loan Documents are true and correct in all material respects and do not include any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make such representations and warranties not materially misleading.

§7.21.REIT Status.  LSI has not taken any action that would prevent it from maintaining its qualification as a REIT for its tax year ended December 31, 2017, or from maintaining such qualification at all times during the term of this Credit Agreement.  LSI is not a “pension held REIT” within the meaning of §856(h)(3)(D) of the Code.

§7.22.Solvency. The fair value of the business and assets of each of the Borrowers and each Guarantor exceeds the amount that will be required to pay its respective liabilities (including, without limitation, contingent, subordinated, unmatured and unliquidated liabilities on existing debts, as such liabilities may become absolute and matured), in each case after giving effect to the transactions contemplated by this Credit Agreement (including, without limitation, the use of the proceeds of the Loans and the Letters of Credit issued hereunder).  Neither the Borrowers nor the Guarantors, after giving effect to the transactions contemplated by this Credit Agreement, will be engaged in any business or transaction, or about to engage in any business or transaction, for which such Person has unreasonably small assets or capital (within the meaning of the Uniform Fraudulent Transfer Act, the Uniform Fraudulent Conveyance Act and Section 548 of the Federal Bankruptcy Code), and neither the Borrowers nor any Guarantor has any intent to:

 

(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.

 

 


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§7.23.Trading Status.  No security of LSI traded on the New York Stock Exchange has been suspended from trading.

§7.24.Existing Indebtedness; Liens.  

(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 for such provisions contained in (i) the Note Purchase Agreements referred to in §9.10(b) and (ii) any agreement that evidences Unsecured Indebtedness that any Borrower, Guarantor or Subsidiary of a Borrower may create, incur, assume, or permit or suffer to exist without violation of this Credit Agreement, which such provisions are substantially similar to, or less restrictive than, those such provisions contained in the Loan Documents.

 

 


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§7.25.Sanctions.  

               (a) None of (1) any Borrower, any Guarantor or any other Subsidiary, any of their respective directors, officers, or, to the knowledge of any Borrower, such other Guarantor or such other Subsidiary, any of their respective employees or Affiliates, or (2) to the knowledge of any Borrower, any agent or representative of any Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the Agreement, (A) is a Sanctioned Person or currently the subject or target of any Sanctions, (B) is acting on behalf of a Sanctioned Person, (C) has its assets located in a Sanctioned Country, or (D) is under administrative, civil or criminal investigation for an alleged violation of, or received notice from any governmental entity regarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by a governmental authority that enforces Sanctions or any Anti-Corruption Laws or Anti-Money Laundering Laws.

(b)Each Borrower and each of its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance by each Borrower and each of its Subsidiaries and their respective directors, officers, employees, and agents with all Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions.

(c)Each Borrower and each of its Subsidiaries, each director, officer, and to the knowledge each Borrower, employee, agent and Affiliate of each Borrower and each such Subsidiary, is in compliance with all Anti-Corruption Laws, Anti-Money Laundering Laws in all material respects and applicable Sanctions.

(d)No proceeds of any Loans or other extensions of credit hereunder have been used, directly or indirectly, by any Borrower, any of their Subsidiaries or any of their directors, officers, employees and agents in violation of §8.12(b) or §8.22.

§7.26. Beneficial Ownership.  As of the Restatement Date, the information included in any Beneficial Ownership Certification is true and correct in all respects.

 

§8.AFFIRMATIVE COVENANTS OF THE BORROWERS AND THE GUARANTORS.  Each of the Borrowers for itself and on behalf of each of the Guarantors (if and to the extent expressly included in Subsections contained in this Section) covenants and agrees that, so long as any Loan, Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or the Lenders have any obligation to make any Loans or the Administrative Agent has any obligation to issue, extend or renew any Letters of Credit:

§8.1.Punctual Payment.  The Borrowers will duly and punctually pay or cause to be paid the principal and interest on the Loans and all Reimbursement Obligations and all interest, fees, charges and other amounts provided for in this Credit Agreement and the other Loan Documents, all in accordance with the terms of this Credit Agreement and the Notes, and the other Loan Documents.

 

 


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§8.2.Maintenance of Office.  Each of the Borrowers and the Guarantors will maintain its chief executive office in Williamsville, New York, or at such other place in the contiguous United States of America as each of them shall designate upon written notice to the Administrative Agent to be delivered within five (5) days of such change, where notices, presentations and demands to or upon the Borrowers and the Guarantors, as the case may be, in respect of the Loan Documents may be given or made.

§8.3.Records and Accounts.  Each of the Borrowers and the Guarantors will (a) keep, and cause each of its Subsidiaries to keep, true and accurate records and books of account in which full, true and correct entries will be made in accordance with GAAP and all applicable requirements of any governmental authority having legal or regulatory jurisdiction over such Borrower, such Guarantor or such Subsidiary, as the case may be, (b) maintain adequate 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 LSI, LSLP 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 LSI, LSLP and their respective Subsidiaries and the appointment in such capacity of a successor firm as Accountants.

§8.4.Financial Statements, Certificates and Information.  The Borrowers will deliver to the Administrative Agent:

(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 LSI’s Annual Report on Form 10-K with the SEC regardless of whether LSI is subject to the filing requirements thereof):

(i)in the case of LSLP, if prepared, the audited consolidated balance sheet of LSLP 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 LSLP; and

(ii)in the case of LSI, the audited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of LSI and its Subsidiaries (including, without limitation, LSLP 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 LSLP or LSI, as applicable, that the information contained in such financial statements fairly presents the financial position of

 

 


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LSLP or LSI (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 (commencing with the fiscal quarter ending September 30, 2018) (or such shorter period as is 15 days greater than the period applicable to the filing of LSI’s Quarterly Report on Form 10-Q with the SEC regardless of whether LSI is subject to the filing requirements thereof):

(i)in the case of LSLP, if prepared, copies of the unaudited consolidated balance sheet of LSLP 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 LSLP’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to cash flow statements) provided by LSLP; and

(ii)in the case of LSI, copies of the unaudited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of LSI and its Subsidiaries (including, without limitation, LSLP 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 LSI’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 LSLP or LSI, as applicable, that the information contained in such financial statements fairly presents the financial position of LSLP or LSI (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 LSLP or LSI, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since June 30, 2018; and, in the case of LSI, 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;

 

 


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(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 LSI;

(g)as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of LSI, copies of the Form 10-K statement filed by LSI 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 LSI, copies of the Form 10-Q statement filed by LSI with the SEC for such fiscal quarter;

(h)within 30 days after the end of each fiscal year of LSI and LSLP, a five‑year capital plan of LSLP and its Subsidiaries;

(i)(i) at or promptly after any time at which the Borrowers or any Subsidiary becomes subject to the Beneficial Ownership Regulation, a completed Beneficial Ownership Certifications in form and substance acceptable to the Administrative Agent and (ii) promptly after an officer of the Borrowers obtains knowledge of any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification; and

(j)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.

Financial statements and opinions of independent certified public accountants pursuant to this §8.4 shall be deemed to have been delivered if the Borrower Representative satisfies any of the following requirements with respect thereto:

(i)the Borrower Representative shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of §8.4(a) or §8.4(b), as the case may be, with the SEC on EDGAR;

(ii)such financial statements satisfying the requirements of §8.4(a) or §8.4(b) are timely posted by or on behalf of the Borrower Representative on IntraLinks or SyndTrak or on any other similar website to which each Lender has free access; or    

(iii)Borrower Representative shall have filed any of the items referred to in §8.4(g) with the SEC on EDGAR and shall have made such items available on its home page on the internet or on IntraLinks or SyndTrak or on any other similar website to which each Lender has free access.

 

 


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§8.5.Notices.

(a)Defaults.  The Borrower Representative will, and will cause each Guarantor, as applicable, to, promptly notify the Administrative Agent in writing of the occurrence of any default, Default or Event of Default.  If any Person shall give any notice or take any other action in respect of (x) a claimed default (whether or not constituting a Default or an Event of Default) under this Credit Agreement or (y) a claimed default by any Borrower, any Guarantor or any of their respective Subsidiaries, as applicable, under any note, evidence of Indebtedness, indenture or other obligation to which or with respect to which any of them is a party or obligor, whether as principal, guarantor or surety, and such default would permit the holder of such note or obligation or other evidence of Indebtedness to accelerate the maturity thereof or otherwise cause the entire Indebtedness to become due, such Borrower or such Guarantor, as the case may be, shall forthwith give written notice thereof to the Administrative Agent, describing the notice or action and the nature of the claimed failure to comply.

(b)Environmental Events.  The Borrower Representative will, and will cause each Guarantor to, promptly give notice in writing to the Administrative Agent (i) upon such Borrower’s or such Guarantor’s obtaining knowledge of any material violation of any Environmental Law regarding any Real Estate or such Borrower’s or such Guarantor’s operations or the operations of any of their Subsidiaries, (ii) upon such Borrower’s or such Guarantor’s obtaining knowledge of any known Release of any Hazardous Substance at, from, or into any Real Estate which it reports in writing or is reportable by it in writing to any governmental authority and which is material in amount or nature or which could materially affect the value of such Real Estate, (iii) upon such Borrower’s or such Guarantor’s receipt of any notice of material violation of any Environmental Laws or of any material Release of Hazardous Substances in violation of any Environmental Laws or any matter that may be a Disqualifying Environmental Event, including a notice or claim of liability or potential responsibility from any third party (including without limitation any federal, state or local governmental officials) and including notice of any formal inquiry, proceeding, demand, investigation or other action with regard to (A) such Borrower’s or such Guarantor’s or any other Person’s operation of any Real Estate, (B) contamination on, from or 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.

(c)Notification of Claims against Unencumbered Properties.  The Borrower Representative will, and will cause each Guarantor to, promptly upon becoming aware thereof, notify the Administrative Agent in writing of any setoff, claims, withholdings or other defenses to which any of the Unencumbered Properties are subject, which (i) could reasonably be expected to have a Material Adverse Effect or materially and adversely affect the value of such Unencumbered Property, or (ii) with respect to such Unencumbered Property, constitute a

 

 


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Disqualifying Environmental Event, a Disqualifying Legal Event, a Disqualifying Building Event or a Lien which is not a Permitted Lien allowed to be incurred on an Unencumbered Property in accordance with §9.2.

(d)Notice of Litigation and Judgments.  The Borrower Representative will, and will cause each Guarantor to, and the Borrowers will cause each of their respective Subsidiaries to, give notice to the Administrative Agent in writing within ten (10) days of becoming aware of any litigation or proceedings threatened in writing or any pending litigation and proceedings an adverse determination in which could materially affect any Borrower, any Guarantor or any of their respective Subsidiaries or any Unencumbered Property or to which any Borrower, any Guarantor or any of their respective Subsidiaries is or is to become a party involving a claim against any Borrower, any Guarantor or any of their respective Subsidiaries (to the extent uninsured) that could reasonably be expected to have a Material Adverse Effect or materially affect the value or operation of the Unencumbered Properties and stating the nature and status of such litigation or proceedings.  Each Borrower will, and will cause each of the Guarantors and the Subsidiaries to, give notice to the Administrative Agent, in writing, in form and detail reasonably satisfactory to the Administrative Agent, within ten (10) days of any judgment to the extent not covered by insurance, final or otherwise, against any Borrower, any Guarantor or any of their Subsidiaries in an amount in excess of $1,000,000.

(e)Acquisition and Disposition of Real Estate.  The Borrower Representative shall notify the Administrative Agent in writing promptly of the acquisition and the disposition of any Real Estate by any Borrower, any Guarantor, any of their respective Subsidiaries or any Partially-Owned Entity (whether or not such acquisition was made with proceeds of the Loans), which notice shall include, with respect to such Real Estate, its owner (if other than LSLP), its address, a brief description, a summary of occupancy levels, a pro forma and historic (if available) income statement and a summary of the key business terms of such acquisition (including sources and uses of funds for such acquisition), a summary of the principal terms of any financing for such Real Estate, and a statement as to whether such Real Estate qualifies as an Unencumbered Property.

(f)Notices Regarding Note Purchase Agreement. The Borrower Representative shall notify the Administrative Agent in writing (i) at least five (5) Business Days prior to entering into any amendment of any Note Purchase Agreement and (ii) within five (5) Business Days following payment in full and satisfaction of all obligations under, or other termination of, any Note Purchase Agreement.   As and when required to be delivered  pursuant to the Note Purchase Agreement or, if earlier, simultaneously with the delivery to the holders of the notes issued pursuant to the Note Purchase Agreement, the Borrower Representative shall deliver to the Administrative Agent any notice required to be delivered to the holders under or with respect to the Note Purchase Agreement.

(g)Notice to Lenders.  The Administrative Agent will use good faith efforts to cause any notice delivered under this §8.5 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 notice is received by the Administrative Agent.

 

 


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§8.6. Existence of LSLP, Holdings and Subsidiary Guarantor; Maintenance of Properties.  LSLP for itself and for Holdings and any Subsidiary that becomes a Guarantor (insofar as any such statements relate to Holdings or such Subsidiary) will do or cause to be done all things necessary to, and shall, preserve and keep in full force and effect its existence as a limited partnership, corporation or another legally constituted entity, and will do or cause to be done all things necessary to preserve and keep in full force all of its rights and franchises and those of its Subsidiaries, and will not, and will not cause or permit any of its Subsidiaries to, convert to a limited liability company or a limited liability partnership.  LSLP (a) will cause all necessary repairs, renewals, replacements, betterments and improvements to be made to all Real Estate owned or controlled by it or by any of its Subsidiaries, all as in the judgment of LSLP or such Subsidiary may be necessary so that the business carried on in connection therewith may be properly conducted at all times, subject to the terms of the applicable Leases and partnership agreements or other organizational documents, (b) will cause all of its other properties and those of its Subsidiaries used or useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment, and (c) will, and will cause each of its Subsidiaries, continue to engage exclusively in the business of owning and operating self storage facilities; provided that nothing in this Credit Agreement shall prevent the Borrowers from entering into Tower Leases or occasional nonmaterial Leases of retail or office space incidental to the Borrowers’ owning and operating self storage facilities; and provided further that nothing in this §8.6 shall prevent any Borrower from discontinuing the operation and maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of LSLP, desirable in the conduct of its or their business and such discontinuance does not cause a Default or an Event of Default hereunder, could not reasonably be expected to have a Material Adverse Effect and does not in the aggregate materially adversely affect the business of the Borrowers and their respective Subsidiaries on a consolidated basis.  Holdings shall at all times be a wholly-owned Subsidiary of LSI and the sole general partner of LSLP and shall be the owner of at least 1% of the outstanding partnership interests in LSLP.

§8.7.Existence of LSI; Maintenance of REIT Status of LSI; Maintenance of Properties.  LSI will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a Maryland corporation.  LSI will at all times maintain its status as a REIT and not to take any action which could lead to its disqualification as a REIT.  LSI shall at all times maintain its listing on the New York Stock Exchange.  LSI will continue to operate as a fully-integrated, self-administered and self-managed real estate investment trust which, together with its Subsidiaries (including, without limitation LSLP) owns and operates an improved property portfolio comprised exclusively of self-storage facilities.  LSI will not engage in any business other than the business of acting as a REIT and serving as a limited partner of LSLP and as a member, partner or stockholder of other Persons as permitted by this Credit Agreement.  LSI shall conduct all or substantially all of its business operations through LSLP, and shall not own real estate assets outside of its interests in LSLP.  LSI shall do or cause to be done all things necessary to preserve and keep in full force all of its rights and franchises and those of its Subsidiaries.  LSI shall (a) cause all of its properties and those of its Subsidiaries used or useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment, (b) cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of LSI may be necessary so that the business carried on in connection therewith may be properly and

 

 


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advantageously conducted at all times, and (c) cause LSLP and each of its Subsidiaries to continue to engage exclusively in the business of owning and operating self storage facilities; provided that nothing in this §8.7 shall prevent LSI from discontinuing the operation and maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of LSI, desirable in the conduct of its or their business and such discontinuance does not cause a Default or an Event of Default hereunder, could not reasonably be expected to have a Material Adverse Effect and does not in the aggregate materially adversely affect the business of the Borrowers and their respective Subsidiaries on a consolidated basis.

§8.8.Insurance.  Each Borrower will, and will cause each Guarantor to, maintain with respect to its properties, and will cause each of its Subsidiaries to maintain with financially sound and reputable insurers, insurance with respect to such properties and its business against such casualties and contingencies as shall be in accordance with the general practices of businesses having similar operations and real estate portfolios in similar geographic areas and in amounts, containing such terms, in such forms and for such periods as is commercially reasonable, customary and prudent, and from time to time deliver to the Administrative Agent upon its request certificates of insurance as to all of the insurance maintained by each Borrower and their respective Subsidiaries on the Real Estate (including flood insurance if necessary) from the insurer or an independent insurance broker, identifying insurers, types of insurance, insurance limits, and policy terms.

§8.9.Taxes.  Each Borrower will, and will cause each Guarantor and each of its Subsidiaries to, pay or cause to be paid real estate taxes, other taxes, assessments and other 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.

 

 


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§8.10.Inspection of Properties and Books; Confidentiality.  Each Borrower will, and will cause each Guarantor to, permit the Lenders, through the Administrative Agent or any of the Lenders’ other designated representatives, to visit and inspect any of the properties of any Borrower, any Guarantor or any of their respective Subsidiaries, to examine the books of account of the Borrowers, the Guarantors and their respective Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss the affairs, finances and accounts of the Borrowers, the Guarantors and their respective Subsidiaries with, and to be advised as to the same by, its officers, all at such reasonable times and intervals as the Administrative Agent may reasonably request; provided that the Borrowers shall only be responsible for the costs and expenses incurred by the Administrative Agent in connection with such inspections after the occurrence and during the continuance of an Event of Default.  The Administrative Agent and each Lender agrees to keep any non-public information delivered or made available by the Borrowers to it confidential from anyone other than persons employed or retained by the Administrative Agent or such Lender (including, without limitation, employees, officers, attorneys and other advisors) who, in the reasonable determination of the Administrative Agent or such Lender, reasonably need to know such information and who are or are expected to become engaged in evaluating, approving, structuring or administering the Loans or rendering legal advice in connection with the Loans; provided such employees, officers, attorneys and other advisors agree to keep such information confidential in accordance with this §8.10; and provided further that nothing herein shall prevent the Administrative Agent or any Lender or persons employed or retained by the Administrative Agent or such Lender from disclosing such information (i) to any other Lender, (ii) to any other person if reasonably incidental to the administration of the Loans, (iii) upon the order of any court or administrative agency, (iv) upon the request or demand of any regulatory agency or authority, (v) which has been publicly disclosed other than as a result of a disclosure by the Administrative Agent or any Lender which is not permitted by this Credit Agreement, (vi) in connection with any litigation to which the Administrative Agent, any Lender, or their respective Affiliates may be a party, (vii) to the extent reasonably required in connection with the exercise of any remedy hereunder, (viii) to the Administrative Agent’s or such Lender’s 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.  

§8.11.Compliance with Laws, Contracts, Licenses, and Permits.  Each Borrower will, and will cause each Guarantor to, comply with, and will cause each of their respective Subsidiaries to comply with (a) all applicable laws and regulations now or hereafter in effect wherever its business is conducted, including, without limitation, all Environmental Laws and all applicable federal and state securities laws, (b) the provisions of its partnership agreement and certificate or corporate charter and other organizational documents, as applicable, (c) all material agreements and instruments to which it is a party or by which it or any of its properties may be bound (including the Real Estate and the Leases) and (d) all applicable decrees, orders, and judgments.  If at any time while any Loan or Note is outstanding or the Lenders have any obligation to make Loans hereunder, any Permit shall become necessary or required in order that any Borrower or any Guarantor may fulfill any of its obligations hereunder or under any other Loan Document to which it is a party, the Borrowers and the Guarantors will immediately take or cause to be taken all reasonable steps within the power of the Borrowers or the Guarantors, as applicable, to obtain such Permit and furnish the Administrative Agent with evidence thereof.  The Borrowers will, and will cause each Guarantor and each Subsidiary to, obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the

 

 


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ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

§8.12. Use of Proceeds.  

                  (a)

Subject at all times to the other provisions of this Credit Agreement the Borrowers will use the proceeds of the Loans and Letters of Credit to be obtained solely to finance (a) the acquisition, renovation and construction of self-storage facilities, (b) equity interests in joint ventures which engage in the same line of business as the Borrowers and the acquisition of real and personal property in connection therewith, (c) the repayment of Indebtedness (d) stock repurchases in accordance with §9.7(a) and (e) general working capital needs.

      (b)The Borrowers will not request any Loan, and the Borrowers shall not use, and shall ensure that their Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan, directly or to Borrowers’ knowledge indirectly, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

§8.13.Acquisition of Unencumbered Properties.  In addition to the requirements of §8.5(e), the Borrowers shall, within seven (7) Business Days of the acquisition of an Unencumbered Property or the qualification of any Real Estate as an Unencumbered Property, deliver to the Administrative Agent a certificate from an officer of the Borrower Representative certifying that such Real Estate satisfies the requirements for an Unencumbered Property set forth in the definition thereof.

§8.14.Additional Guarantors.

(a)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 Guaranty Agreement and deliver to the Administrative Agent and the Lenders the other items required to be delivered under §8.14(b):

 

(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

 

 


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any stock or other equity interests in such Subsidiary has incurred, acquired or suffered to exist any Indebtedness that is Recourse.

(b)Each joinder agreement in respect of the Guaranty Agreement delivered by a Subsidiary of the Borrowers under the immediately preceding subsection (a) 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 Guaranty Agreement, as applicable;

 

(iii)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 Guaranty Agreement has been duly authorized, executed and delivered by such additional Subsidiary Guarantor and that the Guaranty Agreement 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.

(c)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 Guaranty Agreement (other than Holdings) so long as:  (i) such Guarantor is not required to be a party to the Guaranty Agreement under §8.14(a); (ii) no Default

 

 


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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 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.

§8.15.Further Assurances.  Each Borrower will, and will cause each Guarantor to, cooperate with, and to cause each of its Subsidiaries to cooperate with, the Administrative Agent and the Lenders and execute such further instruments and documents as the Lenders or the Administrative Agent shall reasonably request to carry out to their satisfaction the transactions contemplated by this Credit Agreement and the other Loan Documents.

§8.16.  Intentionally Omitted.  

§8.17.  Environmental Indemnification.  The Borrowers jointly and severally covenant and agree that they will indemnify and hold the Administrative Agent and each Lender, and each of their respective Affiliates, harmless from and against any and all claims, expense, damage, loss or liability incurred by the Administrative Agent, any Lender, or any such Affiliate (including all reasonable costs of legal representation incurred by the Administrative Agent or any Lender, but excluding, as applicable, for the Administrative Agent or a Lender any claim, expense, damage, loss or liability as a result of the gross negligence or willful misconduct of the Administrative Agent or such Lender or any of their respective Affiliates) relating to (a) any Release or threatened Release of Hazardous Substances on any Real Estate; (b) any violation of any Environmental Laws with respect to conditions at any Real Estate or the operations conducted thereon; (c) the investigation or remediation of off-site locations at which any Borrower, any Guarantor or any of their respective Subsidiaries or their predecessors are alleged to have directly or indirectly disposed of Hazardous Substances; or (d) any action, suit, proceeding or investigation brought or threatened with respect to any Hazardous Substances relating to Real Estate (including, but not limited to, claims with respect to wrongful death, personal injury or damage to property).  It is expressly acknowledged by each Borrower that this covenant of indemnification shall survive the payment of the Loans and shall inure to the benefit of the Administrative Agent and the Lenders and their respective Affiliates, their respective successors, and their respective assigns under the Loan Documents permitted under this Credit Agreement.

§8.18. Response Actions.  Each Borrower covenants and agrees that if any Release or disposal of Hazardous Substances shall occur or shall have occurred on any Real Estate owned by it or any of its Subsidiaries, such Borrower will cause the prompt containment and removal of such Hazardous Substances and remediation of such Real Estate as necessary to comply with all Environmental Laws or to preserve the value of such Real Estate.

 

 


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§8.19. Environmental Assessments.  If the Required Lenders have reasonable grounds to believe that a Disqualifying Environmental Event has occurred with respect to any Unencumbered Property, after reasonable notice by the Administrative Agent, whether or not a Default or an Event of Default shall have occurred, the Required Lenders may determine that the affected Real Estate no longer qualifies as an Unencumbered Property; provided that prior to 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.

§8.20. Employee Benefit Plans.

(a)In General.  Each Employee Benefit Plan maintained by any Borrower, any Guarantor or any of their respective ERISA Affiliates will be operated in compliance in all material respects with the provisions of ERISA and, to the extent applicable, the Code, including but not limited to the provisions thereunder respecting prohibited transactions.

(b)Terminability of Welfare Plans.  With respect to each Employee Benefit Plan maintained by any Borrower, any Guarantor or any of their respective ERISA Affiliates which is an employee welfare benefit plan within the meaning of Section 3(1) or Section 3(2)(B) of ERISA, such Borrower, such Guarantor, or any of their respective ERISA Affiliates, as the case may be, has the right to terminate each such plan at any time (or at any time subsequent to the expiration of any applicable bargaining agreement) without liability other than liability to pay claims incurred prior to the date of termination.

(c)Unfunded or Underfunded Liabilities.  The Borrowers will not, and will not permit any Guarantor or Subsidiary to, at any time, have accruing or accrued unfunded or underfunded liabilities with respect to any Employee Benefit Plan, Guaranteed Pension Plan or Multiemployer Plan, or permit any condition to exist under any Multiemployer Plan that would create a withdrawal liability.

§8.21.No Amendments to Certain Documents.  The Borrowers will not, and will not permit any Guarantor or Subsidiary to, at any time cause or permit its certificate of limited partnership, agreement of limited partnership, articles of incorporation, by-laws or other organizational documents, as the case may be, to be modified, amended or supplemented in any respect whatever, without (in each case) the express prior written consent or approval of the Required Lenders in their sole discretion, if such changes would affect LSI’s REIT status or could otherwise reasonably be expected to have a Material Adverse Effect.

 

 


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§8.22.Anti-Corruption Laws.  The Borrowers will (a) maintain in effect and enforce policies and procedures reasonably designed to ensure compliance by the Borrowers, their Subsidiaries and their directors, officers, employees and agents with all Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions, (b) notify the Administrative Agent and each Lender that previously received a Beneficial Ownership Certification of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein and (c) promptly upon the reasonable request of the Administrative Agent or any Lender, provide the Administrative Agent or such Lender, as the case may be, any information or documentation requested by it for purposes of complying with the Beneficial Ownership Regulation.

§8.23. Management.  Except by reason of death or incapacity, at least two (2) of the Key Management Individuals (as hereinafter defined) shall remain active in the executive and/or operational management, in their current positions and with their current responsibilities (or more senior positions with requisite greater responsibilities), of LSI; 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, LSI 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 LSI in such positions and with such responsibilities, total at least two (2).  For purposes hereof, “Key Management Individuals” shall mean and include David L. Rogers, Andrew J. Gregoire, Joseph Saffire and Edward F. Killeen.

§8.24. Financial Covenants under Note Purchase Agreement.  In the event that (i) at any time, any of the financial covenants contained in any Note Purchase Agreement (the parties hereto acknowledge and agree that for purposes of this §8.24 the term “financial covenants” shall be deemed to refer to the covenants set forth in Sections 10.8 through 10.20 of each Note Purchase Agreement and any other covenant that calculates or otherwise measures the financial performance of the Borrowers, the Guarantors or their Subsidiaries) (including the defined terms relevant to such financial covenants (including, by way of example and without limitation, the condition set forth in clause (d)(3) of the definition of “Unencumbered Property” in the Note Purchase Agreement dated as of August 5, 2011, so long as such Note Purchase Agreement remains outstanding)) 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 forth in §10 hereof (and the definitions relating thereto) or (ii) any additional financial covenant not set forth herein is included in any Note Purchase Agreement, then and in such event the Borrowers shall concurrently therewith provide notice to such effect to the Administrative Agent and the Administrative Agent shall promptly give such notice to the Lenders (unless the occurrence thereof is as of the Restatement Date), and the financial covenants and the defined terms relevant to such financial covenants set forth herein shall automatically be deemed amended or modified to the same effect as in the Note Purchase Agreement, or such additional financial covenants and the defined terms relevant to such financial covenants shall automatically be deemed to be incorporated into this Credit Agreement by reference.

 

 


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§9.

CERTAIN NEGATIVE COVENANTS OF THE BORROWERS AND THE GUARANTORS.  Each Borrower for itself and on behalf of the Guarantors covenants and agrees that, so long as any Loan, Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any of the Lenders has any obligation to make any Loans or the Administrative Agent has any obligation to issue, extend or renew any Letters of Credit:

§9.1. Restrictions on Indebtedness.

The Borrowers and the Guarantors may, and may permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable for, contingently or otherwise, any Indebtedness other than:

(a)Intentionally Omitted;

(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 $10,000,000 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 $10,000,000 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 $10,000,000 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 forth in §10 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 $10,000,000 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.

 

 


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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 the Guaranty Agreement by a Subsidiary Guarantor, to sign and deliver to the Administrative Agent a joinder to the Intercreditor Agreement.

§9.2.Restrictions on Liens, Etc.  The Borrowers will not, and will not permit any Guarantor or any Subsidiary to:  (a) create or incur or suffer to be created or incurred or to exist any lien, encumbrance, mortgage, pledge, charge, restriction or other security interest of any kind upon any of its property or assets of any character whether now owned or hereafter acquired, or upon the income or profits therefrom; (b) transfer any of such property or assets or the income or profits therefrom for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to payment of its general creditors; (c) acquire, or agree or have an option to acquire, any property or assets upon conditional sale or other title 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;

 

 


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(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.

§9.3.Restrictions on Investments.  The Borrowers will not, and will not permit any Guarantor or any Subsidiary to, permit to exist or to remain outstanding any Investment except Investments in:

(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;

 

 


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(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 “P 1” if rated by Moody’s, 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 $1,000,000; 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 LSLP or LSI;

(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)a Hedge Agreement or other interest rate hedges in connection with Indebtedness;

(i)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;

(j)Investments consisting of Distributions permitted under §9.7 hereof; and;

(k)any other Investment so long as (i) at the time of entering into the obligation to make such Investment, no Default or Event of Default shall be in existence or could reasonably be expected to arise or result therefrom after giving effect to such Investment, and (ii)

 

 


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after giving effect to the making of such Investment, the Borrowers shall be in compliance with the financial covenants under §10 hereof.

§9.4.Merger, Consolidation and Disposition of Assets.

The Borrowers will not, and will not permit any Guarantor or Subsidiary to:

(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 LSLP with and into LSLP, (x) the merger or consolidation of two or more Subsidiaries of LSLP, (y) the merger or consolidation of one or more Subsidiaries of LSI with and into LSI, or (z) the merger or consolidation of two or more Subsidiaries of LSI), 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 grant a Lien 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

 

 


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(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.

§9.5.Sale and Leaseback.  The Borrowers will not, and will not permit any Guarantor or any of their respective Subsidiaries to, enter into any arrangement, directly or indirectly, whereby 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.

§9.6.Compliance with Environmental Laws.  The Borrowers will not, and will not permit any Guarantor or Subsidiary to, do any of the following:  (a) use any of the Real Estate or any portion thereof as a facility for the handling, processing, storage or disposal of Hazardous Substances except for quantities of Hazardous Substances used in the ordinary course of business and in compliance with all applicable Environmental Laws, (b) cause or permit to be located on any of the Real Estate any underground tank or other underground storage receptacle for Hazardous Substances except in full compliance with Environmental Laws, (c) generate any Hazardous Substances on any of the Real Estate except in full compliance with Environmental Laws, or (d) conduct any activity at any Real Estate or use any Real Estate in any manner so as to cause a Release or a violation of any Environmental Law; provided that a breach of this covenant shall result in the exclusion of the affected Real Estate from the calculation of the covenants set forth in §10, but shall only constitute an Event of Default under §13.1(c) hereof if such breach has a material adverse effect on the Borrowers and their Subsidiaries, taken as a whole, or materially impairs the ability of the Borrowers to fulfill their obligations to the Lenders under this Credit Agreement.

 

 


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§9.7.Distributions.  The Borrowers will not make any Distributions if any Default or Event of Default has occurred and is continuing or would occur therefrom; provided however, that Borrowers may at all times make Distributions with respect to any fiscal year in an aggregate amount not to exceed the minimum amount (after taking into account all available funds of LSI from all other sources) necessary in order to enable LSI to maintain its status as a REIT; and provided further that, the Borrowers will not at any time make any Distributions with respect to any period of twelve (12) consecutive months in connection with the purchase, redemption or retirement of capital stock of the Borrowers that exceed $100,000,000 in the aggregate during such period unless the Borrowers shall have first received written confirmation from each Rating Agency then rating the long term unsecured debt of the Borrowers that the proposed Distribution will not result in such rating being withdrawn or being downgraded below “BBB-“ by S&P, “Baa3” by Moody’s, “BBB-“ by Fitch or below an equivalent rating by any other Rating Agency then rating the Borrowers.    

§9.8.Employee Benefit Plans.  None of any Borrower, any Guarantor or any ERISA Affiliate will:

(a)engage in any “prohibited transaction” within the meaning of §406 of ERISA or §4975 of the Code which could result in a material liability for any Borrower, any Guarantor or any of their respective Subsidiaries; or

(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.

§9.9.Fiscal Year; Nature of Business.  The Borrowers will not, and will not permit the Guarantors or any of their respective Subsidiaries to, change the date of the end of its fiscal year from that set forth in §7.5.  The Borrowers will not, and will not permit any Guarantor or any Subsidiary to, engage in any business, if, as a result, when taken as a whole, the general nature of the business of the Borrowers, the Guarantors and their respective Subsidiaries would be substantially changed from the general nature of the business of the Borrowers, the Guarantors and their respective Subsidiaries on the date of this Credit Agreement.

 

 


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§9.10.Negative Pledge.  The Borrowers will not, and will not permit any Guarantor or any Subsidiary to, enter into any agreement containing any provision prohibiting the creation or assumption of any Lien upon its properties, revenues or assets, whether now owned or hereafter acquired, or restricting the ability of the Borrowers or the Guarantors to amend or modify this Credit Agreement or any other Loan Document except for (a) prohibitions on liens for particular assets (other than an Unencumbered Property) set forth in a security instrument in connection with Indebtedness encumbering such assets and the granting or effect of such liens does not otherwise constitute a Default or Event of Default, (b) Section 10.2 of the Note Purchase Agreements described in clauses (i) and (ii) of the definition of the term “Note Purchase Agreement” and (c) such provisions contained in any agreement that evidences Unsecured Indebtedness that any Borrower, Guarantor or Subsidiary of a Borrower may create, incur, assume, or permit or suffer to exist without violation of this Credit Agreement so long as such provisions are substantially similar to, or less restrictive than, those such provisions contained in the Loan Documents

§9.11.Transactions with Affiliates.  The Borrowers will not, and will not permit any Guarantor or any Subsidiary to, enter into, directly or indirectly, any transaction or group of related transactions (including, without limitation, the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than a Borrower or a Guarantor), except pursuant to the reasonable requirements of such Borrower’s, Guarantor’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to such Borrower, Guarantor or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.

§9.12.[reserved].  

§9.13.Restrictions on Intercompany Transfers.  The Borrowers shall not, and shall not permit any of their respective Subsidiaries (other than an Excluded Subsidiary) to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of the Borrowers to: (a) pay dividends or make any other distribution on any of such Subsidiary’s capital stock or other equity interests owned by the Borrowers or any Subsidiary of the Borrowers; (b) pay any Indebtedness owed to any of the Borrowers or any Subsidiary of the Borrowers; (c) make loans or advances to any of the Borrowers or any Subsidiary of the Borrowers; or (d) transfer any of its property or assets to any of the Borrowers or any Subsidiary of the Borrowers; other than (i) with respect to clauses (a) through (d) those encumbrances or restrictions (A) contained in any Loan Document or (B) contained in any other agreement that evidences Unsecured Indebtedness that any Borrower, such Guarantor or such Subsidiary of the Borrowers may create, incur, assume, or permit or suffer to exist without violation of this Credit Agreement containing encumbrances or restrictions on the actions described above that are substantially similar to, or less restrictive than, those contained in the Loan Documents, or (ii) with respect to clause (d), customary provisions restricting assignment of any agreement entered into by the Borrowers or any of their respective Subsidiaries in the ordinary course of business.

§10.

FINANCIAL COVENANTS OF THE BORROWERS.  Each of the Borrowers covenants and agrees that, so long as any Loan, Unpaid Reimbursement Obligation, Letter of

 

 


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Credit or Note is outstanding or the Lenders have any obligation to make any Loans or the Administrative Agent has any obligation to issue, extend or renew any Letters of Credit:

§10.1.Leverage Ratio.  As at the end of any fiscal quarter and at all other times, the Borrowers shall not permit the Leverage Ratio to exceed 60%; provided, however, that if the Leverage Ratio is greater than 60% but is not greater than 65%, then the Borrowers shall be deemed to be in compliance with this §10.1 so long as (i) the Borrowers completed a Material Acquisition which resulted in the Leverage Ratio (after giving effect to such Material Acquisition) exceeding 60% at any time during the fiscal quarter in which such Material Acquisition took place and for any subsequent consecutive fiscal quarters, (ii) the Leverage Ratio does not exceed 60% for a period of more than four consecutive fiscal quarters immediately following the fiscal quarter in which such Material Acquisition was completed, (iii) the Borrowers have not maintained compliance with this this §10.1 in reliance on this proviso for more than two periods (which periods may not be consecutive) during the term of this Agreement and (iv) the Leverage Ratio (after giving effect to such Material Acquisition) is not greater than 65% at any time.

§10.2.Maximum Secured Indebtedness.  As at the end of any fiscal quarter and at all other times, the Borrowers shall not permit Consolidated Secured Indebtedness to exceed 40% of Gross Asset Value

§10.3.[reserved].  

§10.4.Fixed Charge Coverage.  As at the end of any fiscal quarter, the Borrowers shall not permit Consolidated Adjusted EBITDA for the two (2) most recent, complete, consecutive fiscal quarters to be less than (i) one and one half (1.50) times (ii) Consolidated Fixed Charges for the two (2) most recent, complete, consecutive fiscal quarters.

§10.5.[reserved].  

§10.6.[reserved].  

§10.7.[reserved].  

§10.8.[reserved].  .

§10.9. [reserved].  .

§10.10.  [reserved].  

§10.11.  Unsecured Indebtedness.  As at the end of any fiscal quarter and at all other times, the Borrowers shall not permit the ratio, expressed as a percentage (the “Unencumbered Leverage Ratio”), of Consolidated Unsecured Indebtedness to the aggregate Capitalized Unencumbered Property Value for all Unencumbered Properties to exceed 60%; provided, however, that if the Unencumbered Leverage Ratio is greater than 60% but is not greater than 65%, then the Borrowers shall be deemed to be in compliance with this §10.11 so long as (i) the Borrowers completed a Material Acquisition which resulted in the Unencumbered Leverage Ratio (after giving effect to such Material Acquisition) exceeding 60% at any time during the fiscal quarter in which such Material Acquisition took place and for any subsequent consecutive fiscal

 

 


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quarters, (ii) the Unencumbered Leverage Ratio does not exceed 60% for a period of more than four consecutive fiscal quarters immediately following the fiscal quarter in which such Material Acquisition was completed, (iii) the Borrowers have not maintained compliance with this this §10.11 in reliance on this proviso for more than two periods (which periods may not be consecutive) during the term of this Agreement and (iv) the Unencumbered Leverage Ratio (after giving effect to such Material Acquisition) is not greater than 65% at any time.  For purposes of calculating the Unencumbered Leverage Ratio, to the extent that the aggregate Capitalized Unencumbered Property Value attributable to Unencumbered Properties subject to Ground Leases exceeds 10% of the Capitalized Unencumbered Property Value for all Unencumbered Properties, such excess shall be excluded.

§10.12.  [reserved].  

§10.13.  Covenant Calculations.

(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 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

 

 


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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 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”), (i) any election to measure an item of Indebtedness using fair value (as permitted by FASB ASC 825-10-25 (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 Indebtedness; and (ii) any change in leasing guidance regarding accounting for operating leases (as required by FASB ASU 2016-02, Leases (Topic 42) shall be disregarded.

§11.CONDITIONS TO THE RESTATEMENT DATE.  The obligations of the Lenders to amend and restate the Existing Credit Agreement and make any initial Revolving Credit Loans, and the Administrative Agent to issue any Letters of Credit, shall be subject to the satisfaction of the following conditions precedent:

§11.1.Loan Documents.  Each of the Loan Documents shall have been duly executed and delivered by the respective parties thereto and shall be in full force and effect.

§11.2.Certified Copies of Organization Documents.  The Administrative Agent shall have received from each Borrower and Holdings a copy, certified as of the Restatement Date by a duly authorized officer of such Person (or its general partner, in the case of LSLP), to be true and complete, of each of its certificate of limited partnership, agreement of limited partnership, incorporation documents, by-laws, and/or other organizational documents as in effect on the Restatement Date, along with any other organization documents of any Borrower (and its general partner, in the case of LSLP) or Holdings, and each as in effect on the date of such certification, or in the case of any Guarantor that has not altered its organizational documents since the date such Guarantor became a party to the Loan Documents (as defined in the Existing Credit Agreement) to which it is a party and delivered such organizational documents to the Administrative Agent, a certificate from a duly authorized officer of such Person certifying that there have been no changes to the organizational documents delivered by such Guarantor in connection with the Existing Credit Agreement.

§11.3.Resolutions.  All action on the part of the Borrowers and Holdings necessary for the valid execution, delivery and performance by the Borrowers and Holdings of this Credit Agreement and the other Loan Documents to which any of them is or is to become a party shall have been duly and effectively taken, and evidence thereof satisfactory to the Lenders shall have been provided to the Administrative Agent.  

 

 


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§11.4.Incumbency Certificate; Authorized Signers.  The Administrative Agent shall have received from each of the Borrowers and Holdings an incumbency certificate, dated as of the Restatement Date, signed by a duly authorized officer such Person and giving the name of each individual who shall be authorized:  (a) to sign, in the name and on behalf of such Person, each of the Loan Documents to which such Person is or is to become a party; (b) in the case of the Borrower Representative, to make Completed Revolving Credit Loan Requests, Notices of Swingline Borrowing and Conversion Requests on behalf of 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.

§11.5.Note Purchase Agreements.  The Administrative Agent shall have received a certificate signed by a duly authorized officer of the Borrower Representative certifying that (i) none of the Note Purchase Agreements previously delivered to the Administrative Agent under the Existing Credit Agreement has been amended, restated, supplemented, or otherwise modified since July 21, 2016, and that each is in full force and effect as of the Restatement Date, or if any of the foregoing has been amended, restated supplemented, or otherwise modified, attaching a copy of the foregoing thereto certified as true, correct, and complete and (ii) neither the Borrowers nor any Guarantor has made any new notes offerings since July 21, 2016, or if new notes have been issued, a copy of each fully executed note purchase agreement certified as true, correct, and complete.

§11.6.Certificates of Insurance.  The Administrative Agent shall have received (a) current certificates of insurance as to all of the insurance maintained by each Borrower and their respective Subsidiaries on the Real Estate (including flood insurance if necessary) from the insurer or an independent insurance broker, identifying insurers, types of insurance, insurance limits, and policy terms; and (b) such further information and certificates from the Borrowers, their insurers and insurance brokers as the Administrative Agent may reasonably request.

§11.7.Intentionally Omitted.

§11.8.Opinion of Counsel Concerning Organization and Loan Documents.  Each of the Lenders and the Agents shall have received favorable opinions addressed to the Lenders and the Agents in form and substance satisfactory to the Lenders and the Agents from Phillips Lytle LLP, as counsel to the Borrowers and their respective Subsidiaries with respect to New York law and certain matters of Delaware corporate law and Maryland corporate law.

§11.9.Tax and Securities Law Compliance.  Each of the Lenders and the Agents shall also have received from Phillips Lytle LLP, as counsel to the Borrowers, a favorable opinion addressed to the Lenders and the Agents, in form and substance satisfactory to each of the Lenders and the Agents, with respect to the qualification of LSI as a REIT and certain other tax and securities laws matters.

§11.10.  Guaranties.  Each of the Guaranties to be executed and delivered on the Restatement Date shall have been duly executed and delivered by the Guarantor thereunder.

§11.11.  Certifications from Government Officials.  The Administrative Agent shall have received certifications from government officials evidencing the legal existence and good standing of each Borrower and Holdings from the states of formation of each Borrower and

 

 


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Holdings as of the most recent practicable date, along with a certified copy of the certificate of limited partnership, certificate of incorporation or other comparable organizational document of each Borrower and Holdings, all as of the most recent practicable date.

§11.12.  Proceedings and Documents.  All proceedings in connection with the transactions contemplated by this Credit Agreement, the other Loan Documents and all other documents incident thereto shall be satisfactory in form and substance to each of the Lenders and to the Administrative Agent’s counsel, and the Administrative Agent, each of the Lenders and such counsel shall have received all information and such counterpart originals or certified or other copies of such documents as the Administrative Agent may reasonably request.

§11.13.  Fees.  The Borrowers shall have paid to the Administrative Agent, for the accounts of the Lenders or for its own account, as applicable, all of the fees and expenses that are due and payable as of the Restatement Date in accordance with this Credit Agreement and the Fee Letter.

§11.14.  Compliance Certificate.  The Borrowers shall have delivered a compliance certificate in the form of Exhibit D-7 hereto evidencing compliance with the covenants set forth in §10 hereof after giving pro forma effect to the transactions contemplated by this Credit Agreement.

§11.15.  Existing Indebtedness.  The existing of record indebtedness of the Borrowers under the Existing Credit Agreement shall have been reallocated in accordance with §1.3.

§11.16.  Subsequent Guarantors.  As a condition to the effectiveness of any joinder to the Guaranty Agreement, each Guarantor shall deliver such documents, agreements, instruments and opinions as the Administrative Agent shall require as to such Guarantor and the Unencumbered Property owned by such Guarantor that are analogous to the deliveries made by the Guarantors as of the Restatement Date pursuant to §11.2 through §11.8, §11.10, §11.11 and §11.18.

§11.17.  No Material Adverse Effect.  Since December 31, 2017, there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, change, circumstance, effect or state of facts that, individually or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect.  

§11.18.  KYC.  Each Borrower and each other Guarantor shall have provided all information reasonably requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act.  

§11.19.  Beneficial Ownership Certification.  Each Borrower, Guarantor or Subsidiary thereof that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to each such Borrower, Guarantor or such Subsidiary, in each case, at least five (5) Business Days prior to the Restatement Date.  

 

 


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§11.20.  Other Information.  The Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent on behalf of the Lenders may reasonably request.

§12.CONDITIONS TO ALL BORROWINGS.  The obligations of the Lenders to make any Loan, including the Revolving Credit Loan and the Term Loans, of the Swingline Lender to make Swingline Loans and of the Administrative Agent to issue, extend or renew any Letter of Credit, in each case whether on or after the Restatement Date, shall also be subject to the satisfaction of the following conditions precedent:

§12.1.Representations True; No Event of Default; Compliance Certificate.  Each of the representations and warranties of the Borrowers and the Guarantors contained in this Credit Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Credit Agreement shall be true as of the date as of which they were made and shall also be true at and as of the time of the making of each Loan or the issuance, extension or renewal of such Letter of Credit, with the same effect as if made at and as of that time (except to the extent that such representations and warranties relate expressly to an earlier date); and no Default or Event of Default under this Credit Agreement shall have occurred and be continuing on the date of any Completed Revolving Credit Loan Request; Notice of Swingline Borrowing or on the Drawdown Date of any Loan or on the date of the issuance, extension or renewal of such Letter of Credit.  The Administrative Agent shall have received a certificate of the Borrowers signed by an authorized officer of the Borrower Representative as provided in §2.4(d)(iii).

§12.2.No Legal Impediment.  No change shall have occurred in any law or regulations thereunder or interpretations thereof that in the reasonable opinion of the Administrative Agent or any Lender would make it illegal for any Lender to make such Loan or to participate in the issuance, extension or renewal of such Letter of Credit.

§12.3.Governmental Regulation.  Each Lender shall have received such statements in substance and form reasonably satisfactory to such Lender as such Lender shall require for the purpose of compliance with any applicable regulations of the Comptroller of the Currency or the Board of Governors of the Federal Reserve System.

§13.EVENTS OF DEFAULT; ACCELERATION; ETC.

§13.1.Events of Default and Acceleration.  If any of the following events (“Events of Default”) shall occur:

(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;

 

 


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(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, 8.5, 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 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 Agreements 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

 

 


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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 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 ninety (90) 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 the Guaranty Agreement 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 $2,500,000, 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 $2,500,000, 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

 

 


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Pension Plan in an aggregate amount exceeding $2,500,000, and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropri