Exhibit 10.1


 


Loan Number:
               


 


Execution Copy


 





 




 





 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of September 29, 2010


 


by and among


 


U-STORE-IT, L.P.,


as
Borrower,


 


U-STORE-IT TRUST,


as Parent,


 


WELLS FARGO SECURITIES, LLC,


and


BANC OF AMERICA SECURITIES LLC,


as
Joint Lead Arrangers


and


Joint
Bookrunners


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as
Administrative Agent,


 


BANK OF AMERICA, N.A.,


as
Syndication Agent,


 


REGIONS BANK,


and


SUNTRUST BANK,


as
Documentation Agents,


 


and


 


THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO


AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5.,


as
Lenders


 




 





 

















 


TABLE OF CONTENTS


 


	
  Article I. Definitions

  	
  1

  
	
   

  	
   

  
	
  Section 1.1. Definitions

  	
  1

  
	
  Section 1.2. General;
  References to Times

  	
  24

  
	
  Section 1.3. Financial
  Attributes of Non-Wholly Owned Subsidiaries

  	
  25

  
	
   

  	
   

  
	
  Article II. Credit Facilities

  	
  25

  
	
   

  	
   

  
	
  Section 2.1. Revolving Loans

  	
  25

  
	
  Section 2.2. Term Loans

  	
  26

  
	
  Section 2.3. Swingline Loans

  	
  26

  
	
  Section 2.4. Letters of
  Credit

  	
  28

  
	
  Section 2.5. Rates and
  Payment of Interest on Loans

  	
  32

  
	
  Section 2.6. Number of
  Interest Periods

  	
  33

  
	
  Section 2.7. Repayment of
  Loans

  	
  33

  
	
  Section 2.8. Prepayments

  	
  33

  
	
  Section 2.9. Continuation

  	
  33

  
	
  Section 2.10. Conversion

  	
  34

  
	
  Section 2.11. Notes

  	
  34

  
	
  Section 2.12. Voluntary
  Reductions of the Revolving Commitments

  	
  35

  
	
  Section 2.13. Expiration or
  Maturity Date of Letters of Credit Past Termination Date

  	
  35

  
	
  Section 2.14. Amount
  Limitations

  	
  35

  
	
  Section 2.15. Funds Transfer
  Disbursements

  	
  35

  
	
   

  	
   

  
	
  Article III. Payments, Fees and Other General
  Provisions

  	
  36

  
	
   

  	
   

  
	
  Section 3.1. Payments

  	
  36

  
	
  Section 3.2. Pro Rata
  Treatment

  	
  37

  
	
  Section 3.3. Sharing of
  Payments, Etc.

  	
  38

  
	
  Section 3.4. Several
  Obligations

  	
  38

  
	
  Section 3.5. Minimum Amounts

  	
  38

  
	
  Section 3.6. Fees

  	
  39

  
	
  Section 3.7. Computations

  	
  40

  
	
  Section 3.8. Usury

  	
  40

  
	
  Section 3.9. Agreement
  Regarding Interest and Charges

  	
  40

  
	
  Section 3.10. Statements of
  Account

  	
  40

  
	
  Section 3.11. Defaulting
  Lenders

  	
  41

  
	
  Section 3.12. Taxes; Foreign
  Lenders

  	
  43

  
	
   

  	
   

  
	
  Article IV. Yield Protection, Etc.

  	
  45

  
	
   

  	
   

  
	
  Section 4.1. Additional
  Costs; Capital Adequacy

  	
  45

  
	
  Section 4.2. Suspension of
  LIBOR Loans

  	
  46

  
	
  Section 4.3. Illegality

  	
  47

  
	
  Section 4.4. Compensation

  	
  47

  
	
  Section 4.5. Affected
  Lenders

  	
  48

  
	
  Section 4.6. Treatment of
  Affected Loans

  	
  48

  
	
  Section 4.7. Change of
  Lending Office

  	
  49

  
	
  Section 4.8. Assumptions
  Concerning Funding of LIBOR Loans

  	
  49

  



 

















 


	
  Article V. Conditions Precedent

  	
  49

  
	
   

  	
   

  
	
  Section 5.1. Initial
  Conditions Precedent

  	
  49

  
	
  Section 5.2. Conditions
  Precedent to All Loans and Letters of Credit

  	
  51

  
	
   

  	
   

  
	
  Article VI. Representations and Warranties

  	
  51

  
	
   

  	
   

  
	
  Section 6.1. Representations
  and Warranties

  	
  51

  
	
  Section 6.2. Survival of
  Representations and Warranties, Etc.

  	
  58

  
	
   

  	
   

  
	
  Article VII. Affirmative Covenants

  	
  58

  
	
   

  	
   

  
	
  Section 7.1. Preservation of
  Existence and Similar Matters

  	
  58

  
	
  Section 7.2. Compliance with
  Applicable Law and Material Contracts

  	
  58

  
	
  Section 7.3. Maintenance of
  Property

  	
  58

  
	
  Section 7.4. Conduct of
  Business

  	
  59

  
	
  Section 7.5. Insurance

  	
  59

  
	
  Section 7.6. Payment of
  Taxes and Claims

  	
  59

  
	
  Section 7.7. Visits and
  Inspections

  	
  59

  
	
  Section 7.8. Use of Proceeds;
  Letters of Credit

  	
  60

  
	
  Section 7.9. Environmental
  Matters

  	
  60

  
	
  Section 7.10. Books and
  Records

  	
  60

  
	
  Section 7.11. Further
  Assurances

  	
  60

  
	
  Section 7.12. New Subsidiaries;
  Guarantors; Release of Guarantors

  	
  61

  
	
  Section 7.13. REIT Status

  	
  61

  
	
  Section 7.14. Exchange
  Listing

  	
  61

  
	
   

  	
   

  
	
  Article VIII. Information

  	
  62

  
	
   

  	
   

  
	
  Section 8.1. Quarterly
  Financial Statements

  	
  62

  
	
  Section 8.2. Year-End
  Statements

  	
  62

  
	
  Section 8.3. Compliance
  Certificate

  	
  62

  
	
  Section 8.4. Other
  Information

  	
  63

  
	
  Section 8.5. Delivery of
  Documents

  	
  64

  
	
  Section 8.6. Public/Private
  Information

  	
  65

  
	
  Section 8.7. USA Patriot Act
  Notice; Compliance

  	
  65

  
	
   

  	
   

  
	
  Article IX. Negative Covenants

  	
  65

  
	
   

  	
   

  
	
  Section 9.1. Financial
  Covenants

  	
  66

  
	
  Section 9.2. Restricted
  Payments

  	
  66

  
	
  Section 9.3. Indebtedness

  	
  67

  
	
  Section 9.4. Certain
  Permitted Investments

  	
  67

  
	
  Section 9.5. Investments
  Generally

  	
  68

  
	
  Section 9.6. Liens; Negative
  Pledges; Other Matters

  	
  68

  
	
  Section 9.7. Merger,
  Consolidation, Sales of Assets and Other Arrangements

  	
  69

  
	
  Section 9.8. Fiscal Year

  	
  70

  
	
  Section 9.9. Modifications
  to Material Contracts

  	
  70

  
	
  Section 9.10. Modifications
  of Organizational Documents

  	
  70

  
	
  Section 9.11. Transactions
  with Affiliates

  	
  70

  
	
  Section 9.12. Plans

  	
  71

  
	
  Section 9.13. Derivatives
  Contracts

  	
  71

  
	
   

  	
   

  
	
  Article X. Default

  	
  71

  
	
   

  	
   

  
	
  Section 10.1. Events of Default

  	
  71

  
	
  Section 10.2. Remedies Upon
  Event of Default

  	
  74

  



 


ii

















 


	
  Section 10.3. Remedies Upon
  Default

  	
  75

  
	
  Section 10.4. Marshaling;
  Payments Set Aside

  	
  76

  
	
  Section 10.5. Allocation of
  Proceeds

  	
  76

  
	
  Section 10.6. Collateral
  Account

  	
  77

  
	
  Section 10.7. Performance by
  Administrative Agent

  	
  77

  
	
  Section 10.8. Rights
  Cumulative

  	
  78

  
	
   

  	
   

  
	
  Article XI. The Administrative Agent

  	
  78

  
	
   

  	
   

  
	
  Section 11.1. Authorization
  and Action

  	
  78

  
	
  Section 11.2. Administrative
  Agent’s Reliance, Etc.

  	
  79

  
	
  Section 11.3. Notice of
  Defaults

  	
  79

  
	
  Section 11.4. Administrative
  Agent as Lender

  	
  80

  
	
  Section 11.5. Approvals of
  Lenders

  	
  80

  
	
  Section 11.6. Lender Credit
  Decision, Etc.

  	
  80

  
	
  Section 11.7.
  Indemnification of Administrative Agent

  	
  81

  
	
  Section 11.8. Successor
  Administrative Agent

  	
  82

  
	
  Section 11.9. Titled Agents

  	
  83

  
	
   

  	
   

  
	
  Article XII. Miscellaneous

  	
  83

  
	
   

  	
   

  
	
  Section 12.1. Notices

  	
  83

  
	
  Section 12.2. Expenses

  	
  84

  
	
  Section 12.3. Setoff

  	
  85

  
	
  Section 12.4. Litigation;
  Jurisdiction; Other Matters; Waivers

  	
  85

  
	
  Section 12.5. Successors and
  Assigns

  	
  86

  
	
  Section 12.6. Amendments

  	
  89

  
	
  Section 12.7. Nonliability
  of Administrative Agent and Lenders

  	
  90

  
	
  Section 12.8.
  Confidentiality

  	
  91

  
	
  Section 12.9.
  Indemnification

  	
  92

  
	
  Section 12.10. Termination;
  Survival

  	
  94

  
	
  Section 12.11. Severability
  of Provisions

  	
  94

  
	
  Section 12.12. GOVERNING LAW

  	
  94

  
	
  Section 12.13. Counterparts

  	
  94

  
	
  Section 12.14. Obligations
  with Respect to Loan Parties

  	
  94

  
	
  Section 12.15. Limitation of
  Liability

  	
  94

  
	
  Section 12.16. Entire
  Agreement

  	
  95

  
	
  Section 12.17. Construction

  	
  95

  
	
  Section 12.18. No Novation; Effect of Amendment and
  Restatement

  	
  95

  
	
  Section 12.19. Authorization to Release Liens

  	
  95

  



 


	
  SCHEDULE
  1.1.(A)

  	
  List
  of Loan Parties

  
	
  SCHEDULE
  1.1.(B)

  	
  Lender
  Commitments

  
	
  SCHEDULE
  6.1.(b)

  	
  Ownership
  Structure

  
	
  SCHEDULE
  6.1.(f)

  	
  Title
  to Properties; Liens

  
	
  SCHEDULE
  6.1.(g)

  	
  Existing
  Indebtedness

  
	
  SCHEDULE
  6.1.(h)

  	
  Material
  Contracts

  
	
  SCHEDULE
  6.1.(i)

  	
  Litigation

  
	
  SCHEDULE 9.6.

  	
  Existing
  Negative Pledges

  
	
   

  	
   

  
	
  EXHIBIT A

  	
  Form of
  Assignment and Acceptance Agreement

  



 


iii

















 


	
  EXHIBIT B

  	
  Form of
  Guaranty

  
	
  EXHIBIT C

  	
  Form of
  Form of Notice of Borrowing

  
	
  EXHIBIT D

  	
  Form of
  Notice of Continuation

  
	
  EXHIBIT E

  	
  Form of
  Notice of Conversion

  
	
  EXHIBIT F

  	
  Form of
  Notice of Swingline Borrowing

  
	
  EXHIBIT G

  	
  Form of
  Swingline Note

  
	
  EXHIBIT H

  	
  Form of
  Revolving Note

  
	
  EXHIBIT I

  	
  Form of
  Term Note

  
	
  EXHIBIT J

  	
  Form of
  Opinion of Counsel

  
	
  EXHIBIT K

  	
  Form of
  Compliance Certificate

  
	
  EXHIBIT L

  	
  Form of
  Transfer Authorizer Designation

  



 


iv






 












 


THIS
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of September 29, 2010 by and among
U-STORE-IT, L.P., a limited partnership formed under the laws of the State of
Delaware (the “Borrower”), U-STORE-IT TRUST, a real estate investment trust
formed under the laws of the State of Maryland (the “Parent”), WELLS FARGO
SECURITIES, LLC and BANC OF AMERICA SECURITIES LLC, as Joint Lead Arrangers
(each a “Joint Lead Arranger”) and Joint Bookrunners (each a “Joint Bookrunner”),
WELLS FARGO BANK, NATIONAL ASSOCIATION,
successor in interest to Wachovia Bank, National Association, as Administrative
Agent, BANK OF AMERICA, N.A., as Syndication Agent (the “Syndication Agent”),
REGIONS BANK, as Documentation Agent and SUNTRUST BANK, as Documentation Agent
(each a “Documentation Agent”), and each of the financial institutions
initially a signatory hereto together with their assignees pursuant to
Section 12.5.(b).


 


WHEREAS,
certain of the Lenders and other financial institutions (who were “Lenders” under
the Existing Credit Agreement) have made available to Borrower a revolving
credit facility in the amount of $250,000,000, including a $15,000,000 letter
of credit subfacility and a $20,000,000 swingline subfacility, and a term loan
facility in the amount of $200,000,000, on the terms and conditions contained
in that certain Amended and Restated Credit Agreement dated as of December 7,
2009 (as amended and in effect immediately prior to the date hereof, the “Existing
Credit Agreement”) by and among the Borrower, the Parent, such Lenders, certain
other financial institutions (who were “Lenders” under the Existing Credit
Agreement), the Administrative Agent and the other parties thereto; and


 


WHEREAS,
the Administrative Agent and the Lenders desire to amend and restate the terms
of the Existing Credit Agreement on the terms and conditions contained herein.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, the parties hereto, each
intending to be legally bound, agree that the Existing Credit Agreement is
amended and restated in its entirety as follows:


 


ARTICLE I. DEFINITIONS


 


Section 1.1.  Definitions.


 


In
addition to terms defined elsewhere herein, the following terms shall have the
following meanings for the purposes of this Agreement:


 


“Accession Agreement” means an Accession Agreement
substantially in the form of Annex I to the Guaranty.


 


“Acquisition Price” means, with respect to any Property, the
purchase price paid by the Borrower or any of its Subsidiaries for such
Property less closing costs and any amounts paid by the Borrower or such
Subsidiary as a purchase price adjustment, to be held in escrow, to be retained
as a contingency reserve, or other similar amounts.


 


“Additional Costs” has the meaning given that term in
Section 4.1.(b).


 


“Adjusted Asset Value” means, on any date of determination,
with respect to any Storage Property owned in fee simple or leased by the
Borrower or any of its Subsidiaries an amount equal to (a) the Net
Operating Income of such Storage Property for the four full fiscal quarters of
the Parent most recently ended for which financial statements are available divided
by (b) the Capitalization Rate.


 

















 


“Adjusted EBITDA” means, for any given period, (a) Consolidated EBITDA
for such period minus (b) Reserves for Capital Expenditures for all
Storage Properties for such period.


 


“Adjusted Total Revenue” means, for any period, an amount
equal to (a) the total revenue of the Parent and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, minus
(b) the aggregate amount of total revenue of all the Excluded Subsidiaries
for such period.


 


“Administrative Agent” means Wells Fargo, as contractual
representative for the Lenders under the terms of this Agreement, and any of
its successors.


 


“Administrative Questionnaire” means the Administrative
Questionnaire completed by each Lender and delivered to the Administrative
Agent in a form supplied by the Administrative Agent to the Lenders from time
to time.


 


“Affiliate” means, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.  As used in this
definition, the term “Control” means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.  In no event shall the
Administrative Agent or any Lender be deemed to be an Affiliate of the
Borrower.


 


“Agreement” has the meaning set forth in the introductory
paragraph hereof.


 


“Agreement Date” means the date as of which this Agreement is
dated.


 


“Applicable Law” means all international, foreign, federal,
state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes, executive orders, and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authority, in each case whether or not having the force of
law.


 


“Applicable Margin” means:


 


(a)           prior to the Investment Grade Rating
Date, the percentage set forth below corresponding to the ratio of Consolidated
Total Indebtedness to Consolidated Adjusted Asset Value as determined in
accordance with Section 9.1. in effect at such time:


 


	
  Level

  	
   

  	
  Consolidated Total Indebtedness to

  Consolidated Adjusted Asset Value

  	
   

  	
  Applicable Margin for

  Loans

  	
   

  
	
  1

  	
   

  	
  < 0.45 to 1.00

  	
   

  	
  3.25

  	
  %

  
	
  2

  	
   

  	
  >
  0.45 to 1.00 and < 0.55 to 1.00

  	
   

  	
  3.50

  	
  %

  
	
  3

  	
   

  	
  >
  0.55 to 1.00

  	
   

  	
  3.75

  	
  %

  



 


The
Applicable Margin shall be determined by the Administrative Agent from time to
time, based on the ratio of Consolidated Total Indebtedness to Consolidated
Adjusted Asset Value as set forth in the Compliance Certificate most recently
delivered by the Borrower pursuant to Section 8.3.  Any adjustment to the Applicable Margin shall
be effective as of the first day of the calendar month immediately following
the month during which the Borrower delivers to the Administrative Agent the
applicable Compliance Certificate pursuant to Section 8.3.  If the Borrower fails to deliver a Compliance
Certificate pursuant to Section 8.3., the Applicable Margin shall equal
the percentage corresponding to Level 3 until 


 


2

















 


the
date of the delivery of the required Compliance Certificate.  As of the Agreement Date, and thereafter
until changed as provided above, the Applicable Margin is determined based on
Level 2.  The provisions of this
definition are subject to Section 2.5.(c); and


 


(b)           on, and at all times after, the
Investment Grade Rating Date, the percentage rate set forth below corresponding
to the Level into which the Parent’s Credit Rating then falls.  Any change in the Parent’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 receipt by the
Administrative Agent of written notice delivered by the Borrower in accordance
with Section 8.4.(o) that the Parent’s Credit Rating has changed;
provided, however, if the Borrower has not delivered the notice required by
such Section but the Administrative Agent becomes aware that the Parent’s
Credit Rating has changed, then the Administrative Agent shall adjust the Level
effective as of the first day of the first calendar month following the date
the Administrative Agent becomes aware that the Parent’s Credit Rating has
changed.  During any period that the
Parent has received three Credit Ratings that are not equivalent, the
Applicable Margin shall be determined based upon the Level corresponding with
the lower of the two highest Credit Ratings. 
During any period that the Parent has received two Credit Ratings that
are not equivalent and both of those Credit Ratings are from S&P and Moody’s,
the Applicable Margin shall be determined based upon the Level corresponding
with the higher of the two Credit Ratings. 
During any period that the Parent has received a Credit Rating from
Fitch and from either S&P or Moody’s, but not both, and such Credit Ratings
are not equivalent, the Applicable Margin shall be determined based upon the
Level corresponding with the Credit Rating from S&P or Moody’s, as
applicable.  During any period that the
Parent has (a) not received a Credit Rating from any Rating Agency or
(b) received a Credit Rating from only Fitch, then the Applicable Margin
shall be determined based on Level 5.


 


	
  Level

  	
   

  	
  Parent’s Credit Rating

  (S&P/Moody’s/Fitch

  	
   

  	
  Applicable Margin for

  Loans

  	
   

  
	
  1

  	
   

  	
  A-/A3/A-
  or better

  	
   

  	
  1.90

  	
  %

  
	
  2

  	
   

  	
  BBB+/Baa1/BBB+

  	
   

  	
  2.10

  	
  %

  
	
  3

  	
   

  	
  BBB/Baa2/BBB

  	
   

  	
  2.30

  	
  %

  
	
  4

  	
   

  	
  BBB-/Baa3/BBB-

  	
   

  	
  2.60

  	
  %

  
	
  5

  	
   

  	
  Lower
  than BBB-/Baa3/BBB-

  	
   

  	
  3.00

  	
  %

  



 


“Approved Fund” means any Fund that is
administered, managed or underwritten 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.


 


“Assignee” has the meaning given that term in
Section 12.5.(b).


 


“Assignment and Acceptance Agreement” means an Assignment and
Acceptance Agreement entered into by a Lender and an Eligible Assignee (with
the consent of any party whose consent is required by Section 12.5.), and accepted by the
Administrative Agent, substantially in the form of Exhibit A or any other
form approved by the Administrative Agent.


 


“Base Rate” means the LIBOR Market Index Rate; provided,
however, that if the LIBOR Market Index Rate is unavailable, Base Rate shall
mean the per annum rate of interest equal to the Federal Funds Rate plus one
and one-half of one percent (1.50%). Any change in the Base Rate resulting from
a change in the LIBOR Market Index Rate or the Federal Funds Rate shall become
effective as of 12:01 a.m. on the Business Day on which each such change
occurs.  The Base Rate is a reference
rate used by the Lender acting as the Administrative Agent in determining
interest rates on certain loans and is not intended to be the lowest rate of
interest charged by the Lender acting as the Administrative Agent or any other
Lender on any extension of credit to any debtor.


 


3

















 


“Base Rate Loan” means a Loan bearing interest at a rate
based on the Base Rate.


 


“Benefit Arrangement” means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan
or a Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.


 


“Borrower” has the meaning set forth in the introductory
paragraph hereof and shall include the Borrower’s successors and permitted
assigns.


 


“Business Day” means (a) any day other than a Saturday,
Sunday or other day on which banks in Charlotte, North Carolina are authorized
or required to close and (b) with reference to a LIBOR Loan any such day
that is also a day on which dealings in deposits of Dollars are carried out in
the London interbank market.


 


“Capital Lease Obligations” means, with respect to any
Person, the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP; and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.


 


“Capitalization Rate” means 8.75%.


 


“Cash Equivalents” means: 
(a) securities issued, guaranteed or insured by the United States
of America or any of its agencies with maturities of not more than one year
from the date acquired; (b) certificates of deposit with maturities of not
more than one year from the date issued by a United States federal or state
chartered commercial bank of recognized standing, or a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of any such country, acting through a branch or agency, which bank
has capital and unimpaired surplus in excess of $500,000,000 and which bank or
its holding company has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by Moody’s;
(c) reverse repurchase agreements with terms of not more than seven days
from the date acquired, for securities of the type described in clause (a) above
and entered into only with commercial banks having the qualifications described
in clause (b) above; (d) commercial paper issued by any Person
incorporated under the laws of the United States of America or any State
thereof and rated at least A-2 or the equivalent thereof by S&P or at least
P-2 or the equivalent thereof by Moody’s, in each case with maturities of not
more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, as amended,
which have net assets of at least $500,000,000 and at least 85% of whose assets
consist of securities and other obligations of the type described in
clauses (a) through (d) above.


 


“Collateral Account” means a special non-interest bearing
deposit account or securities account maintained by, or on behalf of, the
Administrative Agent under its sole dominion and control.


 


“Commitment” means, as to any Lender, such Lender’s Revolving
Commitment.


 


“Commitment Percentage” means, as to each Lender, the ratio,
expressed as a percentage, of (a) the amount of such Lender’s Revolving
Commitment to (b) the aggregate amount of the Revolving Commitments of all
Lenders; provided, however, that if at the time of determination the Revolving
Commitments have terminated or been reduced to zero, the “Commitment Percentage”
of each Lender


 


4

















 


shall
be the Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.


 


“Compliance Certificate” has the meaning given that term in
Section 8.3.(a).


 


“Consolidated Adjusted Asset Value” means, on any date of
determination, the sum (without duplication) of (a) the aggregate Adjusted
Asset Value of all Storage Properties of the Borrower and its Subsidiaries on
such date plus (b) the undepreciated book value (determined in
accordance with GAAP) of all Development Properties plus (c) the
Acquisition Price of all Properties owned in fee simple or leased by a Loan
Party for less than 2 fiscal quarters as of such date of determination, plus
(d) the book value (determined in accordance with GAAP) of all other
tangible assets (other than cash and Cash Equivalents) of the Borrower and its
Subsidiaries as of such date plus (e) cash and Cash Equivalents of
the Borrower and its Subsidiaries on such date, provided that,
(x) the portion of the Consolidated Adjusted Asset Value attributable to
clause (d) above shall not exceed 5.0% of the Consolidated Adjusted Asset
Value, (y) the portion of the Consolidated Adjusted Asset Value
attributable to the sum of clauses (d) and (e) above shall not exceed
10.0% of the Consolidated Adjusted Asset Value and (z) the portion of the
Consolidated Adjusted Asset Value attributable to Development Properties shall
not exceed 15% of the Consolidated Adjusted Asset Value.  The Borrower’s pro rata share of assets held
by Unconsolidated Affiliates will be included in Consolidated Adjusted Asset
Value calculations consistent with the above described treatment for wholly
owned assets.


 


“Consolidated EBITDA” means, for any period, Consolidated Net
Income of the Parent and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of
Consolidated Net Income for such period, the sum of (a) income tax
expense, (b) interest expense, amortization or write-off of debt discount
and debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness, (c) depreciation and amortization expense,
(d) amortization of intangibles (including, but not limited to,
amortization and/or impairment charges with respect to goodwill) and organization
costs, (e) any extraordinary, unusual or non-recurring non-cash expenses
or losses (including, whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income for such period, losses on sales
of assets outside of the ordinary course of business), and (f) any other
non-cash charges (including non-cash charges under Financial Accounting
Standards Board Statement No. 123R), and minus, to the extent
included in the statement of such Consolidated Net Income for such period, the sum
of (i) interest income (except to the extent deducted in determining such
Consolidated Net Income), (ii) any extraordinary, unusual or non-recurring
income or gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business), (iii) any
other non-cash income and (iv) any cash payments made during such period
in respect of items described in clause (e) above subsequent to the fiscal
quarter in which the relevant non-cash expenses or losses were reflected as a
charge in the statement of Consolidated Net Income, all as determined on a
consolidated basis.


 


“Consolidated Fixed Charges” means, for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period,
(b) all regularly scheduled payments made during such period on account of
principal of Indebtedness of the Parent or any of its Subsidiaries, other than
balloon, bullet or similar principal payments which repay in full such
Indebtedness, (c) Preferred Dividends accumulated (whether or not declared
or payable) by the Parent or any of its Subsidiaries during such period and
(d) the Parent’s and its Subsidiaries’ pro-rata share of all expenses and
payments referred to in the preceding clauses (a) and (b) of any
Unconsolidated Affiliate of the Parent or any of its Subsidiaries.


 


“Consolidated Interest Expense” means, for any period, the
total interest expense of Parent and its Subsidiaries (including that
attributable to Capital Lease Obligations and any capitalized interest


 


5

















 


expense)
for such period with respect to all outstanding Indebtedness of Parent and its
Subsidiaries (including, without limitation, all commissions, discounts and
other fees and charges owed by the Parent and its Subsidiaries with respect to
letters of credit, bankers’ acceptance financing and net costs of Parent and
its Subsidiaries under Derivatives Contracts in respect of interest rates to
the extent such net costs are allocable to such period in accordance with
GAAP), plus the Parent’s and its Subsidiaries’ pro-rata share of all
such expenses of any Unconsolidated Affiliates of the Parent or any Subsidiary.


 


“Consolidated Net Income” means, of any Person for any
period, the consolidated net income (or loss) of such Person and its
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; provided, that in calculating Consolidated Net Income of
Parent and its consolidated Subsidiaries for any period, there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of Parent or is merged into or consolidated with
Parent or any of its Subsidiaries, (b) the income (or deficit) of any
Person (other than a Subsidiary of the Borrower) in which Parent or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by Parent or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of Parent to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Applicable Law applicable to such Subsidiary.


 


“Consolidated Total Indebtedness” means, at any date, the
aggregate principal amount of all Indebtedness of Parent and its Subsidiaries
at such date, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Unsecured Indebtedness” means, at any date, the
aggregate principal amount of all Unsecured Indebtedness of Parent and its
Subsidiaries at such date, determined on a consolidated basis in accordance
with GAAP.


 


“Construction Budget” means the
fully-budgeted costs for the acquisition and construction of a given parcel of
real property (including, without limitation, the cost of acquiring such parcel
of real property, reserves for construction interest and operating deficits,
tenant improvements, leasing commissions, and infrastructure costs) as
reasonably determined by the Parent in good faith.


 


“Continue”, “Continuation”
and “Continued” each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest
Period pursuant to Section 2.9.


 


“Contractual Obligation” means, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.


 


“Convert”, “Conversion” and
“Converted” each refers to the
conversion of a Loan of one Type into a Loan of another Type pursuant to
Section 2.10.


 


“Credit Event” means any of the following:  (a) the making (or deemed making) of any
Loan, (b) the Continuation of a LIBOR Loan, (c) the Conversion of a
Base Rate Loan into a LIBOR Loan, and (d) the issuance of a Letter of
Credit.


 


“Credit Rating” means the rating assigned by a rating agency
to the senior unsecured long term Indebtedness of a Person.


 


6

















 


“Default” means any of the events specified in
Section 10.1., whether or not there has been satisfied any requirement for
the giving of notice, the lapse of time, or both.


 


“Defaulting Lender” means any Lender, as determined by the
Administrative Agent in good faith or, in the event that the Lender then acting
as Administrative Agent is a Defaulting Lender, the Requisite Lenders in good
faith, that (a) has failed to fund (or has failed, within three Business
Days after request by the Administrative Agent, to confirm that it will comply
with the terms of this Agreement relating to its obligations to fund) any
portion of a Loan, participations in Letter of Credit Liabilities under
Section 2.4.(j) or participations in Swingline Loans under
Section 2.3.(e), in each case required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder,
(b) has otherwise failed to pay to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one Business
Day of the date when due, unless such amount is the subject of a good faith
dispute, (c) has notified the Borrower, the Administrative Agent or any
other Lender in writing that, or has made a public statement to the effect
that, it does not intend to comply with any of its funding obligations under
this Agreement, or (d) has become or is (i) insolvent or (ii) the
subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment.


 


“Defaulting Lender Excess” means, with respect to any
Defaulting Lender, the excess, if any, of such Defaulting Lender’s Commitment
Percentage of the aggregate outstanding principal amount of Revolving Loans and
Term Loans of all Lenders (calculated as if all Defaulting Lenders other than
such Defaulting Lender had funded all of their respective Revolving Loans and
Term Loans) over the aggregate outstanding principal amount of all Revolving
Loans and the Term Loan of such Defaulting Lender.


 


“Derivatives Contract” means (a) any transaction
(including any master agreement, confirmation or other agreement with respect
to any such transaction) now existing or hereafter entered into by the Borrower
or any of its Subsidiaries (i) which is a rate swap transaction, swap
option, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option, credit protection transaction, credit swap,
credit default swap, credit default option, total return swap, credit spread
transaction, repurchase transaction, reverse repurchase transaction,
buy/sell-back transaction, securities lending transaction, weather index
transaction or forward purchase or sale of a security, commodity or other
financial instrument or interest (including any option with respect to any of
these transactions) or (ii) which is a type of transaction that is similar
to any transaction referred to in clause (i) above that is currently, or
in the future becomes, commonly entered into in the financial markets
(including terms and conditions incorporated by reference in such agreement)
and which is a forward, swap, future, option or other derivative on one or more
rates, currencies, commodities, equity securities or other equity instruments,
debt securities or other debt instruments, economic indices or measures of
economic risk or value, or other benchmarks against which payments or
deliveries are to be made, and (b) any combination of these transactions.


 


“Derivatives Termination Value” means, in respect of any one
or more Derivatives Contracts, after taking into account the effect of any
legally enforceable netting agreement 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, and (b) 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


 


7

















 


estimates
provided by any recognized dealer in Derivatives Contracts (which may include
the Administrative Agent, any Lender, any Specified Derivatives Provider or any
Affiliate of any thereof).


 


“Development Property” means a Property currently under
development as a Storage Property that does not have an Occupancy Rate of 50%
or more or, subject to the last sentence of this definition, on which the
improvements (other than tenant improvements on unoccupied space) related to
the development have not been completed. 
The term “Development Property” shall include, but shall not be limited
to, real property of the type described in the immediately preceding sentence
to be acquired by the Borrower, any Subsidiary or any Unconsolidated Affiliate
pursuant to an executed purchase agreement, such acquisition to be consummated
upon completion of construction pursuant to a contract in which the seller of
such real property is required to develop or renovate prior to, and as a
condition precedent to, such acquisition. 
A Development Property on which all improvements (other than tenant
improvements on unoccupied space) related to the development of such Property
have been completed for at least 36 months shall cease to constitute a
Development Property notwithstanding the fact that such Property does not have
an Occupancy Rate of at least 50%.


 


“Dollars” or “$” means the
lawful currency of the United States of America.


 


“Effective Date” means the later of:  (a) the Agreement Date; and (b) the
date on which all of the conditions precedent set forth in Section 5.1.
shall have been fulfilled or waived in writing by the Requisite Lenders.


 


“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 Borrower (each
such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


“Eligible Property” means a Property which satisfies all of
the following requirements: (a) such Property is owned, or leased under a
Ground Lease, by the Borrower or a wholly-owned Subsidiary that is a Guarantor;
(b) such Property is a Storage Property; (c) such Property is located
in one of the 48 contiguous states of the United States of America or in the
District of Columbia; (d) neither such Property, nor any interest of the
Borrower or any Subsidiary thereof therein, is subject to any lien (other than
Permitted Liens described in clauses (a) through (e) of the
definition thereof) or any negative pledge; (e) if such Property is owned
or leased by a Subsidiary that is a Guarantor, (i) none of the Borrower’s
or the Parent’s direct or indirect ownership interest in such Subsidiary is
subject to any lien (other than Permitted Liens described in clauses (a) through
(e) of the definition thereof) or any negative pledge and (ii) the
Borrower directly, or indirectly through a Subsidiary, has the right to take
the following actions without the need to obtain the consent of any
person:  (A) to create liens on such
Property as security for Indebtedness of the Parent, the Borrower or such
Subsidiary, and (B) to sell, transfer or otherwise dispose of such
Property; and (f) such Property is free of all structural defects or major
architectural deficiencies, title defects, environmental conditions or other
adverse matters except for defects, deficiencies, conditions or other matters
individually or collectively which are not material to the profitable operation
of such Property.  Notwithstanding the
above, the Occupancy Rate of all Eligible
Properties must be a minimum of 70%, determined on an aggregate basis. 
The Borrower shall be able to remove Properties that would otherwise meet this
definition in order to comply with the Occupancy Rate requirement set
forth in the preceding sentence and with
the covenants set forth in Section 9.1.


 


“Environmental Laws” means any Applicable Law relating to
environmental protection or the manufacture, storage, remediation, disposal or
clean-up of Hazardous Materials including, without limitation, the
following:  Clean Air Act, 42 U.S.C.
§ 7401 et seq.; Federal Water Pollution Control Act,


 


8

















 


33
U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.;
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321
et seq.; regulations of the Environmental Protection Agency and any applicable rule of
common law and any judicial interpretation thereof relating primarily to the
environment or Hazardous Materials, and any analogous or comparable state or
local laws, regulations or ordinances that concern Hazardous Materials or
protection of the environment.


 


“Equity Interest” means, with respect to any Person, any
share of capital stock of (or other ownership or profit interests in) such
Person, any warrant, option or other right for the purchase or other
acquisition from such Person of any share of capital stock of (or other
ownership or profit interests in) such Person whether or not certificated, any
security convertible into or exchangeable for any share of capital stock of (or
other ownership or profit interests in) such Person or warrant, right or option
for the purchase or other acquisition from such Person of such shares (or such
other interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such share, warrant,
option, right or other interest is authorized or otherwise existing on any date
of determination.


 


“Equity Issuance” means any issuance or sale by a Person of
any Equity Interest in such Person and shall in any event include the issuance
of any Equity Interest upon the conversion or exchange of any security
constituting Indebtedness that is convertible or exchangeable, or is being
converted or exchanged, for Equity Interests.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as in effect from time to time.


 


“ERISA Event” means, with respect to the ERISA Group,
(a) any “reportable event” as defined in Section 4043 of ERISA with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (b) the withdrawal of a member of the ERISA Group from a Plan
subject to Section 4063 of ERISA during a plan year in which it was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) the incurrence by a member of the ERISA Group of any liability
with respect to the withdrawal or partial withdrawal from any Multiemployer
Plan; (d) the incurrence by any member of the ERISA Group of any liability
under Title IV of ERISA with respect to the termination of any Plan or
Multiemployer Plan; (e) the institution of proceedings to terminate a Plan
or Multiemployer Plan by the PBGC; (f) the failure by any member of the
ERISA Group to make when due required contributions to a Multiemployer Plan or
Plan unless such failure is cured within 30 days or the filing pursuant to
Section 412(c) of the Internal Revenue Code or Section 302(c) of
ERISA of an application for a waiver of the minimum funding standard;
(g) any other event or condition that might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan or Multiemployer Plan or
the imposition of liability under Section 4069 or 4212(c) of ERISA;
(h) the receipt by any member of the ERISA Group of any notice or the  receipt by any Multiemployer Plan from any
member of the ERISA Group of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent (within the meaning of Section 4245 of ERISA),
in reorganization (within the meaning of Section 4241 of ERISA), or in “critical”
status (within the meaning of Section 432 of the Internal Revenue Code or
Section 305 of ERISA); (i)  the imposition of any liability under
Title IV of ERISA, other  than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any
member of the ERISA Group or the imposition of any Lien in favor of the PBGC
under Title IV of ERISA; or (j) a determination that a Plan is, or is
reasonably expected to be, in “at risk” status (within the meaning of
Section 430 of the Internal Revenue Code or Section 303 of ERISA).


 


9

















 


“ERISA Group” means the Parent, the Borrower, the other
Subsidiaries and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control, which,
together with the Borrower or any Subsidiary, are treated as a single employer
under Section 414 of the Internal Revenue Code.


 


“Event of Default” means any of the events specified in
Section 10.1., provided that any requirement for notice or lapse of time
or any other condition has been satisfied.


 


“Excluded Subsidiary” means any Subsidiary (a) holding
title to assets which are or are to become collateral for any Secured
Indebtedness of such Subsidiary (or whose sole asset is an Equity Interest in
such a Subsidiary) and (b) which is prohibited from Guarantying the
Indebtedness of any other Person pursuant to (i) any document, instrument
or agreement evidencing such Secured Indebtedness or (ii) a provision of
such Subsidiary’s organizational documents which provision was included in such
Subsidiary’s organizational documents as a condition to the extension of such
Secured Indebtedness.


 


“Existing Credit Agreement” has the meaning given such term
in the recitals hereto.


 


“Facility Fee” means the per annum percentage set forth in
the table below corresponding to the Level at which the “Applicable Margin” is
determined in accordance with the definition thereof on and at all times
following the Investment Grade Rating Date:


 


	
  Level

  	
   

  	
  Facility Fee

  	
   

  
	
  1

  	
   

  	
  0.35

  	
  %

  
	
  2

  	
   

  	
  0.40

  	
  %

  
	
  3

  	
   

  	
  0.45

  	
  %

  
	
  4

  	
   

  	
  0.50

  	
  %

  
	
  5

  	
   

  	
  0.50

  	
  %

  



 


“Fair Market Value” means, with respect to (a) a
security listed on a national securities exchange or the NASDAQ National
Market, the last sale price of such security as reported on such exchange or
market by any widely recognized reporting method customarily relied upon by
financial institutions and (b) with respect to any other property, the
price which could be negotiated in an arm’s-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of which is under
pressure or compulsion to complete the transaction.


 


“FASB ASC” means the Accounting Standards Codification of the
Financial Accounting Standards Board.


 


“Federal Funds Rate” means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Administrative Agent by federal funds dealers
selected by the Administrative Agent on such day on such transaction as
determined by the Administrative Agent.


 


10






 












 


“Fees” means the fees and commissions provided for or
referred to in Section 3.6. and any other fees payable by the Borrower
hereunder or under any other Loan Document.


 


“Fitch” means Fitch, Inc., and its successors.


 


“Floating Rate Indebtedness”  means
any Indebtedness of a Person which bears interest at a variable rate during the
scheduled life of such Indebtedness to the extent that such Person has not
entered into an interest rate swap agreement, interest rate “cap” or “collar”
agreement or other similar Derivatives Contract with a Person not an Affiliate
of such Person and which, as of the date of determination, effectively limits
such interest rate exposure in respect of such Indebtedness to a fixed rate
less than or equal to the greater of: 
(i) the sum of: (a) the rate (as determined by the Administrative
Agent) borne by United States 10-year Treasury Notes at the time the applicable
Derivatives Contract became effective plus (b) 1.50%; and (ii)
8.0%.


 


“Foreign Lender” means any
Lender that is organized under the laws of a jurisdiction other than that in
which the Borrower is 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.


 


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


 


“Funds From Operations” means, for any period, with respect
to the Parent and its Subsidiaries, (a) Consolidated Net Income of the
Parent and its Subsidiaries for such period, plus (b) real estate
depreciation and amortization (excluding amortization of financing costs), plus
(c) amortization associated with the purchase of property management
companies, plus (d) non-cash charges for the impairment of real
estate assets for such period, minus, to the extent included in the
statement of such Consolidated Net Income for such period (without
duplication), (e) gains (or losses) from debt restructuring and sales of
property, and after adjustments for Unconsolidated Affiliates (with adjustments
for Unconsolidated Affiliates calculated to reflect funds from operations on
the same basis) together with adjustments for the non-cash deferred portion of
any income tax provision for Unconsolidated Affiliates and the payment of
Preferred Dividends, as interpreted by the National Association of Real Estate
Investment Trusts in its May, 1995, White Paper on Funds From Operations; provided
that, the following shall be excluded when calculating Funds From Operations:
(i) non-cash adjustments for loan amortization costs and
(ii) interest expense charges (or benefits) for minority interest marked-to-market
adjustments arising under Statement of Financial Accounting Standards No. 150
of the Financial Accounting Standards Board as interpreted under GAAP.


 


“GAAP” means generally accepted accounting principles in the
United States of America set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (including Statement of Financial Accounting Standards No. 168,
“The FASB Accounting Standards Codification”) or in such other statements by
such other entity as may be approved by a significant segment of the accounting
profession in the United States of America, which are applicable to the circumstances
as of the date of determination.


 


“Governmental Approvals” means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.


 


11

















 


“Governmental Authority” means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, administrative, public or
statutory instrumentality, authority, body, agency, bureau, commission, board,
department or other entity (including, without limitation, the Federal Deposit
Insurance Corporation, the Comptroller of the Currency or the Federal Reserve
Board, any central bank or any comparable authority) or any arbitrator with
authority to bind a party at law.


 


“Ground Lease”  means a ground
lease containing the following terms and conditions:  (a) a remaining term (exclusive of any
unexercised extension options) of 30 years or more from the Agreement Date (or
such shorter period as the Requisite Lenders may agree); (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 without
limitation, the ability to sublease; and (e) such other rights customarily
required by mortgagees making a loan secured by the interest of the holder of
the leasehold estate demised pursuant to a ground lease.


 


“Guarantor” means any Person that is a party to the Guaranty
as a “Guarantor” and in any event shall include the Parent and each Material
Subsidiary.


 


“Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee”
as applied to any obligation means and includes:  (a) a guaranty (other than by
endorsement of negotiable instruments for collection or deposit in the ordinary
course of business), directly or indirectly, in any manner, of any part or all of
such obligation, or (b) an agreement, direct or indirect, contingent or
otherwise, and whether or not constituting a guaranty, the practical effect of
which is to assure the payment or performance (or payment of damages in the
event of nonperformance) of any part or all of such obligation whether by:
(i) the purchase of securities or obligations, (ii) the purchase,
sale or lease (as lessee or lessor) of property or the purchase or sale of
services primarily for the purpose of enabling the obligor with respect to such
obligation to make any payment or performance (or payment of damages in the
event of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn
down by beneficiaries of letters of credit (including Letters of Credit), or
(v) the supplying of funds to or investing in a Person on account of all
or any part of such Person’s obligation under a Guaranty of any obligation or
indemnifying or holding harmless, in any way, such Person against any part or
all of such obligation.  As the context
requires, “Guaranty” shall also mean the Amended and Restated Guaranty to which
the Guarantors are parties substantially in the form of Exhibit B.


 


“Hazardous Materials” means all or any of the following:  (a) substances that are defined or
listed in, or otherwise classified pursuant to, any applicable Environmental
Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic
substances” or any other formulation intended to define, list or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP”
toxicity or “EP toxicity”; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(c) any flammable substances or explosives or any radioactive materials;
(d) asbestos in any form; (e) toxic mold; and (f) electrical
equipment which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million.


 


12

















 


“Indebtedness” of any Person
at any date, without duplication: (a) all indebtedness of such Person for
borrowed money; (b) all obligations of such Person for the deferred
purchase price of property or services (including trade payables incurred in
the ordinary course of such Person’s business but excluding accrued expenses);
(c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments; (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property); (e) all Capital Lease Obligations of such
Person; (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under acceptance, letter of credit, surety bond or
similar facilities; (g) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for value any
Equity Interests of such Person; (h) all Off-Balance Sheet Obligations of
such Person; (i) all obligations of such Person in respect of Guaranties
of obligations of the kind referred to in clauses (a) through (h) above;
(j) all obligations of the kind referred to in clauses (a) through (i)
above secured by (or for which the holder of such obligation has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation; and (k) net obligations of such Person under any
Derivatives Contract not entered into as a hedge against existing Indebtedness,
in an amount equal to the Derivatives Termination Value thereof.  The Indebtedness of any person shall include
the Indebtedness of any other entity (including any partnership in which such
person is a general partner) to the extent such person is liable therefore as a
result of such person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly provide
that such person is not liable therefore, provided that, Indebtedness
shall include such person’s pro-rata share of Indebtedness of any joint venture
in which such person is a partner, regardless if such person is liable
therefor.  Any calculation of
Indebtedness hereunder shall be made in a manner consistent with the last
sentence of Section 1.2.


 


“Indemnified Costs” has the meaning given that term in Section
12.9.(a).


 


“Indemnified Party” has the meaning given that term in
Section 12.9.(a).


 


“Indemnity Proceeding” has the meaning given that term in
Section 12.9.(a).


 


“Intellectual Property” has the meaning given that term in
Section 6.1.(t).


 


“Interest Period” means with respect to any LIBOR Loan, each
period commencing on the date such LIBOR Loan is made, or in the case of the
Continuation of a LIBOR Loan the last day of the preceding Interest Period for
such Loan, and ending 1, 3 or 6 months thereafter, as the Borrower may select
in a Notice of Borrowing, Notice of Continuation or Notice of Conversion, as
the case may be, except that each Interest Period that commences on the last
Business Day of a calendar month, or on a day for which there is no corresponding
day in the appropriate subsequent calendar month, shall end on the last
Business Day of the appropriate subsequent calendar month.  Notwithstanding the foregoing:  (i) if any Interest Period would
otherwise end after the Termination Date, such Interest Period shall end on the
Termination Date; and (ii) each Interest Period that would otherwise end
on a day which is not a Business Day shall end on the immediately following
Business Day (or, if such immediately following Business Day falls in the next
calendar month, on the immediately preceding Business Day).


 


“Internal Revenue Code” means the Internal Revenue Code of
1986, as amended.


 


“Investment” means, with respect to any Person, any
acquisition or investment (whether or not of a controlling interest) by such
Person, by means of any of the following: 
(a) the purchase or other acquisition of any Equity Interest in
another Person, (b) a loan, advance or extension of credit to, capital


 


13

















 


contribution
to, Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture
interest in such other Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person
that constitute the business or a division or operating unit of another
Person.  Any binding commitment to make
an Investment in any other Person, as well as any option of another Person to
require an Investment in such Person, shall constitute an Investment.  Except as expressly provided otherwise, for
purposes of determining compliance with any covenant contained in a Loan
Document, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.


 


“Investment Grade Rating” means a Credit Rating of
BBB-/BBB-/Baa3 or higher from any of S&P, Fitch or Moody’s, respectively.


 


“Investment Grade Rating Date” means the date on which the
Parent first obtains, at its request, an Investment Grade Rating from any two
of the Rating Agencies.


 


“L/C Commitment Amount” equals $15,000,000.


 


“Lender” means each financial institution from time to time
party hereto as a “Lender”, together with its respective successors and
permitted assigns, and as the context requires, includes the Swingline Lender;
provided, however, except as otherwise expressly provided herein, the term “Lender”
shall not include any Lender or any of its Affiliates in such Person’s capacity
as a Specified Derivatives Provider.


 


“Lending Office” means, for each Lender and for each Type of
Loan, the office of such Lender specified in such Lender’s Administrative
Questionnaire, or such other office of such Lender of which such Lender may
notify the Administrative Agent in writing from time to time.


 


“Letter of Credit” has the meaning given that term in
Section 2.4.(a).


 


“Letter of Credit Documents” means, with respect to any
Letter of Credit, collectively, any application therefor, any certificate or
other document presented in connection with a drawing under such Letter of
Credit and any other agreement, instrument or other document governing or
providing for (a) the rights and obligations of the parties concerned or
at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations.


 


“Letter of Credit Liabilities” means, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the Stated
Amount of such Letter of Credit plus (b) the aggregate unpaid principal
amount of all Reimbursement Obligations of the Borrower at such time due and
payable in respect of all drawings made under such Letter of Credit.  For purposes of this Agreement, a Lender
(other than the Lender acting as the Administrative Agent) shall be deemed to
hold a Letter of Credit Liability in an amount equal to its participation
interest in the related Letter of Credit under Section 2.4.(i), and the
Lender acting as the Administrative Agent shall be deemed to hold a Letter of
Credit Liability in an amount equal to its retained interest in the related
Letter of Credit after giving effect to the acquisition by the Lenders other
than the Lender acting as the Administrative Agent of their participation interests
under such Section.


 


“Level” shall be the “Level” column as set
forth in the definition of the term “Applicable Margin.”


 


“LIBOR” means, for any LIBOR Loan for any Interest Period
therefor, the rate of interest, rounded up to the nearest whole multiple of
one-hundredth of one percent (.01%), obtained by dividing (i)


 


14

















 


the
rate of interest, rounded upward to the nearest whole multiple of one-sixteenth
of one percent (0.0625%), referred to as the BBA (British Bankers’ Association)
LIBOR rate as set forth by any service selected by the Administrative Agent
that has been nominated by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying such rate for deposits in
Dollars at approximately 9:00 a.m. Pacific time, 2 Business Days
prior to the date of commencement of such Interest Period for purposes of
calculating effective rates of interest for loans or obligations making
reference thereto, for an amount approximately equal to the applicable LIBOR
Loan and for a period of time approximately equal to such Interest Period by
(ii) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as
specified in Regulation D of the Board of Governors of the Federal Reserve
System (or against any other category of liabilities which includes deposits by
reference to which the interest rate on LIBOR Loans is determined or any
applicable category of extensions of credit or other assets which includes
loans by an office of any Lender outside of the United States of America).  Any change in such maximum rate shall result
in a change in LIBOR on the date on which such change in such maximum rate
becomes effective.


 


“LIBOR Loan” means a Revolving Loan or a Term Loan bearing
interest at a rate based on LIBOR.


 


“LIBOR Market Index Rate” means, for any
day, LIBOR as of that day that would be applicable for a LIBOR Loan having a
one-month Interest Period determined at approximately 9:00 a.m. Pacific time
for such day (or if such day is not a Business Day, the immediately preceding
Business Day).  The LIBOR Market Index
Rate shall be determined on a daily basis.


 


“Lien” as applied to the property of any Person means:  (a) any security interest, encumbrance,
mortgage, deed to secure debt, deed of trust, assignment of leases and rents,
pledge, lien, charge or lease constituting a Capital Lease Obligation,
conditional sale or other title retention agreement, or other security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income, rents or profits therefrom; (b) any arrangement, express or implied,
under which any property of such Person is transferred, sequestered or
otherwise identified for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to the payment
of the general, unsecured creditors of such Person; (c) the filing of any
financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, other than any precautionary filing not otherwise constituting or
giving rise to a Lien, including a financing statement filed (i) in
respect of a lease not constituting a Capital Lease Obligation pursuant to
Section 9-505 (or a successor provision) of the UCC or its equivalent as in
effect in an applicable jurisdiction or (ii) in connection with a sale or
other disposition of accounts or other assets not prohibited by this Agreement
in a transaction not otherwise constituting or giving rise to a Lien; and
(d) any agreement by such Person to grant, give or otherwise convey any of
the foregoing.


 


“Loan” means a Revolving Loan, a Term Loan or a Swingline
Loan.


 


“Loan Document” means this Agreement, each Note, each Letter
of Credit Document, the Guaranty and each other document or instrument now or
hereafter executed and delivered by a Loan Party in connection with, pursuant
to or relating to this Agreement (other than any Specified Derivatives
Contract).


 


“Loan Party” means each of the Parent, the Borrower, each
Guarantor and each other Person who guarantees all or a portion of the
Obligations.  Schedule 1.1.(A) sets
forth the Loan Parties in addition to the Parent and the Borrower as of the
Agreement Date.


 


15

















 


“Major Lease” shall mean, as to any Property, any lease with
respect to a Property (other than a lease for storage space at such Property)
which (i) accounts for twenty percent (20%) or more of such Property’s total
rental income, or (ii) covers more than twenty percent (20%) of the gross
leasable area of the Property.


 


“Material Adverse Effect” means a materially adverse effect
on (a) the business, assets, liabilities, condition (financial or
otherwise), or results of operations of the Parent and its Subsidiaries taken
as a whole, (b) the ability of the Parent, the Borrower or any other Loan
Party to perform its obligations under any Loan Document to which it is a
party, (c) the validity or enforceability of any of the Loan Documents, or
(d) the rights and remedies of the Lenders and the Administrative Agent
under any of the Loan Documents.


 


“Material Contract” means any contract or other arrangement
(other than Loan Documents and Specified Derivatives Contracts), whether
written or oral, to which the Parent, the Borrower, any other Subsidiary or any
other Loan Party is a party as to which the breach, nonperformance, cancellation
or failure to renew by any party thereto could reasonably be expected to have a
Material Adverse Effect.


 


“Material Indebtedness” has the meaning given that term in
Section 10.1.(e)(i).


 


“Material Subsidiary” means (a) any Subsidiary of the
Parent that owns, or otherwise has any interest in, any Eligible Property or
any other property or asset that is taken into account when calculating
Unencumbered Asset Value; (b) any Subsidiary (other than an Excluded
Subsidiary) that has total assets greater than or equal to 5.0% of total assets
of the Borrower determined on a consolidated basis (calculated as of the end of
the fiscal quarter most recently ending for which financial statements are
available) or (c) any Subsidiary (other than an Excluded Subsidiary) that
has total revenues greater than or equal to 5.0% of the total revenues of the
Borrower determined on a consolidated basis (calculated for the fiscal quarter
most recently ending for which financial statements are available). In any
event, the term “Material Subsidiaries” shall mean and include all Subsidiaries
(other than Excluded Subsidiaries) of the Borrower, which, together with the
Borrower, account for 90.0% or more of the Adjusted Total Revenue of the
Borrower determined on a consolidated basis for the fiscal quarter most
recently ended for which financial statements are available. If more than one
combination of Subsidiaries satisfies such threshold, then those Subsidiaries
so determined to be “Material Subsidiaries” shall be specified by the Borrower.


 


“Moody’s” means Moody’s Investors Service, Inc., and its
successors.


 


“Mortgage Receivables” means a promissory note secured by a
Lien in an interest in real property of which the Parent, the Borrower or
another Subsidiary is the holder and retains the right of collection of all
payments thereunder.


 


“Multiemployer Plan” means at any time a multiemployer plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding six plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such six year period.


 


“Negative Pledge” means, with respect to a given asset, any
provision of a document, instrument or agreement (other than any Loan Document
or Specified Derivatives Contract) which prohibits or purports to prohibit the
creation or assumption of any Lien on such asset as security for Indebtedness
of the Person owning such asset or any other Person; provided, however, that an
agreement that conditions a Person’s ability to encumber its assets upon the
maintenance of one or more specified ratios that limit


 


16

















 


such
Person’s ability to encumber its assets but that do not generally prohibit the
encumbrance of its assets, or the encumbrance of specific assets, shall not
constitute a Negative Pledge.


 


“Net Operating Income” or “NOI” means, for any
Storage Property and for a given period, the sum of the following (without
duplication and determined on a consistent basis with prior periods):  (a) rents and other revenues received in
the ordinary course of business from operating such Property (including
proceeds of rent loss insurance but excluding pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants’
obligations for rent) during such period minus (b) all expenses
paid or accrued related to the ownership, operation or maintenance of such
Property (other than those expenses normally covered by a management fee and
other than Capital Expenditures), including, but not limited to, taxes,
assessments and other similar charges, insurance, utilities, payroll costs,
maintenance, repair and landscaping expenses and on-site marketing expenses
during such period minus (c) the Reserves for Capital Expenditures
for such Property for such period minus (d) the greater of (i) the
actual property management fee paid during such period with respect to such
Property and (ii) an imputed management fee in the amount of five percent
(5.0%) of the gross revenues for such Property for such period.


 


“Net Proceeds” means with respect to any Equity Issuance by a
Person, the aggregate amount of all cash and the Fair Market Value of all other
property (other than securities of such Person being converted or exchanged in
connection with such Equity Issuance) received by such Person in respect of
such Equity Issuance net of investment banking fees, legal fees, accountants’
fees, underwriting discounts and commissions, listing fees, financial printing
costs and other customary fees and expenses actually incurred by such Person in
connection with such Equity Issuance.


 


“Nonrecourse Indebtedness” means, with respect to a Person,
Indebtedness for borrowed money in respect of which recourse for payment
(except for exceptions for fraud,
misapplication of funds, environmental indemnities, bankruptcy, transfer of
collateral in violation of the applicable loan documents, failure to obtain
consent for subordinate financing in violation of the applicable loan documents
and other exceptions to nonrecourse liability which are customary for
nonrecourse financings at the time as determined by the Administrative Agent)
is contractually limited to specific assets of such Person encumbered by a Lien
securing such Indebtedness.  Liability of
a Person under a completion guarantee, to the extent relating to the
Nonrecourse Indebtedness of another Person, shall not, in and of itself,
prevent such liability from being characterized as Nonrecourse Indebtedness.


 


“Note” means a Revolving Note, a Term Note or a Swingline
Note.


 


“Notice of Borrowing” means a notice in the form of
Exhibit C to be delivered to the Administrative Agent pursuant to Section 2.1.(b)
evidencing the Borrower’s request for a borrowing of Revolving Loans.


 


“Notice of Continuation” means a notice in the form of
Exhibit D to be delivered to the Administrative Agent pursuant to
Section 2.9. evidencing the Borrower’s request for the Continuation of a
LIBOR Loan.


 


“Notice of Conversion” means a notice in the form of
Exhibit E to be delivered to the Administrative Agent pursuant to
Section 2.10. evidencing the Borrower’s request for the Conversion of a
Loan from one Type to another Type.


 


“Notice of Swingline Borrowing” means a notice in the form of
Exhibit F to be delivered to the Administrative Agent pursuant to
Section 2.3. evidencing the Borrower’s request for a Swingline Loan.


 


17

















 


“Obligations” means, individually and collectively:  (a) the aggregate principal balance of,
and all accrued and unpaid interest on, all Loans; (b) all Reimbursement
Obligations and all other Letter of Credit Liabilities; and (c) all other
indebtedness, liabilities, obligations, covenants and duties of the Borrower
and the other Loan Parties owing to the Administrative Agent or any Lender of
every kind, nature and description, under or in respect of this Agreement or
any of the other Loan Documents, including without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or
contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any promissory note.  The term “Obligations” does not include
Specified Derivatives Obligations.


 


“Occupancy Rate” means, with respect to a Property at any
time, the ratio, expressed as a percentage, of (a) aggregate leasable
square footage of all completed space of such Property actually occupied by
non-Affiliate tenants paying rent at market rates pursuant to binding leases as
to which no monetary default has occurred and has continued for a period in
excess of 60 days to (b) the aggregate leasable square footage of all
completed space of such Property.


 


“OFAC” means U.S. Department of the Treasury’s Office of
Foreign Assets Control and any successor Governmental Authority.


 


“Off-Balance Sheet Obligations” means liabilities and obligations of the Parent, the Borrower, any
other Subsidiary or any other Person in respect of “off-balance sheet
arrangements” (as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated
under the Securities Act) which the Parent would be required to disclose in the
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section of the Parent’s report on Form 10-Q or Form 10-K (or their
equivalents) which the Parent is required to file with the Securities and
Exchange Commission (or any Governmental Authority substituted therefor).


 


“Parent” has the meaning set forth in the introductory
paragraph hereof and shall include the Parent’s successors and permitted
assigns.


 


“Participant” has the meaning given that term in
Section 12.5.(d).


 


“PBGC” means the Pension Benefit Guaranty Corporation and any
successor agency.


 


“Permitted Liens” means:  (a) Liens securing taxes, assessments
and other charges or levies imposed by any Governmental Authority (excluding
any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any
Environmental Laws) or the claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, which are not at the time required to be paid
or discharged under Section 7.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course
of business, in connection with, or to secure payment of, obligations under
workers’ compensation, unemployment insurance or similar Applicable Laws;
(c) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property or materially
and adversely impair the intended use thereof in the business of such Person;
(d) the rights of tenants under leases or subleases not interfering with
the ordinary conduct of business of such Person; (e) Liens in favor of the
Administrative Agent for the benefit of the Lenders; (f) Liens in existence
as of the Agreement Date and set forth in Part II of Schedule 6.1.(f); (g) in the case of any
Excluded Subsidiary, Liens on the assets of such Excluded Subsidiary securing
the Indebtedness of such Excluded Subsidiary that caused such Subsidiary to be
an Excluded Subsidiary; (h) any Lien consisting of a purchase money
security interest that secures purchase money Indebtedness permitted by Section
9.3. and incurred in the ordinary course of business in connection with the
purchase of


 


18

















 


“Equipment”
(as such term is defined in the UCC), provided such Lien is limited to the
Equipment purchased; and (i) Liens on assets of the Borrower or any Guarantor
securing obligations under Derivatives Contracts.


 


“Person” means an individual, corporation, partnership,
limited liability company, association, trust or unincorporated organization,
or a government or any agency or political subdivision thereof.


 


“Plan” means an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code
and either (a) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (b) has at
any time within the preceding six years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.


 


“Post-Default Rate” means a rate per annum equal to the Base
Rate as in effect from time to time plus the Applicable Margin plus
two percent (2.0%).


 


“Potential
Defaulting Lender” means any Lender, as
reasonably determined by the Administrative Agent in good faith or, in the event
that the Lender then acting as Administrative Agent is a Defaulting Lender, the
Requisite Lenders in good faith, that: (a) has failed to comply with, or
has made a public statement to the effect that it does not intend to comply
with, its funding obligations under one or more syndicated credit facilities or
other agreements in which it commits or is obligated to extend credit (other
than this Agreement); (b)  has a parent corporation or other Affiliate
that is subject to any condition or event described in the immediately
preceding clause (a); or (c) has, or whose parent corporation has, a
Credit Rating of less than BBB-/Baa3 (or equivalent) from either S&P or
Moody’s.  As used in this definition, the
term “parent corporation” means, with respect to a Lender, any Person
Controlling such Lender, including without limitation, the bank holding company
(as defined in Regulation Y of the Board of Governors of the Federal
Reserve System), if any, of such Lender.


 


“Preferred Dividends” means, for any period and without duplication, all Restricted Payments
paid during such period on Preferred Equity Interests issued by the Parent or
any of its Subsidiaries.  Preferred
Dividends shall not include dividends or distributions (a) to the extent
paid or payable to the Parent or any of its Subsidiaries, or
(b) constituting or resulting in the redemption of Preferred Equity
Interests, other than scheduled redemptions not constituting balloon, bullet or
similar redemptions in full.


 


“Preferred Equity Interests” means, with respect to any
Person, Equity Interests in such Person which are entitled to preference or
priority over any other Equity Interest in such Person in respect of the
payment of dividends or distribution of assets upon liquidation or both.


 


“Principal Office” means the office of the Administrative
Agent located at One Wachovia Center, Charlotte, North Carolina, or such other
office of the Administrative Agent as the Administrative Agent may designate
from time to time.


 


“Property” means any parcel of real property owned or leased
(in whole or in part) or operated by the Parent, the Borrower, any Subsidiary
or any Unconsolidated Affiliate of the Borrower.


 


“Qualified Plan” means a Benefit Arrangement that is intended
to be tax-qualified under Section 401(a) of the Internal Revenue Code.


 


“Rating Agency” means S&P, Fitch or Moody’s.


 


19

















 


“Register” has the meaning given that term in
Section 12.5.(c).


 


“Regulatory Change” means, with respect to any Lender, any
change (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) effective after the Agreement Date in
Applicable Law or the adoption or making after such date of any interpretation,
directive or request, or the promulgation of any rules or regulations after the
Agreement Date that relate to Applicable Laws adopted or enacted prior to the
Agreement Date, applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental
Authority or monetary authority charged with the interpretation or
administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy.


 


“Reimbursement Obligation” means the absolute, unconditional
and irrevocable obligation of the Borrower to reimburse the Administrative
Agent for any drawing honored by the Administrative Agent under a Letter of
Credit.


 


“REIT” means a “real estate investment trust” under the
Internal Revenue Code.


 


“Requisite Lenders” means, as of any date, Lenders having at
least 66-2/3% of the aggregate amount of the Commitments (not held by
Defaulting Lenders who are not entitled to vote), or, if all of the Commitments
have been terminated or reduced to zero, Lenders holding at least 66-2/3% of
the principal amount of the aggregate outstanding Loans and Letter of Credit
Liabilities (not held by Defaulting Lenders who are not entitled to vote).  Commitments, Loans and Letter of Credit
Liabilities held by Defaulting Lenders shall be disregarded when determining
the Requisite Lenders.  For purposes of
this definition, a Lender (other than the Swingline Lender) shall be deemed to
hold a Swingline Loan or a Letter of Credit Liability to the extent such Lender
has acquired a participation therein under the terms of this Agreement and has
not failed to perform its obligations in respect of such participation.


 


“Reserves for Capital Expenditures” means, with respect to
any Storage Property for any period, an amount equal to (a) the aggregate
leasable square footage of all completed space of such Property multiplied
by (b) $0.15 per square foot multiplied by (c) the number of
days actually elapsed during such period divided by (d) 365.


 


“Responsible Officer” means with respect to the Parent, the
Borrower or any Subsidiary, the chief executive officer, president and chief
financial officer of the Parent, the Borrower or the corresponding officer of
each such Subsidiary or, if any of the foregoing is a partnership, such officer
of its general partner.


 


“Restricted Payment” means: 
(a) any dividend or other distribution, direct or indirect, on
account of any Equity Interest of the Parent, the Borrower or any other
Subsidiary now or hereafter outstanding, except a dividend payable solely in
Equity Interests of an identical or
junior class to the holders of that class; (b) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any Equity Interest of the
Parent, the Borrower or any other Subsidiary now or hereafter outstanding; and
(c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire any Equity Interests
of the Parent, the Borrower or any other Subsidiary now or hereafter
outstanding.


 


“Revolving Commitment” means, as to each Lender (other than
the Swingline Lender), such Lender’s obligation (a) to make Revolving
Loans pursuant to Section 2.1., (b) to issue (in the case of the
Lender then acting as the Administrative Agent) or participate in (in the case
of the other Lenders) Letters of Credit pursuant to Section 2.4.(a)
and 2.4.(i), respectively (but in the case of the Lender acting as the


 


20






 












 


Administrative
Agent excluding the aggregate amount of participations in the Letters of Credit
held by the other Lenders) and (c) to participate in Swingline Loans
pursuant to Section 2.3.(e), in each case, in an amount up to, but not
exceeding, the amount set forth for such Lender on Schedule 1.1.(B) as
such Lender’s “Revolving Commitment Amount” or as set forth in the applicable
Assignment and Acceptance Agreement, as the same may be reduced from time to
time pursuant to Section 2.12. or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 12.5.


 


“Revolving Loan” means a loan made by a Lender to the
Borrower pursuant to Section 2.1.(a).


 


“Revolving Note” has the meaning given that term in
Section 2.11.(a).


 


“Sanctioned Entity” means (a) an agency of the
government of, (b) an organization directly or indirectly controlled by,
or (c) a Person resident in, in each case, a country that is subject to a
sanctions program identified on the list maintained by the OFAC and published
from time to time, as such program may be applicable to such agency,
organization or Person.


 


“Sanctioned Person” means a Person named on the list of
Specially Designated Nationals or Blocked Persons maintained by the OFAC as
published from time to time.


 


“Secured Indebtedness” means, with respect to a Person as of
any given date, the aggregate principal amount of all Indebtedness of such
Person outstanding at such date and that is secured in any manner by any Lien,
and in the case of the Parent and any of its Subsidiaries, shall include
(without duplication) the Parent’s and its Subsidiaries’ pro rata shares of the
Secured Indebtedness of their Unconsolidated Affiliates.


 


“Secured Recourse Indebtedness” shall mean
that portion of any Secured Indebtedness that is not Nonrecourse Indebtedness
of the Borrower or a Guarantor.


 


“Securities Act” means the Securities Act of 1933, as amended
from time to time, together with all rules and regulations issued
thereunder.


 


“Security Filing” has the meaning given that term in
Section 8.4.(b).


 


“Significant Subsidiary” means any Subsidiary to which 5.0%
or more of Consolidated Adjusted Asset Value is attributable.


 


“Solvent” means, when used with respect to any Person, that
(a) the fair value and the fair salable value of its assets (excluding any
Indebtedness due from any Affiliate of such Person) are each in excess of the
fair valuation of its total liabilities (including all contingent liabilities
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that could reasonably be expected
to become an actual and matured liability); (b) such Person is able to pay
its debts or other obligations in the ordinary course as they mature; and (c) such
Person has capital not unreasonably small to carry on its business and all
business in which it proposes to be engaged.


 


“Specified Derivatives Contract” means any Derivatives
Contract, together with any Derivatives Support Document relating thereto, that
is made or entered into at any time, or in effect at any time now or hereafter,
whether as a result of an assignment or transfer or otherwise, between the
Parent, the Borrower or any Subsidiary of the Borrower and a Specified
Derivatives Provider.


 


“Specified Derivatives Obligations” means all indebtedness,
liabilities, obligations, covenants and duties of the Parent, the Borrower or
any other Loan Party, as applicable, under or in respect of any


 


21

















 


Specified
Derivatives Contract, whether direct or indirect, absolute or contingent, due
or not due, liquidated or unliquidated, and whether or not evidenced by any
written confirmation.


 


“Specified Derivatives Provider” means any Lender, or any
Affiliate of a Lender, that is a party to a Derivatives Contract at the time
the Derivatives Contract is entered into.


 


“S&P” means Standard & Poor’s Rating Services, a
division of The McGraw-Hill Companies, Inc., and its successors.


 


“Stated Amount” means the amount available to be drawn by a
beneficiary under a Letter of Credit from time to time, as such amount may be
increased or reduced from time to time in accordance with the terms of such
Letter of Credit.


 


“Storage Property” means a Property primarily operated as a
self-storage facility.


 


“Subsidiary” means, for any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the Equity Interests having by the terms thereof ordinary voting
power to elect a majority of the board of directors or other individuals
performing similar functions of such corporation, partnership or other entity
(without regard to the occurrence of any contingency) is at the time directly
or indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts
of which are consolidated with those of such Person pursuant to GAAP.


 


“Supermajority Lenders” means, as of any date, Lenders having
at least 75% of the aggregate amount of the Commitments (not held by Defaulting
Lenders who are not entitled to vote), or if all the Commitments have been
terminated or reduced to zero, Lenders holding at least 75% of the principal
amount of the aggregate outstanding Loans and Letter of Credit Liabilities (not
held by Defaulting Lenders who are not entitled to vote).  Commitments, Loans and Letter of Credit
Liabilities held by Defaulting Lenders shall be disregarded when determining
the Supermajority Lenders.  For purposes
of this definition, a Lender (other than the Swingline Lender) shall be deemed
to hold a Swingline Loan or a Letter of Credit Liability to the extent such
Lender has acquired a participation therein under the terms of this Agreement
and has not failed to perform its obligations in respect of such participation.


 


“Swingline Commitment” means the Swingline Lender’s
obligation to make Swingline Loans pursuant to Section 2.3. in an amount
up to, but not exceeding, $20,000,000, as such amount may be reduced from time
to time in accordance with the terms hereof.


 


“Swingline Lender” means Wells
Fargo, together with its respective successors and assigns.


 


“Swingline Loan” means a loan made by the Swingline Lender to
the Borrower pursuant to Section 2.3.(a).


 


“Swingline Note” means the promissory note of the Borrower
payable to the order of the Swingline Lender in a principal amount equal to the
amount of the Swingline Commitment as originally in effect and otherwise duly
completed, substantially in the form of Exhibit G.


 


“Swingline Termination Date” means the date
which is 7 Business Days
prior to the Termination Date.


 


“Tangible Net Worth” means, for any Person on any date of determination, (a) such
Person’s total stockholders’ equity determined on a consolidated basis, plus
(b) accumulated depreciation and


 


22

















 


amortization,
minus (c) the following (to the extent reflected in determining
stockholders’ equity of such Person): 
(i) the amount of any write-up in the book value of any assets
contained in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (ii) the
aggregate of all amounts appearing on the assets side of any such balance sheet
for assets which would be classified as intangible assets under GAAP, all
determined on a consolidated basis.


 


“Taxes” has the meaning given that term in Section 3.12.


 


“Term Loan” means a loan made by a Lender to
the Borrower pursuant to Section 2.2.(a).


 


“Term Note” has the meaning given that term
in Section 2.11.(b).


 


“Termination Date” means December 7, 2013.


 


“Titled Agents” means each of the Joint Lead Arrangers, the
Joint Bookrunners, the Syndication Agent, and the Documentation Agent and their
respective successors and permitted assigns.


 


“Transfer Authorizer Designation Form” means a form
substantially in the form of Exhibit L to be delivered to the
Administrative Agent pursuant to Section 2.15., as the same may be
amended, restated or modified from time to time with the prior written approval
of the Administrative Agent.


 


“Type” with respect to any Revolving Loan or Term Loan,
refers to whether such Loan is a LIBOR Loan or Base Rate Loan.


 


“UCC” means the Uniform Commercial Code as in effect in any
applicable jurisdiction.


 


“Unencumbered Asset Value” means on any date of
determination, the sum of: (a) with respect to any Eligible Property that
has been owned or leased for the four most recently ended fiscal quarters, an
amount equal to (i) the Net Operating Income of such Eligible Property for
the four full fiscal quarters of the Parent most recently ended, divided
by (ii) the Capitalization Rate;  plus
(b) with respect to any Eligible Property that has been owned or leased
for the two most recently ended fiscal quarters but less than the three most
recently ended fiscal quarters, an amount equal to (i) the product of (x) the
Net Operating Income of such Eligible Property for the two full fiscal quarters
of the Parent most recently ended multiplied by (y) 2, divided
by (ii) the Capitalization Rate; plus (c) with respect to
any Eligible Property that has been owned or leased for the three most recently
ended fiscal quarters but less than the four most recently ended fiscal
quarters, an amount equal to (i) the product of (x) the Net Operating
Income of such Eligible Property for the three full fiscal quarters of the
Parent most recently multiplied by (y) 4 and then divided by
(z) 3, divided by (ii) the Capitalization Rate; plus (d) the
GAAP book value of all Eligible Properties that have been owned or leased for
less than two full fiscal quarters; Notwithstanding the foregoing, to the
extent that Unencumbered Asset Value
attributable to Properties (1) leased under Ground Leases would exceed
5.0% of Unencumbered Asset
Value, such excess shall be excluded and (2) having an Occupancy Rate of
less than 60% would exceed 5.0% of Unencumbered Asset Value, such excess shall be excluded.


 


“Unencumbered NOI” means, for any period, the Net Operating
Income attributable to all Eligible Properties for such period.


 


“Unconsolidated Affiliate” means, with respect to any Person,
any other Person in which such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP
with the financial results of such Person on the consolidated financial
statements of such Person.


 


23

















 


“Unsecured Indebtedness” means Indebtedness which is not Secured Indebtedness; provided,
however, that “Unsecured Indebtedness” shall include Indebtedness that is both (a) only
secured by a pledge of the Equity Interests of the Person that has incurred such
Indebtedness and (b) recourse to the Borrower or to a Guarantor.


 


“Unsecured Interest Expense” means, with respect to a Person
and for any period, all Interest Expense attributable to Consolidated Unsecured
Indebtedness.


 


“Wells Fargo” means WELLS FARGO
BANK, NATIONAL ASSOCIATION, together with its successors and assigns.


 


“Withdrawal Liability” means any liability as a result of a
complete or partial withdrawal from a Multiemployer Plan as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


 


“Wholly Owned Subsidiary” means any Subsidiary of a Person in
respect of which all of the equity securities or other ownership interests
(other than, in the case of a corporation, directors’ qualifying shares) are at
the time directly or indirectly owned or controlled by such Person or one or
more other Subsidiaries of such Person or by such Person and one or more other
Subsidiaries of such Person.


 


Section 1.2.  General; References to Times.


 


Unless
otherwise indicated, all accounting terms, ratios and measurements shall be
interpreted or determined in accordance with GAAP; provided that, if at any
time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the Requisite
Lenders shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject
to the approval of the Requisite Lenders); provided further that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.  References in this Agreement to “Sections”, “Articles”,
“Exhibits” and “Schedules” are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. 
References in this Agreement to any document, instrument or agreement
(a) shall include all exhibits, schedules and other attachments thereto,
(b) shall include all documents, instruments or agreements issued or
executed in replacement thereof, to the extent permitted hereby and
(c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, supplemented, restated or otherwise modified
as of the date of this Agreement and from time to time thereafter to the extent
not prohibited hereby and in effect at any given time.  Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include
the singular and plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the neuter.  Unless explicitly set forth to the contrary,
a reference to “Subsidiary” means a Subsidiary of the Parent or a Subsidiary of
such Subsidiary and a reference to an “Affiliate” means a reference to an
Affiliate of the Borrower.  Titles and
captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.  Unless otherwise indicated,
all references to time are references to Eastern time.  Notwithstanding any other provision contained
herein, all terms of an accounting or financial nature used herein shall be
construed, and all computations of amounts and ratios referred to herein shall
be made, without giving effect to any election under Statement of Financial
Accounting Standards 159 (or any other financial accounting standard
promulgated by the Financial Accounting Standards Board having a


 


24

















 


similar
result or effect) to value any Indebtedness or other liabilities of the Parent,
the Borrower or any Subsidiary at “fair value”, as defined therein.


 


Section 1.3.  Financial Attributes of Non-Wholly Owned
Subsidiaries.


 


When
determining compliance by the Borrower or the Parent with any financial
covenant contained in any of the Loan Documents, only the pro rata share of the
Borrower or the Parent, as applicable, of the revenues, expenses, assets,
liabilities and other financial statement items of a Subsidiary that is not a
Wholly Owned Subsidiary shall be included; provided, however, for purposes of
determining the Parent’s compliance with any such financial covenant the
Borrower shall be considered to be a Wholly Owned Subsidiary of the Parent.


 


ARTICLE II. CREDIT
FACILITIES


 


Section 2.1.  Revolving Loans.


 


(a)           Generally.  Subject to the terms and conditions hereof,
including without limitation Section 2.14., during the period from the
Effective Date to but excluding the Termination Date, each Lender severally and
not jointly agrees to make Revolving Loans to the Borrower in an aggregate principal
amount at any one time outstanding up to, but not exceeding, the amount of such
Lender’s Revolving Commitment.  Subject
to the terms and conditions of this Agreement, during the period from the
Effective Date to but excluding the Termination Date, the Borrower may borrow,
repay and reborrow Revolving Loans hereunder. 
The parties hereto agree that the aggregate principal amount of
outstanding Revolving Loans as of the Closing Date is $0.


 


(b)           Requesting Revolving Loans.  The Borrower shall give the Administrative
Agent notice pursuant to a Notice of Borrowing or telephonic notice of each
borrowing of Revolving Loans.  Each
Notice of Borrowing shall be delivered to the Administrative Agent before
11:00 a.m. (i) in the case of LIBOR Loans, on the date three Business
Days prior to the proposed date of such borrowing and (ii) in the case of
Base Rate Loans, on the date one Business Day prior to the proposed date of
such borrowing.  Any such telephonic
notice shall include all information to be specified in a written Notice of
Borrowing and shall be promptly confirmed in writing by the Borrower pursuant
to a Notice of Borrowing sent to the Administrative Agent by telecopy on the
same day of the giving of such telephonic notice.  The Administrative Agent will transmit by
telecopy the Notice of Borrowing (or the information contained in such Notice
of Borrowing) to each Lender promptly upon receipt by the Administrative Agent
(but in any event no later than 2:00 p.m. on the date of receipt by the
Administrative Agent).  Each Notice of
Borrowing or telephonic notice of each borrowing shall be irrevocable once
given and binding on the Borrower.


 


(c)           Disbursements of Revolving
Loan Proceeds.  No later
than 1:00 p.m. on the date specified in the Notice of Borrowing, each
Lender will make available for the account of its applicable Lending Office to
the Administrative Agent at the Principal Office, in immediately available
funds, the proceeds of the Revolving Loan to be made by such Lender.  Subject to satisfaction of the applicable
conditions set forth in Article V. for such borrowing, the Administrative
Agent will make the proceeds of such borrowing available to the Borrower no
later than 2:00 p.m. on the date and at the account specified by the
Borrower in such Notice of Borrowing. 
With respect to Revolving Loans to be made after the Effective Date,
unless the Administrative Agent shall have been notified by any Lender prior to
the specified date of borrowing that such Lender does not intend to make
available to the Administrative Agent the Revolving Loan to be made by such
Lender on such date, the Administrative Agent may assume that such Lender will
make the proceeds of such Revolving Loan available to the Administrative Agent
on the date of the requested borrowing as set forth in the Notice of Borrowing
and the


 


25

















 


Administrative
Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to the Borrower no later than 11:00 a.m. on the date
requested by the Borrower the amount of such Revolving Loan to be provided by
each such Lender.


 


Section 2.2.  Term Loans.


 


The
parties hereto acknowledge the making of the “Term Loans” pursuant to the
Existing Credit Agreement in the principal amounts set forth on Schedule 1.1(B) under
the column titled “Term Loans” and agree that such “Term Loans” made pursuant
to the Existing Credit Agreement shall be Term Loans in the same principal
amounts under, and shall be governed by the terms and conditions of, this
Agreement.  Once repaid, the principal
amount of any Term Loan may not be reborrowed.


 


Section 2.3.  Swingline
Loans.


 


(a)           Swingline Loans.  Subject to the terms and conditions hereof,
including without limitation, Section 2.14., during the period from the
Effective Date to but excluding the Swingline Termination Date, the Swingline
Lender agrees to make Swingline Loans to the Borrower in an aggregate principal
amount at any one time outstanding up to, but not exceeding, the amount of the
Swingline Commitment.  If at any time the
aggregate principal amount of the Swingline Loans outstanding at such time
exceeds the Swingline Commitment in effect at such time, the Borrower shall
immediately pay the Administrative Agent for the account of the Swingline
Lender the amount of such excess. 
Subject to the terms and conditions of this Agreement, the Borrower may
borrow, repay and reborrow Swingline Loans hereunder.


 


(b)           Procedure for Borrowing
Swingline Loans.  The
Borrower shall give the 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 3:00 p.m. on the proposed date of such borrowing.  Any such notice given telephonically shall
include all information to be specified in a written Notice of Swingline
Borrowing and shall be promptly confirmed in writing by the Borrower pursuant
to a Notice of Swingline Borrowing sent to the Swingline Lender by telecopy on
the same day of the giving of such telephonic notice.  On the date of the requested Swingline Loan
and Subject to satisfaction of the applicable conditions set forth in Article V.
for such borrowing, the Swingline Lender will make the proceeds of such
Swingline Loan available to the Borrower in Dollars, in immediately available
funds, at the account specified by the Borrower in the Notice of Swingline
Borrowing not later than 4:00 p.m. on such date (or 12:00 noon if the
Borrower delivered the applicable Notice of Swingline Borrowing to the
Swingline Lender before 10:00 a.m. on the proposed date of such
borrowing).


 


(c)           Interest.  Swingline Loans shall bear interest at a per
annum rate equal to the Base Rate plus the Applicable Margin.  Interest payable on Swingline Loans is solely
for the account of the Swingline Lender. 
All accrued and unpaid interest on Swingline Loans shall be payable on
the dates and in the manner provided in Section 2.5. with respect to
interest on Base Rate Loans (except as the Swingline Lender and the Borrower
may otherwise agree in writing in connection with any particular Swingline
Loan).


 


(d)           Swingline Loan Amounts, Etc.  Each Swingline Loan shall be in the minimum
amount of $100,000 and integral multiples of $100,000 or such other minimum
amounts agreed to by the Swingline Lender and the Borrower.  Any voluntary prepayment of a Swingline Loan
must be in integral multiples of $50,000 or the aggregate principal amount of
all outstanding Swingline Loans (or such other minimum amounts upon which the
Swingline Lender and the Borrower may agree) and in connection with any such
prepayment, the Borrower must give the Swingline Lender prior written notice
thereof no later than


 


26

















 


2:00 p.m.
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
Borrower agrees to repay each Swingline Loan within one Business Day of demand
therefor by the Swingline Lender and in any event, within 7 Business Days after
the date such Swingline Loan was made; provided, that the proceeds of a
Swingline Loan may not be used to repay a Swingline Loan.  Notwithstanding the foregoing, the Borrower
shall repay the entire outstanding principal amount of, and all accrued but
unpaid interest on, the Swingline Loans on the Swingline Termination Date (or
such earlier date as the Swingline Lender and the Borrower may agree in
writing).  In lieu of demanding repayment
of any outstanding Swingline Loan from the Borrower, the Swingline Lender may,
on behalf of the Borrower (which hereby irrevocably directs the Swingline
Lender to act on its behalf for such purpose), request a borrowing of Revolving
Loans that are Base Rate Loans from the Lenders in an amount equal to the
principal balance of such Swingline Loan. 
The amount limitations of Section 3.5.(a) shall not apply to
any borrowing of Revolving Loans that are Base Rate Loans made pursuant to this
subsection.  The Swingline Lender shall
give notice to the Administrative Agent of any such borrowing of Revolving
Loans not later than 12:00 noon on the proposed date of such borrowing and the
Administrative Agent shall give prompt notice of such borrowing to the
Lenders.  No later than 2:00 p.m. on
such date, each Lender will make available to the Administrative Agent at the
Principal Office for the account of the Swingline Lender, in immediately available
funds, the proceeds of the Revolving Loan to be made by such Lender and, to the
extent of such Revolving Loan, such Lender’s participation in the Swingline
Loan so repaid shall be deemed to be funded by such Revolving Loan.  The Administrative Agent shall pay the
proceeds of such Revolving Loans to the Swingline Lender, which shall apply
such proceeds to repay such Swingline Loan. 
At the time each Swingline Loan is made, each Lender shall automatically
(and without any further notice or action) be deemed to have purchased from the
Swingline Lender, without recourse or warranty, an undivided interest and
participation to the extent of such Lender’s Commitment Percentage in such
Swingline Loan.  If the Lenders are
prohibited from making Revolving Loans required to be made under this
subsection for any reason, including without limitation, the occurrence of any
Default or Event of Default described in Section 10.1.(f) or
10.1.(g), upon notice from the Administrative Agent or the Swingline Lender,
each Lender severally agrees to pay to the Administrative Agent for the account
of the Swingline Lender in respect of such participation the amount of such
Lender’s Commitment Percentage of each outstanding Swingline Loan.  If such amount is not in fact made available
to the Administrative Agent by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof, at the
Federal Funds Rate.  If such Lender does
not pay such amount forthwith upon demand therefor by the Administrative Agent
or the Swingline Lender, and until such time as such Lender makes the required
payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of such unpaid participation obligation for all purposes of
the Loan Documents (other than those provisions requiring the other Lenders to
purchase a participation therein). 
Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other amounts due
such Lender hereunder, to the Swingline Lender to fund Swingline Loans in the
amount of the participation in Swingline Loans that such Lender failed to
purchase pursuant to this Section until such amount has been purchased (as
a result of such assignment or otherwise). 
A Lender’s obligation to make payments in respect of a participation in
a Swingline Loan shall be absolute and unconditional and shall not be affected
by any circumstance whatsoever, including without limitation, (i) any
claim of setoff, counterclaim, recoupment, defense or other right which such
Lender or any other Person may have or claim against the 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 described in Section 10.1.(f) or
10.1.(g)) or the termination of the Commitments of any Lender, (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


 


27

















 


Administrative
Agent, any Lender or the Borrower or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.


 


(f)            Defaulting Lenders.  Upon demand by the Swingline Lender at any
time while a Lender is a Defaulting Lender or a Potential Defaulting Lender,
the Borrower shall deliver to the Administrative Agent for the benefit of the
Swingline Lender within one Business Day of such demand, cash collateral or
other credit support satisfactory to the Swingline Lender in its sole
discretion in an amount equal to such Defaulting Lender’s or Potential
Defaulting Lender’s Commitment Percentage of the aggregate principal amount of
the Swingline Loans then outstanding; provided, however, that the amount of
cash collateral required to be provided by the Borrower pursuant to this
subsection (f) will be reduced by the amount of cash collateral then held
by the Administrative Agent pursuant to Section 3.11.(b) for the
purpose of cash collateralizing such Defaulting Lender’s or Potential
Defaulting Lender’s Commitment Percentage of the aggregate principal amount of
Swingline Loans then outstanding.


 


Section 2.4.  Letters of Credit.


 


(a)           Letters of Credit.  Subject to the terms and conditions of this
Agreement, including without limitation, Section 2.14., the Administrative
Agent, on behalf of the Lenders, agrees to issue for the account of the
Borrower during the period from and including the Effective Date to, but
excluding, the date 30 days prior to the Termination Date one or more letters
of credit (each a “Letter of Credit”) up to a maximum aggregate Stated Amount
at any one time outstanding not to exceed the L/C Commitment Amount.


 


(b)           Terms of Letters of Credit.  At the time of issuance, the amount, form,
terms and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Administrative Agent and the
Borrower.  Notwithstanding the foregoing,
in no event may the expiration date of any Letter of Credit extend beyond the
earlier of (i) the date one year from its date of issuance or
(ii) the Termination Date; provided, however, a Letter of Credit may
contain a provision providing for the automatic extension of the expiration
date in the absence of a notice of non-renewal from the Administrative Agent
but in no event shall any such provision permit the extension of the expiration
date of such Letter of Credit beyond the Termination Date.


 


(c)           Requests for Issuance of
Letters of Credit.  The
Borrower shall give the Administrative Agent written notice at least 5 Business
Days (or such shorter period as may be acceptable to the Administrative Agent
in its sole discretion) prior to the requested date of issuance of a Letter of
Credit, such notice to describe in reasonable detail the proposed terms of such
Letter of Credit and the nature of the transactions or obligations proposed to
be supported by such Letter of Credit, and in any event shall set forth with
respect to such Letter of Credit the proposed (i) Stated Amount,
(ii) beneficiary, and (iii) expiration date.  The Borrower shall also execute and deliver
such customary letter of credit application forms and other forms and
agreements as reasonably requested from time to time by the Administrative
Agent.  Provided the Borrower has given
the notice prescribed by the first sentence of this subsection and delivered
such forms and agreements referred to in the preceding sentence, subject to the
other terms and conditions of this Agreement, including satisfaction of any
applicable conditions precedent set forth in Article V., the
Administrative Agent shall issue the requested Letter of Credit on the
requested date of issuance for the benefit of the stipulated beneficiary but in
no event prior to the date 5 Business Days (or such shorter period as may be
acceptable to the Administrative Agent in its sole discretion) following the
date after which the Administrative Agent has received all of the items
required to be delivered to it under this subsection.  The Administrative Agent shall not at any
time be obligated to issue any Letter of Credit if such issuance would conflict
with, or cause the Administrative Agent or any Lender to exceed any limits
imposed by, any Applicable Law. 
References herein to “issue” and derivations thereof with respect to
Letters of Credit shall also include extensions or modifications of any


 


28

















 


outstanding
Letters of Credit, unless the context otherwise requires.  Upon the written request of the Borrower, the
Administrative Agent shall deliver to the Borrower a copy of each issued Letter
of Credit within a reasonable time after the date of issuance thereof.  To the extent any term of a Letter of Credit
Document is inconsistent with a term of any Loan Document, the term of such
Loan Document shall control.


 


(d)           Reimbursement Obligations.  Upon receipt by the Administrative Agent from
the beneficiary of a Letter of Credit of any demand for payment under such
Letter of Credit, the Administrative Agent shall promptly notify the Borrower
of the amount to be paid by the Administrative Agent as a result of such demand
and the date on which payment is to be made by the Administrative Agent to such
beneficiary in respect of such demand; provided, however, the Administrative
Agent’s failure to give, or delay in giving, such notice shall not discharge
the Borrower in any respect from the applicable Reimbursement Obligation.  The Borrower hereby absolutely,
unconditionally and irrevocably agrees to pay and reimburse the Administrative
Agent for the amount of each demand for payment under such Letter of Credit on
or prior to the date on which payment is to be made by the Administrative Agent
to the beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind (other than notice as provided in this
subsection).  Upon receipt by the
Administrative Agent of any payment in respect of any Reimbursement Obligation,
the Administrative Agent shall promptly pay to each Lender that has acquired a
participation therein under the second sentence of Section 2.4.(i) such
Lender’s Commitment Percentage of such payment.


 


(e)           Manner of Reimbursement.  Upon its receipt of a notice referred to in
the immediately preceding subsection (d), the Borrower shall advise the
Administrative Agent whether or not the Borrower intends to borrow hereunder to
finance its obligation to reimburse the Administrative Agent for the amount of
the related demand for payment and, if it does, the Borrower shall submit a
timely request for such borrowing as provided in the applicable provisions of
this Agreement.  If the Borrower fails to
so advise the Administrative Agent, or if the Borrower fails to reimburse the
Administrative Agent for a demand for payment under a Letter of Credit by the
date of such payment, then (i) if the applicable conditions contained in Article V.
would permit the making of Revolving Loans, the Borrower shall be deemed to
have requested a borrowing of Revolving Loans (which shall be Base Rate Loans)
in an amount equal to the unpaid Reimbursement Obligation and the
Administrative Agent shall give each Lender prompt notice of the amount of the
Revolving Loan to be made available to the Administrative Agent not later than
1:00 p.m. and (ii) if such conditions would not permit the making of
Revolving Loans, the provisions of subsection (j) of this Section shall
apply.  The limitations of Section 3.5.(a) shall
not apply to any borrowing of Revolving Loans under this subsection.


 


(f)            Effect of Letters of Credit
on Commitments.  Upon the
issuance by the Administrative Agent of any Letter of Credit and until such
Letter of Credit shall have expired or been terminated, the Revolving
Commitment of each Lender shall be deemed to be utilized for all purposes of
this Agreement in an amount equal to the product of (i) such Lender’s
Commitment Percentage and (ii) the sum of (A) the Stated Amount of
such Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.


 


(g)           Administrative Agent’s
Duties Regarding Letters of Credit; Unconditional Nature of Reimbursement
Obligations.  In
examining documents presented in connection with drawings under Letters of
Credit and making payments under Letters of Credit against such documents, the
Administrative Agent shall only be required to use the same standard of care as
it uses in connection with examining documents presented in connection with
drawings under letters of credit in which it has not sold participations and
making payments under such letters of credit. 
The Borrower assumes all risks of the acts and omissions of, or misuse
of the Letters of Credit by, the respective beneficiaries of such Letters of
Credit.  In furtherance and not in
limitation of the foregoing, neither the Administrative Agent nor any of the
Lenders shall be responsible for, and the Borrower’s obligations in respect of
the Letters of


 


29

















 


Credit
shall not be affected in any manner by, any of the following except to the
extent resulting from the gross negligence or willful misconduct of the
Administrative Agent or a Lender, as applicable, as determined by a court of
competent jurisdiction in a final, non-appealable judgment: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effects of any document
submitted by any party in connection with the application for and issuance of
or any drawing honored under any Letter of Credit even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, facsimile, electronic mail, telecopy or otherwise, whether or
not they be in cipher; (v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit, or of the
proceeds thereof; (vii) the misapplication by the beneficiary of the
proceeds of any drawing under any Letter of Credit; or (viii) any
consequences arising from causes beyond the control of the Administrative Agent
or the Lenders.  None of the above shall
affect, impair or prevent the vesting of any of the Administrative Agent’s or
any Lender’s rights or powers hereunder. 
Any action taken or omitted to be taken by the Administrative Agent
under or in connection with any Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final, non-appealable judgment), shall not create
against the Administrative Agent or any Lender any liability to the Borrower or
any Lender.  In this regard, the
obligation of the Borrower to reimburse the Administrative Agent for any
drawing made under any Letter of Credit, and to repay any Revolving Loan made
pursuant to the second sentence of the preceding subsection (e), shall be
absolute, unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement and any other applicable Letter of
Credit Document under all circumstances whatsoever, including without
limitation, the following circumstances: 
(A) any lack of validity or enforceability of any Letter of Credit
Document or any term or provisions therein; (B) any amendment or waiver of
or any consent to departure from all or any of the Letter of Credit Documents;
(C) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against the Administrative Agent, any Lender, any
beneficiary of a Letter of Credit or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or in the Letter of
Credit Documents or any unrelated transaction; (D) any breach of contract
or dispute between the Borrower, the Administrative Agent, any Lender or any
other Person; (E) any demand, statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein or made in connection
therewith being untrue or inaccurate in any respect whatsoever; (F) any
non-application or misapplication by the beneficiary of a Letter of Credit of
the proceeds of any drawing under such Letter of Credit; (G) payment by
the Administrative Agent under any Letter of Credit against presentation of a
draft or certificate which does not strictly comply with the terms of such Letter
of Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a
legal or equitable defense to or discharge of the Borrower’s Reimbursement
Obligations.  Notwithstanding anything to
the contrary contained in this Section or Section 12.9., but not in
limitation of the Borrower’s unconditional obligation to reimburse the
Administrative Agent for any drawing made under a Letter of Credit as provided
in this Section and to repay any Revolving Loan made pursuant to the
second sentence of the preceding subsection (e), the Borrower shall have
no obligation to indemnify the Administrative Agent or any Lender in respect of
any liability incurred by the Administrative Agent or such Lender arising
solely out of the gross negligence or willful misconduct of the Administrative
Agent or such Lender in respect of a Letter of Credit as determined by a court
of competent jurisdiction in a final, non-appealable judgment.  Except as otherwise provided in this Section,
nothing in this Section shall affect any rights the Borrower may have with
respect to the gross negligence or willful misconduct of the Administrative
Agent or any Lender with respect to any Letter of Credit.


 


30
















 


(h)           Amendments, Etc.  The issuance by the Administrative Agent of
any amendment, supplement or other modification to any Letter of Credit shall
be subject to the same conditions applicable under this Agreement to the
issuance of new Letters of Credit (including, without limitation, that the
request therefor be made through the Administrative Agent), and no such
amendment, supplement or other modification shall be issued unless either
(i) the respective Letter of Credit affected thereby would have complied with
such conditions had it originally been issued hereunder in such amended,
supplemented or modified form or (ii) the Requisite Lenders (or all of the
Lenders if required by Section 12.6.) shall have consented thereto.  In connection with any such amendment,
supplement or other modification, the Borrower shall pay the Fees, if any,
payable under the last sentence of Section 3.6.(b).


 


(i)            Lenders’ Participation in
Letters of Credit.  Immediately
upon the issuance by the Administrative Agent of any Letter of Credit each
Lender shall be deemed to have irrevocably and unconditionally purchased and
received from the Administrative Agent, without recourse or warranty, an
undivided interest and participation to the extent of such Lender’s Commitment
Percentage of the liability of the Administrative Agent with respect to such
Letter of Credit, and each Lender thereby shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Administrative Agent to pay and discharge when
due, such Lender’s Commitment Percentage of the Administrative Agent’s
liability under such Letter of Credit. 
In addition, upon the making of each payment by a Lender to the
Administrative Agent in respect of any Letter of Credit pursuant to the
immediately following subsection (j), such Lender shall, automatically and
without any further action on the part of the Administrative Agent or such
Lender, acquire (i) a participation in an amount equal to such payment in
the Reimbursement Obligation owing to the Administrative Agent by the Borrower
in respect of such Letter of Credit and (ii) a participation in a
percentage equal to such Lender’s Commitment Percentage in any interest or
other amounts payable by the Borrower in respect of such Reimbursement
Obligation (other than the Fees payable to the Administrative Agent pursuant to
the third and last sentences of Section 3.6.(b)).


 


(j)            Payment Obligation of
Lenders.  Each Lender severally agrees
to pay to the Administrative Agent on demand in immediately available funds in
Dollars the amount of such Lender’s Commitment Percentage of each drawing paid
by the Administrative Agent under each Letter of Credit to the extent such
amount is not reimbursed by the Borrower pursuant to Section 2.4.(d);
provided, however, that in respect of any drawing under any Letter of Credit,
the maximum amount that any Lender shall be required to fund, whether as a
Revolving Loan or as a participation, shall not exceed such Lender’s Commitment
Percentage of such drawing.  If the
notice referenced in the second sentence of Section 2.4.(e) is
received by a Lender not later than 11:00 a.m., then such Lender shall
make such payment available to the Administrative Agent not later than 2:00 p.m.
on the date of demand therefor; otherwise, such payment shall be made available
to the Administrative Agent not later than 1:00 p.m. on the next
succeeding Business Day.  Each Lender’s
obligation to make such payments to the Administrative Agent under this subsection,
and the Administrative Agent’s right to receive the same, shall be absolute,
irrevocable and unconditional and shall not be affected in any way by any
circumstance whatsoever, including without limitation, (i) the failure of
any other Lender to make its payment under this subsection, (ii) the
financial condition of the Borrower or any other Loan Party, (iii) the
existence of any Default or Event of Default, including any Event of Default
described in Section 10.1.(f) or 10.1.(g) or (iv) the
termination of the Commitments.  Each
such payment to the Administrative Agent shall be made without any offset,
abatement, withholding or deduction whatsoever.


 


(k)           Information to Lenders. The
Administrative Agent shall periodically deliver to the Lenders information
setting forth the Stated Amount of all outstanding Letters of Credit.  Other than as set forth in this subsection,
the Administrative Agent shall have no duty to notify the Lenders regarding


 


31

















 


the
issuance or other matters regarding Letters of Credit issued hereunder.  The failure of the Administrative Agent to
perform its requirements under this subsection shall not relieve any Lender
from its obligations under Section 2.4.(j).


 


(l)            Defaulting Lenders.  Upon demand by the Administrative Agent at
any time while a Lender is a Defaulting Lender or a Potential Defaulting
Lender, the Borrower shall deliver to the Administrative Agent within one
Business Day of such demand, cash collateral or other credit support
satisfactory to the Administrative Agent in its sole discretion in an amount
equal to such Defaulting Lender’s Commitment Percentage of the Letter of Credit
Liabilities then outstanding; provided, however, that the amount of cash
collateral required to be provided by the Borrower pursuant to this subsection (l) will
be reduced by the amount of cash collateral then held by the Administrative
Agent pursuant to Section 3.11.(b) for the purpose of cash
collateralizing such Defaulting Lender’s or Potential Defaulting Lender’s
Commitment Percentage of the Letter of Credit Liabilities then outstanding.


 


Section 2.5.  Rates and Payment of Interest on Loans.


 


(a)           Rates.  The Borrower promises to pay to the
Administrative Agent for the account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender for the period from and
including the date of the making of such Loan to but excluding the date such
Loan shall be paid in full, at the following per annum rates:


 


(i)            during such
periods as such Loan is a Base Rate Loan, at the Base Rate (as in effect from
time to time) plus the Applicable Margin; and


 


(ii)           during such
periods as such Loan is a LIBOR Loan, at LIBOR for such Loan for the Interest
Period therefor plus the Applicable Margin.


 


Notwithstanding
the foregoing, while an Event of Default exists, the Borrower shall pay to the
Administrative Agent for the account of each Lender interest at the
Post-Default Rate on the outstanding principal amount of any Loan made by such
Lender, on all Reimbursement Obligations and on any other amount payable by the
Borrower hereunder or under the Notes held by such Lender to or for the account
of such Lender (including without limitation, accrued but unpaid interest to
the extent permitted under Applicable Law).


 


(b)           Payment of Interest.  Accrued and unpaid interest on each Loan
shall be payable (i) monthly in arrears on the first day of each calendar
month, commencing with the first full calendar month occurring after the
Effective Date, (ii) on any date that the principal balance of any Loan is
repaid and (iii) on any date on which the principal balance of such Loan
is due and payable in full (whether at maturity, due to acceleration or
otherwise).  Interest payable at the
Post-Default Rate shall be payable from time to time on demand.  Promptly after the determination of any
interest rate provided for herein or any change therein, the Administrative
Agent shall give notice thereof to the Lenders to which such interest is
payable and to the Borrower.  All
determinations by the Administrative Agent of an interest rate hereunder shall
be conclusive and binding on the Lenders and the Borrower for all purposes,
absent manifest error.


 


(c)           Inaccurate Financial
Statements or Compliance Certificates.  If any financial statement or Compliance
Certificate delivered pursuant to Section 8.3. is shown to be inaccurate
as a result of any action or inaction on the part of the Borrower, and not as a
result of any adjustments or modifications in GAAP or any other applicable
accounting rules made subsequent to the delivery of any such financial
statement or Compliance Certificate having a retroactive effect (regardless of
whether this Agreement or the Commitments are in effect when such inaccuracy is
discovered), and such inaccuracy, if corrected,


 


32

















 


would
have led to the application of a higher Applicable Margin for any period (an “Applicable
Period”) than the Applicable Margin applied for such Applicable Period, then (i) the
Borrower shall immediately deliver to the Administrative Agent a correct
Compliance Certificate for such Applicable Period and (ii) the Borrower
shall immediately pay to the Administrative Agent for the account of the
Lenders the additional accrued additional interest owing calculated based on
such higher Applicable Margin for such Applicable Period, which payment shall
be promptly applied by the Administrative Agent in accordance with
Section 3.2. This subsection shall not in any way limit the rights of the
Administrative Agent and Lenders (x) with respect to the last sentence of
the immediately preceding subsection (a) or (y) under
Article X.  The Borrower shall not
be required to reimburse the Administrative Agent or the Lenders in relation to
any recalculation of interest or fees required by this provision at any time
after the first anniversary of the Termination Date.


 


Section 2.6.  Number of Interest Periods.


 


There
may be no more than (a) 8 different Interest Periods for LIBOR Loans that
are Revolving Loans and (b) 4 different Interest Periods for Term Loans,
in each case, outstanding at the same time.


 


Section 2.7.  Repayment of Loans.


 


The
Borrower shall repay the entire outstanding principal amount of, and all
accrued but unpaid interest on, the Revolving Loans and the Term Loans on the
Termination Date.


 


Section 2.8.  Prepayments.


 


(a)           Optional.  Subject to Section 4.4., the Borrower
may prepay any Loan at any time without premium or penalty.  The Borrower shall give the Administrative
Agent at least one Business Day’s prior written notice of the prepayment of any
Revolving Loan or Term Loan.


 


(b)           Mandatory.  If at any time the aggregate principal amount
of all outstanding Revolving Loans and Swingline Loans, together with the
aggregate amount of all Letter of Credit Liabilities, exceeds the aggregate
Revolving Commitments at such time, the Borrower shall, within 3 calendar days
after the occurrence of such excess, pay to the Administrative Agent for the
accounts of the Lenders the amount of such excess.


 


(c)           Application of Prepayments.  Amounts paid under the preceding
subsection (b) shall be applied to pay all amounts of principal
outstanding on the Loans and any Reimbursement Obligations pro rata in
accordance with Section 3.2. and if any Letters of Credit are outstanding
at such time, the remainder, if any, shall be deposited into the Collateral
Account for application to any Reimbursement Obligations.  If the Borrower is required to pay any
outstanding LIBOR Loans by reason of this Section prior to the end of the
applicable Interest Period therefor, the Borrower shall pay all amounts due
under Section 4.4.


 


(d)           Derivatives Contracts.  No repayment or prepayment pursuant to this Section shall
affect any of the Borrower’s obligations under any Derivatives Contract between
the Borrower and any Lender (or any Affiliate of any Lender).


 


Section 2.9.  Continuation.


 


So
long as no Default or Event of Default shall exist, the Borrower may on any
Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan
or any portion thereof as a LIBOR Loan by selecting a new Interest Period for
such LIBOR Loan.  Each new Interest
Period selected under


 


33

















 


this
Section shall commence on the last day of the immediately preceding
Interest Period.  Each selection of a new
Interest Period shall be made by the Borrower giving to the Administrative
Agent a Notice of Continuation not later than 11:00 a.m. on the third
Business Day prior to the date of any such Continuation.  Such notice by the Borrower of a Continuation
shall be by telephone or telecopy, confirmed immediately in writing if by
telephone, in the form of a Notice of Continuation, specifying (a) the proposed
date of such Continuation, (b) the LIBOR Loans and portions thereof
subject to such Continuation and (c) the duration of the selected Interest
Period, all of which shall be specified in such manner as is necessary to
comply with all limitations on Loans outstanding hereunder.  Each Notice of Continuation shall be
irrevocable by and binding on the Borrower once given.  Promptly after receipt of a Notice of
Continuation, the Administrative Agent shall notify each Lender of the proposed
Continuation.  If the Borrower shall fail
to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, or if a Default or Event of Default shall exist,
such Loan will automatically, on the last day of the current Interest Period
therefor, Convert into a Base Rate Loan notwithstanding the first sentence of
Section 2.10. or the Borrower’s failure to comply with any of the terms of
such Section.


 


Section 2.10.  Conversion.


 


The
Borrower may on any Business Day, upon the Borrower’s giving of a Notice of
Conversion to the Administrative Agent, Convert all or a portion of a Revolving
Loan or a Term Loan (including a Base Rate Loan made pursuant to
Section 2.3.(e)) of one Type into a Loan of another Type; provided,
however, a Base Rate Loan may not be Converted to a LIBOR Loan if a Default or
Event of Default shall exist.  Any
Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loan.  Each such Notice of Conversion shall be given
not later than 11:00 a.m. on the Business Day prior to the date of any
proposed Conversion into Base Rate Loans and on the third Business Day prior to
the date of any proposed Conversion into LIBOR Loans.  Promptly after receipt of a Notice of
Conversion, the Administrative Agent shall notify each Lender of the proposed
Conversion.  Subject to the restrictions
specified above, each Notice of Conversion shall be by telephone (confirmed
immediately in writing) or telecopy in the form of a Notice of Conversion
specifying (a) the requested date of such Conversion, (b) the Type of
Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and
(e) if such Conversion is into a LIBOR Loan, the requested duration of the
Interest Period of such Loan.  Each
Notice of Conversion shall be irrevocable by and binding on the Borrower once
given.


 


Section 2.11.  Notes.


 


(a)           Revolving Notes.  The Revolving Loans made by each Lender
shall, in addition to this Agreement, also be evidenced by a promissory note of
the Borrower substantially in the form of Exhibit H (each a “Revolving
Note”), payable to the order of such Lender in a principal amount equal to the
amount of its Revolving Commitment as originally in effect and otherwise duly
completed.


 


(b)           Term Notes.  The Term Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit I (each a “Term Note”), payable to the order of
such Lender in a principal amount equal to the amount of the Terms Loans made
by such Lender and otherwise duly completed.


 


(c)           Records.  The date, amount, interest rate, Type and
duration of Interest Periods (if applicable) of each Loan made by each Lender
to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by such Lender on its books and such entries shall be binding
on the Borrower, absent manifest error; provided, however, that the failure of
a Lender to make any such record shall not affect the obligations of the
Borrower under any of the Loan Documents.


 


34

















 


(d)           Lost, Stolen, Destroyed or
Mutilated Notes. Upon receipt by the Borrower of (i) written
notice from a Lender that a Note of such Lender has been lost, stolen,
destroyed or mutilated, and (ii) (A) in the case of loss, theft or
destruction, an unsecured agreement of indemnity from such Lender in form
reasonably satisfactory to the Borrower, or (B) in the case of mutilation,
upon surrender and cancellation of such Note, the Borrower shall execute and
deliver to such Lender a new Note dated the date of such lost, stolen,
destroyed or mutilated Note.


 


Section 2.12.  Voluntary Reductions of the Revolving
Commitments.


 


The
Borrower shall have the right to terminate or reduce the aggregate unused
amount of the Revolving Commitments (for which purpose use of the Revolving
Commitments shall be deemed to include the aggregate amount of Letter of Credit
Liabilities and the aggregate principal amount of all outstanding Swingline
Loans) at any time and from time to time without penalty or premium upon not
less than 3 Business Days prior written notice to the Administrative Agent of
each such termination or reduction, which notice shall specify the effective
date thereof and the amount of any such reduction and shall be irrevocable once
given and effective only upon receipt by the Administrative Agent; provided,
however, if the Borrower seeks to reduce the aggregate amount of the Revolving
Commitments below $100,000,000, then the Revolving Commitments shall all
automatically and permanently be reduced to zero.  The Administrative Agent will promptly
transmit such notice to each Lender.  The
Revolving Commitments, once terminated or reduced may not be increased or
reinstated.


 


Section 2.13.  Expiration or Maturity Date of Letters of
Credit Past Termination Date.


 


If
on the date the Revolving Commitments are terminated or reduced to zero
(whether voluntarily, by reason of the occurrence of an Event of Default or
otherwise), there are any Letters of Credit outstanding hereunder, the Borrower
shall, on such date, pay to the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, an amount of money equal to the aggregate
Stated Amount of such Letter(s) of Credit for deposit into the Collateral
Account.


 


Section 2.14.  Amount Limitations.


 


Notwithstanding
any other term of this Agreement or any other Loan Document, no Lender shall be
required to make a Loan, the Administrative Agent shall not be required to
issue a Letter of Credit and no reduction of the Revolving Commitments pursuant
to Section 2.12. shall take effect, if immediately after the making of
such Loan, the issuance of such Letter of Credit or such reduction in the
Revolving Commitments, the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate principal amount of all
outstanding Swingline Loans and the aggregate amount of all Letter of Credit
Liabilities, would exceed the aggregate amount of the Revolving Commitment at
such time.


 


Section 2.15.  Funds Transfer Disbursements.


 


(a)           Generally.  The Borrower hereby authorizes the
Administrative Agent to disburse the proceeds of any Loan made by the Lenders
or any of their Affiliates pursuant to the Loan Documents as requested by an
authorized representative of the Borrower to any of the accounts designated in
the Transfer Authorizer Designation Form. 
The Borrower agrees to be bound by any transfer request: (i) authorized
or transmitted by the Borrower; or, (ii) made in the Borrower’s name and
accepted by the Administrative Agent in good faith and in compliance with these
transfer instructions, even if not properly authorized by the Borrower.  The Borrower further agrees and acknowledges
that the Administrative Agent may rely solely on any bank routing number or
identifying bank account number or name provided by the Borrower to effect a
wire of funds transfer even if the information provided by the Borrower
identifies a different bank or account holder than named by the Borrower.  The Administrative


 


35

















 


Agent
is not obligated or required in any way to take any actions to detect errors in
information provided by the Borrower.  If
the Administrative Agent takes any actions in an attempt to detect errors in
the transmission or content of transfer requests or takes any actions in an
attempt to detect unauthorized funds transfer requests, the Borrower agrees
that no matter how many times the Administrative Agent takes these actions the
Administrative Agent will not in any situation be liable for failing to take or
correctly perform these actions in the future and such actions shall not become
any part of the transfer disbursement procedures authorized under this
provision, the Loan Documents, or any agreement between the Administrative
Agent and the Borrower.  The Borrower
agrees to notify the Administrative Agent of any errors in the transfer of any
funds or of any unauthorized or improperly authorized transfer requests within
fourteen (14) days after the Administrative Agent’s confirmation to the
Borrower of such transfer.


 


(b)           Funds Transfer.  The Administrative Agent will, in its sole
discretion, determine the funds transfer system and the means by which each
transfer will be made.  The
Administrative Agent may delay or refuse to accept a funds transfer request if
the transfer would: (i) violate the terms of this authorization; (ii) require
the use of a bank unacceptable to the Administrative Agent or any Lender or
prohibited by any Governmental Authority; (iii) cause the Administrative
Agent or any Lender, in their reasonable judgment, to violate any regulatory
risk control program or guideline promulgated by the Board of Governors of the Federal
Reserve System or any other similar program or guideline; or (iv) otherwise
cause the Administrative Agent or any Lender to violate any Applicable Law.


 


(c)           Limitation of Liability.  Neither the Administrative Agent nor any
Lender shall be liable to the Borrower or any other parties for (i) errors,
acts or failures to act of others, including other entities, banks,
communications carriers or clearinghouses, through which the Borrower’s
transfers may be made or information received or transmitted, and no such
entity shall be deemed an agent of the Administrative Agent or any Lender, (ii) any
loss, liability or delay caused by fires, earthquakes, wars, civil
disturbances, power surges or failures, acts of government, labor disputes,
failures in communications networks, legal constraints or other events beyond
Administrative Agent’s or any Lender’s control, or (iii) any special,
consequential, indirect or punitive damages, whether or not (x) any claim
for these damages is based on tort or contract or (y) the Administrative
Agent, any Lender or the Borrower knew or should have known the likelihood of
these damages in any situation; provided, however,
that, the Administrative Agent and the Lenders shall be liable to the extent
any of the above were the result of the Administrative Agent’s or Lenders’
gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment.  Neither the Administrative Agent nor any
Lender makes any representations or warranties other than those expressly made
in this Agreement.


 


ARTICLE III. PAYMENTS, FEES
AND OTHER GENERAL PROVISIONS


 


Section 3.1.  Payments.


 


(a)           Payments by the Borrower. Except to the
extent otherwise provided herein, all payments of principal, interest and other
amounts to be made by the Borrower under this Agreement or any other Loan
Document shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, to the Administrative Agent at its
Principal Office, not later than 2:00 p.m. on the date on which such
payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day).  Subject to Section 10.5., the Borrower
shall, at the time of making each payment under this Agreement or any other
Loan Document, specify to the Administrative Agent the amounts payable by the
Borrower hereunder to which such payment is to be applied.  Each payment received by the Administrative
Agent for the account of a Lender under this Agreement or any other Loan
Document shall be paid to such Lender by wire transfer of immediately available
funds in accordance with the wiring instructions provided by such Lender to the
Administrative Agent from time to time, for the account of such Lender at the
applicable Lending Office of such Lender.


 


36

















 


If
the Administrative Agent fails to pay such amounts to such Lender, within one
Business Day of receipt of such amounts, the Administrative Agent shall pay
interest on such amount at a rate per annum equal to the Federal Funds Rate
from time to time in effect.  If the due
date of any payment under this Agreement or any other Loan Document would
otherwise fall on a day which is not a Business Day such date shall be extended
to the next succeeding Business Day and interest shall be payable for the
period of such extension.


 


(b)           Presumptions Regarding
Payments by Borrower.  Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may (but shall not be obligated to), in
reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in
fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent on demand that amount so distributed to such Lender,
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


Section 3.2.  Pro Rata Treatment.


 


Except
to the extent otherwise provided herein: 
(a) each borrowing from the Lenders under Section 2.1.(a),
2.3.(d) and 2.4.(e) shall be made from the Lenders, each payment of
the Fees under Section 3.6.(a) and under the first sentence of Section 3.6.(b) shall
be made for the account of the Lenders, and each termination or reduction of
the amount of the Revolving Commitments under Section 2.12. shall be
applied to the respective Revolving Commitments of the Lenders, pro rata
according to the amounts of their respective Revolving Commitments;
(b) each payment or prepayment of principal of Revolving Loans by the
Borrower shall be made for the account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of the Revolving Loans held by
them; (c) each payment of interest on Revolving Loans by the Borrower
shall be made for the account of the Lenders pro rata in accordance with the
amounts of interest on such Loans then due and payable to the respective
Lenders; (d) each payment or prepayment of principal of Term Loans by the
Borrower shall be made for the account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of the Term Loans held by them; (e) each
payment of interest on Term Loans by the Borrower shall be made for the account
of the Lenders pro rata in accordance with the amounts of interest on the Term
Loans then due and payable to the respective applicable Lenders; (f) the
Conversion and Continuation of Revolving Loans or Term Loans of a particular
Type (other than Conversions provided for by Section 4.6.) shall be made
pro rata among the Lenders according to the amounts of their respective
Revolving 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; (g) the Lenders’ participation in, and payment obligations in
respect of, Letters of Credit under Section 2.4., shall be pro rata in
accordance with their respective Revolving Commitments; and (h) the
Lenders’ participation in, and payment obligations in respect of, Swingline
Loans under Section 2.3., shall be pro rata in accordance with their
respective Revolving Commitments.  All
payments of principal, interest, fees and other amounts in respect of the
Swingline Loans shall be for the account of the Swingline Lender only (except
to the extent any Lender shall have acquired and funded a participating
interest in any such Swingline Loan pursuant to Section 2.3.(e), in which
case such payments shall be pro rata in accordance with such participating
interests).


 


37

















 


Section 3.3.  Sharing of Payments, Etc.


 


If
a Lender shall obtain payment of any principal of, or interest on, any Loan
made by it to the Borrower under this Agreement, or shall obtain payment on any
other Obligation owing by the Borrower or any other Loan Party through the
exercise of any right of set-off, banker’s lien or counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower or any other Loan Party to a Lender (other
than any payment in respect of Specified Derivatives Obligations) not in
accordance with the terms of this Agreement and such payment should be
distributed to the Lenders pro rata in accordance with Section 3.2. or Section 10.5.,
as applicable, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Loans made by the other Lenders or other Obligations owed to
such other Lenders in such amounts, and make such other adjustments from time
to time as shall be equitable, to the end that all the Lenders shall, subject
to Section 3.11. if applicable, share the benefit of such payment (net of
any reasonable expenses which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with Section 3.2. or
Section 10.5., as applicable.  To
such end, all the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. 
The Borrower agrees that any Lender so purchasing a participation (or
direct interest) in the Loans or other Obligations owed to such other Lenders
may exercise all rights of set-off, banker’s lien, counterclaim or similar
rights with respect to such participation as fully as if such Lender were a
direct holder of Loans in the amount of such participation.  Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of the Borrower.


 


Section 3.4.  Several Obligations.


 


No
Lender shall be responsible for the failure of any other Lender to make a Loan
or to perform any other obligation to be made or performed by such other Lender
hereunder, and the failure of any Lender to make a Loan or to perform any other
obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other Lender.


 


Section 3.5.  Minimum Amounts.


 


(a)           Borrowings and Conversions.  Except as otherwise provided in
Sections 2.3.(d) and 2.4.(e), each borrowing of Base Rate Loans shall
be in an aggregate minimum amount of $500,000 and integral multiples of
$500,000 in excess thereof.  Each
borrowing, Conversion and Continuation of LIBOR Loans shall be in an aggregate
minimum amount of $500,000 and integral multiples of $500,000 in excess of that
amount.


 


(b)           Prepayments.  Each voluntary prepayment of Revolving Loans
shall be in an aggregate minimum amount of $500,000 and integral multiples of
$100,000 in excess thereof (or, if less, the aggregate principal amount of
Revolving Loans then outstanding).  Each
voluntary prepayment of Term Loans shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess thereof (or, if less,
the aggregate principal amount of Term Loans then outstanding).


 


(c)           Reductions of Revolving
Commitments.  Each
reduction of the Revolving Commitments under Section 2.12. shall be in an
aggregate minimum amount of $5,000,000 and integral multiples of $2,000,000 in
excess thereof.


 


38

















 


(d)           Letters of Credit.  The initial Stated Amount of each Letter of
Credit shall be at least $100,000 (or such lesser amount as may be acceptable
to the Borrower and the Administrative Agent).


 


Section 3.6.  Fees.


 


(a)           Unused Fee. During the
period from the Effective Date to but excluding the earlier to occur of (x) the
Investment Grade Rating Date or (y) the Termination Date, the Borrower
agrees to pay to the Administrative Agent for the account of the Lenders an
unused facility fee with respect to the average daily difference between the
(i) aggregate amount of the Revolving Commitments and (ii) the
aggregate principal amount of all outstanding Revolving Loans plus the
aggregate amount of all Letter of Credit Liabilities (the “Unused Amount”).  Such fee shall be computed by multiplying the
Unused Amount with respect to such quarter by the corresponding per annum rate
set forth below:


 


	
  Unused Amount

  	
   

  	
  Unused Fee

  	
   

  
	
  >
  50% of the aggregate amount of Revolving Commitments

  	
   

  	
  0.50

  	
  %

  
	
  < 50% of the
  aggregate amount of Revolving Commitments

  	
   

  	
  0.40

  	
  %

  



 


Such
fee shall be payable quarterly in arrears on the last day of each March, June, September or
December of each calendar year.  Any
such accrued and unpaid fee shall also be payable on the Termination Date or
any earlier date of termination of the Revolving Commitments or reduction of
the Revolving Commitments to zero.


 


(b)           Facility Fees.  On and at all times after the Investment
Grade Rating Date, the Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee equal to the average daily amount of
the Revolving Commitment of such Lender (whether or not utilized) times the
Facility Fee for the period from and including the Investment Grade Rating Date
to but excluding the date such Revolving Commitment is terminated or reduced to
zero or the Termination Date, such fee to be paid in arrears on (i) the
last day of March, June, September and December in each calendar
year, (ii) the date of each reduction in the Revolving Commitments (but
only on the amount of the reduction) and (iii) on the Termination Date.


 


(c)           Letter of Credit Fees.  The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a letter of credit fee at a
rate per annum equal to the Applicable Margin (or while an Event of Default
exists, at a per annum rate equal to the Applicable Margin plus 4.0%) times the
daily average Stated Amount of each Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (x) through and
including the date such Letter of Credit expires or is terminated or
(y) to but excluding the date such Letter of Credit is drawn in full and
is not subject to reinstatement, as the case may be.  The fees provided for in the immediately
preceding sentence shall be nonrefundable and payable in arrears on (i) the
last day of March, June, September and December in each year,
(ii) the Termination Date, (iii) the date the Revolving Commitments
are terminated or reduced to zero and (iv) thereafter from time to time on
demand of the Administrative Agent.  In
addition, the Borrower shall pay to the Administrative Agent for its own
account and not the account of any Lender, an issuance fee in respect of each
Letter of Credit equal to the greater of (i) $500 or (ii) one-eighth
of one percent (0.125%) per annum on the initial Stated Amount of such Letter
of Credit payable (A) for the period from and including the date of
issuance of such Letter of Credit through and including the expiration date of
such Letter of Credit and (B) if the expiration date of any Letter of
Credit is extended (whether as a result of the operation of an automatic
extension clause or otherwise), for the period from but excluding the previous
expiration date to and including the extended expiration date.  The fees provided for in the immediately
preceding sentence shall be nonrefundable and payable upon issuance (or in the
case of an extension of the expiration date, on the previous expiration
date).  The Borrower shall pay directly
to the 


 


39

















 


Administrative
Agent from time to time on demand all commissions, charges, costs and expenses
in the amounts customarily charged by the Administrative Agent from time to
time in like circumstances with respect to the issuance of each Letter of
Credit, drawings, amendments and other transactions relating thereto.


 


(d)           Administrative and Other
Fees.  The Borrower agrees to pay the
administrative and other fees of the Administrative Agent as may be agreed to
in writing by the Borrower and the Administrative Agent from time to time.


 


Section 3.7.  Computations.


 


Unless
otherwise expressly set forth herein, any accrued interest on any Loan, any
Fees or any other Obligations due hereunder shall be computed on the basis of a
year of 360 days and the actual number of days elapsed; provided, however,
interest on Base Rate Loans shall be computed on the basis of a year of 365 or
366 days, as applicable, and the actual number of days elapsed.


 


Section 3.8.  Usury.


 


In
no event shall the amount of interest due or payable on the Loans or other
Obligations exceed the maximum rate of interest allowed by Applicable Law and,
if any such payment is paid by the Borrower or any other Loan Party or received
by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the respective Lender in writing
that the Borrower elects to have such excess sum returned to it forthwith.  It is the express intent of the parties
hereto that the Borrower not pay and the Lenders not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.


 


Section 3.9.  Agreement Regarding Interest and Charges.


 


The
parties hereto hereby agree and stipulate that the only charge imposed upon the
Borrower for the use of money in connection with this Agreement is and shall be
the interest specifically described in Sections 2.5.(a)(i) and (ii) and
in Section 2.3.(c).  Notwithstanding
the foregoing, the parties hereto further agree and stipulate that all agency
fees, syndication fees, unused fees, closing fees, letter of credit fees,
underwriting fees, default charges, funding or “breakage” charges, increased
cost charges, attorneys’ fees and reimbursement for costs and expenses paid by
the Administrative Agent or any Lender to third parties or for damages incurred
by the Administrative Agent or any Lender, in each case in connection with the
transactions contemplated by this Agreement and the other Loan Documents, are
charges made to compensate the Administrative Agent or any such Lender for
underwriting or administrative services and costs or losses performed or
incurred, and to be performed or incurred, by the Administrative Agent and the
Lenders in connection with this Agreement and shall under no circumstances be
deemed to be charges for the use of money. 
All charges other than charges for the use of money shall be fully earned
and nonrefundable when due.


 


Section 3.10.  Statements of Account.


 


The
Administrative Agent will account to the Borrower monthly with a statement of
Loans, Letters of Credit, accrued interest and Fees, charges and payments made
pursuant to this Agreement and the other Loan Documents, and such account
rendered by the Administrative Agent shall be deemed conclusive upon the
Borrower absent manifest error.  The
failure of the Administrative Agent to deliver such a statement of accounts
shall not relieve or discharge the Borrower from any of its obligations
hereunder.


 


40
















 


Section 3.11.  Defaulting Lenders.


 


(a)           Generally.  If any Lender shall become a Defaulting
Lender, then such Defaulting Lender’s right to participate in the
administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of any amendment,
consent or waiver of the terms of this Agreement or any other Loan Document, or
to direct any action or inaction of the Administrative Agent or to be taken
into account in the calculation of the Requisite Lenders or the Supermajority
Lenders, shall be suspended while such Lender remains a Defaulting Lender;
provided, however, that the foregoing shall not permit an increase in such
Lender’s Commitment or an extension of the maturity date of such Lender’s Loans
or other Obligations owing to such Lender, in each case, without such Lender’s
consent.  If a Lender is a Defaulting
Lender because it has failed to make timely payment to the Administrative Agent
of any amount required to be paid to the Administrative Agent hereunder
(without giving effect to any notice or cure periods), then the Administrative
Agent shall be entitled (i) to collect interest from such Defaulting
Lender on such delinquent payment for the period from the date on which the
payment was due until the date on which the payment is made at the Federal
Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the
defaulted payment and any related interest, any amounts otherwise payable to
such Defaulting Lender under this Agreement or any other Loan Document and
(iii) to bring an action or suit against such Defaulting Lender in a court
of competent jurisdiction to recover the defaulted amount and any related
interest.  No Commitment of any Lender
shall be increased or otherwise affected, and except as otherwise expressly
provided in this Section, performance by the Borrower of its obligations
hereunder and under the other Loan Documents shall not be excused or otherwise
modified, as a result of the operation of this Section. The rights and remedies
of the Borrower, the Administrative Agent and the Lenders against a Defaulting
Lender under this Section are in addition to any other rights and remedies
the Borrower, the Administrative Agent and the Lenders may have against such
Defaulting Lender under this Agreement, any of the other Loan Documents,
Applicable Law or otherwise.


 


(b)           Treatment of Payments.  Until the Defaulting Lender Excess of a
Defaulting Lender has been reduced to zero, any payment of the principal of the
Revolving Loans or Term Loans shall, unless the Requisite Lenders agree
otherwise, be applied to the outstanding principal balance of the Revolving
Loans and Term Loans of the applicable Lenders that are not Defaulting
Lenders.  Notwithstanding the terms of Section 3.3.,
no Defaulting Lender shall be entitled to any share in any payment obtained by
any of the other Lenders on any Obligation owing by the Borrower or any Loan
Party.  Any amount paid by the Borrower,
whether through the exercise of any Lender’s right of set-off, banker’s lien or
counterclaim or similar right or otherwise or through voluntary prepayments,
for the account of a Defaulting Lender under this Agreement or any other Loan
Document will not be paid or distributed to such Defaulting Lender, but will instead
be retained by the Administrative Agent in a segregated non-interest bearing
account until such Defaulting Lender has ceased to be a Defaulting Lender in
accordance with subsection (f) below, and, subject to any applicable
requirements of law, such amount may be applied at such time or times as may be
determined by the Administrative Agent in its sole discretion, first, to
the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent or the Swingline Lender under this Agreement, second,
if determined by the Administrative Agent or requested by the Swingline Lender,
held in such account as cash collateral for such Defaulting Lender’s Commitment
Percentage of the Letter of Credit Liabilities then outstanding and for such
Defaulting Lender’s Commitment Percentage of the aggregate principal amount of
the Swingline Loans then outstanding, third, to the funding of any Loan
in respect of which the such Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative
Agent, fourth, if so determined by the Administrative Agent and the
Borrower, held in such account as cash collateral for future funding
obligations of the Defaulting Lender in respect of any Loans under this Agreement.  If such Lender is still a Defaulting Lender
and any amounts remain in such account on the date that the Commitments are
terminated and all Obligations of the Borrower hereunder and under the other
Loan


 


41

















 


Documents
are paid in full, at which time such amounts will be applied by the
Administrative Agent to the making of payments from time to time in the
following order of priority:  first,
to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent and the Swingline Lender under this Agreement; second,
to the payment of interest then due and payable to the Lenders hereunder other
than Defaulting Lenders, ratably among them in accordance with the amounts of
such interest then due and payable to them; third, to the payment of
Fees then due and payable to the Lenders other than Defaulting Lenders, ratably
among them in accordance with the amounts of such Fees then due and payable to
them; fourth, to pay principal of all Loans, Reimbursement Obligations
and other Letter of Credit Liabilities then due and payable to the Lenders
other than Defaulting Lenders hereunder ratably in accordance with the amounts
thereof then due and payable to them; fifth, to the ratable payment of all
other Obligations then due and payable to the Lenders other than Defaulting
Lenders; and sixth, after the termination of the Commitments and payment
in full of all obligations of the Borrower hereunder, to pay amounts owing
under this Agreement to such Defaulting Lender or as a court of competent
jurisdiction may otherwise direct.


 


(c)           Fees.  During any period that a Lender is a
Defaulting Lender, such Defaulting Lender’s Commitment and outstanding Loans
shall be excluded for purposes of calculating any Fee payable to the Lenders
under Sections 3.6.(a) and (b), and during such period the Borrower
shall not be required to pay, and such Defaulting Lender shall not be entitled
to receive, any such Fees otherwise payable to such Defaulting Lender under
such Sections.


 


(d)           Borrowing Requests.  While any Lender is a Defaulting Lender or a
Potential Defaulting Lender, the Borrower authorizes each of the Administrative
Agent and the Swingline Lender (which authorization is irrevocable and coupled
with an interest) to give, in such Person’s discretion, Notices of Borrowing
pursuant to Section 2.1. in such amounts and at such times as may be
required to (i) reimburse any Reimbursement Obligation that has become due
and payable, (ii) repay an outstanding Swingline Loan or (iii) cash
collateralize the Obligations of the Borrower in respect of outstanding Letters
of Credit in an amount equal to the aggregate amount of the obligations
(contingent or otherwise) of such Defaulting Lender or Potential Defaulting
Lender in respect of such Letters of Credit.


 


(e)           Purchase of Defaulting Lender’s
Commitment.  During any period that a
Lender is a Defaulting Lender, the Borrower may, by giving written notice
thereof to the Administrative Agent, such Defaulting Lender and the other Lenders,
demand that such Defaulting Lender assign its Revolving Commitment and Term
Loan to an Eligible Assignee subject to and in accordance with the provisions
of Section 12.5.(b).  No party hereto shall have any obligation
whatsoever to initiate any such replacement or to assist in finding an Eligible
Assignee.  In addition, any Lender who is
not a Defaulting Lender may, but shall not be obligated, in its sole
discretion, to acquire the face amount of all or a portion of such Defaulting
Lender’s Revolving Commitment and Term Loan via an assignment subject to and in
accordance with the provisions of Section 12.5.(b).  In connection
with any assignment initiated by the Borrower or any Lender who is not a
Defaulting Lender, such Defaulting Lender shall promptly execute all documents
reasonably requested to effect such assignment, including an appropriate
Assignment and Acceptance and, notwithstanding Section 12.5.(b), shall pay to the
Administrative Agent an assignment fee in the amount of $10,000.


 


(f)            Cure.  If the Borrower, the Administrative Agent and
the Swingline Lender agree in writing in their discretion that a Lender that is
a Defaulting Lender or a Potential Defaulting Lender should no longer be deemed
to be a Defaulting Lender or Potential Defaulting Lender, as the case may be,
the Administrative Agent will so notify the Lenders, whereupon as of the
effective date specified in such notice and subject to any conditions set forth
therein, such Lender will, to the extent applicable, purchase such portion of
outstanding Loans of the other Lenders and make such other adjustments as the
Administrative Agent may determine to be necessary to cause the interest of the
Lenders in the Loans and


 


42

















 


Letter
of Credit Liabilities to be on a pro rata basis in accordance with their
respective Commitment Percentages, whereupon such Lender will cease to be a
Defaulting Lender or Potential Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while such Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly
agreed by the affected parties, no cure by a Lender under this subsection of
its status as a Defaulting Lender or Potential Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from
such Lender’s having been a Defaulting Lender or Potential Defaulting Lender.


 


(g)           Termination of Defaulting
Revolving Lender’s Commitments. 
During any period that a Lender is a Defaulting Lender, the Borrower may
terminate in full the Revolving Commitments of such Defaulting Lender by giving
notice to such Defaulting Lender and the Administrative Agent (such
termination, a “Defaulting Lender Termination”) so long as on the effective
date of such Defaulting Lender Termination and after giving effect thereto and
to any repayment of Revolving Loans in connection therewith: (i) no
Default or Event of Default exists (unless the Requisite Lenders otherwise
consent to such Defaulting Lender Termination), (ii) no Revolving Loans
shall be outstanding, and (iii) the sum of (x) the Letter of Credit
Liabilities, (y) the amount of cash collateral or other credit support
then held by the Administrative Agent pursuant to Section 2.4.(l) and
(z) the outstanding principal amount of Swingline Loans shall not exceed
the aggregate Revolving Commitments of all Lenders that are not Defaulting
Lenders.  Each such notice shall specify
the effective date of such Defaulting Lender Termination (the “Defaulting
Lender Termination Date”), which shall be not less than 5 Business Days (or
such shorter period as agreed to by the Administrative Agent and such
Defaulting Lender) after the date on which such notice is delivered to such
Defaulting Lender and the Administrative Agent. 
On each such Defaulting Lender Termination Date, (i) the Revolving
Commitments of such Defaulting Lender shall be reduced to zero, (ii) such
Defaulting Lender shall cease to be a “Revolving Lender” hereunder (provided
that any Defaulting Lender shall continue to be entitled to the indemnification
provisions contained herein, but only with respect to matters arising prior to
the applicable Defaulting Lender Termination Date), (iii) the Revolving
Commitments of all other Lenders shall remain unchanged and (iv) the
Revolving Commitment Percentages of outstanding Letter of Credit Liabilities
and Swingline Loans will be reallocated by the Administrative Agent among the
Revolving Lenders (other than the Defaulting Lender) in accordance with their
Revolving Commitment Percentages after giving effect to the Defaulting Lender
Termination.


 


Section 3.12.  Taxes; Foreign Lenders.


 


(a)           Taxes Generally.  All payments by the Borrower of principal of,
and interest on, the Loans and all other Obligations shall be made free and
clear of and without deduction for any present or future excise, stamp or other
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes)
that would not be imposed but for a connection between the Administrative Agent
or a Lender and the jurisdiction imposing such taxes (other than a connection
arising solely by virtue of the activities of the Administrative Agent or such
Lender pursuant to or in respect of this Agreement or any other Loan Document),
(iii)  any taxes imposed on or measured by any Lender’s assets, net
income, receipts or branch profits, (iv) any taxes arising after the
Agreement Date solely as a result of or attributable to a Lender changing its
designated Lending Office after the date such Lender becomes a party hereto and
(v) any taxes imposed by Sections 1471 through Section 1474 of the
Internal Revenue Code (including any official interpretations thereof,
collectively “FATCA”) on any “withholdable payment” payable to a recipient as a
result of the failure of such recipient to satisfy the applicable requirements
as set forth in FATCA after December 31, 2012 (such non-excluded items
being collectively called “Taxes”).  If
any withholding or deduction from any payment to be made by the


 


43

















 


Borrower
hereunder is required in respect of any Taxes pursuant to any Applicable Law,
then the Borrower will:


 


(i)            pay directly to the
relevant Governmental Authority the full amount required to be so withheld or
deducted;


 


(ii)           promptly forward to
the Administrative Agent an official receipt or other documentation
satisfactory to the Administrative Agent evidencing such payment to such
Governmental Authority; and


 


(iii)          pay to the
Administrative Agent for its account or the account of the applicable Lender
such additional amount or amounts as is necessary to ensure that the net amount
actually received by the Administrative Agent or such Lender will equal the
full amount that the Administrative Agent or such Lender would have received
had no such withholding or deduction been required.


 


(b)           Tax Indemnification.  If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the
Administrative Agent, for its account or the account of the respective Lender,
the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and the Lenders for any incremental
Taxes, interest or penalties that may become payable by the Administrative
Agent or any Lender as a result of any such failure.  For purposes of this Section, a distribution
hereunder by the Administrative Agent or any Lender to or for the account of
any Lender shall be deemed a payment by the Borrower.


 


(c)           Tax Forms.  Prior to the date that any Foreign Lender
becomes a party hereto, such Foreign Lender shall deliver to the Borrower and
the Administrative Agent such certificates, documents or other evidence, as
required by the Internal Revenue Code or Treasury Regulations issued pursuant
thereto (including Internal Revenue Service Forms W-8ECI and W-8BEN, as
applicable, or appropriate successor forms), properly completed, currently
effective and duly executed by such Foreign Lender establishing that payments
to it hereunder and under the Notes are (i) not subject to United States
Federal backup withholding tax and (ii) not subject to United States
Federal withholding tax imposed under the Internal Revenue Code.  Each such Foreign Lender shall, to the extent
it may lawfully do so, (x) deliver further copies of such forms or other
appropriate certifications on or before the date that any such forms expire or
become obsolete and after the occurrence of any event requiring a change in the
most recent form delivered to the Borrower or the Administrative Agent and (y) obtain
such extensions of the time for filing, and renew such forms and certifications
thereof, as may be reasonably requested by the Borrower or the Administrative
Agent.  The Borrower shall not be
required to pay any amount pursuant to the last sentence of subsection (a) above
to any Foreign Lender or the Administrative Agent, if it is organized under the
laws of a jurisdiction other than that in which the Borrower is a resident for
tax purposes, if such Foreign Lender or the Administrative Agent, as applicable,
fails to comply with the requirements of this subsection.  If any such Foreign Lender, to the extent it
may lawfully do so, fails to deliver the above forms or other documentation,
then the Administrative Agent may withhold from any payments to such Foreign
Lender under any of the Loan Documents such amounts as are required by the
Internal Revenue Code. If any Governmental Authority asserts that the
Administrative Agent did not properly withhold or backup withhold, as the case
may be, any tax or other amount from payments made to or for the account of any
Lender, such Lender shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on
the amounts payable to the Administrative Agent under this Section, and costs
and expenses (including all reasonable fees and disbursements of any law firm
or other external counsel and the allocated cost of internal legal services and
all disbursements of internal counsel) of the Administrative Agent.  The obligation of the Lenders under this Section shall
survive the


 


44

















 


termination
of the Commitments, repayment of all Obligations and the resignation or
replacement of the Administrative Agent.


 


(d)           USA Patriot Act Notice; Compliance.  In order for the Administrative Agent to
comply with the USA Patriot Act of 2001 (Public Law 107-56), prior to any
Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America becoming a party hereto, the
Administrative Agent may request, and such Lender or Participant shall provide
to the Administrative Agent, its name, address, tax identification number
and/or such other identification information as shall be necessary for the
Administrative Agent to comply with federal law.


 


ARTICLE IV. YIELD PROTECTION, ETC.


 


Section 4.1.  Additional Costs; Capital Adequacy.


 


(a)           Capital Adequacy.  If any Lender or any Participant determines
that compliance with any law or regulation or with any guideline or request
from any central bank or other Governmental Authority (whether or not having
the force of law) affects or would affect the amount of capital required or
expected to be maintained by such Lender or such Participant, or any corporation
controlling such Lender or such Participant, as a consequence of, or with
reference to, such Lender’s or such Participant’s or such corporation’s
Commitments or its making or maintaining Loans or participating in Letters of
Credit below the rate which such Lender or such Participant or such corporation
controlling such Lender or such Participant could have achieved but for such
compliance (taking into account the policies of such Lender or such Participant
or such corporation with regard to capital), then the Borrower shall, from time
to time, within thirty (30) calendar days after written demand by such Lender
or such Participant, pay to such Lender or such Participant additional amounts
sufficient to compensate such Lender or such Participant or such corporation
controlling such Lender or such Participant to the extent that such Lender or
such Participant determines such increase in capital is allocable to such
Lender’s or such Participant’s obligations hereunder.  Any Participant’s right to receive
compensation pursuant to this subsection (a) is limited by the terms of Section 12.5.(d) and
(e).


 


(b)           Additional Costs.  In addition to, and not in limitation of the
immediately preceding subsection (a), the Borrower shall promptly pay to
the Administrative Agent for the account of each affected Lender from time to
time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs incurred by such Lender that it determines are
attributable to its making or maintaining of any LIBOR Loans or its obligation
to make any LIBOR Loans hereunder, any reduction in any amount receivable by
such Lender under this Agreement or any of the other Loan Documents in respect
of any of such Loans or such obligation or the maintenance by such Lender of
capital in respect of its Loans or its Commitments (such increases in costs and
reductions in amounts receivable being herein called “Additional Costs”), to
the extent resulting from any Regulatory Change that:  (i) changes the basis of taxation of any
amounts payable to such Lender under this Agreement or any of the other Loan
Documents in respect of any of such Loans or its Commitments (other than taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges which are excluded from the definition of Taxes pursuant to the first
sentence of Section 3.12.(a)); or (ii) imposes or modifies any
reserve, special deposit or similar requirements (other than Regulation D of
the Board of Governors of the Federal Reserve System or other reserve
requirement to the extent utilized in the determination of LIBOR for such Loan)
relating to any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Lender, or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or
(iii) has or would have the effect of reducing the rate of return on
capital of such Lender to a level below that which such Lender could have
achieved but for such Regulatory Change (taking into consideration such Lender’s
policies with respect to capital adequacy).


 


45

















 


(c)           Lender’s Suspension of LIBOR Loans.  Without limiting the effect of the provisions
of the immediately preceding subsections (a) and (b), if, by reason
of any Regulatory Change, any Lender either (i) incurs Additional Costs
based on or measured by the excess above a specified level of the amount of a
category of deposits or other liabilities of such Lender that includes deposits
by reference to which the interest rate on LIBOR Loans is determined as
provided in this Agreement or a category of extensions of credit or other
assets of such Lender that includes LIBOR Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the Borrower (with a copy
to the Administrative Agent), the obligation of such Lender to make or
Continue, or to Convert any other Type of Loans into, LIBOR Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect (in
which case the provisions of Section 4.6. shall apply).


 


(d)           Additional Costs in Respect of
Letters of Credit.  Without limiting
the obligations of the Borrower under the preceding subsections of this Section (but
without duplication), if as a result of any Regulatory Change or any risk-based
capital guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable
any tax, reserve, special deposit, capital adequacy or similar requirement
against or with respect to or measured by reference to Letters of Credit and
the result shall be to increase the cost to the Administrative Agent of issuing
(or any Lender of purchasing participations in) or maintaining its obligation
hereunder to issue (or purchase participations in) any Letter of Credit or
reduce any amount receivable by the Administrative Agent or any Lender
hereunder in respect of any Letter of Credit, then, upon demand by the
Administrative Agent or such Lender, the Borrower shall pay promptly, and in
any event within 3 Business Days of demand, to the Administrative Agent for its
account or the account of such Lender, as applicable, from time to time as
specified by the Administrative Agent or a Lender, such additional amounts as
shall be sufficient to compensate the Administrative Agent or such Lender for
such increased costs or reductions in amount.


 


(e)           Notification and Determination of
Additional Costs.  Each of the
Administrative Agent and each Lender and each Participant, as the case may be,
agrees to notify the Borrower of any event occurring after the Agreement Date
entitling the Administrative Agent or such Lender or such Participant to
compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Administrative
Agent or any Lender or any Participant to give such notice shall not release
the Borrower from any of its obligations hereunder.  The Administrative Agent or such Lender or
such Participant agrees to furnish to the Borrower (and in the case of a Lender
or a Participant, to the Administrative Agent) a certificate setting forth in
reasonable detail the basis and amount of each request by the Administrative
Agent or such Lender for compensation under this Section.  Absent manifest error, determinations by the
Administrative Agent or any Lender or any Participant of the effect of any
Regulatory Change shall be conclusive, provided that such determinations are
made on a reasonable basis and in good faith.


 


Section 4.2.  Suspension of LIBOR Loans.


 


Anything
herein to the contrary notwithstanding, if, on or prior to the determination of
LIBOR for any Interest Period:


 


(a)           the Administrative
Agent reasonably determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining LIBOR for such Interest Period, or


 


(b)           the Administrative
Agent reasonably determines (which determination shall be conclusive) that the
relevant rates of interest referred to in the definition of LIBOR upon the
basis 


 


46

















 


of
which the rate of interest for LIBOR Loans for an Interest Period is to be
determined are not likely to adequately cover the cost to any Lender of making
or maintaining such LIBOR Loans;


 


then
the Administrative Agent shall give the Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect, the Lenders shall be
under no obligation to, and shall not, make additional LIBOR Loans, Continue
LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall, on the
last day of each current Interest Period for each outstanding LIBOR Loan,
either repay such Loan or Convert such Loan into a Base Rate Loan.


 


Section 4.3.  Illegality.


 


Notwithstanding
any other provision of this Agreement, if any Lender shall reasonably determine
(which determination shall be conclusive and binding) that it has become
unlawful for such Lender to honor its obligation to make or maintain LIBOR
Loans hereunder, then such Lender shall promptly notify the Borrower thereof
(with a copy to the Administrative Agent) and such Lender’s obligation to make
or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be
suspended until such time as such Lender may again make and maintain LIBOR
Loans (in which case the provisions of Section 4.6. shall be applicable).


 


Section 4.4.  Compensation.


 


The
Borrower shall pay to the Administrative Agent for the account of each Lender,
upon the request of such Lender through the Administrative Agent, such amount
or amounts as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost or expense that such Lender reasonably
determines is attributable to:


 


(a)           any payment or
prepayment (whether mandatory or optional) of a LIBOR Loan or Conversion of a
LIBOR Loan, made by such Lender for any reason (including, without limitation,
acceleration) on a date other than the last day of the Interest Period for such
Loan; or


 


(b)           any failure by the
Borrower for any reason (including, without limitation, the failure of any of
the applicable conditions precedent specified in Article V. to be
satisfied) to borrow a LIBOR Loan from such Lender on the requested date for
such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or Continue a
LIBOR Loan on the requested date of such Conversion or Continuation.


 


Not
in limitation of the foregoing, such compensation shall include, without
limitation, an amount equal to the then present value of (a) the amount of
interest that would have accrued on such LIBOR Loan for the remainder of the applicable
Interest Period at the rate applicable to such LIBOR Loan, less (b) the
amount of interest that would accrue on the same LIBOR Loan or for the same
period if LIBOR were set on the date on which such LIBOR Loan was repaid,
prepaid or Converted or the date on which the Borrower failed to borrow,
Convert or Continue such LIBOR Loan, calculating present value by using as a
discount rate LIBOR quoted on such date. 
Upon the Borrower’s request, any Lender requesting compensation under
this Section shall provide the Borrower with a statement setting forth in
reasonable detail the basis for requesting such compensation and the method for
determining the amount thereof.  Absent
manifest error, determinations by any Lender in any such statement shall be
conclusive, provided that such determinations are made on a reasonable basis
and in good faith.


 


47

















 


Section 4.5.  Affected Lenders.


 


If
(a) a Lender requests compensation pursuant to Section 3.12. or 4.1.,
and the Requisite Lenders are not also doing the same, or (b) the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(c) or
4.3. but the obligation of the Requisite Lenders shall not have been suspended
under such Sections, then, so long as there does not then exist any Default or
Event of Default, the Borrower may demand that such Lender (the “Affected
Lender”), and upon such demand the Affected Lender shall promptly, assign its
Revolving Commitment and Term Loan to an Eligible Assignee subject to and in
accordance with the provisions of Section 12.5.(b) for a purchase
price equal to the aggregate principal balance of all Loans then owing to the
Affected Lender plus any accrued but unpaid interest thereon and accrued but
unpaid fees owing to the Affected Lender, or any other amount as may be
mutually agreed upon by such Affected Lender and Eligible Assignee.  Each of the Administrative Agent and the
Affected Lender shall reasonably cooperate in effectuating the replacement of
such Affected Lender under this Section, but at no time shall the
Administrative Agent, such Affected Lender nor any other Lender be obligated in
any way whatsoever to initiate any such replacement or to assist in finding an
Eligible Assignee.  The exercise by the
Borrower of its rights under this Section shall be at the Borrower’s sole
cost and expense and at no cost or expense to the Administrative Agent, the
Affected Lender or any of the other Lenders. 
The terms of this Section shall not in any way limit the Borrower’s
obligation to pay to any Affected Lender compensation owing to such Affected
Lender pursuant to Section 3.12. or 4.1. with respect to periods up to the
date of replacement.


 


Section 4.6.  Treatment of Affected Loans.


 


If
the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert
Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(c) or 4.3., then such Lender’s LIBOR Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current
Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 4.1.(c) or 4.3., on such earlier date as such
Lender may specify to the Borrower with a copy to the Administrative Agent)
and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1. or 4.3. that gave rise to such
Conversion no longer exist:


 


(a)           to the extent that
such Lender’s LIBOR Loans have been so Converted, all payments and prepayments
of principal that would otherwise be applied to such Lender’s LIBOR Loans shall
be applied instead to its Base Rate Loans; and


 


(b)           all Loans that would
otherwise be made or Continued by such Lender as LIBOR Loans shall be made or
Continued instead as Base Rate Loans, and all Base Rate Loans of such Lender
that would otherwise be Converted into LIBOR Loans shall remain as Base Rate
Loans.


 


If
such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 4.1. or 4.3. that gave
rise to the Conversion of such Lender’s LIBOR Loans pursuant to this Section no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when LIBOR Loans made by other Lenders are
outstanding, then such Lender’s Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding LIBOR Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such
Lender are held pro rata (as to principal amounts, Types and Interest Periods)
in accordance with their respective Revolving Commitments.


 


48

















 


Section 4.7.  Change of Lending Office.


 


Each
Lender agrees that it will use reasonable efforts (consistent with legal and
regulatory restrictions) to designate an alternate Lending Office with respect
to any of its Loans affected by the matters or circumstances described in
Section 3.12., 4.1. or 4.3. to reduce the liability of the Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender in its sole
discretion, except that such Lender shall have no obligation to designate a
Lending Office located in the United States of America.


 


Section 4.8.  Assumptions Concerning Funding of LIBOR
Loans.


 


Calculation
of all amounts payable to a Lender under this Article IV. shall be made as
though such Lender had actually funded 
LIBOR Loans through the purchase of deposits in the relevant market
bearing interest at the rate applicable to such LIBOR Loans in an amount equal
to the amount of the LIBOR Loans and having a maturity comparable to the
relevant Interest Period; provided, however, that each Lender may fund each of
its LIBOR Loans in any manner it sees fit and the foregoing assumption shall be
used only for calculation of amounts payable under this Article IV.


 


ARTICLE V. CONDITIONS
PRECEDENT


 


Section 5.1.  Initial Conditions Precedent.


 


The
obligation of the Lenders to effect or permit the occurrence of the first
Credit Event hereunder, whether as the making of a Loan or the issuance of a
Letter of Credit, is subject to the following conditions precedent:


 


(a)           The Administrative Agent shall have
received each of the following, in form and substance reasonably satisfactory
to the Administrative Agent:


 


(i)            Counterparts of
this Agreement executed by each of the parties hereto;


 


(ii)           Revolving Notes and
Term Notes executed by the Borrower, payable to each Lender and complying with
the applicable provisions of Section 2.11., and the Swingline Note
executed by the Borrower;


 


(iii)          The Guaranty
executed by the Parent and each other Guarantor existing as of the Effective
Date;


 


(iv)          A Transfer
Authorizer Designation Form effective as of the Agreement Date;


 


(v)           An opinion of
counsel to the Loan Parties, addressed to the Administrative Agent and, the
Lenders, addressing the matters set forth in Exhibit J;


 


(vi)          The articles of
incorporation, articles of organization, certificate of limited partnership,
declaration of trust or other comparable organizational instrument (if any) of
the Borrower and each other Loan Party certified as of a recent date by the
Secretary of State (or comparable official) of the state of formation of such
Loan Party;


 


(vii)         A certificate of
good standing or certificate of similar meaning with respect to each Loan Party
issued as of a recent date by the Secretary of State (or comparable official)
of the state of formation of each such Loan Party and certificates of
qualification to transact business or


 


49

















 


other
comparable certificates issued by each Secretary of State (or comparable
official and any state department of taxation, as applicable) of each state in
which such Loan Party is required to be so qualified and where the failure to
be so qualified could reasonably be expected to have a Material Adverse Effect;


 


(viii)        A certificate of
incumbency signed by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Loan Party with respect to each of the
officers of such Loan Party authorized to execute and deliver the Loan
Documents to which such Loan Party is a party, and in the case of the Borrower,
and the officers of the Borrower then authorized to deliver Notices of
Borrowing, Notices of Swingline Borrowings, Notices of Continuation and Notices
of Conversion and to request the issuance of Letters of Credit;


 


(ix)           Copies certified by
the Secretary or Assistant Secretary (or other individual performing similar
functions) of each Loan Party of (x) the by-laws of such Loan Party, if a
corporation, the operating agreement of such Loan Party, if a limited liability
company, the partnership agreement of such Loan Party, if a limited or general
partnership, or other comparable document in the case of any other form of
legal entity and (y) all corporate, partnership, member or other necessary
action taken by such Loan Party to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;


 


(x)            If requested by the
Administrative Agent, certificates of insurance evidencing the existence of all
insurance required to be maintained by Loan Parties pursuant to the Agreement,
and the Administrative Agent shall be reasonably satisfied with the type and
extent of such coverage;


 


(xi)           The Fees then due
and payable under Section 3.6., and any other Fees payable to the
Administrative Agent, the Titled Agents and the Lenders on or prior to the
Effective Date;


 


(xii)          A Compliance
Certificate calculated as of June 30, 2010 (giving pro forma effect to the
financing contemplated by this Agreement and the use of the proceeds of the
Loans to be funded on the Effective Date); and


 


(xiii)         Such other
documents, agreements and instruments as the Administrative Agent on behalf of
the Lenders may reasonably request; and


 


(b)           In the good faith judgment of the
Administrative Agent  and the
Lenders:


 


(i)            There shall not
have occurred or become known to the Administrative Agent  or any of the Lenders any event,
condition, situation or status since the date of the information contained in
the financial and business projections, budgets, pro forma data and forecasts
concerning the Parent, the Borrower and the other Subsidiaries delivered to the
Administrative Agent and the Lenders prior to the Agreement Date that has had
or could reasonably be expected to result in a Material Adverse Effect;


 


(ii)           No litigation,
action, suit, investigation or other arbitral, administrative or judicial
proceeding shall be pending or threatened which could reasonably be expected to
(1) result in a Material Adverse Effect or (2) restrain or enjoin,
impose materially burdensome conditions on, or otherwise materially and
adversely affect the ability of the Parent, the Borrower or any other Loan
Party to fulfill its obligations under the Loan Documents to which it is a
party;


 


50
















 


(iii)          The Parent, the
Borrower and the other Subsidiaries shall have received all approvals, consents
and waivers, and shall have made or given all necessary filings and notices, as
shall be required to consummate the transactions contemplated hereby without
the occurrence of any default under, conflict with or violation of (1) any
Applicable Law or (2) any agreement, document or instrument to which the
Borrower or any other Loan Party is a party or by which any of them or their
respective properties is bound, except for such approvals, consents, waivers,
filings and notices the receipt, making or giving of which would not reasonably
be likely to (A) have a Material Adverse Effect, or (B) restrain or
enjoin, impose materially burdensome conditions on, or otherwise materially and
adversely affect the ability of the Parent, the Borrower or any other Loan
Party to fulfill its obligations under the Loan Documents to which it is a
party; and


 


(iv)          There shall not have
occurred or exist any other material adverse change or material disruption in
the loan syndication, financial, banking or capital markets that, in the
reasonable judgment of the Joint Lead Arrangers, has impaired or could
reasonably be expected to impair, the syndication of the Loans, either (i) occurring
on or after August 20, 2010, or (ii) occurring prior to August 20, 2010 but
becoming known to the Joint Lead Arrangers after August 20, 2010.


 


Section 5.2.  Conditions Precedent to All Loans and Letters
of Credit.


 


The
obligations of the Lenders to make any Loans, and of the Administrative Agent
to issue Letters of Credit, are all subject to the further condition precedent
that: (a) no Default or Event of Default shall exist as of the date of the
making of such Loan or date of issuance of such Letter of Credit or would exist
immediately after giving effect thereto; (b) the representations and
warranties made or deemed made by the Parent, the Borrower and each other Loan
Party in the Loan Documents to which any of them is a party, shall be true and
correct in all material respects on and as of the date of the making of such
Loan or date of issuance of such Letter of Credit with the same force and
effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents and
(c) in the case of the issuance of a Letter of Credit or the making of a
Swingline Loan, no Lender shall be a Defaulting Lender or Potential Defaulting
Lender; provided, however, in the case of the issuance of a Letter of Credit,
the Administrative Agent may, in its sole and absolute discretion, waive this
condition precedent on behalf of itself and all Lenders.  Each Credit Event shall constitute a
certification by the Borrower to the effect set forth in clauses (a) and (b) of
the preceding sentence (both as of the date of the giving of notice relating to
such Credit Event and, unless the Borrower otherwise notifies the
Administrative Agent prior to the date of such Credit Event, as of the date of
the occurrence of such Credit Event).  In
addition, if such Credit Event is the making of a Loan or the issuance of a
Letter of Credit, the Borrower shall be deemed to have represented to the
Administrative Agent and the Lenders at the time such Loan is made or Letter of
Credit issued that all conditions to the occurrence of such Credit Event
contained in this Article V. have been satisfied.


 


ARTICLE VI. REPRESENTATIONS AND
WARRANTIES


 


Section 6.1.  Representations and Warranties.


 


In
order to induce the Administrative Agent and each Lender to enter into this
Agreement and to make Loans and issue Letters of Credit, each of the Parent and
the Borrower represents and warrants to the Administrative Agent and each
Lender as follows:


 


51

















 


(a)           Organization; Power; Qualification.  Each of the Parent, the Borrower, the other
Loan Parties, and each other Subsidiary is a corporation, partnership, trust or
other legal entity, duly organized or formed, validly existing and in good
standing under the jurisdiction of its incorporation or formation, has the
power and authority to own or lease its respective properties and to carry on
its respective business as now being and hereafter proposed to be conducted and
is duly qualified and is in good standing as a foreign corporation,
partnership, trust or other legal entity, and authorized to do business, in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization and where the failure to
be so qualified or authorized could reasonably be expected to have, in each
instance, a Material Adverse Effect.


 


(b)           Ownership Structure.  As of the Agreement Date, Part I of
Schedule 6.1.(b) is a complete and correct list of all Subsidiaries of the
Parent setting forth for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding any Equity
Interests in such Subsidiary, (iii) the nature of the Equity Interests
held by each such Person, (iv) the percentage of ownership of such
Subsidiary represented by such Equity Interests and (v) whether such
Subsidiary is a Material Subsidiary and/or an Excluded Subsidiary. Except as
disclosed in such Schedule, as of the Agreement Date (i) each of the
Borrower and its Subsidiaries owns, free and clear of all Liens (other than
Permitted Liens), and has the unencumbered right to vote, all outstanding
Equity Interests in each Person shown to be held by it on such Schedule,
(ii) all of the issued and outstanding capital stock of each such Person
organized as a corporation is validly issued, fully paid and nonassessable and
(iii) there are no outstanding subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including, without
limitation, any stockholders’ or voting trust agreements) for the issuance,
sale, registration or voting of, or outstanding securities convertible into,
any additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, any such Person.  As of the Agreement Date, Part II of
Schedule 6.1.(b) correctly sets forth all Unconsolidated Affiliates of the
Parent, including the correct legal name of such Person, the type of legal
entity which each such Person is, and all Equity Interests in such Person held
directly or indirectly by the Parent.


 


(c)           Authorization of Agreement, Etc.  The Borrower has the right and power, and has
taken all necessary action to authorize it, to borrow and obtain other
extensions of credit hereunder.  The
Parent, the Borrower and each other Loan Party has the right and power, and has
taken all necessary action to authorize it, to execute, deliver and perform
each of the Loan Documents to which it is a party in accordance with their
respective terms and to consummate the transactions contemplated hereby and
thereby.  The Loan Documents to which the
Parent, the Borrower or any other Loan Party is a party have been duly executed
and delivered by the duly authorized officers of such Person and each is a
legal, valid and binding obligation of such Person enforceable against such
Person in accordance with its respective terms except as the same may be
limited by bankruptcy, insolvency, and other similar laws affecting the rights
of creditors generally and the availability of equitable remedies for the
enforcement of certain obligations (other than the payment of principal)
contained herein or therein and as may be limited by equitable principles
generally.


 


(d)           Compliance of Loan Documents with
Laws, Etc.  The execution, delivery and
performance of this Agreement, the Notes and the other Loan Documents to which
the Parent, the Borrower or any other Loan Party is a party in accordance with
their respective terms and the borrowings and other extensions of credit
hereunder do not and will not, by the passage of time, the giving of notice, or
both: (i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to the Parent, the Borrower or any
other Loan Party; (ii) conflict with, result in a breach of or constitute
a default under the organizational documents of the Parent, the Borrower or any
other Loan Party, or any indenture, agreement or other instrument to which the
Parent, the Borrower or any other Loan Party is a party or by which it or any
of its respective properties may be 


 


52

















 


bound;
or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by the Parent,
the Borrower or any other Loan Party other than Liens created under the Loan
Documents.


 


(e)           Compliance with Law; Governmental
Approvals.  Each of the Parent, the
Borrower, each other Loan Party and each other Subsidiary is in compliance with
each Governmental Approval applicable to it and in compliance with all other
Applicable Laws (including without limitation, Environmental Laws) relating to
the Parent, the Borrower, such other Loan Party or such other Subsidiary except
for noncompliances which, and Governmental Approvals the failure to possess
which, could not, individually or in the aggregate, reasonably be expected to
cause a Default or Event of Default or have a Material Adverse Effect.


 


(f)            Title to Properties; Liens.  As of the Agreement Date, Part I of
Schedule 6.1.(f) is a complete and correct listing of all of the real
property owned or leased by the Parent, the Borrower, each other Loan Party and
each other Subsidiary.  Each such Person
has good, marketable and legal title to, or a valid leasehold interest in, its
respective assets.  As of the Agreement
Date, there are no Liens against any assets of the Parent, the Borrower, any
other Loan Party or any other Subsidiary except for Permitted Liens.


 


(g)           Existing Indebtedness.  Schedule 6.1.(g) is, as of the Agreement
Date, a complete and correct listing of all Indebtedness of the Parent, the
Borrower and the other Subsidiaries, including without limitation, Guarantees
of the Parent, the Borrower and the other Subsidiaries, and indicating whether
such Indebtedness is Secured Indebtedness (and if so whether such Indebtedness
is Nonrecourse Indebtedness) or Unsecured Indebtedness.


 


(h)           Material
Contracts.  Schedule 6.1.(h) is,
as of the Agreement Date, a true, correct and complete listing of all Material
Contracts.  Each of the Parent, the
Borrower, the other Loan Parties and the other Subsidiaries that is a party to
any Material Contract has performed and is in compliance with all of the terms
of such Material Contract, the noncompliance with which would give any other
party thereto the right to terminate such Material Contract, and no default or
event of default, or event or condition which with the giving of notice, the
lapse of time, or both, would constitute such a default or event of default, exists
with respect to any such Material Contract.


 


(i)            Litigation.  Except as set forth on Schedule 6.1.(i),
there are no actions, suits, investigations or proceedings pending (nor, to the
knowledge of the Parent, are there any actions, suits or proceedings
threatened) against or in any other way relating adversely to or affecting the
Parent, the Borrower, any other Loan Party, any other Subsidiary or any of
their respective properties in any court or before any arbitrator of any kind
or before or by any other Governmental Authority which could reasonably be
expected to have a Material Adverse Effect. 
There are no strikes, slow downs, work stoppages or walkouts or other
labor disputes in progress or threatened relating to the Parent, the Borrower,
any other Loan Party or any other Subsidiary which could reasonably be expected
to have a Material Adverse Effect.


 


(j)            Taxes.  All federal, state and other tax returns of
the Parent, the Borrower, any other Loan Party or any other Subsidiary required
by Applicable Law to be filed have been duly filed, and all federal, state and
other taxes, assessments and other governmental charges or levies upon the
Parent, the Borrower, each other Loan Party, each other Subsidiary and their
respective properties, income, profits and assets which are due and payable
have been paid, except any such nonpayment which is at the time permitted under
Section 7.6.  As of the Agreement
Date, none of the United States income tax returns of the Parent, the Borrower,
any other Loan Party or any other Subsidiary is under audit.  All charges, 


 


53

















 


accruals
and reserves on the books of the Parent, the Borrower, each other Loan Party
and each other Subsidiary in respect of any taxes or other governmental charges
are in accordance with GAAP.


 


(k)           Financial Statements.  The Parent has furnished to each Lender
copies of (i) the audited consolidated balance sheet of the Parent and its
Subsidiaries for the fiscal year ending December 31, 2009, and the related
audited consolidated statements of operations, cash flows and shareholders’
equity for the fiscal year ending on such dates, with the audit report thereon
of KPMG LLP and (ii) the unaudited consolidated balance sheet of the
Parent and its Subsidiaries as of June 30, 2010, and the related unaudited
consolidated statements of operations, cash flows and shareholders’ equity of
the Parent and its Subsidiaries for the period of two fiscal quarters ending on
such date.  Such financial statements
(including in each case related schedules and notes) present fairly, in all
material respects and in accordance with GAAP consistently applied throughout
the periods involved, the consolidated financial position of the Parent and its
Subsidiaries as at their respective dates and the results of operations and the
cash flow for such periods (subject, as to interim statements, to changes
resulting from normal year-end audit adjustments).  Neither the Parent nor any of its Subsidiaries
has on the Agreement Date any material contingent liabilities, liabilities,
liabilities for taxes, unusual or long-term commitments or unrealized or
forward anticipated losses from any unfavorable commitments that would be
required to be set forth in its financial statements or in the notes thereto,
except as referred to or reflected or provided for in said financial
statements.


 


(l)            No Material Adverse Change;
Solvency.  Since December 31, 2009,
there has been no material adverse change in the business, assets, liabilities,
financial condition, results of operations or business of the Parent and its
Subsidiaries taken as a whole.  Each of
the Loan Parties is Solvent.  No Loan
Party is entering into any of the transactions contemplated by the Loan
Documents with the actual intent to hinder, delay, or defraud any
creditor.  Each Loan Party has received
reasonably equivalent value in exchange for the obligations incurred by it
under the Loan Documents to which it is a party.


 


(m)          ERISA.


 


(i)            Except as could not
be expected to have a Material Adverse Effect, each Benefit Arrangement is in
compliance with the applicable provisions of ERISA, the Internal Revenue Code
and other Applicable Laws.  Except with
respect to Multiemployer Plans and except as could not be expected to have a
Material Adverse Effect, each Qualified Plan (A) has received a favorable
determination from the Internal Revenue Service applicable to such Qualified
Plan’s current remedial amendment cycle (as defined in Revenue Procedure
2007-44 or “2007-44” for short), (B) has timely filed for a favorable
determination letter from the Internal Revenue Service during its staggered
remedial amendment cycle (as defined in 2007-44) and such application is
currently being processed by the Internal Revenue Service, (C) had filed
for a determination letter prior to its “GUST remedial amendment period” (as
defined in 2007-44) and received such determination letter and the staggered
remedial amendment cycle first following the GUST remedial amendment period for
such Qualified Plan has not yet expired, or (D) is maintained under a
prototype plan and may rely upon a favorable opinion letter issued by the
Internal Revenue Service with respect to such prototype plan.  To the best knowledge of the Parent and the
Borrower, nothing has occurred which would cause the loss of its reliance on
each Qualified Plan’s favorable determination letter or opinion letter.


 


(ii)           With respect to any
Benefit Arrangement that is a retiree welfare benefit arrangement, all amounts
have been accrued on the applicable ERISA Group’s financial statements in
accordance with FASB ASC 715.  The “benefit
obligation” of all Plans does not exceed the “fair market value of plan assets”
for such Plans by more than $10,000,000 all as determined by and with such
terms defined in accordance with FASB ASC 715.


 


54

















 


(iii)          Except as could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect: (i) no ERISA Event has occurred or is expected to occur;
(ii) there are no pending, or to the best knowledge of the Parent and the
Borrower, threatened, claims, actions or lawsuits or other action by any
Governmental Authority, plan participant or beneficiary with respect to a
Benefit Arrangement; (iii) there are no violations of the fiduciary
responsibility rules with respect to any Benefit Arrangement; and (iv) no
member of the ERISA Group has engaged in a non-exempt “prohibited transaction,”
as defined in Section 406 of ERISA and Section 4975 of the Internal
Revenue Code, in connection with any Plan, that would subject any member of the
ERISA Group to a tax on prohibited transactions imposed by Section 502(i)
of ERISA or Section 4975 of the Internal Revenue Code.


 


(n)           Not Plan Assets; No Prohibited
Transactions.  None of the assets of
the Parent, the Borrower, any other Loan Party or any other Subsidiary
constitutes “plan assets” within the meaning of ERISA, the Internal Revenue
Code and the respective regulations promulgated thereunder.  Assuming that no Lender funds any amount
payable by it hereunder with “plan assets,” as that term is defined in 29
C.F.R. 2510.3-101, the execution, delivery and performance of this Agreement
and the other Loan Documents, and the extensions of credit and repayment of
amounts hereunder, do not and will not constitute “prohibited transactions”
under ERISA or the Internal Revenue Code.


 


(o)           Absence of Defaults.  None of the Parent, the Borrower, any other
Loan Party or any other Subsidiary is in default under its articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents, and no event has occurred, which has not been remedied, cured or
waived, which, in any such case: 
(i) constitutes a Default or an Event of Default; or
(ii) constitutes, or which with the passage of time, the giving of notice,
or both, would constitute, a default or event of default by the Parent, the
Borrower, any other Loan Party or any other Subsidiary under any agreement
(other than this Agreement) or judgment, decree or order to which the Parent,
the Borrower, any other Loan Party or any other Subsidiary is a party or by
which the Parent, the Borrower, any other Loan Party or any other Subsidiary or
any of their respective properties may be bound where such default or event of
default could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.


 


(p)           Environmental Laws.  Each of the Parent, the Borrower, the other
Loan Parties and the other Subsidiaries has obtained all Governmental Approvals
which are required under Environmental Laws and is in compliance with all terms
and conditions of such Governmental Approvals which the failure to obtain or to
comply with could reasonably be expected to have a Material Adverse Effect.  Except for any of the following matters that
could not be reasonably expected to have a Material Adverse Effect,
(i) neither the Parent nor the Borrower has received notice of, and
neither is otherwise aware of, any past, present, or future events, conditions,
circumstances, activities, practices, incidents, actions, or plans which, with
respect to the Parent, the Borrower, any other Loan Party or any other
Subsidiary, may interfere with or prevent compliance or continued compliance
with Environmental Laws, or may give rise to any common-law or legal liability,
or otherwise form the basis of any claim, action, demand, suit, proceeding,
hearing, study, or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling or the emission, discharge, release or threatened release into the
environment, of any Hazardous Material; and (ii) there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or
demand letter, notice of violation, investigation, or proceeding pending or, to
the Parent’s or the Borrower’s knowledge after due inquiry, threatened, against
the Parent, the Borrower, any other Loan Party or any other Subsidiary relating
in any way to Environmental Laws. To the knowledge of the Parent and the
Borrower, no Hazardous Materials generated at or transported from any of the
Eligible Properties is or has been transported to, or disposed of at, any
location that is listed or proposed for listing on the National Priority List, 40
C.F.R. Section 300 Appendix B, or any analogous state or local priority list,
or any other location that is or has been the 


 


55

















 


subject
of a clean-up, removal or remedial action pursuant to any Environmental Law,
except to the extent that such transportation or disposal could not reasonably
be expected to have a Material Adverse Effect.


 


(q)           Investment Company; Etc.  None of the Parent, the Borrower, any other
Loan Party or any other Subsidiary is (i) an “investment company” or a
company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended or (ii) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow
money or to consummate the transactions contemplated by this Agreement or to
perform its obligations under any Loan Document to which it is a party.


 


(r)            Margin Stock.  None of the Parent, the Borrower, any other
Loan Party or any other Subsidiary is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying “margin stock”
within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System.


 


(s)           Affiliate Transactions.  Except as permitted by Section 9.11.,
none of the Parent, the Borrower, any other Loan Party or any other Subsidiary
is a party to any transaction with an Affiliate.


 


(t)            Intellectual Property.  Each of the Parent, the Borrower, each other
Loan Party and each other Subsidiary owns or has the right to use, under valid
license agreements or otherwise, all material patents, licenses, franchises,
trademarks, trademark rights, service marks, service mark rights, trade names,
trade name rights, trade secrets and copyrights (collectively, “Intellectual
Property”) necessary to the conduct of its businesses as now conducted and as
contemplated by the Loan Documents, without known conflict with any patent,
license, franchise, trademark, trademark right, service mark, service mark
right, trade secret, trade name, copyright or other proprietary right of any
other Person.  The Parent, the Borrower,
each other Loan Party and each other Subsidiary have taken all such steps as they
deem reasonably necessary to protect their respective rights under and with
respect to such Intellectual Property. 
No material claim has been asserted by any Person with respect to the
use of any such Intellectual Property by the Parent, the Borrower, any other
Loan Party or any other Subsidiary, or challenging or questioning the validity
or effectiveness of any such Intellectual Property.  The use of such Intellectual Property by the
Parent, the Borrower, the other Loan Parties and the other Subsidiaries, does
not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of the Parent, the Borrower, any other Loan Party or any other Subsidiary
that could reasonably be expected to have a Material Adverse Effect.


 


(u)           Business.  As of the Agreement Date, the Parent, the
Borrower and the other  Subsidiaries are
substantially engaged in the business of the ownership, operation, acquisition
and development of self-storage facilities in the United States of America,
together with other business activities incidental thereto.


 


(v)           Broker’s Fees.  No broker’s or finder’s fee, commission or
similar compensation will be payable with respect to the transactions
contemplated hereby.  No other similar
fees or commissions will be payable by any Loan Party for any other services
rendered to the Parent, the Borrower or any of the other Subsidiaries ancillary
to the transactions contemplated hereby.


 


(w)          Accuracy and Completeness of Information.  No written information, report or other
papers or data (excluding financial projections and other forward looking
statements) furnished to the Administrative Agent or any Lender by, on behalf
of, or at the direction of, the Parent, the Borrower, any other Loan Party or
any other Subsidiary in connection with, pursuant to or relating in any way to
this Agreement, contained any untrue statement of a fact material to the
creditworthiness of the Parent, the Borrower, any other Loan Party or any other
Subsidiary or omitted to state a material fact necessary in 


 


56

















 


order
to make such statements contained therein, in light of the circumstances under
which they were made, not misleading. 
All financial statements (including in each case all related schedules
and notes) furnished to the Administrative Agent or any Lender by, on behalf
of, or at the direction of, the Parent, the Borrower, any other Loan Party or
any other Subsidiary in connection with, pursuant to or relating in any way to
this Agreement, present fairly in all material respects, the financial position
of the Persons involved as at the date thereof and the results of operations
for such periods and in accordance with GAAP consistently applied throughout
the periods involved (subject, as to interim statements, to changes resulting
from normal year-end audit adjustments). 
All financial projections and other forward looking statements prepared
by or on behalf of the Parent, the Borrower, any other Loan Party or any other
Subsidiary that have been or may hereafter be made available to the
Administrative Agent or any Lender were or will be prepared in good faith based
on reasonable assumptions.  As of the Effective
Date, no fact is known to the Parent or the Borrower which has had, or may in
the future have (so far as the Parent or the Borrower can reasonably foresee),
a Material Adverse Effect which has not been set forth in the financial
statements referred to in Section 6.1.(k) or in such information, reports
or other papers or data or otherwise disclosed in writing to the Administrative
Agent and the Lenders.


 


(x)            REIT Status.  The Parent qualifies as, and has elected to
be treated as, a REIT and is in compliance with all requirements and conditions
imposed under the Internal Revenue Code to allow the Parent to maintain its
status as a REIT.


 


(y)           OFAC.  None of the Borrower, any of the other Loan
Parties, any of the other Subsidiaries, or any other Affiliate of the Borrower:
(i) is a person named on the list of Specially Designated Nationals or
Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/index.shtml, or as otherwise
published from time to time; (ii) is (A) an agency of the government
of a country, (B) an organization controlled by a country, or (C) a
person resident in a country that is subject to a sanctions program identified
on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/index.shtml, or as otherwise published
from time to time, as such program may be applicable to such agency,
organization or person; or (iii) derives any of its assets or operating
income from investments in or transactions with any such country, agency,
organization or person; and none of the proceeds of the Loans or Letters of
Credit will be used to finance any operations, investments or activities in, or
make any payments to, any such country, agency, organization, or person.


 


(z)            Embargoed Person.  To
the best of the knowledge of the Parent and the Borrower: (i) none of the
funds or other assets of the Parent, the Borrower, any other Loan Party or any
other Subsidiary constitute property of, or are beneficially owned, directly or
indirectly, by any person, entity or government subject to trade restrictions
under the laws of the United States of America, including but not limited to,
the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The
Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders
or regulations promulgated thereunder with the result that investment in the
Parent, the Borrower, any other Loan Party or any other Subsidiary, as
applicable (whether directly or indirectly), is prohibited by Applicable Law or
the Loans and other financial accommodations made by the Lender under the Loan
Documents is in violation of Applicable Law (any such any person, entity or
government being an “Embargoed Person”);
(ii) no Embargoed Person has any interest of any nature whatsoever in the
Parent, the Borrower, any other Loan Party or any other Subsidiary, as
applicable, with the result that the investment in the Parent, the Borrower,
any other Loan Party or any other Subsidiary, as applicable (whether directly
or indirectly), is prohibited by Applicable Law or the Loan is in violation of
Applicable Law; and (c) none of the funds of the Parent, the Borrower, any
other Loan Party or any other Subsidiary, as applicable, have been derived from
any unlawful activity with the result that investment in the Parent, the
Borrower, any other Loan Party or any other Subsidiary, as applicable (whether
directly or indirectly), is prohibited by Applicable 


 


57

















 


Law
or the Loans and other financial accommodations to be extended under the Loan
Documents would be in violation of Applicable Law.


 


Section 6.2.  Survival of Representations and Warranties,
Etc.


 


All
statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of the Parent, the Borrower, any other
Loan Party or any other Subsidiary to the Administrative Agent or any Lender
pursuant to or in connection with this Agreement or any of the other Loan
Documents (including, but not limited to, any such statement made in or in
connection with any amendment hereto or thereto or any statement contained in
any certificate, financial statement or other instrument delivered by or on
behalf of the Parent, the Borrower or any other Loan Party prior to the
Agreement Date and delivered to the Administrative Agent or any Lender in
connection with the underwriting or closing of the transactions contemplated
hereby) shall constitute representations and warranties made by the Parent and
the Borrower to the Administrative Agent 
and the Lenders under this Agreement. 
All representations and warranties made under this Agreement and the
other Loan Documents shall be deemed to be made at and as of the Agreement
Date, the Effective Date and the date of the occurrence of any Credit Event,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall have been true and correct in all material respects on and as of such
earlier date) and except for changes in factual circumstances not prohibited
under the Loan Documents.  All such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the making of
the Loans and the issuance of the Letters of Credit.


 


ARTICLE VII. AFFIRMATIVE
COVENANTS


 


For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 12.6., each of the Parent
and the Borrower shall comply with the following covenants:


 


Section 7.1.  Preservation of Existence and Similar
Matters.


 


Except
as otherwise permitted under Section 9.7., the Parent and the Borrower
shall, and shall cause each other Loan Party and each other Subsidiary to,
preserve and maintain its respective existence, rights, franchises, licenses
and privileges in the jurisdiction of its incorporation or formation and
qualify and remain qualified and authorized to do business in each jurisdiction
in which the character of its properties or the nature of its business requires
such qualification and authorization and where the failure to be so authorized
and qualified could reasonably be expected to have a Material Adverse Effect.


 


Section 7.2.  Compliance with Applicable Law and Material
Contracts.


 


The
Parent and the Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, comply with (a) all Applicable Laws, including the
obtaining of all Governmental Approvals, the failure with which to comply could
reasonably be expected to have a Material Adverse Effect, and (b) all
terms and conditions of all Material
Contracts to which it is a party, the noncompliance with which would give any other party thereto the right
to terminate such Material Contract.


 


Section 7.3.  Maintenance of Property.


 


In
addition to the requirements of any of the other Loan Documents, the Parent and
the Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) protect and preserve all of its respective material properties
necessary in the conduct of its business, including, but not limited to, all 


 


58

















 


Intellectual
Property, and maintain in good repair, working order and condition all tangible
properties, ordinary wear and tear excepted, and (b) make or cause to be
made all needed and appropriate repairs, renewals, replacements and additions
to such properties, so that the business carried on in connection therewith may
be properly and advantageously conducted at all times.


 


Section 7.4.  Conduct of Business.


 


The
Parent and the Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, carry on, their respective businesses as described in
Section 6.1.(u).


 


Section 7.5.  Insurance.


 


In
addition to the requirements of any of the other Loan Documents, the Parent and
the Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, maintain insurance (on a replacement cost basis) with
financially sound and reputable insurance companies against such risks and in
such amounts as is customarily maintained by Persons engaged in similar
businesses or as may be required by Applicable Law. The Borrower shall from time
to time deliver to the Administrative Agent upon its request a detailed list,
together with copies of all policies of the insurance then in effect, stating
the names of the insurance companies, the amounts and rates of the insurance,
the dates of the expiration thereof and the properties and risks covered
thereby.  Such insurance shall, in any
event, include terrorism coverage, so long as the Terrorism Risk Insurance Act
of 2002, as amended, is in effect.


 


Section 7.6.  Payment of Taxes and Claims.


 


The
Parent and the Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, pay and discharge when due (a) all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits or upon any properties belonging to it, and (b) all lawful claims
of materialmen, mechanics, carriers, warehousemen and landlords for labor,
materials, supplies and rentals which, if unpaid, might become a Lien on any
properties of such Person; provided, however, that this Section shall not
require the payment or discharge of any such tax, assessment, charge, levy or
claim which is being contested in good faith by appropriate proceedings which
operate to suspend the collection thereof and for which adequate reserves have
been established on the books of the Parent, the Borrower, such Subsidiary or
such other Loan Party, as applicable, in accordance with GAAP.


 


Section 7.7.  Visits and Inspections.


 


The
Parent and the Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, permit representatives or agents of the Administrative Agent
and, if such visit or inspection is arranged by the Administrative Agent, of
any Lender, from time to time after reasonable prior notice if no Event of
Default shall be in existence, as often as may be reasonably requested, but
only during normal business hours and at the expense of the Borrower, to:  (a) visit and inspect all properties of
the Parent, the Borrower, such other Loan Party or such other Subsidiary to the
extent any such right to visit or inspect is within the control of such Person;
(b) inspect and make extracts from their respective books and records,
including but not limited to management letters prepared by independent
accountants; and (c) discuss with its officers, and its independent
accountants, its business, properties, condition (financial or otherwise),
results of operations and performance; provided that, so long as no Event of
Default exists, the Borrower shall only be required to pay the expenses of the
Administrative Agent (and not the expenses of any other Lender), with respect
to one such visit and inspection per calendar year.  If requested by the Administrative Agent, the
Parent and the Borrower shall execute an authorization letter addressed to its
accountants authorizing the Administrative Agent or, if the same has been
arranged by the 


 


59

















 


Administrative
Agent, any Lender, to discuss the financial affairs of the Parent, the
Borrower, any other Loan Party and any other Subsidiary with its accountants.


 


Section 7.8.  Use of Proceeds; Letters of Credit.


 


The
Borrower shall use the proceeds of the Loans to repay the Indebtedness existing
under the Existing Credit Agreement, and shall use the proceeds of the Loans
and the Letters of Credit for general corporate purposes only.  No part of the proceeds of any Loan or Letter
of Credit will be used (a) for the purpose of buying or carrying “margin
stock” within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or (b) to fund any operations
in, finance any investments or activities in, or make any payments to, a
Sanctioned Person or Sanctioned Entity.


 


Section 7.9.  Environmental Matters.


 


The
Parent and the Borrower shall, and shall cause all of the other Loan Parties
and the other Subsidiaries to, comply with all Environmental Laws the failure
with which to comply could reasonably be expected to have a Material Adverse
Effect.  If the Parent, the Borrower, any
other Loan Party or any other Subsidiary shall (a) receive notice that any
violation of any Environmental Law may have been committed or is about to be
committed by such Person, (b) receive notice that any administrative or
judicial complaint or order has been filed or is about to be filed against the
Parent, the Borrower, any other Loan Party or any other Subsidiary alleging
violations of any Environmental Law or requiring the Parent, the Borrower, any
other Loan Party or any other Subsidiary to take any action in connection with
the release of Hazardous Materials or (c) receive any notice from a
Governmental Authority or private party alleging that the Parent, the Borrower,
any other Loan Party or any other Subsidiary may be liable or responsible for
costs associated with a response to or cleanup of a release of Hazardous
Materials or any damages caused thereby, and the matters referred to in such
notices, individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect, the Borrower shall provide the Administrative Agent
with a copy of such notice promptly, and in any event within 10 Business Days,
after the receipt thereof by the Parent, the Borrower, any other Loan Party or
any other Subsidiary.  The Parent and the
Borrower shall, and shall cause the other Loan Parties and the other
Subsidiaries to, take promptly all actions necessary to prevent the imposition
of any Liens on any of their respective properties arising out of or related to
any Environmental Laws.


 


Section 7.10.  Books and Records.


 


The
Parent and the Borrower shall, and shall cause each of the other Loan Parties
and the other Subsidiaries to, maintain books and records pertaining to its
respective business operations in such detail, form and scope as is consistent
with good business practice and in accordance with GAAP.


 


Section 7.11.  Further Assurances.


 


The
Parent and the Borrower shall, at their sole cost and expense and upon request
of the Administrative Agent, execute and deliver or cause to be executed and
delivered, to the Administrative Agent such further instruments, documents and
certificates, and do and cause to be done such further acts that may be
reasonably necessary or advisable in the reasonable opinion of the
Administrative Agent to carry out more effectively the provisions and purposes
of this Agreement and the other Loan Documents.


 


60
















 


Section 7.12.  New Subsidiaries; Guarantors; Release of
Guarantors.


 


(a)           Requirement to Become Guarantor.  Within 10 Business Days of any Person (other
than an Excluded Subsidiary) becoming a Material Subsidiary after the Effective
Date, the Borrower shall cause to be delivered to the Administrative Agent each
of the following items, each in form and substance satisfactory to the
Administrative Agent:  (i) an
Accession Agreement executed by such Material Subsidiary and (ii) the
items that would have been delivered under Section 5.1.(a)(v) through
(a)(ix) and (a)(xiii) if such Material Subsidiary had been a Guarantor on the
Effective Date; provided, however, promptly (and in any event within 10
Business Days) upon any Excluded Subsidiary ceasing to be subject to the
restriction which prevented it from becoming a Guarantor on the Effective Date
or delivering an Accession Agreement pursuant to this Section, as the case may
be, such Subsidiary shall comply with the provisions of this Section.  The Borrower shall send to each Lender copies
of each of the foregoing items once the Administrative Agent has received all
such items with respect to a Material Subsidiary.


 


(b)           Other Guarantors.  The Borrower may, at its option, cause any
Subsidiary that is not already a Guarantor to become a Guarantor by executing
and delivering to the Administrative Agent the items required to be delivered
under the immediately preceding subsection (a).


 


(c)           Release of a Guarantor.  The Borrower may request in writing that the
Administrative Agent release, and upon receipt of such request the
Administrative Agent shall release, a Guarantor (other than the Parent) from
the Guaranty so long as:  (i) such
Guarantor (x) qualifies, or will qualify simultaneously with its release
from the Guaranty, as an Excluded Subsidiary, or (y) in the case of a
Material Subsidiary, has ceased to be, or simultaneously with its release from
the Guaranty will cease to be, a Material Subsidiary or a Subsidiary;
(ii) such Guarantor is not otherwise required to be a party to the
Guaranty under subsection (a) of this Section 7.12; (iii)  no Default
or Event of Default shall then be in existence or would occur as a result of
such release, including without limitation, a Default or Event of Default
resulting from a violation of any of the covenants contained in
Section 9.1.; (iv) the representations and warranties made or deemed
made by the Parent, the Borrower and each other Loan Party in the Loan
Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of such release with the same force and
effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents; and
(v) the Administrative Agent shall have received such written request at
least 10 Business Days (or such shorter period as may be acceptable to the
Administrative Agent in its sole discretion) prior to the requested date of
release.  Delivery by the Borrower to the
Administrative Agent of any such request shall constitute a representation by
the Borrower that the matters set forth in the preceding sentence (both as of
the date of the giving of such request and as of the date of the effectiveness
of such request) are true and correct with respect to such request.


 


Section 7.13.  REIT Status.


 


The
Parent shall at all times maintain its status as a REIT.


 


Section 7.14.  Exchange Listing.


 


The
Parent shall maintain at least one class of common shares of the Parent having
trading privileges on the New York Stock Exchange or the American Stock
Exchange or which is the subject of price quotations in the over-the-counter
market as reported by the National Association of Securities Dealers Automated
Quotation System.


 


61

















 


ARTICLE VIII. INFORMATION


 


For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrower shall cause
to be furnished to each Lender (or to the Administrative Agent if so provided
below) at its Lending Office:


 


Section 8.1.  Quarterly Financial Statements.


 


As
soon as available and in any event within 10 days after the same is required to
be filed with the Securities and Exchange Commission (but in no event later
than 45 days after the end of each of the first, second and third fiscal
quarters of the Parent), the unaudited consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such period and the related unaudited
consolidated statements of income, shareholders’ equity and cash flows of the
Parent and its Subsidiaries for such period, setting forth in each case in
comparative form the figures as of the end of and for the corresponding periods
of the previous fiscal year, all of which shall be certified by the chief
financial officer or chief accounting officer of the Parent, in his or her
opinion, to present fairly, in accordance with GAAP and in all material
respects, the consolidated financial position of the Parent and its
Subsidiaries as at the date thereof and the results of operations for such
period (subject to normal year-end audit adjustments).


 


Section 8.2.  Year-End Statements.


 


As
soon as available and in any event within 10 days after the same is required to
be filed with the Securities and Exchange Commission (but in no event later
than 90 days after the end of each fiscal year of the Parent), the audited
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such fiscal year and the related audited consolidated statements of income,
shareholders’ equity and cash flows of the Parent and its Subsidiaries for such
fiscal year, setting forth in comparative form the figures as at the end of and
for the previous fiscal year, all of which shall be (a) certified by the
chief financial officer, treasurer, or chief accounting officer of the Parent,
in his or her opinion, to present fairly, in accordance with GAAP and in all
material respects, the consolidated financial position of the Parent and its
Subsidiaries as at the date thereof and the results of operations for such
period and (b) accompanied by the audit report thereon of independent
certified public accountants of recognized national standing, whose report
shall be unqualified and in scope and substance satisfactory to the Requisite
Lenders and who shall have authorized the Parent to deliver such financial
statements and report to the Administrative Agent and the Lenders.


 


Section 8.3.  Compliance Certificate.


 


At
the time financial statements are furnished pursuant to Sections 8.1. and
8.2., and within 5 Business Days of the Administrative Agent’s request with
respect to any other fiscal period, a certificate substantially in the form of
Exhibit K (a “Compliance Certificate”) executed by the chief financial
officer, treasurer, or chief accounting officer of the Parent:  (a) setting forth in reasonable detail
as at the end of such quarterly accounting period, fiscal year, or other fiscal
period, as the case may be, the calculations required to establish whether or
not the Parent and the Borrower were in compliance with the covenants contained
in Sections 9.1., 9.2. and 9.4. and (b) stating that, to the best of
his or her knowledge, information and belief after due inquiry, no Default or
Event of Default exists, or, if such is not the case, specifying such Default
or Event of Default and its nature, when it occurred, whether it is continuing
and the steps being taken by the Borrower with respect to such event, condition
or failure.  Together with each
Compliance Certificate delivered in connection with quarterly or annual
financial statements, the Borrower and the Parent shall deliver a report, in
form and detail reasonably satisfactory to the Administrative Agent, (x)
setting forth a Statement of Funds From Operations for the fiscal period then 


 


62

















 


ending
and (y) identifying each Eligible Property as of such date, indicating
Properties that have been added or deleted since the delivery of the most
recent Compliance Certificate.


 


Section 8.4.  Other Information.


 


(a)           Management Reports.  Promptly upon receipt thereof, copies of all
management reports, if any, submitted to the Parent or its Board of Directors
by its independent public accountants;


 


(b)           Securities Filings.  Within 5 Business Days of the filing
thereof, copies of all registration statements (excluding the exhibits thereto
(unless requested by the Administrative Agent) and any registration statements
on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) and all other periodic reports which the Parent, the Borrower, any
other Loan Party or any other Subsidiary shall file with the Securities and
Exchange Commission (or any Governmental Authority substituted therefor) or any
national securities exchange (any such registration statement, report and other
periodic report referred to as a “Security Filing”);


 


(c)           Shareholder Information.  Promptly upon the mailing thereof to the
shareholders of the Parent generally, copies of all financial statements,
reports and proxy statements so mailed and promptly upon the issuance thereof
copies of all press releases issued by the Parent, the Borrower, any other Loan
Party or any other Subsidiary;


 


(d)           ERISA.  If any ERISA Event shall occur that
individually, or together with any other ERISA Event that has occurred, could
reasonably be expected to have a Material Adverse Effect, a certificate of the
chief executive officer or chief financial officer of the Borrower setting
forth details as to such occurrence and the action, if any, which the Borrower
or applicable member of the ERISA Group is required or proposes to take;


 


(e)           Litigation.  To the extent the Parent, the Borrower or any
other Subsidiary is aware of the same, prompt notice of the commencement of any
proceeding or investigation by or before any Governmental Authority and any
action or proceeding in any court or other tribunal or before any arbitrator
against or in any other way relating adversely to, or adversely affecting, the
Parent, the Borrower or any other Subsidiary or any of their respective
properties, assets or businesses which could reasonably be expected to have a
Material Adverse Effect, and prompt notice of the receipt of notice that any
United States income tax returns of the Parent, the Borrower or any other
Subsidiary are being audited;


 


(f)            Modification of Organizational
Documents.  A copy of any amendment
to the articles of incorporation, bylaws, partnership agreement, operating
agreement or other similar organizational documents of the Parent, the Borrower
or any other Loan Party within 15 Business Days after the effectiveness
thereof;


 


(g)           Change of Management or Financial
Condition.  Prompt notice of any
change in the senior management of the Parent, the Borrower or any other Loan
Party and any change in the business, assets, liabilities, financial condition
or results of operations of the Parent, the Borrower, any other Loan Party or
any other Subsidiary which has had or could reasonably be expected to have a
Material Adverse Effect;


 


(h)           Default.  Notice of the occurrence of any of the
following promptly upon a Responsible Officer of the Parent or the Borrower
obtaining knowledge thereof: 
(i) any Default or Event of Default or (ii) any event which
constitutes or which with the passage of time, the giving of notice, or
otherwise, would constitute a default or event of default by the Parent, the
Borrower, any other Loan Party or any 


 


63

















 


other
Subsidiary under any Material Contract to which any such Person is a party or
by which any such Person or any of its respective properties may be bound;


 


(i)            Judgments.  Prompt notice of any order, judgment or decree
in excess of $5,000,000 having been entered against the Parent, the Borrower,
any other Loan Party or any other Subsidiary or any of their respective
properties;


 


(j)            Notice of Violations of Law.  Prompt notice if the Parent, the Borrower,
any other Loan Party or any other Subsidiary shall receive any notification
from any Governmental Authority alleging a violation of any Applicable Law or
any inquiry which, in either case, could reasonably be expected to have a
Material Adverse Effect;


 


(k)           Budget.  As soon as available, and in any event no
later than 45 days after the end of each fiscal year of the Parent a detailed
consolidated budget for the following four consecutive fiscal quarters
(including a projected consolidated balance sheet of the Parent and its
Subsidiaries as of the end of the following fiscal year, and the related
consolidated statements of projected cash flow, projected changes in financial
position and projected income and a description of the underlying assumptions
applicable thereto), and, as soon as available, significant revisions, if any,
of such budget and projections with respect to such fiscal quarters
(collectively, the “Projections”), which Projections shall in each case be
accompanied by a certificate of a Responsible Officer of the Parent stating
that such Projections are based on reasonable estimates, information and
assumptions and that such Responsible Officer has no reason to believe that
such Projections are incorrect or misleading in any material respect;


 


(l)            Material Asset Sales.  Prompt notice of the sale, transfer or other
disposition of any material assets of the Parent, the Borrower, any other Loan
Party or any other Subsidiary to any Person other than the Parent, the
Borrower, any other Loan Party or any other Subsidiary;


 


(m)          Material
Contracts.  Promptly upon entering
into any Material Contract after the Agreement Date, a copy to the
Administrative Agent of such Material Contract;


 


(n)           Cash Flow Projections.  Concurrently with the delivery of the items
required pursuant to the immediately preceding subsection (k), and, if
requested by the Administrative Agent, concurrently with the delivery of the
financial statements required pursuant to Section 8.1., consolidated statements
of projected cash flow of the Parent, the Borrower and the other Subsidiaries
for the immediately following period of 4 consecutive fiscal quarters of the
Parent;


 


(o)           Credit Rating Change.  Promptly, upon any change in the Parent’s
Credit Rating, a certificate stating that the Parent’s Credit Rating has
changed and the new Credit Rating that is in effect; and


 


(p)           Other Information.  From time to time and promptly upon each
request, such data, certificates, reports, statements, opinions of counsel,
documents or further information regarding the business, assets, liabilities,
financial condition, results of operations or business prospects of the Parent,
the Borrower, any other Loan Party or any other Subsidiary as the
Administrative Agent or any Lender may reasonably request.


 


Section 8.5.  Delivery of Documents.


 


Documents
required to be delivered by the Borrower pursuant to Article VIII. (to the extent any such
documents are not otherwise included in a Security Filing) may be delivered
electronically, including, without limitation, by posting such documents to the
Borrower’s internet website 


 


64

















 


(www.u-store-it.com);
provided, that (a) if such documents are posted to the Borrower’s website, then
such documents will only be deemed to have been delivered on the date that the
Borrower provides notice to the Administrative Agent of the posting of such
documents and only if such documents are publicly available without charge on
such website and (b) if such documents are delivered by other electronic means,
such documents shall be deemed to have been delivered on the date on which such
documents are received by the Administrative Agent for posting on the Borrower’s
behalf on an internet or intranet website, if any, to which each Lender and the
Administrative Agent has access (whether a commercial, third-party website
(such as Intralinks or SyndTrak) or a website sponsored by the Administrative
Agent); provided further that the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender.  Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Compliance Certificate required by Section 8.3. to the Administrative Agent. 
The Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


 


Section 8.6.  Public/Private Information.


 


The
Parent and the Borrower shall cooperate with the Administrative Agent in
connection with the publication of certain materials and/or information
provided by or on behalf of the Parent or the Borrower.  Documents required to be delivered pursuant
to the Loan Documents shall be delivered by or on behalf of the Parent or the
Borrower to the Administrative Agent and the Lenders (collectively, “Information
Materials”) pursuant to this Article and shall designate Information Materials
(a) that are either available to the public or not material with respect to the
Parent, the Borrower and the other Subsidiaries or any of their respective
securities for purposes of United States federal and state securities laws, as “Public
Information” and (b) that are not Public Information as “Private Information”.


 


Section 8.7.  USA Patriot Act Notice; Compliance.


 


The
USA Patriot Act of 2001 (Public Law 107-56) and federal regulations issued with
respect thereto require all financial institutions to obtain, verify and record
certain information that identifies individuals or business entities which open
an “account” with such financial institution. 
Consequently, a Lender (for itself and/or as the Administrative Agent
for all Lenders hereunder) may from time-to-time request, and the Parent and
the Borrower shall, and shall cause the other Loan Parties to, provide to such
Lender, such Loan Party’s name, address, tax identification number and/or such
other identification information as shall be necessary for such Lender to
comply with federal law.  An “account”
for this purpose may include, without limitation, a deposit account, cash
management service, a transaction or asset account, a credit account, a loan or
other extension of credit, and/or other financial services product.


 


ARTICLE IX. NEGATIVE COVENANTS


 


For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., each of the Parent and
the Borrower, as applicable, shall comply with the following covenants:


 


65

















 


Section 9.1.  Financial Covenants.


 


The
Parent shall not permit:


 


(a)           Maximum Consolidated Leverage
Ratio.  The ratio of
(i) Consolidated Total Indebtedness to (ii) Consolidated Adjusted
Asset Value, to exceed 0.60 to 1.00 at any time.


 


(b)           Minimum Consolidated Fixed Charge
Coverage Ratio.  The ratio of
(i) Adjusted EBITDA for the period of four consecutive fiscal quarters of
the Parent most recently ending to (ii) Consolidated Fixed Charges for
such period, to be less than 1.50 to 1.00 at any time.


 


(c)           Minimum Tangible Net Worth.  Tangible Net Worth at any time to be less
than (i) $821,211,200 plus (ii) 75% of the Net Proceeds of all
Equity Issuances by the Parent and its Subsidiaries after June 30, 2010 (other
than Equity Issuances to the Parent, the Borrower or any other Subsidiary).


 


(d)           Floating Rate Indebtedness.  The ratio of (i) Floating Rate
Indebtedness of the Parent and its Subsidiaries determined on a consolidated
basis to (ii) Consolidated Total Indebtedness, to exceed 0.30 to 1.00 at
any time.


 


(e)           Maximum Secured Leverage Ratio.  The ratio of (i) Secured Indebtedness to (ii)
Consolidated Adjusted Asset Value to exceed 0.35 to 1.00 at any time.


 


(f)            Minimum Unencumbered Asset Value
to Consolidated Unsecured Indebtedness Ratio.  The ratio of (i) Unencumbered Asset Value to
(ii) Consolidated Unsecured Indebtedness to be less than 1.67 to 1.00 at any
time.


 


(g)           Minimum Unencumbered NOI to
Unsecured Interest Expense Ratio. 
The ratio of (i) Unencumbered NOI to (ii) Unsecured Interest Expense to
be less than 2.00 to 1.00 at any time.


 


(h)           Minimum Unencumbered Asset Value.  The Unencumbered Asset Value to be less than
$400,000,000 at any time.


 


(i)            Maximum Secured Recourse
Indebtedness Ratio.  For the period
commencing on the Agreement Date to and including the Investment Grade Rating
Date, the ratio of (i) Secured Recourse Indebtedness to (ii) Consolidated
Adjusted Asset Value to exceed 0.10 to 1.00 at any time.


 


Section 9.2.  Restricted Payments.


 


The
Parent shall not, and shall not permit the Borrower or any other Subsidiary to,
declare or make any Restricted Payment; provided, however, that the Parent, the
Borrower and the other Subsidiaries may declare and make the following
Restricted Payments so long as no Default or Event of Default would result
therefrom:


 


(a)           the Borrower may declare or make cash
distributions to the Parent and other holders of partnership interests in the
Borrower during the period of four consecutive fiscal quarters most recently
ending to the extent necessary for the Parent to distribute, and the Parent may
so distribute, cash dividends to its shareholders in an aggregate amount not to
exceed the greater of (i) the amount required to be distributed for the
Parent to remain in compliance with Section 7.13. or (ii) 95.0% of
Funds From Operations;


 


66

















 


(b)           the Borrower may make cash
distributions of capital gains to the Parent and other holders of partnership
interests in the Borrower to the extent necessary for the Parent to make, and
the Parent may make, cash distributions to its shareholders of capital gains
resulting from gains from certain asset sales to avoid payment of taxes on such
asset sales imposed under Sections 857(b)(3) and 4981 of the Internal Revenue
Code;


 


(c)           the Parent, the Borrower and any
other Subsidiary may acquire the Equity Interests of a Subsidiary that is not a
Wholly Owned Subsidiary;


 


(d)           a Subsidiary that is not a Wholly
Owned Subsidiary may make cash distributions to holders of Equity Interests
issued by such Subsidiary; and


 


(e)           Subsidiaries may make Restricted
Payments to the Parent, the Borrower or any other Subsidiary.


 


Notwithstanding
the foregoing, but subject to the following sentence, if a Default or Event of
Default exists, the Borrower may only declare and make cash distributions to
the Parent and other holders of partnership interests in the Borrower with
respect to any fiscal year to the extent necessary for the Parent to
distribute, and the Parent may so distribute, an aggregate amount not to exceed
the minimum amount necessary for the Parent to remain in compliance with
Section 7.13.  If a Default or Event
of Default specified in Section 10.1.(a), Section 10.1.(b),
Section 10.1.(f) or Section 10.1.(g) shall exist, or if as a result
of the occurrence of any other Event of Default any of the Obligations have
been accelerated pursuant to Section 10.2.(a), the Parent shall not, and
shall not permit the Borrower or any other Subsidiary to, make any Restricted
Payments to any Person other than to the Parent, the Borrower or any other
Subsidiary.


 


Section 9.3.  Indebtedness.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, incur, assume, or otherwise become obligated in
respect of any Indebtedness after the Agreement Date if immediately prior to
the assumption, incurring or becoming obligated in respect thereof, or
immediately thereafter and after giving effect thereto, a Default or Event of
Default is or would be in existence, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained
in Section 9.1.


 


Section 9.4.  Certain Permitted Investments.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, make any Investment in or otherwise own the following
items which would cause the aggregate value of such holdings of the Parent, the
Borrower, the other Loan Parties and the other Subsidiaries to exceed the
applicable limits set forth below:


 


(a)           Investments in Unconsolidated
Affiliates and other Persons that are not Subsidiaries, such that the aggregate
value of such Investments (determined in accordance with GAAP) to exceed 15.0%
of Consolidated Adjusted Asset Value at any time;


 


(b)           raw land, such that the current book
value of all raw land as a percentage of Consolidated Adjusted Asset Value
exceeds 5.0% at any time;


 


(c)           real property under construction such
that the aggregate Construction Budget for all such real property as a
percentage of Consolidated Adjusted Asset Value exceeds 7.5% at any time;


 


67

















 


(d)           Properties leased under ground leases
by the Parent or any of its Subsidiaries, as lessee, such that the value of
such Properties (determined in accordance with the applicable provisions of the
definition of Consolidated Adjusted Asset Value) exceeds 7.5% of Consolidated
Adjusted Asset Value at any time; and


 


(e)           Mortgage Receivables and Investments
in Persons (other than Investments in Subsidiaries and Unconsolidated
Affiliates), such that the aggregate value of such Mortgage Receivables and
Investments exceeds 5.0% of Consolidated Adjusted Asset Value at any time.


 


In
addition to the foregoing limitations, (i) the aggregate value of all of
the items subject to the limitations in the preceding clauses (a) through
(e) shall not exceed 25.0% of Consolidated Adjusted Asset Value at any time and
(ii) the aggregate value of all of the items subject to the limitations in
the preceding clauses (b) through (e) shall not exceed 15.0% of Consolidated
Adjusted Asset Value at any time.


 


Section 9.5.  Investments Generally.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, directly or indirectly, acquire, make or purchase any
Investment, or permit any Investment of such Person to be outstanding on and
after the Agreement Date, other than the following:


 


(a)           Investments in Subsidiaries in
existence on the Agreement Date and disclosed on Part I of
Schedule 6.1.(b);


 


(b)           Investments to acquire Equity
Interests of a Subsidiary or any other Person who after giving effect to such
acquisition would be a Subsidiary, so long as in each case (i) immediately
prior to such Investment, and after giving effect thereto, no Default or Event
of Default is or would be in existence and (ii) if such Subsidiary is (or
after giving effect to such Investment would become) a Material Subsidiary, and
is not an Excluded Subsidiary, the terms and conditions set forth in
Section 7.12. are satisfied;


 


(c)           Investments permitted under
Section 9.4.;


 


(d)           Investments in Cash Equivalents;


 


(e)           intercompany Indebtedness among the
Borrower and its Wholly Owned Subsidiaries provided that such Indebtedness is
permitted by the terms of Section 9.3.;


 


(f)            loans and advances to officers and
employees for moving, entertainment, travel and other similar expenses in the
ordinary course of business consistent with past practices; and


 


(g)           any other Investment so long as
immediately prior to making such Investment, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would be in
existence.


 


Section 9.6.  Liens; Negative Pledges; Other Matters.


 


(a)           The Parent and the Borrower shall
not, and shall not permit any other Loan Party or any other Subsidiary to,
create, assume, or incur any Lien (other than Permitted Liens) upon any of
their respective properties, assets, income or profits of any character whether
now owned or hereafter acquired if immediately prior to the creation,
assumption or incurring of such Lien, or immediately thereafter, a 


 


68

















 


Default
or Event of Default is or would be in existence, including without limitation,
a Default or Event of Default resulting from a violation of any of the
covenants contained in Section 9.1.


 


(b)           The Parent and the Borrower shall
not, and shall not permit any other Loan Party or any other Subsidiary to,
enter into, assume or otherwise be bound by any Negative Pledge except for a
Negative Pledge contained in (i) an agreement (x) evidencing
Indebtedness which the Parent, the Borrower, such Loan Party or such Subsidiary
may create, incur, assume, or permit or suffer to exist under
Section 9.3., (y) which Indebtedness is secured by a Lien permitted
to exist under the Loan Documents, and (z) which prohibits the creation of
any other Lien on (A) only the property securing such Indebtedness as of
the date such agreement was entered into and (B) if such property is owned
by an Excluded Subsidiary, the Equity Interests issued by such Excluded Subsidiary
or any Excluded Subsidiary that directly or indirectly owns Equity Interests in
such Excluded Subsidiary; (ii) in an agreement relating to the sale of a
Subsidiary or assets pending such sale, provided that in any such case the
Negative Pledge applies only to the Subsidiary or the assets that are the
subject of such sale; or (iii) Negative Pledges contained in the
agreements described on Schedule 9.6. to the extent such Negative Pledges
apply to Equity Interests issued by the Borrower or other Subsidiary of the Parent
identified on such Schedule.


 


(c)           The Parent and the Borrower shall
not, and shall not permit any other Loan Party or any other Subsidiary to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary (other
than an Excluded Subsidiary) to: 
(i) pay dividends or make any other distribution on any of such
Subsidiary’s capital stock or other equity interests owned by the Borrower or
any other Subsidiary; (ii) pay any Indebtedness owed to the Borrower or
any other Subsidiary; (iii) make loans or advances to the Borrower or any
other Subsidiary; or (iv) transfer any of its property or assets to the
Borrower or any other Subsidiary.


 


Section 9.7.  Merger, Consolidation, Sales of Assets and
Other Arrangements.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to:  (i) enter
into any transaction of merger or consolidation; (ii) liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution); or
(iii) convey, sell, lease, sublease, transfer or otherwise dispose of, in
one transaction or a series of transactions, all or substantially all of its
business or assets, whether now owned or hereafter acquired; provided, however,
that:


 


(a)           any of the actions described in the
immediately preceding clauses (i) through (iii) may be taken with respect
to any Subsidiary or any other Loan Party (other than the Parent and the
Borrower) so long as immediately prior to the taking of such action, and
immediately thereafter and after giving effect thereto, no Default or Event of
Default is or would be in existence; notwithstanding the foregoing, any Loan
Party (other than the Parent and the Borrower) may enter into a transaction of
merger pursuant to which such Loan Party is not the survivor of such merger
only if (i) the Borrower shall have given the Administrative Agent and the
Lenders at least 10 Business Days’ prior written notice of such merger, such notice to include a certification to the
effect that immediately after and after giving effect to such action, no
Default or Event of Default is or would be in existence; (ii) if the
survivor entity is a Material Subsidiary (and not an Excluded Subsidiary)
within 10 Business Days of consummation of such merger, the survivor entity (if
not already a Guarantor) shall have executed and delivered an assumption
agreement in form and substance satisfactory to the Administrative Agent
pursuant to which such survivor entity shall expressly assume all of such Loan
Party’s Obligations under the Loan Documents to which it is a party;
(iii) within 30 days of consummation of such merger, the survivor entity
delivers to the Administrative Agent the following:  (A) items of the type referred to in
Sections Section 5.1.(a)(v) through (a)(ix) and (a)(xvi) with respect
to the survivor entity as in effect after consummation of such merger (if not
previously delivered to the Administrative Agent and still in effect),
(B) copies of all 


 


69

















 


documents
entered into by such Loan Party or the survivor entity to effectuate the
consummation of such merger, including, but not limited to, articles of merger
and the plan of merger, (C) copies, certified by the Secretary or
Assistant Secretary (or other individual performing similar functions) of such
Loan Party or the survivor entity, of all corporate and shareholder action
authorizing such merger and (D) copies of any filings with the Securities
and Exchange Commission in connection with such merger; and (iv) such Loan
Party and the survivor entity each takes such other action and delivers such
other documents, instruments, opinions and agreements as the Administrative
Agent may reasonably request;


 


(b)           the Parent, the Borrower, the other
Loan Parties and the other Subsidiaries may lease and sublease their respective
assets, as lessor or sublessor (as the case may be), in the ordinary course of
their business;


 


(c)           a Person may merge with and into the
Parent or the Borrower so long as (i) the Parent or the Borrower is the
survivor of such merger, (ii) immediately prior to such merger, and
immediately thereafter and after giving effect thereto, no Default or Event of
Default is or would be in existence and (iii) the Borrower shall have
given the Administrative Agent and the Lenders at least 10 Business Days’ prior
written notice of such merger, such notice
to include a certification as to the matters described in the immediately
preceding clause (ii) (except that such prior notice shall not be
required in the case of the merger of a Subsidiary with and into the Borrower
or a Subsidiary (other than the Borrower) with and into the Parent); and


 


(d)           the Parent, the Borrower, the other
Loan Parties and the other Subsidiaries may sell, transfer or dispose of assets
among themselves.


 


Section 9.8.  Fiscal Year.


 


The
Parent shall not change its fiscal year from that in effect as of the Agreement
Date.


 


Section 9.9.  Modifications to Material Contracts.


 


The Parent and the Borrower shall not, and shall not
permit any other Loan Party or any other Subsidiary to, enter into any amendment or modification
to any Material Contract which could reasonably be expected to have a Material
Adverse Effect.


 


Section 9.10.  Modifications of Organizational Documents.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, amend, supplement, restate or otherwise modify its
articles or certificate of incorporation, by-laws, operating agreement,
declaration of trust, partnership agreement or other applicable organizational
document if such amendment, supplement, restatement or other modification could
reasonably be expected to have a Material Adverse Effect.


 


Section 9.11.  Transactions with Affiliates.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, permit to exist or enter into, any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (other than a Loan Party), except
(a) transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of the Parent, the Borrower or any of its other
Subsidiaries and upon fair and reasonable terms which are no less favorable to
the Parent, the Borrower or such Subsidiary than would be obtained in a


 


70






 












 


comparable
arm’s length transaction with a Person that is not an Affiliate and
(b) transactions among Loan Parties.


 


Section 9.12.  Plans.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, permit any of its respective assets to become or be
deemed to be “plan assets” within the meaning of ERISA, the Internal Revenue
Code and the respective regulations promulgated thereunder.  The Parent and the Borrower shall not cause,
and shall not permit any other member of the ERISA Group to cause, any ERISA
Event if such ERISA Event could reasonably be expected to have a Material
Adverse Effect.


 


Section 9.13.  Derivatives Contracts.


 


The
Parent and the Borrower shall not, and shall not permit any other Loan Party or
other Subsidiary to, enter into or become obligated in respect of, Derivatives
Contracts other than Derivatives Contracts entered into by the Parent, the
Borrower, any other Loan Party or other Subsidiary in the ordinary course of
business and which establish an effective hedge in respect of liabilities,
commitments or assets held or reasonably anticipated by such Person.


 


ARTICLE X. DEFAULT


 


Section 10.1.  Events of Default.


 


Each
of the following shall constitute an Event of Default, whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of Applicable Law or pursuant to any judgment or order of any
Governmental Authority:


 


(a)                                 Default in
Payment of Principal.  The
Borrower shall fail to pay when due (whether upon demand, at maturity, by
reason of acceleration or otherwise) the principal of any of the Loans, or any
Reimbursement Obligation.


 


(b)                                 Default in
Payment of Interest and Other Obligations.  The Borrower shall fail to pay when due any interest
on any of the Loans or any of the other payment Obligations owing by the
Borrower under this Agreement or any other Loan Document, or any other Loan
Party shall fail to pay when due any payment Obligation owing by such other
Loan Party under any Loan Document to which it is a party, and such failure
shall continue for a period of 5 Business Days.


 


(c)                                  Default in
Performance. 
(i) The Parent or the Borrower shall fail to perform or observe any
term, covenant, condition or agreement contained in Section 7.13.,
Section 8.4.(h) or in Article IX. or (ii) the Parent, the
Borrower or any other Loan Party shall fail to perform or observe any term,
covenant, condition or agreement contained in this Agreement or any other Loan
Document to which it is a party and not otherwise mentioned in this Section and
in the case of this clause (ii) only such failure shall continue for
a period of 30 days after the date upon which the Parent or the Borrower
has received written notice of such failure from the Administrative Agent.


 


(d)                                 Misrepresentations.  Any written statement, representation or
warranty made or deemed made by or on behalf of the Parent, the Borrower or any
other Loan Party under this Agreement or under any other Loan Document, or any
amendment hereto or thereto, or in any other writing or statement at any time
furnished or made or deemed made by or on behalf of the Parent, the Borrower or
any other Loan Party to the Administrative Agent or any Lender, shall at any
time prove to have been incorrect or


 


71

















 


misleading,
in light of the circumstances in which made or deemed made, in any material
respect when furnished or made or deemed made.


 


(e)                                  Indebtedness
Cross-Default; Derivatives Contracts.


 


(i)                                     The Parent, the
Borrower, any other Loan Party or any other Subsidiary shall fail to pay when
due and payable, within any applicable grace or cure period (not to exceed 30
days), the principal of, or interest on, any Indebtedness (other than the Loans
and Reimbursement Obligations) having an aggregate outstanding principal amount
(or, in the case of any Derivatives Contract, having, without regard to the
effect of any close-out netting provision, a Derivatives Termination Value) of
$10,000,000 or more (or $25,000,000 or more in the case of Nonrecourse
Indebtedness) (all such Indebtedness being “Material Indebtedness”); or


 


(ii)                                  (x) the
maturity of any Material Indebtedness shall have been accelerated in accordance
with the provisions of any indenture, contract or instrument evidencing,
providing for the creation of or otherwise concerning such Material
Indebtedness or (y) any Material Indebtedness shall have been required to
be prepaid or repurchased prior to the stated maturity thereof;


 


(iii)                               any other event
shall have occurred and be continuing which permits any holder or holders of
Material Indebtedness, any trustee or agent acting on behalf of such holder or
holders or any other Person, to accelerate the maturity of any such Material
Indebtedness or require any such Material Indebtedness to be prepaid or
repurchased prior to its stated maturity; or


 


(iv)                              there occurs an
“Event of Default” under and as defined in any Specified Derivatives Contract
as to which the Parent, the Borrower or any other Loan Party is a “Defaulting
Party” (as defined therein), or there occurs an “Early Termination Date” (as
defined therein) in respect of any Specified Derivatives Contract as a result
of a “Termination Event” (as defined therein) as to which the Parent, the
Borrower or any other Loan Party is an “Affected Party” (as defined therein).


 


(f)                                   Voluntary
Bankruptcy Proceeding.  The
Parent, the Borrower, any other Loan Party, or any Excluded Subsidiary that is
a Significant Subsidiary shall: 
(i) commence a voluntary case under the Bankruptcy Code of 1978, as
amended, or other federal bankruptcy laws (as now or hereafter in effect);
(ii) file a petition seeking to take advantage of any other Applicable
Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; (iii) consent to, or
fail to contest in a timely and appropriate manner, any petition filed against
it in an involuntary case under such bankruptcy laws or other Applicable Laws
or consent to any proceeding or action described in the immediately following
subsection; (iv) apply for or consent to, or fail to contest in a timely
and appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign; (v) admit in writing its inability
to pay its debts as they become due; (vi) make a general assignment for
the benefit of creditors; (vii) make a conveyance fraudulent as to creditors
under any Applicable Law; or (viii) take any corporate or partnership
action for the purpose of effecting any of the foregoing.


 


(g)                                  Involuntary
Bankruptcy Proceeding.  A
case or other proceeding shall be commenced against the Parent, the Borrower,
any other Loan Party, or any Excluded Subsidiary that is a Significant
Subsidiary in any court of competent jurisdiction seeking:  (i) relief under the Bankruptcy Code of
1978, as amended, or other federal bankruptcy laws (as now or hereafter in
effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or


 


72

















 


composition
or adjustment of debts; or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of such Person, or of all or any substantial
part of the assets, domestic or foreign, of such Person, and such case or
proceeding shall continue undismissed or unstayed for a period of
60 consecutive calendar days, or an order granting the remedy or other
relief requested in such case or proceeding against such Person (including, but
not limited to, an order for relief under such Bankruptcy Code or such other
federal bankruptcy laws) shall be entered.


 


(h)                                 Litigation;
Enforceability.  The Parent,
the Borrower or any other Loan Party shall disavow, revoke or terminate (or
attempt to terminate) any Loan Document to which it is a party or shall
otherwise challenge or contest in any action, suit or proceeding in any court
or before any Governmental Authority the validity or enforceability of this
Agreement, or any other Loan Document or this Agreement or any other Loan
Document shall cease to be in full force and effect (except as a result of the
express terms thereof).


 


(i)                                     Judgment.  A judgment or order for the payment of money
or for an injunction shall be entered against the Parent, the Borrower, any
other Loan Party or any other Subsidiary, by any court or other tribunal and
(i) such judgment or order shall continue for a period of 30 days without
being paid, stayed or dismissed through appellate proceedings prosecuted by the
Borrower in good faith and (ii) either (A) the amount of such
judgment or order for which insurance has not been acknowledged in writing by
the applicable insurance carrier (or the amount as to which the insurer has
denied liability) exceeds, individually or together with all other such
outstanding judgments or orders entered against (X) the Parent, the
Borrower and the other Loan Parties, $10,000,000 or (Y)  other Subsidiaries,
$50,000,000 or (B) in the case of an injunction or other non-monetary
judgment, such injunction or judgment could reasonably be expected to have a
Material Adverse Effect.


 


(j)                                    Attachment.  A warrant, writ of attachment, execution or
similar process shall be issued against any property of the Parent, the
Borrower, any other Loan Party or any other Subsidiary which exceeds,
individually or together with all other such warrants, writs, executions and
processes, (i) for the Parent, the Borrower and the other Loan Parties
$10,000,000 or (ii) for all other Subsidiaries $50,000,000, and such
warrant, writ, execution or process shall not be discharged, vacated, stayed or
bonded for a period of 30 days; provided, however, that if a bond has been
issued in favor of the claimant or other Person obtaining such warrant, writ,
execution or process, the issuer of such bond shall execute a waiver or
subordination agreement in form and substance satisfactory to the
Administrative Agent pursuant to which the issuer of such bond subordinates its
right of reimbursement, contribution or subrogation to the Obligations and
waives or subordinates any Lien it may have on the assets of any Loan Party.


 


(k)                                 ERISA.


 


(i)                                     Any ERISA Event
shall have occurred that results or could reasonably be expected to result in
liability to any member of the ERISA Group aggregating in excess of
$10,000,000; or


 


(ii)                                  The “benefit
obligation” of all Plans exceeds the “fair market value of plan assets” for
such Plans by more than $10,000,000, all as determined, and with such terms
defined, in accordance with FASB ASC 715.


 


(l)                                     Loan Documents.  An Event of Default (as defined therein)
shall occur under any of the other Loan Documents.


 


73

















 


(m)                             Change of Control/Change
in Management.


 


(i)                                     Any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person will be deemed to have “beneficial
ownership” of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 30.0% of the total voting power of the
then outstanding voting stock of the Parent;


 


(ii)                                  During any
period of 12 consecutive months ending after the Agreement Date, individuals
who at the beginning of any such 12-month period constituted the Board of
Directors of the Parent (together with any new directors whose election by such
Board or whose nomination for election by the shareholders of the Parent was
approved by a vote of a at least two-thirds of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved but excluding
any director whose initial nomination for, or assumption of office as, a
director occurs as a result of an actual or threatened solicitation of proxies
or consents for the election or removal of one or more directors by any person
or group other than a solicitation for the election of one or more directors by
or on behalf of the Board of Directors) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in office;


 


(iii)                               The Parent or a
Wholly Owned Subsidiary of the Parent shall cease to be the sole general
partner of the Borrower or shall cease to have the sole and exclusive power to
exercise all management and control over the Borrower; or


 


(iv)                              The Parent
shall cease to own and control, directly or indirectly, of record and
beneficially, at least 75% of the outstanding Equity Interests of the Borrower
free and clear of all Liens (other than Permitted Liens of the types referred
to in clauses (a), (b), (c) and (e) of the definition of Permitted
Lien).


 


(n)                                 Validity of
Material Loan Documents. 
Either this Agreement or the Guaranty shall cease to be in full force
and effect (other than in accordance with the terms thereof).


 


Section 10.2.  Remedies Upon Event of Default.


 


Upon
the occurrence of an Event of Default the following provisions shall apply:


 


(a)                                 Acceleration;
Termination of Facilities.


 


(i)                                     Automatic.  Upon the occurrence of an Event of Default
specified in Section 10.1.(f) or 10.1.(g), (A)(i) the principal
of, and all accrued interest on, the Loans and the Notes at the time
outstanding, (ii) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of such Event of Default
for deposit into the Collateral Account pursuant to Section 10.6. and
(iii) all of the other Obligations (other than obligations in respect of
Derivatives Contracts), including, but not limited to, the other amounts owed
to the Lenders, the Swingline Lender and the Administrative Agent under this
Agreement, the Notes or any of the other Loan Documents shall become
immediately and automatically due and payable without presentment, demand,
protest, or other notice of any kind, all of which are expressly waived by the
Borrower and (B) all of the Commitments, the obligation of the Lenders to
make Loans, the Swingline Commitment, the obligation of the Swingline Lender to
make


 


74

















 


Swingline
Loans, and the obligation of the Administrative Agent to issue Letters of
Credit hereunder, shall all immediately and automatically terminate.


 


(ii)                                  Optional.  If any other Event of Default shall exist,
the Administrative Agent may, and at the direction of the Requisite Lenders
shall:  (A) declare (1) the
principal of, and accrued interest on, the Loans and the Notes at the time
outstanding, (2) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of such other Event of
Default for deposit into the Collateral Account pursuant to Section 10.6.
and (3) all of the other Obligations (other than obligations in respect of
Derivatives Contracts), including, but not limited to, the other amounts owed
to the Lenders and the Administrative Agent under this Agreement, the Notes or
any of the other Loan Documents to be forthwith due and payable, whereupon the
same shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived by the
Borrower and (B) terminate the Commitments, the Swingline Commitment, the
obligation of the Lenders to make Loans hereunder and the obligation of the
Administrative Agent to issue Letters of Credit hereunder.


 


(b)                                 Loan Documents.  The Requisite Lenders may direct the
Administrative Agent to, and the Administrative Agent if so directed shall,
exercise any and all of its rights under any and all of the other Loan
Documents.


 


(c)                                  Applicable Law.  The Requisite Lenders may direct the
Administrative Agent to, and the Administrative Agent if so directed shall,
exercise all other rights and remedies it may have under any Applicable Law.


 


(d)                                 Appointment of
Receiver.  To the
extent permitted by Applicable Law, the Administrative Agent and the Lenders
shall be entitled to the appointment of a receiver for the assets and
properties of the Borrower and its Subsidiaries, without notice of any kind
whatsoever and without regard to the adequacy of any security for the
Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.


 


(e)                                  Specified
Derivatives Contract Remedies.  Notwithstanding any other provision of this
Agreement or other Loan Document, each Specified Derivatives Provider shall
have the right, with prompt notice to the Administrative Agent, but without the
approval or consent of or other action by the Administrative Agent or the
Lenders, and without limitation of other remedies available to such Specified
Derivatives Provider under contract or Applicable Law, to undertake any of the
following: (i) to declare an event of default, termination event or other
similar event under any Specified Derivatives Contract and to create an “Early
Termination Date” (as defined therein) in respect thereof, (ii) to
determine net termination amounts in respect of any and all Specified Derivatives
Contracts in accordance with the terms thereof, and to set off amounts among
such contracts, and (iii) to prosecute any legal action against the
Parent, the Borrower or any other Loan Party to enforce or collect net amounts
owing to such Specified Derivatives Provider by any such Person pursuant to any
Specified Derivatives Contract.


 


Section 10.3.  Remedies Upon Default.


 


Upon
the occurrence of a Default specified in Section 10.1.(g), the Commitments
shall immediately and automatically terminate.


 


75

















 


Section 10.4.  Marshaling; Payments Set Aside.


 


None
of the Administrative Agent, any Lender or any Specified Derivatives Provider
shall be under any obligation to marshal any assets in favor of any Loan Party
or any other party or against or in payment of any or all of the Obligations or
the Specified Derivatives Obligations. 
To the extent that any Loan Party makes a payment or payments to the
Administrative Agent, any Lender or any Specified Derivatives Provider, or the
Administrative Agent, any Lender or any Specified Derivatives Provider enforces
any Lien or exercises any of its rights of setoff, and such payment or payments
or the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
to be repaid to a trustee, receiver or any other party under any bankruptcy law
or other Applicable Law, then to the extent of such recovery, the Obligations
or Specified Derivatives Obligations, or part thereof originally intended to be
satisfied, and all Liens, rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.


 


Section 10.5.  Allocation of Proceeds.


 


If
an Event of Default shall exist and maturity of any of the Obligations has been
accelerated, or if an Event of Default specified in Section 10.1.(a) and/or
(b) shall exist, all payments received by the Administrative Agent under
any of the Loan Documents, in respect of any principal of or interest on the
Obligations or any other amounts payable by the Borrower hereunder or
thereunder, shall be applied in the following order and priority:


 


(a)                                 amounts due the
Administrative Agent in respect of fees and expenses due under
Section 12.2.;


 


(b)                                 amounts due the
Lenders in respect of fees and expenses due under Section 12.2., pro rata
in the amount then due each Lender;


 


(c)                                  payments of
interest on Swingline Loans;


 


(e)                                  payments of
interest on all other Loans and Reimbursement Obligations to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may determine in
their sole discretion;


 


(f)                                   payments of
principal of Swingline Loans;


 


(g)                                  payments of
principal of all other Loans, Reimbursement Obligations and other Letter of
Credit Liabilities, to be applied for the ratable benefit of the Lenders, in
such order as the Lenders may determine in their sole discretion; provided,
however, to the extent that any amounts available for distribution pursuant to
this subsection are attributable to the issued but undrawn amount of an
outstanding Letter of Credit, such amounts shall be paid to the Administrative
Agent for deposit into the Collateral Account;


 


(h)                                 amounts due the
Administrative Agent and the Lenders pursuant to Sections 11.7. and 12.9.;


 


(i)                                     payment of all
other Obligations and other amounts due and owing by the Borrower and the other
Loan Parties under any of the Loan Documents, if any, to be applied for the
ratable benefit of the Lenders; and


 


76

















 


(j)                                    any amount
remaining after application as provided above, shall be paid to the Borrower or
whomever else may be legally entitled thereto.


 


Section 10.6.  Collateral Account.


 


(a)                                 As collateral
security for the prompt payment in full when due of all Letter of Credit
Liabilities and the other Obligations, the Borrower hereby pledges and grants
to the Administrative Agent, for the ratable benefit of the Administrative
Agent and the Lenders as provided herein, a security interest in all of its
right, title and interest in and to the Collateral Account and the balances
from time to time in the Collateral Account (including the investments and
reinvestments therein provided for below). 
The balances from time to time in the Collateral Account shall not
constitute payment of any Letter of Credit Liabilities until applied by the
Administrative Agent as provided herein. 
Anything in this Agreement to the contrary notwithstanding, funds held
in the Collateral Account shall be subject to withdrawal only as provided in
this Section.


 


(b)                                 Amounts on
deposit in the Collateral Account shall be invested and reinvested by the
Administrative Agent in such Cash Equivalents as the Administrative Agent shall
determine in its sole discretion.  All
such investments and reinvestments shall be held in the name of and be under
the sole dominion and control of the Administrative Agent for the ratable
benefit of the Lenders.  The
Administrative Agent shall exercise reasonable care in the custody and
preservation of any funds held in the Collateral Account and shall be deemed to
have exercised such care if such funds are accorded treatment substantially
equivalent to that which the Administrative Agent accords other funds deposited
with the Administrative Agent, it being understood that the Administrative
Agent shall not have any responsibility for taking any necessary steps to
preserve rights against any parties with respect to any funds held in the
Collateral Account.


 


(c)                                  If a drawing
pursuant to any Letter of Credit occurs on or prior to the expiration date of
such Letter of Credit, the Borrower and the Lenders authorize the
Administrative Agent to use the monies deposited in the Collateral Account and
proceeds thereof to make payment to the beneficiary with respect to such
drawing or the payee with respect to such presentment.


 


(d)                                 If an Event of
Default exists, the Requisite Lenders may, in their discretion, at any time and
from time to time, instruct the Administrative Agent to liquidate any such
investments and reinvestments and apply proceeds thereof to the Obligations in
accordance with Section 10.5.


 


(e)                                  So long as no
Default or Event of Default exists, and to the extent amounts on deposit in or
credited to the Collateral Account exceed the aggregate amount of the Letter of
Credit Liabilities then due and owing, the Administrative Agent shall, from
time to time, at the request of the Borrower, deliver to the Borrower within 10
Business Days after the Administrative Agent’s receipt of such request from the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, such amount of the credit balances in the Collateral Account as
exceeds the aggregate amount of the Letter of Credit Liabilities at such time.


 


(f)                                   The Borrower
shall pay to the Administrative Agent from time to time such fees as the
Administrative Agent normally charges for similar services in connection with
the Administrative Agent’s administration of the Collateral Account and
investments and reinvestments of funds therein.


 


Section 10.7.  Performance by Administrative Agent.


 


If
the Borrower or any other Loan Party shall fail to perform any covenant, duty
or agreement contained in any of the Loan Documents, the Administrative Agent
may, after notice to the Borrower,


 


77

















 


perform
or attempt to perform such covenant, duty or agreement on behalf of the
Borrower or such other Loan Party after the expiration of any cure or grace
periods set forth herein.  In such event,
the Borrower shall, at the request of the Administrative Agent, promptly pay
any amount reasonably expended by the Administrative Agent in such performance
or attempted performance to the Administrative Agent, together with interest
thereon at the applicable Post-Default Rate from the date of such expenditure
until paid.  Notwithstanding the
foregoing, neither the Administrative Agent nor any Lender shall have any
liability or responsibility whatsoever for the performance of any obligation of
the Borrower under this Agreement or any other Loan Document.


 


Section 10.8.  Rights Cumulative.


 


The
rights and remedies of the Administrative Agent and the Lenders under this
Agreement, each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law.  In exercising their
respective rights and remedies the Administrative Agent and the Lenders may be
selective and no failure or delay by the Administrative Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.


 


ARTICLE XI. THE
ADMINISTRATIVE AGENT


 


Section 11.1.  Authorization and Action.


 


Each
Lender hereby appoints and authorizes the Administrative Agent to take such
action as contractual representative on such Lender’s behalf and to exercise
such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto.  Not in limitation of the foregoing, each
Lender authorizes and directs the Administrative Agent to enter into the Loan
Documents for the benefit of the Lenders. 
Each Lender hereby agrees that, except as otherwise set forth herein,
any action taken by the Requisite Lenders in accordance with the provisions of
this Agreement or the Loan Documents, and the exercise by the Requisite Lenders
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of
the Lenders.  Nothing herein shall be
construed to deem the Administrative Agent a trustee or fiduciary for any
Lender or to impose on the Administrative Agent duties or obligations other
than those expressly provided for herein. 
Without limiting the generality of the foregoing, the use of the terms “Administrative
Agent”, “Administrative Agent”, “agent” and similar terms in the Loan Documents
with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any Applicable Law.  Instead,
use of such terms is merely a matter of market custom, and is intended to
create or reflect only an administrative relationship between independent
contracting parties.  At the request of a
Lender, the Administrative Agent will forward to such Lender copies or, where
appropriate, originals of the documents delivered to the Administrative Agent
pursuant to this Agreement or the other Loan Documents.  The Administrative Agent will also furnish to
any Lender, upon the request of such Lender, a copy of any certificate or
notice furnished to the Administrative Agent by the Borrower, any other Loan
Party or any other Affiliate of the Borrower, pursuant to this Agreement or any
other Loan Document not already delivered to such Lender pursuant to the terms
of this Agreement or any such other Loan Document.  As to any matters not expressly provided for
by the Loan Documents (including, without limitation, enforcement or collection
of any of the Obligations), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Requisite Lenders (or all of the
Lenders if explicitly required under any other provision of this Agreement),
and such instructions shall be binding


 


78

















 


upon
all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Administrative
Agent shall not be required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this Agreement or any other
Loan Document or Applicable Law.  Not in
limitation of the foregoing, the Administrative Agent may exercise any right or
remedy it or the Lenders may have under any Loan Document upon the occurrence
of a Default or an Event of Default unless the Requisite Lenders have directed
the Administrative Agent otherwise. 
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting under this Agreement or any of the other
Loan Documents in accordance with the instructions of the Requisite Lenders, or
where applicable, all the Lenders.


 


Section 11.2.  Administrative Agent’s Reliance, Etc.


 


Notwithstanding
any other provisions of this Agreement or any other Loan Documents, neither the
Administrative Agent nor any of its directors, officers, agents, employees or
counsel shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement or any other Loan Document,
except for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment.  Without limiting the
generality of the foregoing, the Administrative Agent:  (a) may treat the payee of any Note as
the holder thereof until the Administrative Agent receives written notice of
the assignment or transfer thereof signed by such payee and in form
satisfactory to the Administrative Agent; (b) may consult with legal
counsel (including its own counsel or counsel for the Borrower or any other
Loan Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts;
(c) makes no warranty or representation to any Lender or any other Person
and shall not be responsible to any Lender or any other Person for any
statements, warranties or representations made by any Person in or in
connection with this Agreement or any other Loan Document; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any of this Agreement or any other
Loan Document or the satisfaction of any conditions precedent under this
Agreement or any Loan Document on the part of the Borrower or other Persons
(except for the delivery to it of any certificate or document specifically
required to be delivered to it pursuant to Section 5.1.) or inspect the
property, books or records of the Borrower or any other Person; (e) shall
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Document, any other instrument or document furnished pursuant
thereto or any collateral covered thereby or the perfection or priority of any
Lien in favor of the Administrative Agent on behalf of the Lenders in any such
collateral; and (f) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone,
telecopy, or electronic mail) believed by it to be genuine and signed, sent or
given by the proper party or parties. 
The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents, employees or attorneys-in-fact.  Unless
set forth in writing to the contrary, the making of its initial Loan by a
Lender shall constitute a certification by such Lender to the Administrative
Agent and the other Lenders that the Borrower has satisfied the conditions
precedent for initial Loans set forth in Sections 5.1. and 5.2. that have
not previously been waived by the Requisite Lenders.


 


Section 11.3.  Notice of Defaults.


 


The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing with reasonable specificity such Default or Event of Default and
stating that such notice is a “notice of default.”  If any Lender (excluding the Lender which is


 


79

















 


also
serving as the Administrative Agent) becomes aware of any Default or Event of
Default, it shall promptly send to the Administrative Agent such a “notice of
default.”  Further, if the Administrative
Agent receives such a “notice of default”, the Administrative Agent shall give
prompt notice thereof to the Lenders.


 


Section 11.4.  Administrative Agent as Lender.


 


The
Lender acting as Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated, include the Lender
then acting as Administrative Agent in each case in its individual
capacity.  Such Lender and its Affiliates
may each accept deposits from, maintain deposits or credit balances for, invest
in, lend money to, act as trustee under indentures of, serve as financial
advisor to, and generally engage in any kind of business with, the Borrower,
any other Loan Party or any other Affiliate thereof as if it were any other
bank and without any duty to account therefor to the Lenders.  Further, such Lender and any Affiliate may
accept fees and other consideration from the Borrower for services in
connection with this Agreement, any Specified Derivatives Contract or otherwise
without having to account for the same to the Lenders.  The Lenders acknowledge that, pursuant to
such activities, the Lender acting as Administrative Agent or its Affiliates
may receive information regarding the Borrower, other Loan Parties, other
Subsidiaries and other Affiliates (including information that may be subject to
confidentiality obligations in favor of such Person) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information
to them.


 


Section 11.5.  Approvals of Lenders.


 


All
communications from the Administrative Agent to any Lender requesting such
Lender’s determination, consent, approval or disapproval (a) shall be
given in the form of a written notice to such Lender, (b) shall be
accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise
such Lender where information, if any, regarding such matter or issue may be
inspected, or shall otherwise describe the matter or issue to be resolved,
(c) shall include, if reasonably requested by such Lender and to the
extent not previously provided to such Lender, written materials and, as
appropriate, a brief summary of all oral information provided to the
Administrative Agent by the Borrower in respect of the matter or issue to be
resolved, and (d) shall include the Administrative Agent’s recommended
course of action or determination in respect thereof.  Each Lender shall reply promptly, but in any
event within 15 Business Days (or such lesser or greater period as may be
specifically required under the Loan Documents) of receipt of such communication.  Except as otherwise provided in this
Agreement, unless a Lender shall give written notice to the Administrative
Agent that it specifically objects to the recommendation or determination of
the Administrative Agent (together with a written explanation of the reasons
behind such objection) within the applicable time period for reply, such Lender
shall be deemed to have conclusively approved of or consented to such
recommendation or determination; provided, however, that this sentence shall not apply to amendments,
waivers or consents that require the written consent of each Lender adversely
affected thereby pursuant to Section 12.6.(b).


 


Section 11.6.  Lender Credit Decision, Etc.


 


Each
Lender expressly acknowledges and agrees that neither the Administrative Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other Affiliates has made any representations or
warranties as to the financial condition, operations, creditworthiness,
solvency or other information concerning the business or affairs of the
Borrower, any other Loan Party, any Subsidiary or any other Person to such
Lender and that no act by the Administrative Agent hereafter taken, including


 


80
















 


any
review of the affairs of the Borrower, any other Loan Party or any other
Subsidiary, shall be deemed to constitute any such representation or warranty
by the Administrative Agent to any Lender. 
Each Lender acknowledges that it has made its own credit and legal
analysis and decision to enter into this Agreement and the transactions
contemplated hereby, independently and without reliance upon the Administrative
Agent, any other Lender or counsel to the Administrative Agent, or any of their
respective officers, directors, employees and agents, and based on the
financial statements of the Borrower, the Subsidiaries or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Borrower, the other Loan Parties, the Subsidiaries
and other Persons, its review of the Loan Documents, the legal opinions
required to be delivered to it hereunder, the advice of its own counsel and
such other documents and information as it has deemed appropriate.  Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, any other
Lender or counsel to the Administrative Agent or any of their respective
officers, directors, employees and agents, and based on such review, advice,
documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under the Loan
Documents.  The Administrative Agent
shall not be required to keep itself informed as to the performance or
observance by the Borrower or any other Loan Party of the Loan Documents or any
other document referred to or provided for therein or to inspect the properties
or books of, or make any other investigation of, the Borrower, any other Loan
Party or any other Person.  Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent under this Agreement or
any of the other Loan Documents, the Administrative Agent shall have no duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which may come into possession of the Administrative Agent, or any of
its officers, directors, employees, agents, attorneys-in-fact or other
Affiliates.  Each Lender acknowledges
that the Administrative Agent’s legal counsel in connection with the
transactions contemplated by this Agreement is only acting as counsel to the
Administrative Agent and is not acting as counsel to such Lender.


 


Section 11.7.  Indemnification of Administrative Agent.


 


Each
Lender agrees to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so) pro rata in accordance with such Lender’s respective Commitment
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, reasonable out-of-pocket costs
and expenses, or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against the Administrative
Agent (in its capacity as Administrative Agent but not as a Lender) in any way
relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Administrative Agent
under the Loan Documents (collectively, “Indemnifiable Amounts”); provided,
however, that no Lender shall be liable for any portion of such Indemnifiable
Amounts to the extent resulting from the Administrative Agent’s gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment or if the Administrative Agent
fails to follow the written direction of the Requisite Lenders (or all of the
Lenders if expressly required hereunder) unless such failure results from the
Administrative Agent following the advice of counsel to the Administrative
Agent of which advice the Lenders have received notice.  Without limiting the generality of the
foregoing but subject to the preceding proviso, each Lender agrees to reimburse
the Administrative Agent (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees of
the counsel(s) of the Administrative Agent’s own choosing) incurred by the
Administrative Agent in connection with the preparation, negotiation,
execution, administration, or enforcement of, or legal advice with respect to
the rights or responsibilities of the parties under, the Loan Documents, any
suit or action brought by the Administrative Agent to


 


81

















 


enforce
the terms of the Loan Documents and/or collect any Obligations, any “lender
liability” suit or claim brought against the Administrative Agent and/or the
Lenders, and any claim or suit brought against the Administrative Agent, and/or
the Lenders arising under any Environmental Laws.  Such out-of-pocket expenses (including
counsel fees) shall be advanced by the Lenders on the request of the
Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent
will reimburse the Lenders if it is actually and finally determined by a court
of competent jurisdiction that the Administrative Agent is not so entitled to
indemnification.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder or
under the other Loan Documents and the termination of this Agreement.  If the Borrower shall reimburse the
Administrative Agent for any Indemnifiable Amount following payment by any
Lender to the Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Administrative Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.


 


Section 11.8.  Successor Administrative Agent.


 


The
Administrative Agent may (i) resign as Administrative Agent under the Loan
Documents at any time by giving written notice thereof to the Lenders and the
Borrower or (ii) be removed as Administrative Agent under the Loan
Documents if (x) the Administrative Agent is a Defaulting Lender or (y) for
any acts or omissions of the Administrative Agent that constitute gross
negligence or willful misconduct of the Administrative Agent, in each case by
the Requisite Lenders (other than the Lender then acting as the Administrative
Agent) upon not less than 30 days’ prior written notice to the Administrative
Agent.  Upon any such resignation or
removal, the Requisite Lenders (other than the Lender then acting as the
Administrative Agent in the case of the removal of the Administrative Agent
under the immediately preceding sentence) shall have the right to appoint a
successor Administrative Agent which appointment shall, provided no Default or
Event of Default exists, be subject to the Borrower’s approval, which approval
shall not be unreasonably withheld or delayed (except that the Borrower shall,
in all events, be deemed to have approved each Lender and any of its Affiliates
as a successor Administrative Agent).  If
no successor Administrative Agent shall have been so appointed in accordance
with the immediately preceding sentence, and shall have accepted such
appointment, within thirty (30) days after the resigning Administrative Agent’s
giving of notice of resignation or the Lenders’ removal of the Administrative
Agent, then the resigning or removed Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a Lender, if
any Lender shall be willing to serve, and otherwise shall be an Eligible
Assignee.  Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring or removed Administrative Agent, and the retiring or removed
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents.  Such successor
Administrative Agent shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or shall
make other arrangements satisfactory to the current Administrative Agent, in
either case, to assume effectively the obligations of the current
Administrative Agent with respect to such Letters of Credit.  After any Administrative Agent’s resignation
or removal hereunder as Administrative Agent, the provisions of this Article XI. shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents. 
Notwithstanding anything contained herein to the contrary, the
Administrative Agent may assign its rights and duties under the Loan Documents
to any of its Affiliates by giving the Borrower and each Lender prior written
notice.


 


82

















 


Section 11.9.  Titled Agents.


 


Each
of the Titled Agents in each such respective capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Loans, or for any duties as
an agent hereunder for the Lenders.  The
titles of “ Joint Lead Arranger”, “Joint Bookrunner”, “Syndication Agent” and “Documentation
Agent” are solely honorific and imply no fiduciary responsibility on the part
of the Titled Agents to the Administrative Agent, the Borrower or any Lender
and the use of such titles does not impose on the Titled Agents any duties or
obligations greater than those of any other Lender or entitle the Titled Agents
to any rights other than those to which any other Lender is entitled.


 


ARTICLE XII. MISCELLANEOUS


 


Section 12.1.  Notices.


 


Unless
otherwise provided herein, communications provided for hereunder shall be in
writing and shall be mailed, telecopied or delivered as follows:


 


If
to the Borrower:


 


U-STORE-IT,
L.P.


c/o
U-Store-It Trust


460
Swedesford Road, Suite 3000


Wayne,
Pennsylvania  19087


Attn: 
Chief Financial Officer


Telephone: 
(610) 293-5700


Telecopy:
(610) 293-5720


 


with
a copy to:


 


U-STORE-IT,
L.P.


c/o
U-Store-It Trust


460
Swedesford Road, Suite 3000


Wayne,
Pennsylvania  19087


Attn:
Senior Vice President — Chief Legal Officer


Telephone:
(610) 293-5765


Telecopy: 
(610) 293-5720


 


If
to the Administrative Agent:


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION


c/o
Wells Fargo Real Estate Banking Group


200
Public Square - Suite 3200


Cleveland,
OH 44114


Attn:  Greg Ward


Telephone:
(216) 344-6945


Telecopy:
(216) 344-6939


 


with
a copy to:


 


83

















 


WELLS
FARGO BANK, NATIONAL ASSOCIATION


c/o
Wells Fargo Real Estate Banking Group


123
North Wacker - Suite 1900


Chicago, IL
60606


Attn:
Pamela Probst


Loan Administration Manager


P
(312) 345-7664


F
(312) 782-0969


 


If
to a Lender:


 


To
such Lender’s address or telecopy number, as applicable, set forth in its
Administrative Questionnaire;


 


or,
as to each party at such other address as shall be designated by such party in
a written notice to the other parties delivered in compliance with this
Section; provided, a Lender shall only be required to give notice of any such
other address to the Administrative Agent and the Borrower.  All such notices and other communications
shall be effective (i) if mailed, when received; (ii) if telecopied,
when transmitted; or (iii) if hand delivered or sent by overnight courier,
when delivered.  Notwithstanding the
immediately preceding sentence, all notices or communications to the
Administrative Agent or any Lender under Article II. shall be effective
only when actually received.  Neither the
Administrative Agent nor any Lender shall incur any liability to any Loan Party
(nor shall the Administrative Agent incur any liability to the Lenders) for
acting upon any telephonic notice referred to in this Agreement which the
Administrative Agent or such Lender, as the case may be, believes in good faith
to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith hereunder. Failure of a Person designated to get
a copy of a notice to receive such copy shall not affect the validity of notice
properly given to any other Person.


 


Section 12.2.  Expenses.


 


The
Borrower agrees (a) to pay or reimburse the Administrative Agent for all
of its reasonable out-of-pocket costs and expenses incurred in connection with
the preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses
and travel expenses relating to closing), and the consummation of the
transactions contemplated thereby, including the reasonable and documented fees
and disbursements of outside counsel to the Administrative Agent and costs and
expenses in connection with the use of IntraLinks, Inc., SyndTrak or other
similar information transmission systems in connection with the Loan Documents,
(b) to pay or reimburse the Administrative Agent and the Lenders for all
their reasonable costs and expenses incurred in connection with the enforcement
or preservation of any rights under the Loan Documents, including the
reasonable and documented fees and disbursements of their respective counsel
and any payments in indemnification or otherwise payable by the Lenders to the
Administrative Agent pursuant to the Loan Documents, (c) to pay, and
indemnify and hold harmless the Administrative Agent and the Lenders from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to
be payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to
the extent not already covered by any of the preceding subsections, to pay the
documented fees and disbursements of counsel to the Administrative Agent and
any Lender incurred in connection with the representation of the Administrative
Agent or such Lender in any matter relating to or arising out of any bankruptcy
or other


 


84

















 


proceeding
of the type described in Sections 10.1.(f) or
10.1.(g), including, without
limitation (i) any motion for relief from any stay or similar order,
(ii) the negotiation, preparation, execution and delivery of any document
relating to the Obligations and (iii) the negotiation and preparation of
any debtor-in-possession financing or any plan of reorganization of the
Borrower or any other Loan Party, whether proposed by the Borrower, such Loan
Party, the Lenders or any other Person, and whether such fees and expenses are
incurred prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding.  If the Borrower shall fail to pay any amounts
required to be paid by it pursuant to this Section, the Administrative Agent
and/or the Lenders may pay such amounts on behalf of the Borrower and either
deem the same to be Loans outstanding hereunder or otherwise Obligations owing
hereunder.


 


Section 12.3.  Setoff.


 


Subject
to Section 3.3. and in addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, the
Borrower hereby authorizes the Administrative Agent, each Lender, and each
Affiliate of the Administrative Agent or any Lender, at any time while an Event
of Default exists, without prior notice to the Borrower or to any other Person,
any such notice being hereby expressly waived, but in the case of a Lender or
an Affiliate of a Lender subject to receipt of the prior written consent of the
Administrative Agent exercised in its sole discretion, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by
the Administrative Agent, such Lender or any such Affiliate of the
Administrative Agent or such Lender, to or for the credit or the account of the
Borrower against and on account of any of the Obligations, irrespective of whether
or not any or all of the Loans and all other Obligations have been declared to
be, or have otherwise become, due and payable as permitted by
Section 10.2., and although such Obligations shall be contingent or
unmatured.


 


Section 12.4.  Litigation; Jurisdiction; Other Matters;
Waivers.


 


(a)                                 EACH PARTY
HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES.  ACCORDINGLY, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE
AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION
MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS
AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER
SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE
ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO
ANY OF THE LOAN DOCUMENTS.


 


(b)                                 EACH OF THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY AGREES THAT ANY
FEDERAL DISTRICT COURT AND ANY STATE COURT LOCATED IN CHARLOTTE, NORTH
CAROLINA, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS,
PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT,
THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM.  THE BORROWER AND EACH OF THE
LENDERS EXPRESSLY SUBMIT AND


 


85

















 


CONSENT
IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH
COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. 
EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM, AND
EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. 
THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED
TO PRECLUDE THE BRINGING OF ANY ACTION BY ANY PARTY OR THE ENFORCEMENT BY ANY
PARTY OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.


 


(c)                                  THE PROVISIONS
OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND
SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER
OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS
OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.


 


Section 12.5.  Successors and Assigns.


 


(a)                                 Successors and
Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of the immediately
following subsection (b), (ii) by way of participation in accordance
with the provisions of the immediately following subsection (d) or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of the immediately following subsection (f) (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in the immediately following subsection (d) and,
to the extent expressly contemplated hereby, the Affiliates and the partners,
directors, officers, employees, agents and advisors of the Administrative Agent
and the Lenders and of their respective Affiliates) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)                                 Assignments by
Lenders.  Any Lender may at any time
assign to one or more assignees (an “Assignee”) all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Revolving Commitment and the Loans at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(i)                                     Minimum Amounts.


 


(A)                               in the case of
an assignment of the entire remaining amount of the assigning Lender’s
Revolving Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(B)                               in any case not
described in the immediately preceding subsection (A), the aggregate
amount of the Revolving Commitment (which for this purpose includes Revolving
Loans outstanding thereunder) or, if the applicable Revolving Commitment is not
then in effect, the outstanding principal balance of the Revolving Loans of the


 


86

















 


assigning Lender subject to each such assignment and the outstanding
principal balance of the Term Loan of such Lender (in each case determined as
of the date the Assignment and Acceptance Agreement with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Acceptance Agreement, as of the Trade Date)
shall not be less than $5,000,000 in the case of a Revolving Commitment, or
$5,000,000 in the case of a Term Loan, unless each of the Administrative Agent
and, so long as no Default or Event of Default shall exist, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed).


 


(ii)                                  Proportionate
Amounts.  Each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement with respect to the Term Loan,
Revolving Loans and the Revolving Commitment assigned.


 


(iii)                               Required
Consents.  No consent
shall be required for any assignment except to the extent required by
clause (i)(B) of this subsection (b) and, in addition:


 


(A)                               the consent of
the Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (x) a Default or Event of Default shall exist at the time
of such assignment or (y) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; and


 


(B)                               the consent of
the Administrative Agent (such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of a Revolving Commitment
if such assignment is to a Person that is not already a Lender, an Affiliate of
a Lender or an Approved Fund; and


 


(C)                               the consent of
the Swingline Lender (such consent not to be unreasonably withheld or delayed)
shall be required for any assignment in respect of a Revolving Commitment if
such assignment is to a Person that is not already a Lender, an Affiliate of a
Lender or an Approved Fund.


 


(iv)                              Assignment and
Acceptance Notes.  The parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$4,500 payable by Assignor for each assignment, and the assignee, if it is not
a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.  If requested by the
transferor Lender or the Assignee, upon the consummation of any assignment, the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that new Notes are issued to the Assignee and such
transferor Lender, as appropriate.


 


(v)                                 No Assignment
to Borrower.  No such
assignment shall be made to the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.


 


(vi)                              No Assignment
to Natural Persons.  No such
assignment shall be made to a natural person.


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to the immediately following subsection (c), from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of
a Lender under this Agreement, and 


 


87

















 


the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 4.4.,
12.2. and 12.9. and the other provisions of this
Agreement and the other Loan Documents as provided in Section 12.10. with respect to facts and
circumstances occurring prior to the effective date of such assignment.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with the
immediately following subsection (d).


 


(c)                                  Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Principal
Office a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)                                 Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, (other than
as provided pursuant to Section 12.5.(e)) sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Revolving Commitment and/or the Loans owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to (i) increase such Lender’s Commitment, (ii) extend the date
fixed for the payment of principal on the Loans or portions thereof owing to
such Lender or (iii) reduce the rate at which interest is payable
thereon.  Subject to the immediately
following subsection (e), the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.12., 4.1., 4.4.  to
the same extent as if it were the Lender it purchased such participation from
and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted by
Applicable Law, each Participant also shall be entitled to the benefits of
Section 12.3. as though it
were a Lender, provided such Participant agrees to be subject to Section 3.3. as though it were a Lender.  Upon request from the Administrative Agent, a
Lender shall notify the Administrative Agent and the Borrower of the sale of
any participation hereunder.


 


(e)                                  Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under
Sections 3.12., 4.1. and 4.4.  than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. 
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.12. unless the Borrower consents to the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower
and the Administrative Agent, to comply with Section 3.12.(c) as though it were a
Lender.


 


88

















 


(f)                                   Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)                                  No Registration.  Each Lender agrees that, without the prior
written consent of the Borrower and the Administrative Agent, it will not make
any assignment hereunder in any manner or under any circumstances that would
require registration or qualification of, or filings in respect of, any Loan or
Note under the Securities Act or any other securities laws of the United States
of America or of any other jurisdiction.


 


Section 12.6.  Amendments.


 


(a)                                 Except as
otherwise expressly provided in this Agreement, any consent or approval
required or permitted by this Agreement or any other Loan Document to be given
by the Lenders may be given, and any term of this Agreement or of any other
Loan Document may be amended, and the performance or observance by the Borrower
or any other Loan Party or any Subsidiary of any terms of this Agreement or
such other Loan Document or the continuance of any Default or Event of Default
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Requisite Lenders (or the Administrative Agent at the written direction of the
Requisite Lenders) and, in the case of an amendment to any Loan Document, the
written consent of each Loan Party a party thereto; provided, however, any
amendment of Sections 9.1. and 10.1.(m), or any amendment of any of the
definitions related to such Sections 9.1. and 10.1.(m), or the waiver of
the performance or observance by the Borrower or any other Loan Party or any
Subsidiary of the terms of such Sections 9.1. and 10.1.(m), or the waiver
of the continuance of any Default or Event of Default resulting from a
violation of Section 9.1. or a waiver of the continuance of any Event of
Default under Section 10.1.(m), may be made with, but only with, the
written consent of the Supermajority Lenders (and, in the case of an amendment
of such Sections, the Borrower).


 


(b)                                 Notwithstanding
the foregoing, without the prior written consent of each Lender adversely
affected thereby, no amendment, waiver or consent shall do any of the
following:


 


(i)                                     increase the
Commitments of the Lenders or subject the Lenders to any additional
obligations;


 


(ii)                                  reduce the principal
of, or interest that has accrued or the rates of interest that will be charged
on the outstanding principal amount of, any Loans or other Obligations;


 


(iii)                               reduce the
amount of any Fees payable to the Lenders hereunder or postpone any date fixed for
payment thereof;


 


(iv)                              modify the
definition of the term “Termination Date” or otherwise postpone any date fixed
for any payment of any principal of, or interest on, any Loans or any other
Obligations (including the waiver of any Default or Event of Default as a
result of the nonpayment of any such Obligations as and when due), or extend
the expiration date of any Letter of Credit beyond the Termination Date;


 


(v)                                 amend or
otherwise modify the provisions of Section 3.2. or the definition of the
term “Commitment Percentage”;


 


89

















 


(vi)                              modify the
definition of the term “Requisite Lenders” or “Supermajority Lenders” or
otherwise modify in any other manner the number or percentage of the Lenders
required to make any determinations or waive any rights hereunder or to modify
any provision hereof, including without limitation, any modification of this Section 12.6.
if such modification would have such effect;


 


(vii)                           release any
Guarantor from its obligations under the Guaranty (except as otherwise
permitted under Section 7.12.(c));


 


(viii)                        amend or
otherwise modify the provisions of Section 2.14.; or


 


(ix)                              increase the
number of Interest Periods permitted with respect to Loans under
Section 2.6.


 


(c)                                  No amendment, waiver
or consent, unless in writing and signed by the Administrative Agent, in such
capacity, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Administrative Agent under this
Agreement or any of the other Loan Documents. 
Any amendment, waiver or consent relating to Section 2.3. or the
obligations of the Swingline Lender under this Agreement or any other Loan
Document shall, in addition to the Lenders required hereinabove to take such
action, require the written consent of the Swingline Lender.  Any amendment, waiver or consent with respect
to any Loan Document that (i) diminishes the rights of a Specified
Derivatives Provider in a manner or to an extent dissimilar to that affecting
the Lenders or (ii) increases the liabilities or obligations of a
Specified Derivatives Provider shall, in addition to the Lenders required
hereinabove to take such action, require the consent of the Lender that is (or
having an Affiliate that is) such Specified Derivatives Provider.


 


(d)                                 No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon and any amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose set forth therein.  Except as otherwise provided in
Section 11.5., no course of dealing or delay or omission on the part of
the Administrative Agent or any Lender in exercising any right shall operate as
a waiver thereof or otherwise be prejudicial thereto.  Any Event
of Default occurring hereunder shall continue to exist until such time as such
Event of Default is waived in writing in accordance with the terms of this
Section, notwithstanding any attempted cure or other action by the Borrower,
any other Loan Party or any other Person subsequent to the occurrence of such
Event of Default.  Except as
otherwise explicitly provided for herein or in any other Loan Document, no
notice to or demand upon the Borrower shall entitle the Borrower to any other
or further notice or demand in similar or other circumstances.


 


Section 12.7.  Nonliability of Administrative Agent and
Lenders.


 


The
relationship between the Borrower, on the one hand, and the Lenders and the
Administrative Agent, on the other hand, shall be solely that of borrower and
lender.  Neither the Administrative Agent
nor any Lender shall have any fiduciary responsibilities to the Borrower or any
other Loan Party and no provision in this Agreement or in any of the other Loan
Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Administrative Agent
or any Lender to any Lender, the Borrower, any Subsidiary or any other Loan
Party.  Neither the Administrative Agent
nor any Lender undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower’s
business or operations.  In connection
with all aspects of each transaction contemplated hereby, the Borrower and each
other Loan Party acknowledges and agrees, and acknowledges its Affiliates’
understanding, that (a) the credit


 


90
















 


facilities
provided for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Borrower, each other Loan Party and their
respective Affiliates, on the one hand, and the Administrative Agent and the
Lenders, on the other hand; (b) neither the Administrative Agent nor any
Lender has assumed or will assume any advisory, agency or fiduciary
responsibility in favor of the Borrower or any other Loan Party with respect to
any of the transactions contemplated hereby or the process leading hereto
(irrespective of whether the Administrative Agent, any Lender or any of their
respective Affiliates has advised or is currently advising the Borrower, any
other Loan Party or any of their respective Affiliates on other matters) and
neither the Administrative Agent nor any Lender has any obligation to the
Borrower, any other Loan Party or any of their respective Affiliates with
respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (c) the
Administrative Agent, the Lenders and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ
from those of the Borrower, the other Loan Parties and their respective
Affiliates, and neither the Administrative Agent nor any Lender has any
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship.


 


Section 12.8.  Confidentiality.


 


The
Administrative Agent and each Lender shall use reasonable efforts to assure
that information about the Parent, the Borrower, the other Loan Parties and
other Subsidiaries, and the respective properties thereof and their operations,
affairs and financial condition, not generally disclosed to the public, which
is furnished to the Administrative Agent or any Lender pursuant to the
provisions of this Agreement or any other Loan Document, is used only for the
purposes of this Agreement and the other Loan Documents and shall not be
divulged to any Person other than the Administrative Agent, the Lenders, and
their respective agents who are actively and directly participating in the
evaluation, administration or enforcement of the Loan Documents and other
transactions between the Administrative Agent or such Lender, as applicable,
and the Borrower, but in any event the Administrative Agent and the Lenders may
make disclosure:  (a) to any of
their respective Affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section 12.8.);
(b) as reasonably requested by any potential or actual Assignee,
Participant or other transferee in connection with the contemplated transfer of
any Commitment or participations therein as permitted hereunder (provided they
shall agree to keep such information confidential in accordance with the terms
of this Section); (c) as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process or in
connection with any legal proceedings or as otherwise required by Applicable
Law; provided, however, if the Administrative Agent or a Lender receives a
summons or subpoena to disclose any such confidential information to any
Person, the Administrative Agent or such Lender, as applicable, shall, if
legally permitted, endeavor to notify the Borrower thereof as soon as possible
after receipt of such request, summons or subpoena and the Borrower shall be
afforded an opportunity to seek protective orders, or such other confidential
treatment of such disclosed information, as the Borrower and the Administrative
Agent or such Lender, as applicable, may deem reasonable; (d) to the
Administrative Agent’s or such Lender’s independent auditors and other
professional advisors (provided they shall be notified of the confidential
nature of the information); (e) after the happening and during the
continuance of an Event of Default, to any other Person, in connection with the
exercise by the Administrative Agent or the Lenders of rights hereunder or
under any of the other Loan Documents; (f) upon Borrower’s prior consent
(which consent shall not be unreasonably withheld), to any contractual
counter-parties to any swap or similar hedging agreement or to any rating
agency; and (g) to the extent such information (x) becomes publicly
available other than as a result of a breach of this Section actually
known to such Lender to be such a breach or (y) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower or any Affiliate. 
Notwithstanding the foregoing, the Administrative Agent and each Lender
may disclose any such confidential information,


 


91

















 


without
notice to the Borrower or any other Loan Party, to Governmental Authorities in
connection with any regulatory examination of the Administrative Agent or such
Lender or in accordance with the regulatory compliance policy of the
Administrative Agent or such Lender.


 


Section 12.9.  Indemnification.


 


(a)                                 The Borrower
shall and hereby agrees to indemnify, defend and hold harmless the
Administrative Agent, each of the Lenders, any Affiliate of the Administrative
Agent or any Lender, and their respective directors, officers, shareholders,
agents, employees and counsel (each referred to herein as an “Indemnified Party”)
from and against any and all of the following (collectively, the “Indemnified
Costs”):  losses, costs, claims, damages,
liabilities, deficiencies, judgments or reasonable expenses of every kind and
nature (including, without limitation, amounts paid in settlement, court costs
and the reasonable fees and disbursements of counsel incurred in connection
with any litigation, investigation, claim or proceeding or any advice rendered
in connection therewith, but excluding losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses indemnification in respect of
which is specifically covered by Section 3.12. or 4.1. or expressly
excluded from the coverage of such Section 3.12. or 4.1.) incurred by an
Indemnified Party in connection with, arising out of, or by reason of, any
suit, cause of action, claim, arbitration, investigation or settlement, consent
decree or other proceeding (the foregoing referred to herein as an “Indemnity
Proceeding”) which is in any way related directly or indirectly to:  (i) this Agreement or any other Loan
Document or the transactions contemplated thereby; (ii) the making of any
Loans or issuance of Letters of Credit hereunder; (iii) any actual or
proposed use by the Borrower of the proceeds of the Loans or Letters of Credit;
(iv) the Administrative Agent’s or any Lender’s entering into this
Agreement; (v) the fact that the Administrative Agent and the Lenders have
established the credit facility evidenced hereby in favor of the Borrower;
(vi) the fact that the Administrative Agent and the Lenders are creditors
of the Borrower and have or are alleged to have information regarding the
financial condition, strategic plans or business operations of the Borrower and
the Subsidiaries; (vii) the fact that the Administrative Agent and the
Lenders are material creditors of the Borrower and are alleged to influence
directly or indirectly the business decisions or affairs of the Borrower and
the Subsidiaries or their financial condition; (viii) the exercise of any
right or remedy the Administrative Agent or the Lenders may have under this
Agreement or the other Loan Documents; (ix) any civil penalty or fine
assessed by the OFAC against, and all reasonable costs and expenses (including
counsel fees and disbursements) incurred in connection with defense thereof by,
the Administrative Agent or any Lender as a result of conduct of the Borrower,
any other Loan Party or any Subsidiary that violates a sanction enforced by the
OFAC; or (x) any violation or non-compliance by the Borrower or any
Subsidiary of any Applicable Law (including any Environmental Law) including,
but not limited to, any Indemnity Proceeding commenced by (A) the Internal
Revenue Service or state taxing authority or (B) any Governmental
Authority or other Person under any Environmental Law, including any Indemnity
Proceeding commenced by a Governmental Authority or other Person seeking
remedial or other action to cause the Borrower or its Subsidiaries (or its
respective properties) (or the Administrative Agent and/or the Lenders as
successors to the Borrower) to be in compliance with such Environmental Laws;
provided, however, that the Borrower shall not be obligated to indemnify any
Indemnified Party for (A) any acts or omissions of such Indemnified Party
in connection with matters described in this subsection to the extent arising
from the gross negligence or willful misconduct of such Indemnified Party, as
determined by a court of competent jurisdiction in a final, non-appealable
judgment or (B) Indemnified Costs to the extent arising directly out of or
resulting directly from claims of one or more Indemnified Parties against
another Indemnified Party.


 


(b)                                 The Borrower’s
indemnification obligations under this Section 12.9. shall apply to all
Indemnity Proceedings arising out of, or related to, the foregoing whether or
not an Indemnified Party is a named party in such Indemnity Proceeding.  In this regard, this indemnification shall
cover all Indemnified Costs of any Indemnified Party in connection with any
deposition of any Indemnified Party


 


92

















 


or
compliance with any subpoena (including any subpoena requesting the production
of documents).  This indemnification
shall, among other things, apply to any Indemnity Proceeding commenced by other
creditors of the Borrower or any Subsidiary, any shareholder of the Borrower or
any Subsidiary (whether such shareholder(s) are prosecuting such Indemnity
Proceeding in their individual capacity or derivatively on behalf of the
Borrower), any account debtor of the Borrower or any Subsidiary or by any
Governmental Authority. If indemnification is to be sought hereunder by an
Indemnified Party, then such Indemnified Party shall notify the Borrower of the
commencement of any Indemnity Proceeding; provided, however, that the failure
to so notify the Borrower shall not relieve the Borrower from any liability
that it may have to such Indemnified Party pursuant to this Section 12.9.


 


(c)                                  This
indemnification shall apply to any Indemnity Proceeding arising during the
pendency of any bankruptcy proceeding filed by or against the Borrower and/or
any Subsidiary.


 


(d)                                 All
out-of-pocket fees and expenses of, and all amounts paid to third-persons by,
an Indemnified Party shall be advanced by the Borrower at the request of such
Indemnified Party notwithstanding any claim or assertion by the Borrower that
such Indemnified Party is not entitled to indemnification hereunder, upon
receipt of an undertaking by such Indemnified Party that such Indemnified Party
will reimburse the Borrower if it is actually and finally determined by a court
of competent jurisdiction that such Indemnified Party is not so entitled to
indemnification hereunder.


 


(e)                                  An Indemnified
Party may conduct its own investigation and defense of, and may formulate its
own strategy with respect to, any Indemnity Proceeding covered by this Section and,
as provided above, all Indemnified Costs incurred by such Indemnified Party
shall be reimbursed by the Borrower.  No
action taken by legal counsel chosen by an Indemnified Party in investigating
or defending against any such Indemnity Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that if
(i) the Borrower is required to indemnify an Indemnified Party pursuant
hereto and (ii) the Borrower has provided evidence reasonably satisfactory
to such Indemnified Party that the Borrower has the financial wherewithal to
reimburse such Indemnified Party for any amount paid by such Indemnified Party
with respect to such Indemnity Proceeding, such Indemnified Party shall not
settle or compromise any such Indemnity Proceeding without the prior written
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed). Notwithstanding the foregoing, an Indemnified Party may settle or
compromise any such Indemnity Proceeding without the prior written consent of
the Borrower where (x) no monetary relief is sought against such
Indemnified Party in such Indemnity Proceeding or (y) there is an
allegation of a violation of law by such Indemnified Party.


 


(f)                                   If and to the
extent that the obligations of the Borrower under this Section are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.


 


(g)                                  The Borrower’s
obligations under this Section shall survive any termination of this
Agreement and the other Loan Documents and the payment in full in cash of the
Obligations, and are in addition to, and not in substitution of, any other of
their obligations set forth in this Agreement or any other Loan Document to
which it is a party.


 


(h)                                 References in
this Section to “Lender” or “Lenders” shall be deemed to include such
Persons (and their Affiliates) in their capacity as Specified Derivatives
Providers.


 


93

















 


Section 12.10.  Termination; Survival.


 


This
Agreement shall terminate at such time as (a) all of the Commitments have
been terminated, (b) all Letters of Credit have terminated or expired (or
the Borrower’s obligations in respect of all outstanding Letters of Credit have
been cash collateralized on terms acceptable to the Administrative Agent and
the Borrower has executed and delivered a reimbursement agreement in form and
substance acceptable to the Administrative Agent and such other documents
requested by the Administrative Agent evidencing the Borrower’s reimbursement
obligations in respect of such Letters of Credit), (c) none of the Lenders
is obligated any longer under this Agreement to make any Loans and (d) all
Obligations (other than obligations which survive as provided in the following
sentence) have been paid and satisfied in full. 
The indemnities to which the Administrative Agent, the Lenders and the
Swingline Lender are entitled under the provisions of Sections 3.12.,
4.1., 4.4., 11.7., 12.2. and 12.9. and any other provision of this Agreement
and the other Loan Documents, and the provisions of Section 12.4., shall
continue in full force and effect and shall protect the Administrative Agent,
the Lenders and the Swingline Lender (i) notwithstanding any termination
of this Agreement, or of the other Loan Documents, against events arising after
such termination as well as before and (ii) at all times after any such
party ceases to be a party to this Agreement with respect to all matters and
events existing on or prior to the date such party ceased to be a party to this
Agreement.


 


Section 12.11.  Severability of Provisions.


 


Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.


 


Section 12.12.  GOVERNING LAW.


 


THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.


 


Section 12.13.  Counterparts.


 


This
Agreement and any amendments, waivers, consents or supplements may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which counterparts together shall constitute but one and
the same instrument.


 


Section 12.14.  Obligations with Respect to Loan Parties.


 


The
obligations of the Parent and the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Parent or the Borrower may have that the
Parent or the Borrower does not control such Loan Parties.


 


Section 12.15.  Limitation of Liability.


 


Neither
the Administrative Agent nor any Lender, nor any Affiliate, officer, director,
employee, attorney, or agent of the Administrative Agent or any Lender shall
have any liability with respect to, and the Borrower hereby waives, releases,
and agrees not to sue any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by the Borrower in
connection with,


 


94

















 


arising
out of, or in any way related to, this Agreement or any of the other Loan
Documents, or any of the transactions contemplated by this Agreement or any of
the other Loan Documents.  The Borrower
hereby waives, releases, and agrees not to sue the Administrative Agent or any
Lender or any of the Administrative Agent’s or any Lender’s Affiliates,
officers, directors, employees, attorneys, or agents for punitive damages in
respect of any claim in connection with, arising out of, or in any way related
to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.


 


Section 12.16.  Entire Agreement.


 


This
Agreement, the Notes, and the other Loan Documents referred to herein embody
the final, entire agreement among the parties hereto and supersede any and all
prior commitments, agreements, representations, and understandings, whether
written or oral, relating to the subject matter hereof and thereof and may not
be contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto.  There are no oral agreements among the
parties hereto.


 


Section 12.17.  Construction.


 


The
Borrower, the Parent, each Lender and the Administrative Agent acknowledge that
each of them has had the benefit of legal counsel of its own choice and has
been afforded an opportunity to review this Agreement and the other Loan
Documents with its legal counsel and that this Agreement and the other Loan
Documents shall be construed as if jointly drafted by the Borrower, the Parent,
each Lender and the Administrative Agent.


 


Section 12.18.  No
Novation; Effect of Amendment and Restatement.


 


THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT
SOLELY TO AMEND AND RESTATE THE TERMS OF THE EXISTING CREDIT AGREEMENT.  THE PARTIES DO NOT INTEND THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING BY THE BORROWER OR THE PARENT UNDER OR IN CONNECTION WITH THE
EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE
EXISTING CREDIT AGREEMENT).  THE
AMENDMENT AND RESTATEMENT OF THE EXISTING CREDIT AGREEMENT EFFECTED BY THIS
AGREEMENT SHALL BE EFFECTIVE AS OF THE EFFECTIVE DATE AND SHALL HAVE
PROSPECTIVE EFFECT ONLY.


 


Section 12.19.  Authorization
to Release Liens.


 


Each
of the Lenders, being “Lenders” under the Existing Credit Agreement, authorizes
and consents to the release by the Administrative Agent of all Liens
encumbering the “Collateral” (as such term is defined in the Existing Credit
Agreement).  The Borrower agrees that it
shall be responsible for the costs and expenses incurred by the Administrative
Agent in connection with the release of the Collateral.


 


[Signatures on Following Pages]


 


95

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated
Credit Agreement to be executed by their authorized officers all as of the day
and year first above written.


 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:
  U-Store-It Trust, its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U-STORE-IT
  TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


 


[Signatures Continued on Next Page]


 


96

















 


[Signature Page to Second Amended and Restated Credit Agreement
with U-STORE-IT, L.P.]


 


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, successor in interest to Wachovia Bank, National
  Association, as Administrative Agent, as a Lender and as Swingline Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


 


[Signatures Continued on Next Page]


 


97

















 


[Signature Page to Second Amended and Restated Credit Agreement
with U-STORE-IT, L.P.]


 


 


	
   

  	
  [LENDER]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


98

















 


Schedule 1.1.(A)


 


List of Loan Parties (other than the Parent and the Borrower)


 


USI
II, LLC


YSI
I LLC


YSI
XXIX LP


YSI
XXIX GP LLC


 
















 


Schedule 1.1.(B)


 


Lender Commitments


 


	
  Lender

  	
   

  	
  Revolving

  Commitment Amount

  	
   

  	
  Term Commitment

  Amount

  	
   

  	
  Aggregate

  Commitment

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  61,000,000

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  $

  	
  115,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  39,000,000

  	
   

  	
  $

  	
  26,000,000

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Regions Bank

  	
   

  	
  $

  	
  33,333,333

  	
   

  	
  $

  	
  26,666,667

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SunTrust Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  22,222,223

  	
   

  	
  $

  	
  17,777,777

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Charter One Bank, N.A.

  	
   

  	
  $

  	
  22,222,223

  	
   

  	
  $

  	
  17,777,777

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BMO Capital Markets Financing, Inc.

  	
   

  	
  $

  	
  19,444,444

  	
   

  	
  $

  	
  15,555,556

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US Bank National Association

  	
   

  	
  $

  	
  19,444,444

  	
   

  	
  $

  	
  15,555,556

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FirstMerit Bank, N.A.

  	
   

  	
  $

  	
  8,333,333

  	
   

  	
  $

  	
  6,666,667

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  250,000,000.00

  	
   

  	
  $

  	
  200,000,000.00

  	
   

  	
  $

  	
  450,000,000.00

  	
   

  



 

















 


Schedule 6.1.(b)


 


Ownership Structure


 


Part I:
Subsidiaries


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  	
   

  
	
  U-Store-It,
  L.P.

  	
   

  	
  Delaware

  	
   

  	
  Parent;

  Others

  	
   

  	
  Parent: GP interests

  Others: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Loan
  Party

  	
   

  
	
  Lantana
  Property Owner’s Association, Inc.

  	
   

  	
  Florida

  	
   

  	
  Borrower

  	
   

  	
  Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  U-Store-It
  Development LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  U-Store-It
  Mini Warehouse Co.

  	
   

  	
  Ohio

  	
   

  	
  Borrower

  	
   

  	
  Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  U-Store-It
  Trust Luxembourg S.ar.l.

  	
   

  	
  Luxembourg

  	
   

  	
  Borrower

  	
   

  	
  Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  USI
  II, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Loan
  Party

  	
   

  
	
  USI
  Overseas Development Holding, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  USI
  Overseas Development LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  USIFB
  LP

  	
   

  	
  United
  Kingdom

  	
   

  	
  USIFB LLP; Borrower

  	
   

  	
  USIFB LLP: GP interests

  Borrower: LP interests

  	
   

  	
  USIFB LLP: 97%

  Borrower: 3%

  	
   

  	
  Excluded

  	
   

  
	
  USIFB
  LLP

  	
   

  	
  United
  Kingdom

  	
   

  	
  Borrower, Ian Connolly and Hugh Knowles

  	
   

  	
  Partnership interests.

  	
   

  	
  Borrower: 50.02%

  Connolly: 24.99%

  Knowles: 24.99%

  	
   

  	
  Excluded

  	
   

  
	
  YASKY
  LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  I LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Loan
  Party

  	
   

  
	
  YSI
  II LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  III LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  IV LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  IX GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  IX LP

  	
   

  	
  Delaware

  	
   

  	
  YSI IX GP LLC; YSI IX LP LLC

  	
   

  	
  YSI IX GP LLC: GP interests

  YSI IX LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  IX LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  Management LLC

  	
   

  	
  Delaware

  	
   

  	
  Parent

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  V LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  VI LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  VII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  VII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI VII GP LLC; YSI VII LP LLC

  	
   

  	
  YSI VII GP LLC: GP interests

  YSI VII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  VII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  VIII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI
  VIII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI VIII GP

  	
   

  	
  YSI VIII GP LLC: 

  	
   

  	
  GP interests: 100%

  	
   

  	
  Excluded

  	
   

  



 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   LLC; YSI VIII LP LLC

  	
   

  	
  GP interests

  YSI VIII LP LLC: LP interests

  	
   

  	
  LP interests: 100%

  	
   

  	
   

  	
   

  
	
  YSI VIII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI X GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI X LP

  	
   

  	
  Delaware

  	
   

  	
  YSI X GP LLC; YSI X LP LLC

  	
   

  	
  YSI X GP LLC: GP interests

  YSI X LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI X LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XI GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XI LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XI GP LLC; YSI XI LP LLC

  	
   

  	
  YSI XI GP LLC: GP interests

  YSI XI LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XI LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XII GP LLC; YSI XII LP LLC

  	
   

  	
  Partnership Interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XIII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XIII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XIII GP LLC; YSI XIII LP LLC

  	
   

  	
  YSI XIII GP LLC: GP interests

  YSI XIII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XIII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XIV GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XIV LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XIV GP LLC; YSI XIV LP LLC

  	
   

  	
  YSI XIV GP LLC: GP interests

  YSI XIV LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XIV LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XV LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XVI LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XVII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XVII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XVII GP LLC; YSI XVII LP LLC

  	
   

  	
  YSI XVII GP LLC: GP interests

  YSI XVII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XVII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XX GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XX LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XX GP LLC; YSI XX LP LLC

  	
   

  	
  YSI XX GP LLC: GP interests

  YSI XX LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XX LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXII LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXIX GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Loan
  Party

  	
   

  
	
  YSI XXIX LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXIX GP LLC; YSI XXIX LP LLC

  	
   

  	
  YSI XXIX GP LLC: GP interests

  YSI XXIX LP LLC: 

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Loan
  Party

  	
   

  



 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  LP interests

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  YSI XXIX LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXV GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXV LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXV GP LLC; YSI XXV LP LLC

  	
   

  	
  YSI XXV GP LLC: GP interests

  YSI XXV LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXV LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVI GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVI LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXVI GP LLC; YSI XXVI LP LLC

  	
   

  	
  YSI XXVI GP LLC: GP interests

  YSI XXVI LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVI LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXVII GP LLC; YSI XXVII LP LLC

  	
   

  	
  YSI XXVII GP LLC: GP interests

  YSI XXVII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVIII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVIII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXVIII GP LLC; YSI XXVIII LP LLC

  	
   

  	
  YSI XXVIII GP LLC: GP interests

  YSI XXVIII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXVIII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXX LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  YSI XXXIIIA, LLC

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXIIIA, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXIV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXVI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXVII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXVIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXIX, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXX, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXIV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXVI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXVII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XXXXVIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI XLIX, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI L, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI Venture LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI Venture GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  YSI-Hart
  Limited Partnership

  	
   

  	
  Delaware

  	
   

  	
  YSI Venture 

  	
   

  	
  YSI Venture GP

  	
   

  	
  50%

  	
   

  	
  Excluded

  	
   

  



 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  GP LLC; YSI Venture LP LLC

  	
   

  	
  LLC: GP interests

  YSI Venture LP LLC: LP interests

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  YSI Hart TRS Inc.

  	
   

  	
  Delaware

  	
   

  	
  YSI-Hart
  Limited Partnership

  	
   

  	
  Common Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  Storage
  Asset Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  
	
  Property Guard, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  	
   

  



 


Outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders’ or voting trust
agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, any such
Person, and the following additional items:


 


·                  Existing equity compensation plans described
on the Parent’s Form 10-K for the fiscal year ending December 31,
2009.


 


·                  Pursuant to the Second Amended and Restated
Agreement of Limited Partnership of the Borrower, partnership units may be
redeemed for cash, or at the Parent’s option, common shares on a one-for-one
basis.


 


·                  Outstanding
awards granted under the Parent’s equity compensation plans currently consist
of Time Vested Restricted Share Awards, Performance-Vested Restricted Share
Awards and Non-Qualified Stock Option Awards. Certain executive officers of the
Parent entered into amended and restated employment agreements in December 2008
and June 2010 pursuant to which such executive officers are entitled to
participate in the Parent’s equity compensation plans. The Parent’s equity
compensation plans are more fully described in the Parent’s Proxy Statement
dated April 13, 2009 and the Parent’s Annual Report on Form 10-K for
the year ended December 31, 2009.


 


·                  Certain
trustees of the Parent have received deferred shares under the U-Store-It Trust
Deferred Trustees Plan.  The deferred
shares are convertible to common shares of the Parent on a one-for-one basis
following termination of service.  Until
converted to common shares, the deferred shares have dividend equivalent
reinvestment rights.


 


·                  The Parent
filed a Registration Statement on Form S-3 in March 2007 (and a
post-effective amendment thereto in August 2009) to satisfy all
outstanding registration rights.


 


·                  Pursuant to a
Sales Agreement with Cantor Fitzgerald & Co., the Parent has reserved
10 million common shares that may be issued from time to time at the market
offerings in connection with the Parent’s controlled equity offering program.


 
















 


Part II:
Unconsolidated Affiliates of Parent


 


	
  Unconsolidated Affiliate

  	
   

  	
  Type of Legal

  Entity

  	
   

  	
  Equity Interests Held by

  Parent

  	
   

  
	
  USIFB LLP

  	
   

  	
  Limited Partnership

  	
   

  	
  50

  	
  %

  



 


Part III:


 


Existing
Investments in Subsidiaries:


 


None.


 

















 


Schedule 6.1.(f)


 


Title to Properties; Liens


 


Part I:
Real Property


 


See
attached.


 

















 


Part II:
Permitted Liens


 


None.


 

















 


Schedule 6.1.(g)


 


Existing Indebtedness


 


1.               Existing
Indebtedness includes all of the Indebtedness of the Parent and its
Subsidiaries disclosed on the Parent’s Form 10-K for the fiscal year
ending December 31, 2009, including, without limitation, the Existing
Credit Agreement.


 


2.               Various other
mortgage Indebtedness set forth in the chart below:


 


	
  Borrower

  	
   

  	
  Lender

  	
   

  	
  Property

  	
   

  	
  Amount

  	
   

  
	
  YSI XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Hudson
  County, New Jersey

  	
   

  	
  $

  	
  2,300,000

  	
   

  
	
  YSI XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Morris
  County, New Jersey

  	
   

  	
  $

  	
  4,050,000

  	
   

  
	
  YSI XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Bergen
  County, New Jersey

  	
   

  	
  $

  	
  1,850,000

  	
   

  
	
  YSI XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Union
  County, New Jersey

  	
   

  	
  $

  	
  5,800,000

  	
   

  
	
  YSI XXXII, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Suffolk
  County, New York

  	
   

  	
  $

  	
  2,700,000

  	
   

  
	
  YSI XXXII, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Suffolk
  County, New York

  	
   

  	
  $

  	
  3,500,000

  	
   

  
	
  YSI XXXV, LLC

  	
   

  	
  WashingtonFirst
  Bank

  	
   

  	
  Spotsylvania
  and Stafford Counties, Virginia

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  YSI XXXIV, LLC

  	
   

  	
  ViewPoint
  Bank

  	
   

  	
  Tarrant,
  Denton, Collin and Dallas Counties, Texas

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  YSI XXXVII, LLC

  	
   

  	
  Resurgens
  Bank

  	
   

  	
  Cobb
  County, Georgia

  	
   

  	
  $

  	
  2,255,000

  	
   

  
	
  YSI XXXIX, LLC

  	
   

  	
  Pacific
  National Bank

  	
   

  	
  Broward
  County, Florida

  	
   

  	
  $

  	
  4,000,000

  	
   

  
	
  YSI XXXVIII, LLC

  	
   

  	
  Knoxville
  TVA Employees Credit Union

  	
   

  	
  Knox
  County, Tennessee

  	
   

  	
  $

  	
  4,095,000

  	
   

  
	
  YSI XXXXIV, LLC

  	
   

  	
  Southwest
  Capital Bank, N.A.

  	
   

  	
  Collier
  County, Florida

  	
   

  	
  $

  	
  1,127,750

  	
   

  
	
  YSI XXXXI, LLC

  	
   

  	
  The
  Metropolitan Bank

  	
   

  	
  Shelby
  County, Tennessee

  	
   

  	
  4,000,00

  	
   

  
	
  YSI XXXXII, LLC

  	
   

  	
  United
  Southern Bank

  	
   

  	
  Orange
  County, Florida

  	
   

  	
  $

  	
  3,275,000

  	
   

  
	
  YSI XXXXV, LLC

  	
   

  	
  Capstar
  Bank

  	
   

  	
  Davidson
  County, Tennessee

  	
   

  	
  $

  	
  5,540,000

  	
   

  
	
  YSI XXXXVI, LLC

  	
   

  	
  First
  National Bank of 

  	
   

  	
  Cook
  County, Illinois

  	
   

  	
  $

  	
  3,500,000

  	
   

  



 

















 


	
  Borrower

  	
   

  	
  Lender

  	
   

  	
  Property

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
  La
  Grange

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  YSI XXXIII, LLC

  	
   

  	
  Minnesota
  Life Insurance Company

  	
   

  	
  Miami-Dade
  County, Florida; Washington, D.C.; Travis County, Texas; Yolo County,
  California.

  	
   

  	
  $

  	
  11,602,488.43

  	
   

  
	
  YSI XXXXIII, LLC

  	
   

  	
  Metro
  Phoenix Bank, Inc.

  	
   

  	
  Pima
  County, Arizona

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  YSI XXXXVIII, LLC

  	
   

  	
  Nara
  Bank

  	
   

  	
  San
  Diego, San Bernardino and Riverside Counties, California

  	
   

  	
  $

  	
  25,700,000

  	
   

  



 
















 


Schedule 6.1.(h)


 


Material Contracts


 


1.              Material Contracts include
those disclosed in the Parent’s Form 10-K for the fiscal year ending December 31,
2009.


 

















 


Schedule 6.1.(i)


 


Litigation


 


None.


 

















 


Schedule 9.6.


 


Existing Negative Pledges


 


None.


 

















 


EXHIBIT A


 


FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT


 


This
Assignment and Acceptance Agreement (the “Assignment and Acceptance Agreement”)
is dated as of the Effective Date set forth below and is entered into by and
between [the][each](1) Assignor identified in item 1 below ([the][each,
an] “Assignor”) and [the][each](2) Assignee identified in item 2 below
([the][each, an] “Assignee”).  [It is
understood and agreed that the rights and obligations of [the Assignors][the
Assignees](3) hereunder are several and not joint.](4)  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (as amended, the “Credit Agreement”), receipt
of a copy of which is hereby acknowledged by [the][each] Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Acceptance Agreement as if set
forth herein in full.


 


For an agreed consideration,
[the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the
respective Assignees], and [the][each] Assignee hereby irrevocably purchases
and assumes from [the Assignor][the respective Assignors], subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of [the Assignor’s][the respective Assignors’] rights and
obligations in [its capacity as a Lender][their respective capacities as
Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
[the Assignor][the respective Assignors] under the respective facilities
identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based
on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above
being referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Acceptance Agreement, without representation or warranty by
[the][any] Assignor.


 


	
  1.

  	
  Assignor[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 






(1)                                 For
bracketed language here and elsewhere in this form relating to the Assignor(s),
if the assignment is from a single Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors,
choose the second bracketed language.


 


(2)                                 For
bracketed language here and elsewhere in this form relating to the Assignee(s),
if the assignment is to a single Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees,
choose the second bracketed language.


 


(3)                                 Select
as appropriate.


 


(4)                                 Include
bracketed language if there are either multiple Assignors or multiple
Assignees.


 


A-1

















 


	
  2.

  	
  Assignor[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [for each Assignee,
  indicate [Affiliate][Approved Fund] of [identify Lender]

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower(s):          U-STORE-IT, L.P.

  
	
   

  	
   

  
	
  4.

  	
  Administrative Agent:        WELLS FARGO
  BANK, NATIONAL ASSOCIATION, as the administrative agent under the Credit
  Agreement

  
	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement:               The Second Amended and
  Restated Credit Agreement dated as of September 29, 2010 among
  U-STORE-IT, L.P., the Lenders parties thereto, WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Administrative Agent, and the other agents parties thereto

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned Interest[s]:

  



 


	
  Assignor[s](5)

  	
   

  	
  Assignee[s](6)

  	
   

  	
  Facility

  Assigned(7)

  	
   

  	
  Aggregate Amount

  of Commitment/

  Loans for all

  Lenders(8)

  	
   

  	
  Amount of

  Commitment/

  Loans Assigned

  	
   

  	
  Percentage Assigned

  of Commitment/

  Loans(9)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


[7.          Trade Date:                                                          ](10)


 


[Page break]


 






(5)                                 List
each Assignor, as appropriate.


 


(6)                                 List
each Assignee, as appropriate.


 


(7)                                 Fill in
the appropriate terminology for the types of facilities under the Credit
Agreement that are being assigned under this Assignment (e.g. “Revolving Credit
Commitment,” etc.)


 


(8)                                 Amount
to be adjusted by the counterparties to take into account any payments or
prepayments made between the Trade Date and the Effective Date.


 


(9)                                 Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all
Lenders thereunder.


 


(10)                          To be
completed if the Assignor(s) and the Assignee(s) intend that the
minimum assignment amount is to be determined as of the Trade Date.


 


A-2
















 


Effective
Date:  
                          
      , 20      
[TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION
OF TRANSFER IN THE REGISTER THEREFOR.]


 


The
terms set forth in this Assignment and Acceptance Agreement are hereby agreed
to:


 


	
   

  	
  ASSIGNOR[S](11)

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE[S](12)

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


[Page Break]


 






(11)                          Add
additional signature blocks as needed.


 


(12)                          Add
additional signature blocks as needed.


 


A-3

















 


[Consented
to and](13) Accepted:


 


[NAME
OF ADMINISTRATIVE AGENT], as Administrative Agent


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Consented to:](14)

  	
   

  
	
   

  	
   

  	
   

  
	
  [NAME OF RELEVANT PARTY]

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


 






(13)                          To be
added only if the consent of the Administrative Agent is required by the terms
of the Credit Agreement.


 


(14)                          To be
added only if the consent of the Borrower and/or other parties (e.g. Swingline
Lender) is required by the terms of the Credit Agreement.


 


A-4

















 


ANNEX 1


 


[                                    ](15)


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ACCEPTANCE AGREEMENT


 


1.  Representations and Warranties.


 


1.1  Assignor[s].  [The][Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the][the
relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Acceptance Agreement and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of the Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the
performance or observance by the Borrower, any of the Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document.


 


1.2.  Assignee[s].  [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Acceptance
Agreement and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all the requirements to
be an assignee under Section 12.5.(b)(iii), (v) and (vi) of the
Credit Agreement (subject to such consents, if any, as may be required under
Section 12.5.(b)(iii) of the Credit Agreement), (iii) from and
after the Effective Date specified for this Assignment and Acceptance
Agreement, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][the relevant] Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it is
sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the person exercising
discretion in making its decision to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has  received a copy of the Credit Agreement, and has received
or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 8.1. or 8.2., as
applicable, and such other documents and information as it deems appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance Agreement and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Acceptance Agreement and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached to the Assignment
and Acceptance Agreement is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently
and without reliance on the Administrative Agent, [the][any] Assignor or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.


 






(15)                          Describe
Credit Agreement at option of Administrative Agent.


 


A-5

















 


2.  Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the][each] Assigned
Interest (including payments of principal, interest, fees and other amounts) to
[the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date
specified for this Assignment and Acceptance Agreement.  The Assignor[s] and the Assignee[s] shall
make all appropriate adjustments in payments by the Administrative Agent for
periods prior to such Effective Date or with respect to the making of this
assignment directly between themselves.


 


3.  General Provisions.  This Assignment and Acceptance Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and
their respective successors and assigns. 
This Assignment and Acceptance Agreement may be executed in any number
of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a
signature page of this Assignment and Acceptance Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance Agreement. 
This Assignment and Acceptance Agreement shall be governed by, and
construed in accordance with, the law of the State of North Carolina.


 


A-6

















 


EXHIBIT B


 


FORM OF AMENDED AND RESTATED GUARANTY


 


THIS
SECOND AMENDED AND RESTATED GUARANTY dated as of September 29, 2010,
executed and delivered by each of the undersigned and the other Persons from
time to time party hereto pursuant to the execution and delivery of an
Accession Agreement in the form of Annex I hereto (all of the undersigned, together
with such other Persons each a “Guarantor” and collectively, the “Guarantors”)
in favor of WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor by merger to Wachovia Bank, National Association,
in its capacity as Administrative Agent (the “Administrative Agent”) for the
Lenders under that certain Second Amended and Restated Credit Agreement dated
as of September 29, 2010 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among U-STORE-IT,
L.P. (the “Borrower”), U-Store-It Trust (the “Parent”), the financial
institutions party thereto and their assignees under Section 12.5. thereof
(the “Lenders”), the Administrative Agent, and the other parties thereto.


 


WHEREAS,
pursuant to the Credit Agreement, the Administrative Agent and the Lenders have
agreed to make available to the Borrower certain financial accommodations on
the terms and conditions set forth in the Credit Agreement;


 


WHEREAS,
the Borrower and each of the Guarantors, though separate legal entities, are
mutually dependent on each other in the conduct of their respective businesses
as an integrated operation and have determined it to be in their mutual best
interests to obtain financing from the Administrative Agent and the Lenders
through their collective efforts;


 


WHEREAS,
each Guarantor acknowledges that it will receive direct and indirect benefits
from the Administrative Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and, accordingly,
each Guarantor is willing to guarantee the Borrower’s obligations to the
Administrative Agent and the Lenders on the terms and conditions contained
herein; and


 


WHEREAS,
the Guarantors previously executed and delivered to the Administrative Agent
that certain Amended and Restated Guaranty dated as of December 7, 2009
(as amended and in effect immediately prior to the date hereof, the “Existing
Guaranty”);


 


WHEREAS,
the amendment and restatement of the Existing Guaranty effected by each
Guarantor’s execution and delivery of this Guaranty is a condition to the
Administrative Agent and the Lenders making, and continuing to make, such
financial accommodations to the Borrower.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each Guarantor, each Guarantor agrees as
follows:


 


Section 1.  Guaranty.  Each Guarantor hereby absolutely, irrevocably
and unconditionally guaranties the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all of
the following (collectively referred to as the “Guarantied Obligations”):  (a) all indebtedness, liabilities,
obligations, covenants and duties owing by the Borrower to any Lender or the
Administrative Agent under or in connection with the Credit Agreement and any
other Loan Document, including without limitation, the repayment of all
principal of the Loans, the Reimbursement Obligations and all other Letter of
Credit Liabilities, and the payment of all interest, Fees, charges, reasonable
attorneys’ fees and other amounts payable to any Lender or the Administrative
Agent


 


B-1

















 


thereunder
or in connection therewith (including, to the extent permitted by Applicable
Law, interest, Fees and other amounts that would accrue and become due after
the filing of a case or other proceeding under the Bankruptcy Code (as defined
below) or other similar Applicable Law but for the commencement of such case or
proceeding, whether or not such amounts are allowed or allowable in whole or in
part in such case or proceeding); (b) any and all extensions, renewals,
modifications, amendments or substitutions of the foregoing; (c) all other
Obligations; and (d) all expenses, including, without limitation,
reasonable attorneys’ fees and disbursements, that are incurred by any of the
Lenders or the Administrative Agent in the enforcement of any of the foregoing
or any obligation of such Guarantor hereunder.


 


Section 2.  Guaranty of Payment and Not of Collection.  This Guaranty is a guaranty of payment, and
not of collection, and a debt of each Guarantor for its own account.  Accordingly, none of the Administrative Agent
or the Lenders shall be obligated or required before enforcing this Guaranty
against any Guarantor:  (a) to
pursue any right or remedy any of them may have against the Borrower, any other
Guarantor or any other Person or commence any suit or other proceeding against
the Borrower, any other Guarantor or any other Person in any court or other
tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Guarantor or any other Person; or (c) to make demand
of the Borrower, any other Guarantor or any other Person.


 


Section 3.  Guaranty Absolute.  Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of the documents
evidencing the same, regardless of any Applicable Law now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or the Lenders with respect thereto.  The liability of each Guarantor under this
Guaranty shall be absolute, irrevocable and unconditional in accordance with
its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including without limitation,
the following (whether or not such Guarantor consents thereto or has notice
thereof):


 


(a)           (i) any change in the amount,
interest rate or due date or other term of any of the Guarantied Obligations,
(ii) any change in the time, place or manner of payment of all or any
portion of the Guarantied Obligations, (iii) any amendment or waiver of,
or consent to the departure from or other indulgence with respect to, the
Credit Agreement, any other Loan Document, or any other document or instrument
evidencing or relating to any Guarantied Obligations, or (iv) any waiver,
renewal, extension, addition, or supplement to, or deletion from, or any other
action or inaction under or in respect of, the Credit Agreement, any of the
other Loan Documents, or any other documents, instruments or agreements
relating to the Guarantied Obligations or any other instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;


 


(b)           any lack of validity or
enforceability of the Credit Agreement, any of the other Loan Documents, or any
other document, instrument or agreement referred to therein or evidencing any
Guarantied Obligations or any assignment or transfer of any of the foregoing;


 


(c)           any furnishing to the Administrative
Agent or the Lenders of any security for the Guarantied Obligations;


 


(d)           any settlement or compromise of any
of the Guarantied Obligations or any liability of any other party with respect
to the Guarantied Obligations, or any subordination of the payment of the
Guarantied Obligations to the payment of any other liability of the Borrower or
any other Loan Party;


 


(e)           any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to such Guarantor, the Borrower, any other Loan Party or
any


 


B-2

















 


other
Person, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding;


 


(f)            any act or failure to act by the
Borrower, any other Loan Party or any other Person which may adversely affect
such Guarantor’s subrogation rights, if any, against the Borrower to recover
payments made under this Guaranty;


 


(g)           any application of sums paid by the
Borrower, any other Guarantor or any other Person with respect to the
liabilities of the Borrower to the Administrative Agent or the Lenders,
regardless of what liabilities of the Borrower remain unpaid;


 


(h)           any defect, limitation or
insufficiency in the borrowing powers of the Borrower or in the exercise
thereof;


 


(i)            any defense, set-off, claim or
counterclaim (other than indefeasible payment and performance in full) which
may at any time be available to or be asserted by the Borrower, any other Loan
Party or any other Person against the Administrative Agent or any Lender;


 


(j)            any change in the corporate
existence, structure or ownership of the Borrower or any other Loan Party;


 


(k)           any statement, representation or
warranty made or deemed made by or on behalf of the Borrower, any Guarantor or
any other Loan Party under any Loan Document, or any amendment hereto or
thereto, proves to have been incorrect or misleading in any respect; or


 


(l)            any other circumstance which might
otherwise constitute a defense available to, or a discharge of, a Guarantor
hereunder (other than indefeasible payment and performance in full).


 


Section 4.  Action with Respect to Guarantied
Obligations.  The Administrative
Agent and the Lenders may, at any time and from time to time, without the
consent of, or notice to, any Guarantor, and without discharging any Guarantor
from its obligations hereunder, take any and all actions described in
Section 3 and may otherwise: 
(a) amend, modify, alter or supplement the terms of any of the
Guarantied Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations;
(b) amend, modify, alter or supplement the Credit Agreement or any other
Loan Document; (c) release any other Loan Party or other Person liable in
any manner for the payment or collection of the Guarantied Obligations;
(d) exercise, or refrain from exercising, any rights against the Borrower,
any other Guarantor or any other Person; and (e) apply any sum, by whomsoever
paid or however realized, to the Guarantied Obligations in such order as the
Lenders shall elect.


 


Section 5.  Representations and Warranties.  Each Guarantor hereby makes to the
Administrative Agent and the Lenders all of the representations and warranties
made by the Borrower with respect to or in any way relating to such Guarantor
in the Credit Agreement and the other Loan Documents, as if the same were set
forth herein in full.


 


Section 6.  Covenants.  Each Guarantor will comply with all covenants
which the Borrower is to cause such Guarantor to comply with under the terms of
the Credit Agreement or any of the other Loan Documents.


 


Section 7.  Waiver.  Each Guarantor, to the fullest extent
permitted by Applicable Law, hereby waives notice of acceptance hereof or any
presentment, demand, protest or notice of any kind, and any


 


B-3

















 


other
act or thing, or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or which
otherwise might operate to discharge such Guarantor from its obligations
hereunder.


 


Section 8.  Inability to Accelerate Loan.  If the Administrative Agent and/or the
Lenders are prevented under Applicable Law or otherwise from demanding or
accelerating payment of any of the Guarantied Obligations by reason of any
automatic stay or otherwise, the Administrative Agent and/or the Lenders shall
be entitled to receive from each Guarantor, upon demand therefor, the sums which
otherwise would have been due had such demand or acceleration occurred.


 


Section 9.  Reinstatement of Guarantied Obligations.  If claim is ever made on the Administrative
Agent or any of the Lenders for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guarantied Obligations, and the
Administrative Agent or such Lender repays all or part of said amount by reason
of (a) any judgment, decree or order of any court or administrative body
of competent jurisdiction, or (b) any settlement or compromise of any such
claim effected by the Administrative Agent or such Lender with any such
claimant (including the Borrower or a trustee in bankruptcy for the Borrower),
then and in such event each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding on it, notwithstanding any
revocation hereof or the cancellation of the Credit Agreement, any of the other
Loan Documents, or any other instrument evidencing any liability of the
Borrower, and such Guarantor shall be and remain liable to the Administrative
Agent or such Lender for the amounts so repaid or recovered to the same extent
as if such amount had never originally been paid to the Administrative Agent or
such Lender.


 


Section 10.  Subrogation.  Upon the making by any Guarantor of any
payment hereunder for the account of the Borrower, such Guarantor shall be
subrogated to the rights of the payee against the Borrower; provided, however,
that such Guarantor shall not enforce any right or receive any payment by way
of subrogation or otherwise take any action in respect of any other claim or
cause of action such Guarantor may have against the Borrower arising by reason
of any payment or performance by such Guarantor pursuant to this Guaranty,
unless and until all of the Guarantied Obligations have been indefeasibly paid
and performed in full.  If any amount
shall be paid to such Guarantor on account of or in respect of such subrogation
rights or other claims or causes of action, such Guarantor shall hold such
amount in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith pay such amount to the Administrative Agent to be credited and
applied against the Guarantied Obligations, whether matured or unmatured, in accordance
with the terms of the Credit Agreement or to be held by the Administrative
Agent as collateral security for any Guarantied Obligations existing.


 


Section 11.  Payments Free and Clear.  All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be
paid in full, without set-off or counterclaim or any deduction or withholding
whatsoever (including any Taxes), and if any Guarantor is required by
Applicable Law or by a Governmental Authority to make any such deduction or
withholding, such Guarantor shall pay to the Administrative Agent and the
Lenders such additional amount as will result in the receipt by the
Administrative Agent and the Lenders of the full amount payable hereunder had such
deduction or withholding not occurred or been required.


 


Section 12.  Set-off.  In addition to any rights now or hereafter
granted under any of the other Loan Documents or Applicable Law and not by way
of limitation of any such rights, each Guarantor hereby authorizes the
Administrative Agent, each Lender and any of their respective Affiliates, at
any time while an Event of Default exists, without any prior notice to such
Guarantor or to any other Person, any such notice being hereby expressly
waived, but in the case of a Lender or an Affiliate of a Lender subject to
receipt of the prior written consent of the Requisite Lenders exercised in
their sole discretion, to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited


 


B-4

















 


to,
indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the
Administrative Agent, such Lender, or any Affiliate of the Administrative Agent
or such Lender, to or for the credit or the account of such Guarantor against
and on account of any of the Guarantied Obligations, although such obligations
shall be contingent or unmatured.


 


Section 13.  Subordination.  Each Guarantor hereby expressly covenants and
agrees for the benefit of the Administrative Agent and the Lenders that all
obligations and liabilities of the Borrower to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower (collectively, the “Junior Claims”) shall be
subordinate and junior in right of payment to all Guarantied Obligations.  If an Event of Default shall exist, then no
Guarantor shall accept any direct or indirect payment (in cash, property or
securities, by setoff or otherwise) from the Borrower on account of or in any
manner in respect of any Junior Claim until all of the Guarantied Obligations
have been indefeasibly paid in full.


 


Section 14.  Avoidance Provisions.  It is the intent of each Guarantor, the
Administrative Agent and the Lenders that in any Proceeding, such Guarantor’s
maximum obligation hereunder shall equal, but not exceed, the maximum amount
which would not otherwise cause the obligations of such Guarantor hereunder (or
any other obligations of such Guarantor to the Administrative Agent and the
Lenders) to be avoidable or unenforceable against such Guarantor in such
Proceeding as a result of Applicable Law, including without limitation, (a) Section 548
of the Bankruptcy Code and (b) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such Proceeding, whether by virtue of
Section 544 of the Bankruptcy Code or otherwise.  The Applicable Laws under which the possible
avoidance or unenforceability of the obligations of such Guarantor hereunder
(or any other obligations of such Guarantor to the Administrative Agent and the
Lenders) shall be determined in any such Proceeding are referred to as the “Avoidance
Provisions”.  Accordingly, to the extent
that the obligations of any Guarantor hereunder would otherwise be subject to
avoidance under the Avoidance Provisions, the maximum Guarantied Obligations
for which such Guarantor shall be liable hereunder shall be reduced to that
amount which, as of the time any of the Guarantied Obligations are deemed to
have been incurred under the Avoidance Provisions, would not cause the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Administrative Agent and the Lenders), to be subject to
avoidance under the Avoidance Provisions. 
This Section is intended solely to preserve the rights of the
Administrative Agent and the Lenders hereunder to the maximum extent that would
not cause the obligations of any Guarantor hereunder to be subject to avoidance
under the Avoidance Provisions, and no Guarantor or any other Person shall have
any right or claim under this Section as against the Administrative Agent
and the Lenders that would not otherwise be available to such Person under the
Avoidance Provisions.


 


Section 15.  Information.  Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower
and the other Guarantors, and of all other circumstances bearing upon the risk
of nonpayment of any of the Guarantied Obligations and the nature, scope and
extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that neither the Administrative Agent nor any of the Lenders shall have
any duty whatsoever to advise any Guarantor of information regarding such
circumstances or risks.


 


Section 16.  Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.


 


B-5

















 


SECTION 17.  WAIVER OF JURY TRIAL.


 


(a)           EACH PARTY HERETO ACKNOWLEDGES THAT
ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG ANY GUARANTOR, THE ADMINISTRATIVE
AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF
LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES.  ACCORDINGLY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND EACH
GUARANTOR HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE
COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG ANY GUARANTOR, THE ADMINISTRATIVE AGENT OR ANY OF
THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.


 


(b)           EACH OF THE GUARANTORS, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT AND ANY
STATE COURT LOCATED IN CHARLOTTE, NORTH CAROLINA SHALL HAVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE
ADMINISTRATIVE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY
TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM
OR THEREFROM.  EACH GUARANTOR AND EACH OF
THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR
DISPUTES.  EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE
SAME.  THE CHOICE OF FORUM SET FORTH IN
THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY
ANY PARTY OR THE ENFORCEMENT BY ANY PARTY OF ANY JUDGMENT OBTAINED IN SUCH
FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


(c)           THE PROVISIONS OF THIS SECTION HAVE
BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT
OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN
DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE
TERMINATION OF THIS GUARANTY.


 


Section 18.  Loan Accounts.  The Administrative Agent and each Lender may
maintain books and accounts setting forth the amounts of principal, interest
and other sums paid and payable with respect to the Guarantied Obligations, and
in the case of any dispute relating to any of the outstanding amount, payment
or receipt of any of the Guarantied Obligations or otherwise, the entries in
such books and accounts shall be deemed conclusive evidence of the amounts and
other matters set forth herein, absent manifest error.  The failure of the Administrative Agent or
any Lender to maintain such books and accounts shall not in any way relieve or
discharge any Guarantor of any of its obligations hereunder.


 


Section 19.  Waiver of Remedies.  No delay or failure on the part of the
Administrative Agent or any of the Lenders in the exercise of any right or
remedy it may have against any Guarantor hereunder or otherwise shall operate
as a waiver thereof, and no single or partial exercise by the Administrative
Agent


 


B-6
















 


or
any of the Lenders of any such right or remedy shall preclude any other or
further exercise thereof or the exercise of any other such right or remedy.


 


Section 20.  Termination.  This Guaranty shall remain in full force and
effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement
in accordance with its terms.


 


Section 21.  Successors and Assigns.  Each reference herein to the Administrative
Agent or the Lenders shall be deemed to include such Person’s respective
successors and assigns (including, but not limited to, any holder of the
Guarantied Obligations) in whose favor the provisions of this Guaranty also
shall inure, and each reference herein to each Guarantor shall be deemed to
include such Guarantor’s successors and assigns, upon whom this Guaranty also
shall be binding.  The Lenders may, in
accordance with the applicable provisions of the Credit Agreement, assign,
transfer or sell any Guarantied Obligation, or grant or sell participations in
any Guarantied Obligations, to any Person without the consent of, or notice to,
any Guarantor and without releasing, discharging or modifying any Guarantor’s
obligations hereunder.  Subject to
Section 12.8. of the Credit Agreement, each Guarantor hereby consents to
the delivery by the Administrative Agent or any Lender to any Assignee or
Participant (or any prospective Assignee or Participant) of any financial or
other information regarding the Borrower or any Guarantor.  No Guarantor may assign or transfer its
rights or obligations hereunder to any Person without the prior written consent
of the Administrative Agent and the Lenders and any such assignment or other
transfer to which the Administrative Agent and the Lenders have not so
consented shall be null and void.


 


Section 22.  JOINT AND SEVERAL OBLIGATIONS.  THE OBLIGATIONS OF THE GUARANTORS HEREUNDER
SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS
LIABLE FOR THE FULL AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE
OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS HEREUNDER.


 


Section 23.  Amendments.  This Guaranty may not be amended except in a
writing signed by the Requisite Lenders (or all of the Lenders if required
under the terms of the Credit Agreement), the Administrative Agent and each
Guarantor.


 


Section 24.  Payments.  All payments to be made by any Guarantor
pursuant to this Guaranty shall be made in Dollars, in immediately available
funds to the Administrative Agent at the Principal Office, not later than 2:00 p.m.
on the date of demand therefor.


 


Section 25.  Notices.  All notices, requests and other
communications hereunder shall be in writing (including facsimile transmission
or similar writing) and shall be given (a) to each Guarantor at its
address set forth below its signature hereto, (b) to the Administrative
Agent or any Lender at its respective address for notices provided for in the
Credit Agreement, or (c) as to each such party at such other address as
such party shall designate in a written notice to the other parties.  Each such notice, request or other
communication shall be effective (i) if mailed, when received;
(ii) if telecopied, when transmitted; or (iii) if hand delivered,
when delivered; provided, however, that any notice of a change of address for
notices shall not be effective until received.


 


Section 26.  Severability.  In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


Section 27.  Headings.  Section headings used in this Guaranty
are for convenience only and shall not affect the construction of this
Guaranty.


 


B-7

















 


Section 28.  Limitation of Liability.  Neither the Administrative Agent nor any of
the Lenders, nor any Affiliate, officer, director, employee, attorney, or agent
of the Administrative Agent or any of the Lenders, shall have any liability
with respect to, and each Guarantor hereby waives, releases, and agrees not to
sue any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by a Guarantor in connection with,
arising out of, or in any way related to, this Guaranty or any of the other
Loan Documents, or any of the transactions contemplated by this Guaranty, the
Credit Agreement or any of the other Loan Documents.  Each Guarantor hereby waives, releases, and
agrees not to sue the Administrative Agent or any of the Lenders or any of the
Administrative Agent’s or of any Lenders’, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Guaranty, the Credit
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by Credit Agreement or financed thereby.


 


Section 29.  Definitions.  (a) For the purposes of this Guaranty:


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy”, as
amended from time to time, and any successor statute or statutes and all rules and
regulations from time to time promulgated thereunder, and any comparable
foreign laws relating to bankruptcy, insolvency or creditors’ rights.


 


“Proceeding”
means any of the following:  (i) a
voluntary or involuntary case concerning any Guarantor shall be commenced under
the Bankruptcy Code; (ii) a custodian (as defined in such Bankruptcy Code
or any other applicable bankruptcy laws) is appointed for, or takes charge of,
all or any substantial part of the property of any Guarantor; (iii) any
other proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for
adjustment of debts, whether now or hereafter in effect, is commenced relating
to any Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt;
(v) any order of relief or other order approving any such case or
proceeding is entered by a court of competent jurisdiction; (vi) any
Guarantor makes a general assignment for the benefit of creditors;
(vii) any Guarantor shall fail to pay, or shall state that it is unable to
pay, or shall be unable to pay, its debts generally as they become due;
(viii) any Guarantor shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; (ix) any Guarantor
shall by any act or failure to act indicate its consent to, approval of or acquiescence
in any of the foregoing; or (x) any corporate action shall be taken by any
Guarantor for the purpose of effecting any of the foregoing.


 


(b)           Terms not otherwise defined herein
are used herein with the respective meanings given them in the Credit
Agreement.


 


SECTION 30. 
NO NOVATION.


 


THE PARTIES HERETO HAVE ENTERED INTO THIS GUARANTY
SOLELY TO AMEND AND RESTATE THE TERMS OF THE EXISTING GUARANTY.  THE PARTIES DO NOT INTEND THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF
ANY OF THE OBLIGATIONS OWING BY THE GUARANTORS UNDER OR IN CONNECTION WITH THE
EXISTING GUARANTY.


 


[Signature on Next Page]


 


B-8

















 


IN
WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty
as of the date and year first written above.


 


	
   

  	
  [GUARANTORS]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  
	
   

  	
  c/o
  U-Store-It Trust

  
	
   

  	
  460
  Swedesford Road, Suite 3000

  
	
   

  	
  Wayne,
  Pennsylvania 19087

  
	
   

  	
  Attn:
  Chief Financial Officer

  
	
   

  	
  Telecopy
  Number: (610) 293-5720

  
	
   

  	
  Telephone
  Number: (610) 293-5700

  



 


B-9

















 


ANNEX I


 


FORM OF ACCESSION AGREEMENT


 


THIS
ACCESSION AGREEMENT dated as of
                        ,
20    , executed and delivered by                                             ,
a                           
(the “New Guarantor”), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, successor by merger to Wachovia
Bank, National Association, in its capacity as Administrative Agent (the “Administrative
Agent”) for the Lenders under that certain Second Amended and Restated Credit
Agreement dated as of September 29, 2010 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among U-STORE-IT, L.P. (the “Borrower”), U-Store-It Trust, the financial
institutions party thereto and their assignees under Section 12.5. thereof
(the “Lenders”), the Administrative Agent, and the other parties thereto.


 


WHEREAS,
pursuant to the Credit Agreement, the Administrative Agent and the Lenders have
agreed to make available to the Borrower certain financial accommodations on
the terms and conditions set forth in the Credit Agreement;


 


WHEREAS,
the Borrower, the New Guarantor, and the existing Guarantors, though separate
legal entities, are mutually dependent on each other in the conduct of their
respective businesses as an integrated operation and have determined it to be
in their mutual best interests to obtain financing from the Administrative
Agent and the Lenders through their collective efforts;


 


WHEREAS,
the New Guarantor acknowledges that it will receive direct and indirect
benefits from the Administrative Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, the New Guarantor is willing to guarantee the Borrower’s
obligations to the Administrative Agent and the Lenders on the terms and
conditions contained herein; and


 


WHEREAS,
the New Guarantor’s execution and delivery of this Agreement is a condition to
the Administrative Agent and the Lenders continuing to make such financial
accommodations to the Borrower.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the New Guarantor, the New Guarantor agrees as
follows:


 


Section 1.  Accession to Guaranty.  The New Guarantor hereby agrees that it is a “Guarantor”
under that certain Second Amended and Restated Guaranty dated as of September 29,
2010 (as amended, supplemented, restated or otherwise modified from time to
time, the “Guaranty”), made by each Subsidiary of the Borrower a party thereto
in favor of the Administrative Agent and the Lenders and assumes all
obligations of a “Guarantor” thereunder and agrees to be bound thereby, all as
if the New Guarantor had been an original signatory to the Guaranty.  Without limiting the generality of the
foregoing, the New Guarantor hereby:


 


(a)           irrevocably and unconditionally
guarantees the due and punctual payment and performance when due, whether at
stated maturity, by acceleration or otherwise, of all Guarantied Obligations
(as defined in the Guaranty);


 


B-10

















 


(b)           makes to the Administrative Agent and
the Lenders as of the date hereof each of the representations and warranties
contained in Section 5 of the Guaranty and agrees to be bound by each of
the covenants contained in Section 6 of the Guaranty; and


 


(c)           consents and agrees to each provision
set forth in the Guaranty.


 


SECTION 2.  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH
CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE.


 


Section 3.  Definitions.  Capitalized terms used herein and not
otherwise defined herein shall have their respective defined meanings given
them in the Credit Agreement.


 


[Signatures on Next Page]


 


B-11

















 


IN
WITNESS WHEREOF, the New Guarantor has caused this Accession Agreement to be
duly executed and delivered under seal by its duly authorized officers as of
the date first written above.


 


	
   

  	
   

  	
  [NEW
  GUARANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c/o
  U-Store-It Trust

  
	
   

  	
   

  	
  460
  Swedesford Road, Suite 3000

  
	
   

  	
   

  	
  Wayne,
  Pennsylvania 19087

  
	
   

  	
   

  	
  Attn:
  Chief Financial Officer

  
	
   

  	
   

  	
  Telecopy
  Number: (610) 293-5720

  
	
   

  	
   

  	
  Telephone
  Number: (610) 293-5700

  
	
   

  	
   

  	
   

  
	
  Accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, successor by merger to Wachovia Bank, National
  Association, as Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 


B-12

















 


EXHIBIT C


 


FORM OF NOTICE OF BORROWING


 


                        ,
20


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent


c/o Wells Fargo Real Estate Banking Group


200 Public Square - Suite 3200


Cleveland, OH 44114


Attention:  Greg Ward


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement dated as
of September 29, 2010 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among U-STORE-IT,
L.P. (the “Borrower”), U-Store-It Trust, the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”),
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent (the “Administrative Agent”), and the other parties thereto.  Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.


 


1.                                       Pursuant to
Section 2.1.(b) of the Credit Agreement, the Borrower hereby requests
that the Lenders make Revolving Loans to the Borrower in an aggregate principal
amount equal to
$                                      .


 


2.                                       The Borrower
requests that such Revolving Loans be made available to the Borrower on
                        ,
20      .


 


3.                                       The Borrower
hereby requests that the requested Revolving Loans all be of the following
Type:


 


[Check one box only]


 


o      Base Rate Loans


o      LIBOR Loans, each with an
initial Interest Period for a duration of:


 


[Check one box only]


o    1 month


o    3 months


o    6 months


 


4.                                       The proceeds of
this borrowing of Revolving Loans will be used for purposes that are consistent
with the terms of Section 7.8. of the Credit Agreement.


 


5.                                       The Borrower
requests that the proceeds of this borrowing of Revolving Loans be made
available to the Borrower by
                                                        .


 


The
Borrower hereby certifies to the Administrative Agent and the Lenders that as
of the date hereof and as of the date of the making of the requested Revolving
Loans and after giving effect 


 


C-1

















 


thereto,
(a) no Default or Event of Default exists or shall exist, and (b) the
representations and warranties made or deemed made by the Parent, the Borrower
and each other Loan Party in the Loan Documents to which any of them is a party
are and shall be true and correct in all material respects, except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been
true and correct in all material respects on and as of such earlier date) and
except for changes in factual circumstances not prohibited under the Loan
Documents. In addition, the Borrower certifies to the Administrative Agent and
the Lenders that all conditions to the making of the requested Revolving Loans
contained in Article V. of the Credit Agreement will have been satisfied
(or waived in accordance with the applicable provisions of the Loan Documents)
at the time such Revolving Loans are made.


 


If
notice of the requested borrowing of Revolving Loans was previously given by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.1.(b) of the Credit Agreement.


 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Borrowing as of the date first written above.


 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:
  U-Store-It Trust, its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


C-2

















 


EXHIBIT D


 


FORM OF NOTICE OF CONTINUATION


 


                        ,
20


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent


c/o Wells Fargo Real Estate Banking Group


200 Public Square - Suite 3200


Cleveland, OH 44114


Attention:  Greg Ward


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement dated as
of September 29, 2010 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among U-STORE-IT,
L.P. (the “Borrower”),  U-Store-It Trust,
the financial institutions party thereto and their assignees under
Section 12.5. thereof (the “Lenders”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative
Agent”), and the other parties thereto. 
Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.


 


Pursuant
to Section 2.9. of the Credit Agreement, the Borrower hereby requests a
Continuation of a borrowing of Loans under the Credit Agreement, and in that
connection sets forth below the information relating to such Continuation as
required by such Section of the Credit Agreement:


 


1.                                       The proposed
date of such Continuation is
                        ,
20      .


 


2.             The Loans to be Continued pursuant
hereto are:


 


[Check the relevant box]


 


o      Revolving Loans


o  Term Loans


 


3.                                       The aggregate
principal amount of Loans subject to the requested Continuation is
$                                                
and was originally borrowed by the Borrower on
                        ,
20      .


 


4.                                       The portion of
such principal amount subject to such Continuation is
$                                                    .


 


5.                                       The current
Interest Period for each of the Loans subject to such Continuation ends on
                                ,
20      .


 


D-1

















 


6.                                       The duration of
the new Interest Period for each of such Loans or portion thereof subject to
such Continuation is:


 


[Check one box only]


o    1 month


o    3 months


o    6 months


 


The
Borrower hereby certifies to the Administrative Agent and the Lenders that as
of the date hereof and as of the date of the requested Conversion and after
giving effect thereto, (a) no Default or Event of Default exists or will
exist, and (b) the representations and warranties made or deemed made by
the Parent, the Borrower and each other Loan Party in the Loan Documents to
which any of them is a party are and shall be true and correct in all material
respects, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct in all material respects on and
as of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents.


 


If
notice of the requested Continuation was given previously by telephone, this
notice is to be considered the written confirmation of such telephone notice
required by Section 2.9. of the Credit Agreement.


 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Continuation as of the date first written above.


 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:
  U-Store-It Trust, its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


D-2
















 


EXHIBIT E


 


FORM OF NOTICE OF CONVERSION


 


                        ,
20   


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent


c/o Wells Fargo Real Estate Banking Group


200 Public Square - Suite 3200


Cleveland, OH 44114


Attention:  Greg Ward


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement dated as
of September 29, 2010 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among U-STORE-IT,
L.P. (the “Borrower”), U-Store-It Trust, the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”),
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent (the “Administrative Agent”), and the other parties
thereto.  Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in
the Credit Agreement.


 


Pursuant
to Section 2.10. of the Credit Agreement, the Borrower hereby requests a
Conversion of a borrowing of Loans of one Type into Loans of another Type under
the Credit Agreement, and in that connection sets forth below the information
relating to such Conversion as required by such Section of the Credit
Agreement:


 


1.                                       The proposed
date of such Conversion is
                            ,
20      .


 


2.                                       Loans to be
Converted pursuant hereto are:


 


	
  [Check
  the relevant box]

  	
  o

  	
  Revolving
  Loans

  
	
   

  	
  o

  	
  Term
  Loans

  



 


3.                                       The Loans to be
Converted pursuant hereto are currently:


 


	
  [Check
  one box only]

  	
  o

  	
  Base
  Rate Loans

  
	
   

  	
  o

  	
  LIBOR
  Loans

  



 


4.                                       The aggregate
principal amount of Loans subject to the requested Conversion is
$                                          
and was originally borrowed by the Borrower on
                        ,
20      .


 


5.                                       The portion of
such principal amount subject to such Conversion is
$                                      .


 


E-1

















 


6.                                       The amount of
such Loans to be so Converted is to be converted into Loans of the following
Type:


 


	
  [Check
  one box only]

  	
   

  	
   

  



 


o                      Base Rate Loans


o                      LIBOR Loans,
each with an initial Interest Period for a duration of:


 


[Check one box only]


 


o                    1 month


o                    3 months


o                    6 months


 


The
Borrower hereby certifies to the Administrative Agent and the Lenders that as
of the date hereof and as of the date of the requested Conversion and after
giving effect thereto, (a) no Default or Event of Default exists or will
exist (provided the certification under this clause (a) shall not be
made in connection with the Conversion of a Loan into a Base Rate Loan), and
(b) the representations and warranties made or deemed made by the Parent,
the Borrower and each other Loan Party in the Loan Documents to which any of
them is a party are and shall be true and correct in all material respects,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall have been true and correct in all material respects on and as of such
earlier date) and except for changes in factual circumstances not prohibited
under the Loan Documents.


 


If
notice of the requested Conversion was given previously by telephone, this
notice is to be considered the written confirmation of such telephone notice
required by Section 2.10. of the Credit Agreement.


 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Conversion as of the date first written above.


 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  U-Store-It
  Trust, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


E-2

















 


EXHIBIT F


 


FORM OF NOTICE OF SWINGLINE BORROWING


 


                        ,
20   


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent


c/o Wells Fargo Real Estate Banking Group


200 Public Square - Suite 3200


Cleveland, OH 44114


Attention:  Greg Ward


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement dated as
of September 29, 2010 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among U-STORE-IT,
L.P. (the “Borrower”), U-Store-It Trust, the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”),
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (the “Administrative Agent”), and the other parties
thereto.  Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in
the Credit Agreement.


 


1.                                       Pursuant to
Section 2.3.(b) of the Credit Agreement, the Borrower hereby requests
that the Swingline Lender make a Swingline Loan to the Borrower in an amount
equal to
$                                      .


 


2.                                       The Borrower
requests that such Swingline Loan be made available to the Borrower on
                        ,
20      .


 


3.                                       The proceeds of
this Swingline Loan will be used for purposes that are consistent with the
terms of Section 7.8. of the Credit Agreement.


 


4.                                       The Borrower
requests that the proceeds of such Swingline Loan be made available to the
Borrower by
                                                            .


 


The
Borrower hereby certifies to the Administrative Agent, the Swingline Lender and
the Lenders that as of the date hereof, as of the date of the making of the requested
Swingline Loan, and after making such Swingline Loan, (a) no Default or
Event of Default exists or will exist, and (b) the representations and
warranties made or deemed made by the Parent, the Borrower and each other Loan
Party in the Loan Documents to which any of them is a party are and shall be
true and correct in all material respects, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents.  In addition, the Borrower certifies to the
Administrative Agent and the Lenders that all conditions to the making of the
requested Swingline Loan contained in Article V. of the Credit Agreement
will have been satisfied at the time such Swingline Loan is made.


 


If
notice of the requested borrowing of this Swingline Loan was previously given
by telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.3.(b) of the Credit Agreement.


 


F-1

















 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Swingline Borrowing as of the date first written above.


 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  U-Store-It
  Trust, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


F-2

















 


EXHIBIT G


 


FORM OF SWINGLINE NOTE


 


	
  $20,000,000

  	
  September 29, 2010

  



 


FOR
VALUE RECEIVED, the undersigned, U-STORE-IT, L.P., a limited partnership formed
under the laws of the State of Delaware (the “Borrower”), hereby promises to
pay to WELLS FARGO BANK, NATIONAL ASSOCIATION
(the “Swingline Lender”) or its registered assigns at its address at
c/o Wells Fargo Real Estate Banking Group, 200 Public Square-Suite 3200,
Cleveland, Ohio 44114, or at such other address as may be specified in writing
by the Swingline Lender to the Borrower, the principal sum of TWENTY MILLION
AND NO/100 DOLLARS ($20,000,000) (or such lesser amount as shall equal the
aggregate unpaid principal amount of Swingline Loans made by the Swingline
Lender to the Borrower under the Credit Agreement), on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount owing hereunder, at the rates and on the dates provided
in the Credit Agreement.


 


The
date and amount of each Swingline Loan, and each payment made on account of the
principal thereof, shall be recorded by the Swingline Lender on its books and,
prior to any transfer of this Note, endorsed by the Swingline Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Swingline Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing under the Credit Agreement or hereunder.


 


This
Note is the Swingline Note referred to in the Second Amended and Restated
Credit Agreement dated as of September 29, 2010 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among the Borrower, U-Store-It Trust, the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”),
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, and the other parties thereto, and evidences Swingline
Loans made to the Borrower thereunder.  Terms used but not otherwise defined in this
Note have the respective meanings assigned to them in the Credit Agreement.


 


The
Credit Agreement provides for the acceleration of the maturity of this Note
upon the occurrence of certain events and for prepayments of Swingline Loans
upon the terms and conditions specified therein.


 


Except
as permitted by Section 12.5. of the Credit Agreement, this Note may not
be assigned by the Swingline Lender to any Person.


 


THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.


 


The
Borrower hereby waives presentment for payment, demand, notice of demand,
notice of non-payment, protest, notice of protest and all other similar
notices.


 


Time
is of the essence for this Note.


 


IN
WITNESS WHEREOF, the undersigned has executed and delivered this Swingline Note
under seal as of the date first written above.


 


G-1

















 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  U-Store-It
  Trust, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


G-2

















 


SCHEDULE OF SWINGLINE LOANS


 


This
Note evidences Swingline Loans made under the within-described Credit Agreement
to the Borrower, on the dates and in the principal amounts set forth below,
subject to the payments and prepayments of principal set forth below:


 


	
  Date of Loan

  	
   

  	
  Principal Amount

  of Loan

  	
   

  	
  Amount Paid

  or Prepaid

  	
   

  	
  Unpaid Principal

  Amount

  	
   

  	
  Notation Made

  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


G-3

















 


EXHIBIT H


 


FORM OF REVOLVING NOTE


 


	
  $

  	
  , 20    

  



 


FOR
VALUE RECEIVED, the undersigned, U-STORE-IT, L.P., a limited partnership formed
under the laws of the State of Delaware (the “Borrower”), hereby promises to
pay to
                                        
(the “Lender”) or its registered assigns, in care of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative
Agent”) at WELLS FARGO BANK, NATIONAL
ASSOCIATION, c/o Wells Fargo Real Estate Banking Group, 200 Public
Square-Suite 3200, Cleveland, Ohio 44114, or at such other address as may
be specified in writing by the Administrative Agent to the Borrower, the
principal sum of
                                
AND         /100 DOLLARS
($                        )
(or such lesser amount as shall equal the aggregate unpaid principal amount of
Revolving Loans made by the Lender to the Borrower under the Credit Agreement
(as herein defined)), on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount owing
hereunder, at the rates and on the dates provided in the Credit Agreement.


 


The
date and amount of each Revolving Loan made by the Lender to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation or endorsement
shall not affect the obligations of the Borrower to make a payment when due of
any amount owing under the Credit Agreement or hereunder.


 


This
Note is one of the Revolving Notes referred to in the Second Amended and
Restated Credit Agreement dated as of September 29, 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrower, U-Store-It Trust, the financial
institutions party thereto and their assignees under Section 12.5. thereof
(the “Lenders”), the Administrative Agent, and the other parties thereto.  Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.


 


The
Credit Agreement provides for the acceleration of the maturity of this Note
upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.


 


Except
as permitted by Section 12.5. of the Credit Agreement, this Note may not
be assigned by the Lender to any Person.


 


H-1

















 


THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE.


 


The
Borrower hereby waives presentment for payment, demand, notice of demand,
notice of non-payment, protest, notice of protest and all other similar notices.


 


Time
is of the essence for this Note.


 


IN
WITNESS WHEREOF, the undersigned has executed and delivered this Revolving Note
under seal as of the date first written above.


 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  U-Store-It
  Trust, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


H-2

















 


SCHEDULE OF REVOLVING LOANS


 


This
Note evidences Revolving Loans made under the within-described Credit Agreement
to the Borrower, on the dates and in the principal amounts set forth below,
subject to the payments and prepayments of principal set forth below:


 


	
  Date of Loan

  	
   

  	
  Principal Amount

  of Loan

  	
   

  	
  Amount Paid

  or Prepaid

  	
   

  	
  Unpaid Principal

  Amount

  	
   

  	
  Notation Made

  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


H-3
















 


EXHIBIT I


 


FORM OF TERM NOTE


 


	
  $

  	
  , 20   

  



 


FOR
VALUE RECEIVED, the undersigned, U-STORE-IT, L.P., a limited partnership formed
under the laws of the State of Delaware (the “Borrower”), hereby promises to
pay to
                                        
(the “Lender”) or its registered assigns, in care of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent
(the “Administrative Agent”) at WELLS FARGO
BANK, NATIONAL ASSOCIATION, c/o Wells Fargo Real Estate Banking Group,
200 Public Square-Suite 3200, Cleveland, Ohio 44114, or at such other
address as may be specified in writing by the Administrative Agent to the
Borrower, the principal sum of
                                
AND         /100 DOLLARS
($                        )
(or such lesser amount as shall equal the unpaid principal amount of the Term
Loans made by the Lender to the Borrower under the Credit Agreement (as herein
defined)), on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount owing hereunder,
at the rates and on the dates provided in the Credit Agreement.


 


The
date, amount of the Term Loans made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the Lender
on its books and, prior to any transfer of this Note, endorsed by the Lender on
the schedule attached hereto or any continuation thereof, provided that the
failure of the Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing under the Credit Agreement or hereunder in respect of the Term Loans made
by the Lender.


 


This
Note is one of the Notes referred to in the Second Amended and Restated Credit
Agreement dated as of September 29, 2010 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among the Borrower, the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), the Administrative
Agent, and the other parties thereto. 
Capitalized terms used herein, and not otherwise defined herein, have
their respective meanings given them in the Credit Agreement.


 


The
Credit Agreement provides for the acceleration of the maturity of this Note
upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.


 


Except
as permitted by Section 12.5. of the Credit Agreement, this Note may not
be assigned by the Lender to any other Person.


 


THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.


 


The
Borrower hereby waives presentment for payment, demand, notice of demand,
notice of non-payment, protest, notice of protest and all other similar
notices.


 


Time
is of the essence for this Note.


 


I-1

















 


IN
WITNESS WHEREOF, the undersigned has executed and delivered this Term Note
under seal as of the date first written above.


 


	
   

  	
  U-STORE-IT,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  U-Store-It
  Trust, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


I-2

















 


SCHEDULE TO NOTE


 


This
Note evidences the Term Loan made under the within-described Credit Agreement
to the Borrower, on the date, in the principal amount, bearing interest at the
rates and maturing on the dates set forth below, subject to the payments and
prepayments of principal set forth below:


 


	
  Date of

  Loan

  	
   

  	
  Principal

  Amount of

  Loan

  	
   

  	
  Amount

  Paid or

  Prepaid

  	
   

  	
  Unpaid

  Principal

  Amount

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


I-3

















 


EXHIBIT J


 


FORM OF OPINION OF COUNSEL


 


[LETTERHEAD OF COUNSEL TO THE LOAN PARTIES]


 


September 29, 2010


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent


c/o Wells Fargo Real Estate Banking Group


200 Public Square - Suite 3200


Cleveland, OH 44114


 


The Lenders party to the Credit Agreement referred
to below


 


Ladies
and Gentlemen:


 


We
have acted as counsel to U-STORE-IT, L.P., a limited partnership formed under
the laws of the State of Delaware (the “Borrower”) and U-Store-It Trust, a real
estate investment trust formed under the laws of the State of Maryland (the “Parent”),
in connection with the negotiation, execution and delivery of that certain
Second Amended and Restated Credit Agreement dated as of September 29,
2010 (the “Credit Agreement”), by and among the Borrower, the Parent, the
financial institutions party thereto and their assignees under
Section 12.5. thereof (the “Lenders”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative
Agent”), and the other parties thereto. 
We have also acted as counsel to each of the Guarantors listed on
Schedule 1 attached hereto (the “Guarantors”; together with the Borrower
and the Parent, the “Loan Parties”), in connection with the Guaranty and the
other Loan Documents identified below to which they are party.  Capitalized terms not otherwise defined
herein have the respective meaning given them in the Credit Agreement.


 


In
these capacities, we have reviewed executed copies of the following:


 


(a)                                  the Credit Agreement;


 


(b)                                 the Notes;


 


(c)                                  the Guaranty;


 


[list
other applicable Loan Documents]; and


 


The
documents and instruments set forth in items (a) through (c) above
are referred to herein as the “Loan Documents”.


 


In
addition to the foregoing, we have reviewed the [articles or certificate of
incorporation, by-laws, declaration of trust, partnership agreement and limited
liability company operating agreement, as applicable,] of each Loan Party and
certain resolutions of the board of trustees or directors, as applicable, of
each Loan Party (collectively, the “Organizational Documents”) and have also
examined originals or 


 


J-1

















 


copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records, and other instruments, and made such other investigations of
law and fact, as we have deemed necessary or advisable for the purposes of
rendering this opinion.  In our
examination of documents, we assumed the genuineness of all signatures on
documents presented to us as originals (other than the signatures of officers
of the Loan Parties) and the conformity to originals of documents presented to
us as conformed or reproduced copies.


 


Based
upon the foregoing, and subject to all of the qualifications and assumptions
set forth herein, we are of the opinion that:


 


1.                                       The Borrower is
a limited partnership, duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has the power to execute and
deliver, and to perform its obligations under, the Loan Documents to which it
is a party, to own and use its assets, and to conduct its business as presently
conducted.


 


2.                                       Each Guarantor
is a [corporation, trust, partnership or limited liability company, as
applicable,] duly organized or formed, validly existing and in good standing under
the laws of the State of its organization or formation and has the power to
execute and deliver, and to perform its obligations under, the Loan Documents
to which it is a party, to own and use its assets, and to conduct its business
as presently conducted.


 


3.                                       Each Loan Party
has duly authorized the execution and delivery of the Loan Documents to which
it is a party and the performance by such Loan Party of all of its obligations
under each such Loan Document.


 


4.                                       Each Loan Party
has duly executed and delivered the Loan Documents to which it is a party.


 


5.                                       Each Loan
Document is a valid and binding obligation of each Loan Party which is a party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as such enforceability may be limited by:  (a) applicable bankruptcy, insolvency,
reorganization, moratorium, arrangement or similar laws relating to or
affecting the enforcement of creditors’ rights generally and (b) the fact
that equitable remedies or relief (including, but not limited to, the remedy of
specific performance) are subject to the discretion of the court before which
any such remedies or relief may be sought.


 


6.                                       The execution
and delivery by each Loan Party of the Loan Documents to which it is a party do
not, and if each Loan Party were now to perform its obligations under such Loan
Documents, such performance would not, result in any:


 


(a)                                  violation of
such Loan Party’s Organizational Documents;


 


(b)                                 violation of
any existing federal or state constitution, statute, regulation, rule, order,
or law to which such Loan Party or its assets are subject;


 


(c)                                  breach or
violation of or default under, any agreement, instrument, indenture or other
document evidencing any indebtedness for money borrowed or to our knowledge any
other material agreement to which such Loan Party is bound or under which a
Loan Party or its assets is subject;


 


J-2

















 


(d)                                 creation or
imposition of a lien or security interest in, on or against the assets of such
Loan Party under any agreement, instrument, indenture or other document
evidencing any indebtedness for money borrowed or any other material agreement
to which, to our knowledge, such Loan Party is bound or under which a Loan
Party or its assets is subject; or


 


(e)                                  violation of
any judicial or administrative decree, writ, judgment or order to which, to our
knowledge, such Loan Party or its assets are subject.


 


7.                                       The execution,
delivery and performance by each Loan Party of each Loan Document to which it
is a party, and the consummation of the transactions thereunder, do not and
will not require any registration with, consent or approval of, or notice to,
or other action to, with or by, any Governmental Authority of the United States
of America or the States of Delaware or
[                      ].


 


8.                                       To our
knowledge, (a) there are no judgments outstanding against any of the Loan
Parties or affecting any of their respective assets, nor is there any
litigation or other proceeding against any of the Loan Parties or its assets
pending or overtly threatened, could reasonably be expected to have a
materially adverse effect on the validity or enforceability of any of the Loan
Documents, (b) no Loan Party is subject to any bankruptcy or other
insolvency proceedings or any assignment for the benefit of creditors and (c) no
Loan Party is operating under or subject to any receiver, trustee or similar
entity for the benefit of creditors.


 


9.                                       None of the
Loan Parties is, or, after giving effect to any Loan will be, subject to
regulation under the Investment Company Act of 1940 or to any federal or state
statute or regulation limiting its ability to incur indebtedness for borrowed
money.


 


10.                                 Assuming that
Borrower applies the proceeds of the Loans as provided in the Credit Agreement,
the transactions contemplated by the Loan Documents do not violate the
provisions of Regulations T, U or X of the Board of Governors of the Federal
Reserve System of the United States of America.


 


11.                                 The
consideration to be paid to the Administrative Agent and the Lenders for the
financial accommodations to be provided to the Loan Parties pursuant to the
Credit Agreement does not violate any law of the States of North Carolina or
[                ]
relating to interest and usury.


 


This
opinion is limited to the laws of the States of
[                ]
and North Carolina and the federal laws of the United States of America, and we
express no opinions with respect to the law of any other jurisdiction.


 


[Other
Customary Qualifications/Assumptions/Limitations]


 


This
opinion is furnished to you solely for your benefit in connection with the
consummation of the transactions contemplated by the Credit Agreement and may
not be relied upon by any other Person, other than an Assignee of a Lender, or
for any other purpose without our express, prior written consent.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF LAW FIRM]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  A
  Partner

  



 


J-3
















 


SCHEDULE 1


 


Guarantors


 


	
  Name

  	
   

  	
  Jurisdiction of Formation

  	
   

  	
  Jurisdictions of Foreign

  Qualification

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


J-4

















 


EXHIBIT K


 


FORM OF COMPLIANCE CERTIFICATE


 


                              ,
20   


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent


c/o Wells Fargo Real Estate Banking Group


200 Public Square - Suite 3200


Cleveland, OH 44114


 


Each of the Lenders Party to the Credit Agreement
referred to below


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement dated as
of September 29, 2010 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among U-STORE-IT,
L.P. (the “Borrower”), U-Store-It Trust (the “Parent”) the financial
institutions party thereto and their assignees under Section 12.5. thereof
(the “Lenders”), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent (the “Administrative Agent”) and
the other parties thereto.  Capitalized
terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.


 


Pursuant
to Section 8.3.(a) of the Credit Agreement, the undersigned hereby
certifies to the Administrative Agent and the Lenders as follows:


 


(1)           The undersigned is the
                                          
of the Parent.


 


(2)           The undersigned has examined the
books and records of the Parent and the Borrower and has conducted such other
examinations and investigations as are reasonably necessary to provide this
Compliance Certificate.


 


(3)           To the best of the undersigned’s
knowledge, information and belief after due inquiry, no Default or Event of
Default exists [if such is not the case, specify such
Default or Event of Default and its nature, when it occurred and whether it is
continuing and the steps being taken by the Parent and/or the Borrower with
respect to such event, condition or failure].


 


(4)           To the best of the undersigned’s
knowledge, information and belief after due inquiry, the representations and
warranties made or deemed made by the Parent, the Borrower and the other Loan
Parties in the Loan Documents to which any is a party, are true and correct in
all material respects on and as of the date hereof except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date) and except for
changes in factual circumstances not prohibited under the Loan Documents.


 


(5)           Attached hereto as Schedule 1
are reasonably detailed calculations establishing whether or not the Parent and
its Subsidiaries were in compliance with the covenants contained in
Sections 9.1., 9.2. and 9.4. of the Credit Agreement.


 


K-1

















 


IN
WITNESS WHEREOF, the undersigned has executed this certificate as of the date
first above written.


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:                                                   ,

  
	
   

  	
  the
                                      
  of the Parent

  



 


K-2

















 


Schedule 1


 


[Calculations to be Attached]


 


K-3

















 


Loan Number:           


 


EXHIBIT L


 


TRANSFER AUTHORIZER DESIGNATION


(For Disbursement of Loan Proceeds by Funds Transfer)


 


o  NEW  o  REPLACE PREVIOUS DESIGNATION   o  ADD   o   CHANGE    o  DELETE LINE NUMBER


 


The following representatives of U-STORE-IT, L.P. (“Borrower”) are
authorized to request the disbursement of the proceeds of Loans and initiate
funds transfers for Loan Number
[              ]
assigned to the secured revolving credit and term loan facility evidenced by
the Second Amended and Restated Credit Agreement dated September 29, 2010,
among the Borrower, each of the financial institutions initially a signatory
thereto together with their assignees under Section 12.5. thereof (the “Lenders”),
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Administrative Agent for the Lenders (the “Administrative Agent”) and
the other parties thereto.  The
Administrative Agent is authorized to rely on this Transfer Authorizer
Designation until it has received a new Transfer Authorizer Designation signed
by Borrower, even in the event that any or all of the foregoing information may
have changed.


 


	
   

  	
   

  	
  Name

  	
   

  	
  Title

  	
   

  	
  Maximum

  Wire

  Amount(16)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[Continued on next page]


 






(16)  Maximum wire amount may not
exceed the aggregate amount of the Commitments.


 


L-1

















 


Loan Number:         


 


Beneficiary Bank and Account Holder Information


 


1.


	
  Transfer
  Funds to (Receiving Party Account Name):

  	
   

  
	
   

  	
   

  
	
  Receiving
  Party Account Number:

  	
   

  
	
   

  	
   

  
	
  Receiving
  Bank Name, City and State:

  	
  Receiving
  Bank Routing (ABA) Number

  
	
   

  	
   

  
	
  Maximum
  Transfer Amount:

  	
   

  
	
   

  	
   

  
	
  Further
  Credit Information/Instructions:

  	
   

  



 


2.


	
  Transfer
  Funds to (Receiving Party Account Name):

  	
   

  
	
   

  	
   

  
	
  Receiving
  Party Account Number:

  	
   

  
	
   

  	
   

  
	
  Receiving
  Bank Name, City and State:

  	
  Receiving
  Bank Routing (ABA) Number

  
	
   

  	
   

  
	
  Maximum
  Transfer Amount:

  	
   

  
	
   

  	
   

  
	
  Further
  Credit Information/Instructions:

  	
   

  



 


3.


	
  Transfer
  Funds to (Receiving Party Account Name):

  	
   

  
	
   

  	
   

  
	
  Receiving
  Party Account Number:

  	
   

  
	
   

  	
   

  
	
  Receiving
  Bank Name, City and State:

  	
  Receiving
  Bank Routing (ABA) Number

  
	
   

  	
   

  
	
  Maximum
  Transfer Amount:

  	
   

  
	
   

  	
   

  
	
  Further
  Credit Information/Instructions:

  	
   

  



 


L-2

















 


Loan Number:          


 


Date:
                      ,
2010


 


“BORROWER”


 


U-STORE-IT, L.P.


 


	
  By:

  	
  U-Store-It
  Trust, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 


L-3
















 


Schedule 1.1.(A)


 


List of Loan Parties (other than the Parent and the Borrower)


 


USI
II, LLC


YSI
I LLC


YSI
XXIX LP


YSI
XXIX GP LLC


 

















 


Schedule 1.1.(B)


 


Lender Commitments


 


	
  Lender

  	
   

  	
  Revolving

  Commitment Amount

  	
   

  	
  Term Commitment

  Amount

  	
   

  	
  Aggregate

  Commitment

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  61,000,000

  	
   

  	
  $

  	
  54,000,000

  	
   

  	
  $

  	
  115,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  39,000,000

  	
   

  	
  $

  	
  26,000,000

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Regions Bank

  	
   

  	
  $

  	
  33,333,333

  	
   

  	
  $

  	
  26,666,667

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SunTrust Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  22,222,223

  	
   

  	
  $

  	
  17,777,777

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Charter One Bank, N.A.

  	
   

  	
  $

  	
  22,222,223

  	
   

  	
  $

  	
  17,777,777

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BMO Capital Markets Financing, Inc.

  	
   

  	
  $

  	
  19,444,444

  	
   

  	
  $

  	
  15,555,556

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US Bank National Association

  	
   

  	
  $

  	
  19,444,444

  	
   

  	
  $

  	
  15,555,556

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FirstMerit Bank, N.A.

  	
   

  	
  $

  	
  8,333,333

  	
   

  	
  $

  	
  6,666,667

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  250,000,000.00

  	
   

  	
  $

  	
  200,000,000.00

  	
   

  	
  $

  	
  450,000,000.00

  	
   

  



 

















 


Schedule 6.1.(b)


 


Ownership Structure


 


Part I:
Subsidiaries


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  
	
  U-Store-It,
  L.P.

  	
   

  	
  Delaware

  	
   

  	
  Parent;

  Others

  	
   

  	
  Parent: GP interests

  Others: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Loan
  Party

  
	
  Lantana
  Property Owner’s Association, Inc.

  	
   

  	
  Florida

  	
   

  	
  Borrower

  	
   

  	
  Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  U-Store-It
  Development LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  U-Store-It
  Mini Warehouse Co.

  	
   

  	
  Ohio

  	
   

  	
  Borrower

  	
   

  	
  Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  U-Store-It
  Trust Luxembourg S.ar.l.

  	
   

  	
  Luxembourg

  	
   

  	
  Borrower

  	
   

  	
  Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  USI
  II, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Loan
  Party

  
	
  USI
  Overseas Development Holding, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  USI
  Overseas Development LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  USIFB
  LP

  	
   

  	
  United
  Kingdom

  	
   

  	
  USIFB LLP;

  Borrower

  	
   

  	
  USIFB LLP: GP interests

  Borrower: LP interests

  	
   

  	
  USIFB LLP: 97%

  Borrower: 3%

  	
   

  	
  Excluded

  
	
  USIFB
  LLP

  	
   

  	
  United
  Kingdom

  	
   

  	
  Borrower,

  Ian Connolly and

  Hugh Knowles

  	
   

  	
  Partnership interests.

  	
   

  	
  Borrower: 50.02%

  Connolly: 24.99%

  Knowles: 24.99%

  	
   

  	
  Excluded

  
	
  YASKY
  LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  I LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Loan
  Party

  
	
  YSI
  II LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  III LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  IV LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  IX GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  IX LP

  	
   

  	
  Delaware

  	
   

  	
  YSI IX GP LLC; YSI IX LP LLC

  	
   

  	
  YSI IX GP LLC: GP interests

  YSI IX LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  IX LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  Management LLC

  	
   

  	
  Delaware

  	
   

  	
  Parent

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  V LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  VI LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  VII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  VII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI VII GP LLC; YSI VII LP LLC

  	
   

  	
  YSI VII GP LLC: GP interests

  YSI VII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  VII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  VIII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  VIII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI VIII GP 

  	
   

  	
  YSI VIII GP LLC: 

  	
   

  	
  GP interests: 100%

  	
   

  	
  Excluded

  



 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  
	
   

  	
   

  	
   

  	
   

  	
  LLC; YSI VIII LP LLC

  	
   

  	
  GP interests

  YSI VIII LP LLC: LP interests

  	
   

  	
  LP interests: 100%

  	
   

  	
   

  
	
  YSI
  VIII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  X GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  X LP

  	
   

  	
  Delaware

  	
   

  	
  YSI X GP LLC; YSI X LP LLC

  	
   

  	
  YSI X GP LLC: GP interests

  YSI X LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  X LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XI GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XI LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XI GP LLC; YSI XI LP LLC

  	
   

  	
  YSI XI GP LLC: GP interests

  YSI XI LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XI LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XII GP LLC; YSI XII LP LLC

  	
   

  	
  Partnership Interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XIII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XIII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XIII GP LLC; YSI XIII LP LLC

  	
   

  	
  YSI XIII GP LLC: GP interests

  YSI XIII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XIII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XIV GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XIV LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XIV GP LLC; YSI XIV LP LLC

  	
   

  	
  YSI XIV GP LLC: GP interests

  YSI XIV LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XIV LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XV LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XVI LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XVII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XVII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XVII GP LLC; YSI XVII LP LLC

  	
   

  	
  YSI XVII GP LLC: GP interests

  YSI XVII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XVII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XX GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XX LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XX GP LLC; YSI XX LP LLC

  	
   

  	
  YSI XX GP LLC: GP interests

  YSI XX LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XX LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXII LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXIX GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Loan
  Party

  
	
  YSI
  XXIX LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXIX GP LLC; YSI XXIX LP LLC

  	
   

  	
  YSI XXIX GP LLC: GP interests

  YSI XXIX LP LLC: 

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Loan
  Party

  



 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  LP interests

  	
   

  	
   

  	
   

  	
   

  
	
  YSI
  XXIX LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXV GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXV LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXV GP LLC; YSI XXV LP LLC

  	
   

  	
  YSI XXV GP LLC: GP interests

  YSI XXV LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XXV LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVI GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVI LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXVI GP LLC; YSI XXVI LP LLC

  	
   

  	
  YSI XXVI GP LLC: GP interests

  YSI XXVI LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVI LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXVII GP LLC; YSI XXVII LP LLC

  	
   

  	
  YSI XXVII GP LLC: GP interests

  YSI XXVII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVIII GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVIII LP

  	
   

  	
  Delaware

  	
   

  	
  YSI XXVIII GP LLC; YSI XXVIII LP LLC

  	
   

  	
  YSI XXVIII GP LLC: GP interests

  YSI XXVIII LP LLC: LP interests

  	
   

  	
  GP interests: 100%

  LP interests: 100%

  	
   

  	
  Excluded

  
	
  YSI
  XXVIII LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXX LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  YSI XXXIIIA, LLC

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXIIIA, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXIV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXVI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXVII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXVIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXIX, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXX, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXIV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXV, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXVI, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXVII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XXXXVIII, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  XLIX, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  L, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  Venture LP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI
  Venture GP LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  YSI-Hart
  Limited Partnership

  	
   

  	
  Delaware

  	
   

  	
  YSI Venture 

  	
   

  	
  YSI Venture GP 

  	
   

  	
  50%

  	
   

  	
  Excluded

  



 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Holders of Equity

  Interest in

  Subsidiary

  	
   

  	
  Type of Equity Interests

  Held

  	
   

  	
  Percentage of

  Ownership

  	
   

  	
  Type of

  Subsidiary

  
	
   

  	
   

  	
   

  	
   

  	
  GP LLC; YSI Venture LP LLC

  	
   

  	
  LLC: GP interests

  YSI Venture LP LLC: LP interests

  	
   

  	
   

  	
   

  	
   

  
	
  YSI
  Hart TRS Inc.

  	
   

  	
  Delaware

  	
   

  	
  YSI-Hart Limited Partnership

  	
   

  	
  Common Shares

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  Storage
  Asset Management, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  
	
  Property
  Guard, LLC

  	
   

  	
  Delaware

  	
   

  	
  Borrower

  	
   

  	
  LLC interests

  	
   

  	
  100%

  	
   

  	
  Excluded

  



 


Outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders’ or voting trust
agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, any such
Person, and the following additional items:


 


·                  Existing equity compensation plans described
on the Parent’s Form 10-K for the fiscal year ending December 31,
2009.


 


·                  Pursuant to the Second Amended and Restated
Agreement of Limited Partnership of the Borrower, partnership units may be
redeemed for cash, or at the Parent’s option, common shares on a one-for-one
basis.


 


·                  Outstanding
awards granted under the Parent’s equity compensation plans currently consist
of Time Vested Restricted Share Awards, Performance-Vested Restricted Share
Awards and Non-Qualified Stock Option Awards. Certain executive officers of the
Parent entered into amended and restated employment agreements in December 2008
and June 2010 pursuant to which such executive officers are entitled to
participate in the Parent’s equity compensation plans. The Parent’s equity
compensation plans are more fully described in the Parent’s Proxy Statement dated
April 13, 2009 and the Parent’s Annual Report on Form 10-K for the
year ended December 31, 2009.


 


·                  Certain
trustees of the Parent have received deferred shares under the U-Store-It Trust
Deferred Trustees Plan.  The deferred
shares are convertible to common shares of the Parent on a one-for-one basis
following termination of service.  Until
converted to common shares, the deferred shares have dividend equivalent
reinvestment rights.


 


·                  The Parent
filed a Registration Statement on Form S-3 in March 2007 (and a
post-effective amendment thereto in August 2009) to satisfy all
outstanding registration rights.


 


·                  Pursuant to a
Sales Agreement with Cantor Fitzgerald & Co., the Parent has reserved
10 million common shares that may be issued from time to time at the market
offerings in connection with the Parent’s controlled equity offering program.


 
















 


Part II:
Unconsolidated Affiliates of Parent


 


	
  Unconsolidated Affiliate

  	
   

  	
  Type of Legal

  Entity

  	
   

  	
  Equity Interests Held by

  Parent

  	
   

  
	
  USIFB LLP

  	
   

  	
  Limited Partnership

  	
   

  	
  50

  	
  %

  



 


Part III:


 


Existing
Investments in Subsidiaries:


 


None.


 

















 


Schedule 6.1.(f)


 


Title to Properties; Liens


 


Part I:
Real Property


 


See
attached.


 

















 


Part II:
Permitted Liens


 


None.


 

















 


Schedule 6.1.(g)


 


Existing Indebtedness


 


1.               Existing Indebtedness
includes all of the Indebtedness of the Parent and its Subsidiaries disclosed
on the Parent’s Form 10-K for the fiscal year ending December 31,
2009, including, without limitation, the Existing Credit Agreement.


 


2.               Various other mortgage
Indebtedness set forth in the chart below:


 


	
  Borrower

  	
   

  	
  Lender

  	
   

  	
  Property

  	
   

  	
  Amount

  	
   

  
	
  YSI
  XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Hudson
  County, New Jersey

  	
   

  	
  $

  	
  2,300,000

  	
   

  
	
  YSI
  XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Morris
  County, New Jersey

  	
   

  	
  $

  	
  4,050,000

  	
   

  
	
  YSI
  XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Bergen
  County, New Jersey

  	
   

  	
  $

  	
  1,850,000

  	
   

  
	
  YSI
  XXXI, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Union
  County, New Jersey

  	
   

  	
  $

  	
  5,800,000

  	
   

  
	
  YSI
  XXXII, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Suffolk
  County, New York

  	
   

  	
  $

  	
  2,700,000

  	
   

  
	
  YSI
  XXXII, LLC

  	
   

  	
  Bank
  of Smithtown

  	
   

  	
  Suffolk
  County, New York

  	
   

  	
  $

  	
  3,500,000

  	
   

  
	
  YSI
  XXXV, LLC

  	
   

  	
  WashingtonFirst
  Bank

  	
   

  	
  Spotsylvania
  and Stafford Counties, Virginia

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  YSI
  XXXIV, LLC

  	
   

  	
  ViewPoint
  Bank

  	
   

  	
  Tarrant,
  Denton, Collin and Dallas Counties, Texas

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  YSI
  XXXVII, LLC

  	
   

  	
  Resurgens
  Bank

  	
   

  	
  Cobb
  County, Georgia

  	
   

  	
  $

  	
  2,255,000

  	
   

  
	
  YSI
  XXXIX, LLC

  	
   

  	
  Pacific
  National Bank

  	
   

  	
  Broward
  County, Florida

  	
   

  	
  $

  	
  4,000,000

  	
   

  
	
  YSI
  XXXVIII, LLC

  	
   

  	
  Knoxville
  TVA Employees Credit Union

  	
   

  	
  Knox
  County, Tennessee

  	
   

  	
  $

  	
  4,095,000

  	
   

  
	
  YSI
  XXXXIV, LLC

  	
   

  	
  Southwest
  Capital Bank, N.A.

  	
   

  	
  Collier
  County, Florida

  	
   

  	
  $

  	
  1,127,750

  	
   

  
	
  YSI
  XXXXI, LLC

  	
   

  	
  The
  Metropolitan Bank

  	
   

  	
  Shelby
  County, Tennessee

  	
   

  	
  4,000,00

  	
   

  
	
  YSI
  XXXXII, LLC

  	
   

  	
  United
  Southern Bank

  	
   

  	
  Orange
  County, Florida

  	
   

  	
  $

  	
  3,275,000

  	
   

  
	
  YSI
  XXXXV, LLC

  	
   

  	
  Capstar
  Bank

  	
   

  	
  Davidson
  County, Tennessee

  	
   

  	
  $

  	
  5,540,000

  	
   

  
	
  YSI
  XXXXVI, LLC

  	
   

  	
  First
  National Bank of 

  	
   

  	
  Cook
  County, Illinois

  	
   

  	
  $

  	
  3,500,000

  	
   

  



 

















 


	
  Borrower

  	
   

  	
  Lender

  	
   

  	
  Property

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
  La
  Grange

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  YSI
  XXXIII, LLC

  	
   

  	
  Minnesota
  Life Insurance Company

  	
   

  	
  Miami-Dade
  County, Florida; Washington, D.C.; Travis County, Texas; Yolo County,
  California.

  	
   

  	
  $

  	
  11,602,488.43

  	
   

  
	
  YSI
  XXXXIII, LLC

  	
   

  	
  Metro
  Phoenix Bank, Inc.

  	
   

  	
  Pima
  County, Arizona

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  YSI
  XXXXVIII, LLC

  	
   

  	
  Nara
  Bank

  	
   

  	
  San
  Diego, San Bernardino and Riverside Counties, California

  	
   

  	
  $

  	
  25,700,000

  	
   

  



 

















 


Schedule 6.1.(h)


 


Material Contracts


 


1.               Material Contracts include
those disclosed in the Parent’s Form 10-K for the fiscal year ending December 31,
2009.


 

















 


Schedule 6.1.(i)


 


Litigation


 


None.


 

















 


Schedule 9.6.


 


Existing Negative Pledges


 


None.