EX-10.1



 





EXHIBIT 10.1




 





CREDIT AGREEMENT




Dated as of November 1, 2006




by and between




U-STORE-IT, L.P.,




as Borrower,




and




WACHOVIA BANK, NATIONAL ASSOCIATION,




as Lender




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Article I. Definitions
	 	 	1	 
	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. General; References to Times
	 	 	6	 
	 
	 	 	 	 
	Article II. Credit Facility
	 	 	6	 
	 
	 	 	 	 
	Section 2.1. Loan
	 	 	6	 
	Section 2.2. Rates and Payment of Interest on Loan
	 	 	6	 
	Section 2.3. Number of Interest Periods
	 	 	7	 
	Section 2.4. Repayment of Loan
	 	 	7	 
	Section 2.5. Prepayments
	 	 	7	 
	Section 2.6. Continuation
	 	 	7	 
	Section 2.7. Conversion
	 	 	8	 
	Section 2.8. Note
	 	 	8	 
	 
	 	 	 	 
	Article III. Payments, Fees and Other General Provisions
	 	 	8	 
	 
	 	 	 	 
	Section 3.1. Payments
	 	 	8	 
	Section 3.2. Minimum Amounts
	 	 	8	 
	Section 3.3. Fees
	 	 	9	 
	Section 3.4. Computations
	 	 	9	 
	Section 3.5. Usury
	 	 	9	 
	Section 3.6. Agreement Regarding Interest and Charges
	 	 	9	 
	Section 3.7. Statements of Account
	 	 	9	 
	Section 3.8. Taxes
	 	 	9	 
	 
	 	 	 	 
	Article IV. Yield Protection, Etc
	 	 	10	 
	 
	 	 	 	 
	Section 4.1. Additional Costs; Capital Adequacy
	 	 	10	 
	Section 4.2. Suspension of LIBOR Loans
	 	 	11	 
	Section 4.3. Illegality
	 	 	11	 
	Section 4.4. Compensation
	 	 	11	 
	Section 4.5. Treatment of Affected Loans
	 	 	12	 
	Section 4.6. Change of Office
	 	 	12	 
	Section 4.7. Assumptions Concerning Funding of LIBOR Loans
	 	 	12	 
	 
	 	 	 	 
	Article V. Conditions Precedent
	 	 	12	 
	 
	 	 	 	 
	Section 5.1. Initial Conditions Precedent
	 	 	12	 
	Section 5.2. Additional Conditions Precedent to the Loan
	 	 	14	 
	 
	 	 	 	 
	Article VI. Representations and Warranties
	 	 	14	 
	 
	 	 	 	 
	Section 6.1. Representations and Warranties
	 	 	14	 
	Section 6.2. Survival of Representations and Warranties, Etc
	 	 	15	 
	 
	 	 	 	 
	Article VII. Covenants
	 	 	16	 
	 
	 	 	 	 
	Section 7.1. Certain Covenants of Existing Credit Agreement
	 	 	16	 
	Section 7.2. Information
	 	 	16	 
	Section 7.3. Further Assurances
	 	 	16	 
	Section 7.4. Guarantors; Release of Guarantors
	 	 	16	 
	 
	 	 	 	 
	Article VIII. Default
	 	 	17	 
	 
	 	 	 	 
	Section 8.1. Events of Default
	 	 	17	 
	Section 8.2. Remedies Upon Event of Default
	 	 	18	 
	Section 8.3. Application of Proceeds
	 	 	18	 






 









 






	 	 	 	 	 
	Section 8.4. Performance by Lender
	 	 	19	 
	Section 8.5. Rights Cumulative
	 	 	19	 
	 
	 	 	 	 
	Article IX. Miscellaneous
	 	 	19	 
	 
	 	 	 	 
	Section 9.1. Notices
	 	 	19	 
	Section 9.2. Expenses
	 	 	20	 
	Section 9.3. Setoff
	 	 	20	 
	Section 9.4. Litigation; Jurisdiction; Other Matters; Waivers
	 	 	20	 
	Section 9.5. Successors and Assigns
	 	 	21	 
	Section 9.6. Amendments; Waivers
	 	 	21	 
	Section 9.7. Nonliability of Lender
	 	 	22	 
	Section 9.8. Confidentiality
	 	 	22	 
	Section 9.9. Patriot Act
	 	 	23	 
	Section 9.10. Indemnification
	 	 	23	 
	Section 9.11. Termination; Survival
	 	 	24	 
	Section 9.12. Severability of Provisions
	 	 	24	 
	Section 9.13. GOVERNING LAW
	 	 	24	 
	Section 9.14. Patriot Act
	 	 	24	 
	Section 9.15. Counterparts
	 	 	24	 
	Section 9.16. Limitation of Liability
	 	 	24	 
	Section 9.17. Entire Agreement
	 	 	24	 
	Section 9.18. Construction
	 	 	25	 
	Section 9.19. Existing Credit Agreement Provisions
	 	 	25	 






	 	 	 
	SCHEDULE 1.1.(A)

	 	List of Loan Parties
	 
	 	 
	EXHIBIT A

	 	Form of Notice of Continuation
	EXHIBIT B

	 	Form of Notice of Conversion
	EXHIBIT C

	 	Form of Note
	EXHIBIT D

	 	Form of Opinion of Counsel
	EXHIBIT E

	 	Form of Guaranty






 









 






     THIS CREDIT AGREEMENT (this “Agreement”) dated as of November 1, 2006 by and between
U-STORE-IT, L.P., a limited partnership formed under the laws of the State of Delaware (the
“Borrower”), and WACHOVIA BANK, NATIONAL ASSOCIATION (the “Lender”).



     WHEREAS, the Borrower has requested the Lender to make a term loan to the Borrower in a
principal amount of up to $50,000,000 the proceeds of which the Borrower will use for the purposes
permitted by this Agreement; and



     WHEREAS, the Lender is willing to make such loan to the Borrower on and subject to 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 agree 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.



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



     “Adjusted LIBOR” means, with respect to each Interest Period for any LIBOR Loan, the rate
obtained by dividing (a) LIBOR for such Interest Period by (b) a percentage equal to 1 minus the
stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with
respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified
in Regulation D of the Board of Governors of the Federal Reserve System (or against any other
category of liabilities which includes deposits by reference to which the interest rate on LIBOR
Loans is determined or any applicable category of extensions of credit or other assets which
includes loans by an office of any Lender outside of the United States of America to residents of
the United States of America). Any change in such maximum rate shall result in a change in Adjusted
LIBOR on the date on which such change in such maximum rate becomes effective.



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



     “Applicable Law” means all applicable provisions of constitutions, statutes, laws, rules,
regulations and orders of all governmental bodies and all orders and decrees of all courts,
tribunals and arbitrators.



     “Applicable Margin” means (a) 1.15% for LIBOR Loans and (b) 0.15% for Base Rate Loans.



     “Assignee” has the meaning given that term in Section 9.5.(d).



     “Base Rate” means the per annum rate of interest equal to the greater of (a) the Prime Rate or
(b) the Federal Funds Rate plus one-half of one percent (0.5%). Any change in the Base Rate
resulting from a change in the Prime Rate or the Federal Funds Rate shall become effective as of
12:01 a.m. on the Business Day on which each such change occurs. The Base Rate is a reference rate
used by the Lender in determining interest rates on certain loans and is not intended to be the
lowest rate of interest charged by the Lender on any extension of credit to any debtor.



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



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



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     “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 Dollar deposits are carried out in the
London interbank market.



     “Commitment” means the Lender’s obligation to make the Loan pursuant to Section 2.1. in an
amount up to, but not exceeding, the amount set forth for the Lender on its signature page hereto
as the Lender’s “Commitment Amount”.



     “Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan
from one Interest Period to another Interest Period pursuant to Section 2.6.



     “Convert”, “Conversion” and “Converted” each refers to the conversion of a LIBOR Loan into a
Base Rate Loan or a Base Rate Loan into a LIBOR Loan, in each case pursuant to Section 2.7.



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



     “Default” means any of the events specified in Section 8.1., whether or not there has been
satisfied any requirement for the giving of notice, the lapse of time, or both.



     “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 Lender.



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



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



     “Event of Default” means any of the events specified in Section 8.1., provided that any
requirement for notice or lapse of time or any other condition has been satisfied.



     “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement dated as
of February 23, 2006 by and among the Borrower, the Parent, the financial institutions party
thereto as “Lenders”, Wachovia Bank, National Association, as Agent, and the other parties thereto.



     “Existing Credit Agreement Covenants” means all of the covenants set forth in Articles VIII
(excluding Section 8.12) through X of the Existing Credit Agreement.



     “Existing Credit Agreement Default” means any event or condition set forth in Article XI of
the Existing Credit Agreement.



     “Existing Credit Agreement Representations” means the representations and warranties set forth
in Article VI of the Existing Credit Agreement.



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     “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 Lender by federal funds dealers selected by the Lender on such day on
such transaction as determined by the Lender.



     “Fees” means any fees payable by the Borrower hereunder or under any other Loan Document.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date of determination.



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



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



     “Guarantor” means any Person that is a party to the Guaranty as a “Guarantor” and in any event
shall include the Parent and each other Guarantor under and as defined in the Existing Credit
Agreement.



     “Guaranty” means the Guaranty to which the Guarantors are parties substantially in the form of
Exhibit E.



     “Indebtedness” has the meaning given such term in the Existing Credit Agreement




     “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 7 days or 1 month thereafter, as the Borrower
may select in the request for the Loan given pursuant to Section 5.1.(a)(x), in a Notice of
Conversion or in a Notice of Continuation, as the case may be, except that each Interest Period of
1 month’s duration 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: (a)
if any Interest Period would otherwise end after the Termination Date, such Interest Period shall
end on the Termination Date; and (b) 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.



     “Lender” means Wachovia Bank National Association, together with its respective successors and
permitted assigns.



     “LIBOR” means, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not available, the term “LIBOR”
shall mean, for any LIBOR Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page



3









 




as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is specified on the Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such rates. If for any reason
none of the foregoing rates is available, LIBOR shall be, for any Interest Period, the rate per
annum reasonably determined by the Lender as the rate of interest at which Dollar deposits in the
approximate amount of the LIBOR Loan comprising part of such borrowing would be offered by the
Lender to major banks in the London interbank Eurodollar market at their request at or about 11:00
a.m. (London time) two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period.




     “LIBOR Loan” means any portion of the Loan bearing interest at a rate based on LIBOR.



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



     “Loan” means the loan made by the Lender to the Borrower pursuant to Section 2.1.



     “Loan Document” means this Agreement, the Note, and each other document or instrument now or
hereafter executed and delivered by the Borrower or any other Loan Party in connection with,
pursuant to, or relating to this Agreement.



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



     “Mandatory Prepayment Event” means (a) any Equity Issuance by the Parent, the Borrower or any
Subsidiary, and (b) the incurrence by the Parent, the Borrower or any Subsidiary of any
Indebtedness, including any Secured Indebtedness and Indebtedness in respect of the term loan
facility anticipated to be in the amount of $200,000,000 being arranged by an affiliate of the
Lender, or any refinancing thereof.



     “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, the
Borrower and the other 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, (d) the rights and remedies of the
Lender under any of the Loan Documents or (e) the timely payment of the principal of or interest on
the Loan or other amounts payable in connection therewith.



     “Net Cash Proceeds” means with respect to (a) incurrence of Indebtedness, the aggregate amount
of all cash received from such incurrence, net of the amount of any out-of-pocket legal fees, title
and recording tax expenses, investment banking fees, underwriting discounts, commissions and other
customary fees and expenses actually incurred by the Parent, the Borrower or such Subsidiary in
connection therewith (b) any Equity Issuance, the aggregate amount of all cash received by the
Parent, the Borrower or any other Subsidiary in respect of such Equity Issuance less 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 the Parent, the
Borrower or any other Subsidiary in connection with such Equity Issuance.



     “Note” has the meaning given that term in Section 2.8.(a).



     “Notice of Continuation” means a notice in the form of Exhibit A to be delivered to the Lender
pursuant to Section 2.6. evidencing the Borrower’s request for the Continuation of a LIBOR Loan.



     “Notice of Conversion” means a notice in the form of Exhibit B to be delivered to the Lender
pursuant to Section 2.7. evidencing the Borrower’s request for the Conversion of a portion of the
Loan from one Type to another Type.



     “Obligations” means, individually and collectively, the aggregate principal balance of, and
all accrued and unpaid interest on, the Loan, and all other indebtedness, liabilities, obligations,
covenants and duties of the Borrower owing to the Lender of every kind, nature and description,
under or in respect of this Agreement or any of the other



4









 




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.




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



     “Parent” means U-Store-It Trust, a real estate investment trust formed under the laws of the
State of Maryland, together with its successors and permitted assigns.



     “Participant” has the meaning given that term in Section 9.5.(c).



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



     “Post-Default Rate” means a rate per annum equal to the Base Rate as in effect from time to
time plus the Applicable Margin for Base Rate Loans plus four percent (4.0%).



     “Prime Rate” means the rate of interest per annum announced publicly by the Lender as its
prime rate from time to time. The Prime Rate is not necessarily the best or the lowest rate of
interest offered by the Lender.



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



     “Regulatory Change” means, with respect to the Lender, any change in Applicable Law (including
without limitation, Regulation D of the Board of Governors of the Federal Reserve System) effective
after the Agreement Date or the adoption or making after such date of any interpretation, directive
or request applying to a class of banks, including the 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 the Lender with any request or directive regarding capital
adequacy.



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



     “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 Indebtedness that is secured in any manner by any Lien.



     “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.



     “Subsidiary” means, for any Person, any corporation, partnership 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



5









 




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.




     “Taxes” has the meaning given that term in Section 3.8.



     “Termination Date” means November 30, 2006.



     “Type” with respect to a portion of the Loan, refers to whether such portion is a LIBOR Loan
or Base Rate Loan.



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 Lender shall so request, the Lender 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; 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 Lender 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 (including any waivers of the terms thereof) as of the date of this Agreement
and from time to time thereafter to the extent not prohibited hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in either the singular or
plural shall include the singular and plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the neuter. Unless explicitly set
forth to the contrary, a reference to “Subsidiary” means a Subsidiary of the Parent or a Subsidiary
of such Subsidiary and a reference to an “Affiliate” means a reference to an Affiliate of the
Borrower. Titles and captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless
otherwise indicated, all references to time are references to Charlotte, North Carolina time.



Article II. Credit Facility




Section 2.1. Loan.




     Subject to the terms and conditions hereof, on the Effective Date, the Lender agrees to make
the Loan to the Borrower in the principal amount equal to the amount requested by the Borrower in
the request referred to in Section 5.1.(a)(x), which amount may not exceed the amount of the
Lender’s Commitment. Subject to satisfaction of the applicable conditions set forth in Article V.
for such borrowing, the Lender will make the proceeds of the Loan available to the Borrower no
later than 2:00 p.m. on the Effective Date and in the manner specified by the Borrower in the
request referred to in Section 5.1.(a)(x). The Borrower may not reborrow any portion of the Loan
once repaid.



Section 2.2. Rates and Payment of Interest on Loan.




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



6









 






     (i) with respect to any portion of the Loan that is a Base Rate Loan, at the Base Rate
(as in effect from time to time) plus the Applicable Margin for such portion of the Loan;
and




     (ii) with respect to any portion of the Loan that is a LIBOR Loan, at Adjusted LIBOR
for such portion of the 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
Lender interest at the Post-Default Rate on the outstanding principal amount of the Loan and on any
other amount payable by the Borrower hereunder or under any other Loan Document (including without
limitation, accrued but unpaid interest to the extent permitted under Applicable Law).




     (b) Payment of Interest. Accrued and unpaid interest on the Loan shall be payable (i)
in the case of a Base Rate Loan, monthly in arrears on the first day of each calendar month, (ii)
in the case of a LIBOR Loan, in arrears on the last day of each Interest Period therefor and (iii)
in the case of any portion of the Loan, in arrears upon the payment, prepayment or Continuation
thereof or the Conversion of such portion of the Loan from a LIBOR Loan to a Base Rate Loan (but
only on the principal amount so paid, prepaid, Continued or Converted). Interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after the determination
of any interest rate provided for herein or any change therein, the Lender shall give notice
thereof to the Borrower. All determinations by the Lender of an interest rate hereunder shall be
conclusive and binding on Borrower for all purposes, absent manifest error.



Section 2.3. Number of Interest Periods.




     There may be no more than 2 different Interest Periods for LIBOR Loans outstanding at the same
time.



Section 2.4. Repayment of Loan.




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



Section 2.5. Prepayments.




     (a) Optional. Subject to Section 4.4., the Borrower may prepay the Loan, in whole or
in part, at any time without premium or penalty. The Borrower shall give the Lender at least 2
Business Days prior written notice of the prepayment of the Loan.



     (b) Mandatory. Within 2 Business Days of receipt by the Parent, the Borrower or any
of the other Subsidiaries of Net Cash Proceeds from any Mandatory Prepayment Event, the Borrower
shall pay to the Lender an amount equal to the Net Cash Proceeds attributable to such Mandatory
Prepayment Event. Such payment shall be applied to pay all amounts of principal outstanding on the
Loan. If the Borrower is required to pay any outstanding LIBOR Loans by reason of this subsection
prior to the end of the applicable Interest Period therefor, the Borrower shall pay all amounts due
under Section 4.4.



Section 2.6. 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 or portion thereof. Each new Interest
Period selected under this Section shall commence on the last day of the immediately preceding
Interest Period. Each selection of a new Interest Period shall be made by the Borrower giving to
the Lender 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 Loan and the
portion thereof subject to such Continuation and (c) the duration of the selected Interest Period.
Each Notice of Continuation shall be irrevocable by and binding on the Borrower once given. 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



7









 




exist, such LIBOR 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 2.7. or the Borrower’s
failure to comply with any of the terms of such Section.




Section 2.7. Conversion.




     The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to
the Lender, Convert all or a portion of a LIBOR Loan into a Base Rate Loan or a Base Rate Loan into
a LIBOR Loan; provided, however, a Base Rate Loan may not be Converted to a LIBOR Loan if a Default
or Event of Default shall exist. Any Conversion of a LIBOR Loan into a Base Rate Loan shall be
made on, and only on, the last day of an Interest Period for such LIBOR Loan and, upon Conversion
of a Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest to the date of
Conversion on the principal amount so Converted. Each such Notice of Conversion shall be given not
later than 11:00 a.m. on the Business Day prior to the date of any proposed Conversion into Base
Rate Loans and on the third Business Day prior to the date of any proposed Conversion into LIBOR
Loans. 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 2.8. Note.




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



     (b) Records. The date, amount, interest rate, Type and duration of Interest Periods
(if applicable) of the 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 such entries shall be
binding on the Borrower, absent manifest error; provided, however, that the failure of the Lender
to make any such record shall not affect the obligations of the Borrower under any of the Loan
Documents.



Article III. Payments, Fees and Other General Provisions




Section 3.1. Payments.




     Except to the extent otherwise provided herein, all payments of principal, interest and other
amounts to be made by the Borrower under this Agreement or any other Loan Document shall be made in
Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Lender
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 8.3., the Borrower may, at the time of making
each payment under this Agreement or the Note, specify to the Lender the amounts payable by the
Borrower hereunder to which such payment is to be applied. If the due date of any payment under
this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and interest shall be payable for
the period of such extension.



Section 3.2. Minimum Amounts.




     (a) Borrowings and Conversions. Each Base Rate Loan shall be in a minimum principal
amount of $1,000,000 and integral multiples of $100,000 in excess thereof. Each LIBOR Loan shall
be in a minimum principal amount of $1,000,000 and integral multiples of $100,000 in excess of that
amount.



8









 





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



Section 3.3. Fees.




     The Borrower agrees to pay the fees of the Lender as may be agreed to in writing by the
Borrower and the Lender from time to time.



Section 3.4. Computations.




     Unless otherwise expressly set forth herein, any accrued interest on the Loan or any other
Obligations, and all Fees due hereunder, shall be computed on the basis of a year of 365 or 366
days, as applicable, and the actual number of days elapsed, except in the case of LIBOR Loans which
shall be computed on the basis of a year of 360 days and the actual number of days elapsed.



Section 3.5. Usury.




     In no event shall the amount of interest due or payable on the Loan 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 the Lender, then such excess sum shall be
credited as a payment of principal, unless the Borrower shall notify the Lender in writing that the
Borrower elects to have such excess sum returned to it. It is the express intent of the parties
hereto that the Borrower not pay and the Lender 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 3.6. 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 2.2.(a)(i) and (ii). Notwithstanding the foregoing, the parties hereto
further agree and stipulate that all facility fees, closing fees, underwriting fees, default
charges, late charges, funding or “breakage” charges, increased cost charges, attorneys’ fees and
reimbursement for costs and expenses paid by the Lender to third parties or for damages incurred by
the Lender, in each case in connection with the transactions contemplated by this Agreement and the
other Loan Documents, are charges made to compensate the Lender for underwriting or administrative
services and costs or losses performed or incurred, and to be performed or incurred, by the Lender
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 3.7. Statements of Account.




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



Section 3.8. Taxes.




     (a) Taxes Generally. All payments by the Borrower of principal of, and interest on,
the Loan and all other Obligations shall be made free and clear of and without deduction for any
present or future excise, stamp or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes imposed on or measured by the Lender’s assets, net
income, receipts or branch profits, and (iii) any taxes (other than withholding taxes) with respect
to the Lender that would not be imposed but for a connection between the Lender and the



9









 




jurisdiction imposing such taxes (other than a connection arising solely by virtue of the
activities of the Lender pursuant to or in respect of this Agreement or any other Loan Document)
(such non-excluded items being collectively called “Taxes”). If any withholding or deduction from
any payment to be made by the Borrower hereunder is required in respect of any Taxes pursuant to
any Applicable Law, then the Borrower will:





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




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




     (iii) pay to the Lender such additional amount or amounts as is necessary to ensure
that the net amount actually received by the Lender will equal the full amount that the
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 Lender the required receipts or other
required documentary evidence, the Borrower shall indemnify the Lender for any incremental Taxes,
interest or penalties that may become payable by the Lender as a result of any such failure.



     (c) Tax Forms. Prior to the date that any Participant organized under the laws of a
jurisdiction outside the United States of America becomes a party hereto, such Person shall deliver
to the Borrower and the Lender 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 Participant establishing that payments to
it hereunder and under the other Loan Documents 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 Participant 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 Lender 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 Lender. The Borrower shall not be required to pay any amount
pursuant to last sentence of subsection (a) above to any Participant that is organized under the
laws of a jurisdiction outside of the United States of America, if such Participant fails to comply
with the requirements of this subsection.



Article IV. Yield Protection, Etc.




Section 4.1. Additional Costs; Capital Adequacy.




     (a) Additional Costs. The Borrower shall promptly pay to the Lender from time to time
such amounts as the Lender may reasonably determine to be necessary to compensate it for any costs
incurred by the 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 the Lender under this Agreement or any of the other Loan Documents in respect of any
LIBOR Loan or such obligation or the maintenance by the Lender of capital in respect of any LIBOR
Loan or its Commitment (such increases in costs and reductions in amounts receivable being herein
called “Additional Costs”), to the extent resulting from any Regulatory Change that: (i) changes
the basis of taxation of any amounts payable to the Lender under this Agreement or any of the other
Loan Documents in respect of any LIBOR Loan or its Commitment (other than taxes, fees, duties,
levies, imposts, charges, deductions, withholdings or other charges which are excluded from the
definition of Taxes pursuant to the first sentence of Section 3.8.(a)); or (ii) imposes or modifies
any reserve, special deposit or similar requirements (other than Regulation D of the Board of
Governors of the Federal Reserve System or other reserve requirement to the extent utilized in the
determination of Adjusted LIBOR for any such Loan) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, the Lender, or any commitment of the
Lender (including, without limitation, the Commitment); or (iii) has or would have the effect of
reducing the rate of return on capital of the Lender to a level below that which the Lender could
have achieved but for such Regulatory Change (taking into consideration the Lender’s policies with
respect to capital adequacy).



10









 





     (b) Lender’s Suspension of LIBOR Loans. Without limiting the effect of the provisions
of the immediately preceding subsection (a), if, by reason of any Regulatory Change, the 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 it 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 the 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 the Lender so elects by notice to the Borrower, the obligation of the 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 4.5.
shall apply).



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



Section 4.2. Suspension of LIBOR Loans.




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




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




     (b) the Lender reasonably determines (which determination shall be conclusive) that
Adjusted LIBOR will not adequately and fairly reflect the cost to the Lender of making or
maintaining LIBOR Loans for such Interest Period;



then the Lender shall give the Borrower prompt notice thereof and, so long as such condition
remains in effect, the Lender shall be under no obligation to, and shall not, make additional LIBOR
Loans, Continue LIBOR Loans or Convert Base Rate 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
LIBOR Loan or Convert such LIBOR Loan into a Base Rate Loan.



Section 4.3. Illegality.




     Notwithstanding any other provision of this Agreement, if the Lender shall reasonably
determine (which determination shall be conclusive) that it has become unlawful for the Lender to
honor its obligation to make or maintain LIBOR Loans hereunder, then the Lender shall promptly
notify the Borrower thereof and the Lender’s obligation to make or Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended until such time as the Lender may again make and
maintain LIBOR Loans (in which case the provisions of Section 4.5. shall be applicable).



Section 4.4. Compensation.




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




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



11









 






     (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 on the requested date for such borrowing, or to Convert a
Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date of such
Conversion or Continuation.


Upon the Borrower’s request, the Lender shall provide the Borrower with a statement setting forth
the basis for requesting such compensation and the method for determining the amount thereof.
Absent manifest error, determinations by the Lender in any such statement shall be conclusive,
provided that such determinations are made on a reasonable basis and in good faith.




Section 4.5. Treatment of Affected Loans.




     If the obligation of the 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.(b), 4.2. or 4.3., then all
LIBOR Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such LIBOR Loans (or, in the case of a Conversion required by
Section 4.1.(b) or 4.3., on such earlier date as the Lender may specify to the Borrower) and,
unless and until the 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 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) any portion of the Loan that would otherwise be Continued as LIBOR Loans shall be
made or Continued instead as Base Rate Loans, and all Base Rate Loans that would otherwise
be Converted into LIBOR Loans shall remain as Base Rate Loans.



Section 4.6. Change of Office.




     The Lender agrees that it will use reasonable efforts to designate an alternate office with
respect to any portion of the Loan affected by the matters or circumstances described in Sections
3.8., 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 the Lender as determined by the
Lender in its sole discretion.



Section 4.7. Assumptions Concerning Funding of LIBOR Loans.




     Calculation of all amounts payable under this Article IV. shall be made as though the 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 the
Lender may fund 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 Lender to make the Loan is subject to the following conditions
precedent:



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




     (i) At least two counterparts of this Agreement executed by the Borrower;




     (ii) The Note executed by the Borrower;



12









 






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




     (iv) An opinion of counsel to the Borrower and the other Loan Parties, addressed to the
Lender, and covering the matters set forth in Exhibit D;




     (v) The certificate of limited partnership of the Borrower certified as of a recent
date by the Secretary of State of the State of Delaware;




     (vi) A certificate of good standing or certificate of similar meaning with respect to
the Borrower issued as of a recent date by the Secretary of State of the State of Delaware
and certificates of qualification to transact business or other comparable certificates
issued by each Secretary of State (and any state department of taxation, as applicable) of
each state in which the Borrower is required to be so qualified and where the failure to be
so qualified could reasonably be expected to have a Material Adverse Effect;




     (vii) A certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of the Borrower with respect to each of the
officers of the Borrower authorized to execute and deliver the Loan Documents, and the
officers of the Borrower then authorized to deliver the request for the Loan referred to in
clause (ix) below, Notices of Continuation and Notices of Conversion;




     (viii) Copies certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of the Borrower of the partnership agreement, and all
partnership or other necessary action taken by the Borrower to authorize the execution,
delivery and performance of the Loan Documents;




     (ix) Evidence that all Fees payable to the Lender on or prior to the Effective Date
have been paid;




     (x) A request from the Borrower for the Loan indicating the requested principal amount,
how the proceeds thereof are to be made available to the Borrower, and if any portion of the
Loan is to be a LIBOR Loan initially, the Interest Period therefor; and




     (xi) Such other documents, agreements and instruments as the Lender may reasonably
request; and




     (b) In the good faith judgment of the Lender:




     (i) There shall not have occurred or become known to the Lender a material adverse
change in the business, condition (financial or otherwise), operations, performance, and
properties of the Parent, the Borrower and the other Subsidiaries taken as a whole since
June 30, 2006;




     (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 Borrower or
any other Loan Party to fulfill its obligations under the Loan Documents to which it is a
party; and




     (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 Parent, the Borrower or any other Loan
Party is a party or by which any of them or their respective properties is bound, including
without limitation, the Existing Credit Agreement, 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



13









 







on, or otherwise materially and adversely affect the ability of the Parent, the Borrower or
any other Loan Party to fulfill its obligations under the Loan Documents to which it is a
party; and




     (iv) There shall not have occurred or exist any other material disruption of financial
or capital markets that could reasonably be expected to materially and adversely affect the
transactions contemplated by the Loan Documents.



Section 5.2. Additional Conditions Precedent to the Loan.




     The obligation of the Lender to make the Loan is subject to the further condition precedent
that: (a) no Default or Event of Default shall exist as of the date of the making of the Loan or
would exist immediately after giving effect thereto and (b) the representations and warranties made
or deemed made by the Parent, the Borrower or any other Loan Party in the Loan Documents shall be
true and correct in all material respects on and as of the date of the making of Loan with the same
force and effect as if made on and as of such date except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct in all material respects on and as of such earlier
date) and except for changes in factual circumstances not prohibited under the Loan Documents.
Each Credit Event shall constitute a certification by the Borrower to the effect set forth in the
preceding clauses (a) and (b) (both as of the date of the giving of notice relating to such Credit
Event and, unless the Borrower otherwise notifies the Lender prior to the date of such Credit
Event, as of the date of the occurrence of such Credit Event).



Article VI. Representations and Warranties




Section 6.1. Representations and Warranties.




     In order to induce the Lender to enter into this Agreement and to make the Loan, the Borrower
represents and warrants to the Lender as follows:



     (a) Organization; Power; Qualification. 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) Authorization. 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.



     (c) Compliance with Laws, Etc. The execution, delivery and performance of the 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 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



14









 




may be bound, including without limitation, the Existing Credit Agreement; 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 Borrower.




     (d) No Material Adverse Change. Since December 31, 2005, there has been no material
adverse change in the business, assets, liabilities, condition (financial or otherwise) or results
of operations of the Borrower and its Subsidiaries taken as a whole. The Parent, the Borrower and
each Subsidiary is Solvent.



     (e) 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.



     (f) [Reserved]



     (g) 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 Lender by, on behalf of, or at the direction of, the Parent, the Borrower, any other Loan Party
or any other Subsidiary in connection with, pursuant to or relating in any way to this Agreement,
contained any untrue statement of a fact material to the creditworthiness of the Parent, the
Borrower, any other Loan Party or any other Subsidiary or omitted to state a material fact
necessary in order to make such statements contained therein, in light of the circumstances under
which they were made, not misleading. All financial statements (including in each case all related
schedules and notes) furnished to the 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 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 Lender were or will be prepared in good faith based on reasonable assumptions. As
of the Effective Date, no fact is known to the Borrower which has had, or in the future is
reasonably likely to have (so far as the Borrower can reasonably foresee), a Material Adverse
Effect which has not been set forth such information, reports or other papers or data or otherwise
disclosed in writing to the Lender.



     (h) Foreign Assets Control. None of the Parent, the Borrower, any Subsidiary or any
Affiliate: (i) is a Sanctioned Person, (ii) has any of its assets in Sanctioned Entities, or (iii)
derives any of its operating income from investments in, or transactions with, Sanctioned Persons
or Sanctioned Entities.



     (i) Existing Credit Agreement Representations. The Existing Credit Agreement
Representations are each true and correct.



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
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 Borrower prior to the Agreement Date and delivered to
the Lender in connection with the underwriting or closing of the transactions contemplated hereby)
shall constitute representations and warranties made by the Borrower to the Lender under this
Agreement. All representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be



15









 




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 Loan.




Article VII. Covenants




     For so long as this Agreement is in effect, the Borrower shall comply with the following
covenants:



Section 7.1. Certain Covenants of Existing Credit Agreement.




     The Borrower will perform, comply with and be bound by, for the benefit of the Lender, each of
its agreements, covenants and obligations contained in the Existing Credit Agreement Covenants,
each of which (together with the related definitions and ancillary provisions) is hereby
incorporated herein by reference.



Section 7.2. Information.




     For so long as this Agreement is in effect, the Borrower shall furnish to the Lender:



     (a) Default. Notice of the occurrence of any Default or Event of Default promptly upon
a Responsible Officer of the Borrower obtaining knowledge thereof;



     (b) Patriot Act Information. From time to time and promptly upon each request,
information identifying the Borrower as the Lender may request in order to comply with the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and



     (c) Other Information. From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding the business, assets,
liabilities, condition (financial or otherwise) or results of operations of the Parent, the
Borrower or any of the other Subsidiaries as the Lender may reasonably request.



Section 7.3. Further Assurances.




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



Section 7.4. Guarantors; Release of Guarantors.




     (a) Requirement to Become Guarantor. Within 10 Business Days of any Person becoming a
Guarantor under and as defined in the Existing Credit Agreement, the Borrower shall cause to be
delivered to the Lender an Accession Agreement executed by such Person.



     (b) Release of a Guarantor. The Borrower may request in writing that the Lender
release, and upon receipt of such request the Lender shall release, a Guarantor (other than the
Parent) from the Guaranty so long as: (i) simultaneously with its release from the Guaranty, such
Guarantor will cease to be a Guarantor under and as defined in the Existing Credit Agreement and
(ii) no Default or Event of Default shall then be in existence or would occur as a result of such
release; (iii) 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



16









 




of such earlier date) and except for changes in factual circumstances not prohibited under the Loan
Documents; and (iv) the Lender shall have received such written request at least 10 Business Days
prior to the requested date of release. Delivery by the Borrower to the Lender 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.




Article VIII. Default




Section 8.1. 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 Parent, the Borrower or any other Loan Party
shall fail to pay when due (whether upon demand, at maturity, by reason of acceleration or
otherwise) any principal of the Loan.



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



     (c) Default in Performance. (i) The Borrower shall fail to perform or observe any
term, covenant, condition or agreement contained in Section 7.2.(a) 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 Borrower has received written notice
of such failure from the Lender.



     (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 Lender, shall at any time prove to have been incorrect
or misleading, in light of the circumstances in which made or deemed made, in any material respect
when furnished or made or deemed made.



     (e) Voluntary Bankruptcy Proceeding. The Parent, the Borrower or any other Loan Party
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.



     (f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against the Parent, the Borrower or any other Loan Party in any court of competent jurisdiction
seeking: (i) relief under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy
laws (as now or hereafter in effect) or under any other Applicable Laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of
debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of such
Person, or of all or any substantial part of the assets, domestic or foreign, of such Person, and
such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive
calendar days, or an order granting



17









 




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.




     (g) 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).



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



     (i) Existing Credit Agreement. An Existing Credit Agreement Default (each Existing
Credit Agreement Default being hereby incorporated herein by reference) shall occur.



Section 8.2. Remedies Upon Event of Default.




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



     (a) Acceleration.




     (i) Automatic. Upon the occurrence of an Event of Default specified in
Sections 8.1.(e) or 8.1.(f), (A) the principal of, and all accrued interest on, the Loan at
the time outstanding and (B) all of the other Obligations, including, but not limited to,
the other amounts owed to the Lender under this Agreement or any of the other Loan
Documents, shall become immediately and automatically due and payable by the Borrower
without presentment, demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower.




     (ii) Optional. If any other Event of Default shall exist, the Lender may
declare (A) the principal of, and accrued interest on, the Loan at the time outstanding and
(B) all of the other Obligations, including, but not limited to, the other amounts owed to
the Lender under this Agreement or any of the other Loan Documents, to be immediately 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.



     (b) Other Remedies. The Lender may exercise any and all of its rights under any and
all of the other Loan Documents and all rights and remedies it may have under any Applicable Law.
To the extent permitted by Applicable Law, the Lender shall be entitled to the appointment of a
receiver for the assets and properties of the Borrower and its Subsidiaries, without notice of any
kind whatsoever and without regard to the adequacy of any security for the Obligations or the
solvency of any party bound for its payment, to take possession of all or any portion of the
business operations of the Borrower and its Subsidiaries and to exercise such power as the court
shall confer upon such receiver.



Section 8.3. Application of Proceeds.




     If an Event of Default shall exist and maturity of any of the Obligations has been
accelerated, all payments received by the Lender under any of the Loan Documents in respect of any
of the Obligations shall be applied in the following order and priority: (a) amounts due the
Lender in respect of fees and expenses due under Section 9.2.; (b) payments of interest on the
Loan; (c) payments of principal of the Loan; (d) amounts due the Lender pursuant to Section 9.10.;
(e) payments of all other Obligations and other amounts due and owing by the Borrower under any of
the Loan Documents, if any; and (f) any amount remaining after application as provided above, shall
be paid to the Borrower or whomever else may be legally entitled thereto.



18









 





Section 8.4. Performance by Lender.




     If the Borrower shall fail to perform any covenant, duty or agreement contained in any of the
Loan Documents, the Lender may, after notice to the Borrower, perform or attempt to perform such
covenant, duty or agreement on behalf of the Borrower after the expiration of any cure or grace
periods set forth herein. In such event, the Borrower shall, at the request of the Lender,
promptly pay any amount reasonably expended by the Lender in such performance or attempted
performance to the Lender, together with interest thereon at the applicable Post-Default Rate from
the date of such expenditure until paid. Notwithstanding the foregoing, the Lender shall not have
any liability or responsibility whatsoever for the performance of any obligation of the Borrower
under this Agreement or any other Loan Document.



Section 8.5. Rights Cumulative.




     The rights and remedies of the Lender under this Agreement and each of the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which the Lender may
otherwise have under Applicable Law. In exercising its rights and remedies the Lender may be
selective and no failure or delay by the Lender 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 IX. Miscellaneous




Section 9.1. Notices.




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



     If to the Borrower:


U-Store-It, L.P.

c/o U-Store-It Trust

6745 Engle Road, Suite 300

Cleveland, Ohio 44130

Attn: Christopher P. Marr

Telephone:    (440) 260-2223

Telecopy:      (440) 234-8776




     If to the Lender:


Wachovia Bank, National Association

One Wachovia Center

301 South College Street

Charlotte, North Carolina 28288

Attn: Rex E. Rudy

Telephone:    (704) 383-6506

Telecopy:      (704) 383-6205



or, as to each party at such other address as shall be designated by such party in a written notice
to the other party delivered in compliance with this Section. All such notices and other
communications shall be effective (i) if mailed, when received; (ii) if telecopied, when
transmitted; or (iii) if hand delivered or sent by overnight courier, when delivered.
Notwithstanding the immediately preceding sentence, all notices or communications to the Lender
under Article II. shall be effective only when actually received. The Lender shall not incur any
liability to the Borrower or any other Loan Party for acting upon any telephonic notice referred to
in this Agreement which the Lender 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.




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Section 9.2. Expenses.




     The Borrower agrees (a) to pay or reimburse the Lender for all of its reasonable out-of-pocket
costs and expenses incurred in connection with the preparation, negotiation and execution of, and
any amendment, supplement or modification to, any of the Loan Documents (including due diligence
expenses and travel expenses relating to closing), and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of counsel to the Lender, (b)
to pay or reimburse the Lender for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under the Loan Documents, including the reasonable fees
and disbursements of its counsel, (c) to pay, and indemnify and hold harmless the Lender from any
and all recording and filing fees and any and all liabilities with respect to, or resulting from
any failure to pay or delay in paying, documentary, stamp, excise and other similar taxes, if any,
which may be payable or determined to be payable in connection with the execution and delivery of
any of the Loan Documents, or consummation of any amendment, supplement or modification of, or any
waiver or consent under or in respect of, any Loan Document and (d) to the extent not already
covered by any of the preceding subsections, to pay or reimburse the Lender for all its costs and
expenses incurred in connection with any bankruptcy or other proceeding of the type described in
Sections 8.1.(e) or 8.1.(f), including the reasonable fees and disbursements of the Lender’s
counsel, 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 Lender may pay such
amounts on behalf of the Borrower and such amounts shall constitute Obligations owing hereunder.



Section 9.3. Setoff.




     In addition to any rights now or hereafter granted under Applicable Law and not by way of
limitation of any such rights, the Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time during the continuance of an Event of Default, without
prior notice to the Borrower or to any other Person, any such notice being hereby expressly waived,
but in the case of a Participant subject to receipt of the prior written consent of the Lender
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
Lender, or any affiliate of the 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 the Loan or any of the
other Obligations has been declared to be, or has otherwise become, due and payable as permitted by
Section 8.2., and although such obligations shall be contingent or unmatured.



Section 9.4. Litigation; Jurisdiction; Other Matters; Waivers.




     (a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN THE BORROWER AND
THE LENDER 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
LENDER 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 OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER
SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN THE BORROWER AND THE LENDER OF ANY KIND OR
NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.



     (b) EACH OF THE BORROWER AND THE 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 THE BORROWER AND LENDER PERTAINING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER
AND THE LENDER 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



20









 




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 THE LENDER OR THE ENFORCEMENT BY THE LENDER 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 LOAN AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND
THE TERMINATION OF THIS AGREEMENT.



Section 9.5. Successors and Assigns.




     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations under this Agreement without the
prior written consent of the Lender and any such assignment or other transfer to which the Lender
has not so consented shall be null and void.



     (b) The Lender may make, carry or transfer the Loan, or any portion thereof at, to or for the
account of any of its branch offices or the office of an affiliate of the Lender except to the
extent such transfer would result in increased costs to the Borrower.



     (c) The Lender may at any time grant to one or more banks or other financial institutions
(each a “Participant”) participating interests in the Commitment or the Obligations. Except as
otherwise provided in Section 9.3., no Participant shall have any rights or benefits under this
Agreement or any other Loan Document. In the event of any such grant by the Lender of a
participating interest to a Participant, the Lender shall remain responsible for the performance of
its obligations hereunder. Any agreement pursuant to which the Lender may grant such a
participating interest shall provide that the Lender shall retain the sole right and responsibility
to enforce the obligations of the Borrower hereunder including, without limitation, the right to
approve any amendment, modification or waiver of any provision of this Agreement; provided,
however, the Lender may agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase, or extend the term or extend the time or waive any requirement
for the reduction or termination of, the Commitment, (ii) extend the date fixed for the payment of
principal of or interest on the Loan, (iii) reduce the amount of any such payment of principal, or
(iv) reduce the rate at which interest is payable thereon.



     (d) The Lender may with the prior consent of the Borrower (which consent shall not be
unreasonably withheld), assign to one or more banks or other financial institutions (each an
“Assignee”) all or a portion of the Obligations and the Lender’s other rights or obligations under
this Agreement and the other Loan Documents; provided, however, no such consent by the Borrower
shall be required in the case of any assignment to an affiliate of the Lender or if a Default or
Event of Default shall exist.



     (e) In addition to the assignments and participations permitted under the foregoing provisions
of this Section, the Lender may assign and pledge all or any portion of the Loan and the Note to
any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank, and the Loan and Note shall be fully transferable as provided
therein. No such assignment shall release the Lender from its obligations hereunder.



     (f) The Lender may furnish any information concerning the Parent, the Borrower, any other Loan
Party or any other Subsidiary in the possession of the Lender from time to time to Assignees and
Participants (including prospective Assignees and Participants) subject to compliance with Section
9.8.



Section 9.6. Amendments; Waivers.




     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 Lender may be given, and
any term of this



21









 




Agreement or of any other Loan Document may be amended, and the performance or observance by the
Borrower, any other Loan Party or any other 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 Lender (and, in the case of an amendment to any Loan Document, the written
consent of the Borrower). 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. No course of dealing or
delay or omission on the part of the 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 9.7. Nonliability of Lender.




     The relationship between the Borrower and the Lender shall be solely that of borrower and
lender. The Lender shall not shall have any fiduciary responsibilities to the Borrower and no
provision in this Agreement or in any of the other Loan Documents, and no course of dealing between
the parties hereto, shall be deemed to create any fiduciary duty owing by the Lender to the
Borrower or any other Loan Party. The Lender does not undertake any responsibility to the Borrower
to review or inform the Borrower of any matter in connection with any phase of the Borrower’s
business or operations.



Section 9.8. Confidentiality.




     The Lender shall use reasonable efforts to assure that information about the Parent, the
Borrower, the other Loan Parties and the other Subsidiaries, and the properties thereof and their
operations, affairs and financial condition, not generally disclosed to the public, which is
furnished to the 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 Lender, and its agents who are actively and directly participating in
the evaluation, administration or enforcement of the Loan Documents and other transactions between
the Lender and the Borrower, but in any event the Lender may make disclosure: (a) to any of its
affiliates (provided they shall agree to keep such information confidential in accordance with the
terms of this Section 9.8.); (b) as reasonably requested by any potential or actual Assignee,
Participant or other transferee in connection with the contemplated transfer of any interest in the
Loan 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 Lender receives a summons or subpoena to disclose any such confidential information
to any Person, the Lender 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 Lender may deem reasonable; (d) to the 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 Lender of rights
hereunder or under any of the other Loan Documents; (f) upon the 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 the
Lender to be such a breach or (y) becomes available to the Lender on a nonconfidential basis from a
source other than the Borrower or any Affiliate. Notwithstanding the foregoing, the Lender may
disclose any such confidential information, without notice to the Borrower or any other Loan Party
to Governmental Authorities in connection with any regulatory examination of the Lender or in
accordance with the regulatory compliance policy of the Lender.



22









 





Section 9.9. Patriot Act.




     The Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Lender is required to
obtain, verify and record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow the Lender to identify the
Borrower in accordance with such Act.



Section 9.10. Indemnification.




     The Borrower shall and hereby agrees to indemnify, defend and hold harmless the Lender, any
affiliate of the 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 expenses of every kind and nature 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
the Loan; (iii) any actual or proposed use by the Borrower of the proceeds of the Loan; (iv) the
Lender’s entering into this Agreement; (v) the fact that the Lender has established the credit
facility evidenced hereby in favor of the Borrower; (vi) the fact that the Lender is a creditor of
the Borrower and has or is alleged to have information regarding the financial condition, strategic
plans or business operations of the Parent, the Borrower or any of the other Subsidiaries; (vii)
the fact that the Lender is a material creditor of the Borrower and is alleged to influence
directly or indirectly the business decisions or affairs of the Borrower or its financial
condition; (viii) the exercise of any right or remedy the Lender 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 Lender as a result of conduct of the Borrower, any other Loan Party or
any other 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 Lender as successor 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 (A) for 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. The Borrower’s indemnification obligations under this Section 9.10. 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. This indemnification shall apply to any
Indemnity Proceeding arising during the pendency of any bankruptcy proceeding filed by or against
the Parent, the Borrower or any other Subsidiary. 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. 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. 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.



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Section 9.11. Termination; Survival.




     At such time as the outstanding principal amount of the Loan, all accrued and unpaid interest
thereon and all other Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall terminate. The
indemnities to which the Lender is entitled under the provisions of Sections 3.8., 4.1., 4.4., 9.2.
and 9.10. and any other provision of this Agreement and the other Loan Documents, and the
provisions of Section 9.4., shall continue in full force and effect and shall protect the Lender
notwithstanding any termination of this Agreement, or of the other Loan Documents, against events
arising after such termination as well as before.



Section 9.12. 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 9.13. 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 9.14. Patriot Act.




     The Lender hereby notifies the Borrower that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain,
verify and record information that identifies the Borrower and the other Loan Parties, which
information includes the name and address of the Borrower and the other Loan Parties and other
information that will allow the Lender to identify the Borrower and the other Loan Parties in
accordance with such Act.



Section 9.15. 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 9.16. Limitation of Liability.




     The Lender shall not, nor shall any affiliate, officer, director, employee, attorney, or agent
of the Lender, have any liability with respect to, and the Borrower hereby waives, releases, and
agrees not to sue any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower in connection with, arising out of, or
in any way related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or any of the other Loan Documents. The Borrower
hereby waives, releases, and agrees not to sue the Lender or any of the 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 9.17. Entire Agreement.




     This Agreement 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



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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 9.18. Construction.




     The Lender and the Borrower 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 Lender and the Borrower.



Section 9.19. Existing Credit Agreement Provisions.




     (a) Notwithstanding any provision of any Loan Document to the contrary, the Borrower and the
Lender hereby agree that on or after the Agreement Date any amendment to, or waiver of, (i) the
Existing Credit Agreement Representations, (ii) the Existing Credit Agreement Defaults or (iii) the
Existing Credit Agreement Covenants, which has been expressly consented to by the Lender, shall be
deemed to be incorporated herein by reference and shall become effective hereunder when such
amendment or waiver becomes effective thereunder, without any further action necessary by the
Borrower or the Lender. Any such amendment or waiver shall be effective only in the specific
instance and for the specific purpose for which given. The Borrower agrees to provide promptly the
Lender with a copy of such amendment or waiver.



     (b) The Existing Credit Agreement Representations, the Existing Credit Agreement Defaults and
the Existing Credit Agreement Covenants incorporated herein by reference and any definitions or
other terms or provisions of the Existing Credit Agreement incorporated herein by reference, will
be deemed to continue in effect for the benefit of the Lender until this Agreement has terminated
in accordance with its terms, including, without limitation, whether or not the Existing Credit
Agreement remains in effect or whether or not the Existing Credit Agreement is amended, restated or
terminated after the date hereof. For purposes of the foregoing, (i) references in the provisions
of the Existing Credit Agreement incorporated herein by reference to the “Borrower” shall refer to
the Borrower; (ii) references therein to the “Agent,” “Lenders” and “Lender” shall refer to the
Lender; and (iii) the terms “Agreement,” “hereto” and “hereof” when used in the provisions of the
Existing Credit Agreement incorporated herein by referenced shall refer to this Agreement.



[Signatures on Following Pages]




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



	 	 	 	 	 
	 	U-STORE-IT, L.P.

 	 
	 	By:  	U-Store-It Trust, its sole general partner
 	 
	 	 	 
	 	By:  	/s/
Christopher P. Marr
 	 
	 	 	Name:  	Christopher P. Marr 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[Signatures Continued on Next Page]




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[Signature Page to Credit Agreement with U-Store-It, L.P.]




	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Cynthia A. Bean
 	 
	 	 	Name:  	Cynthia A. Bean 	 
	 	 	Title:  	Vice President 	 
	 
	 	Commitment Amount:




$50,000,000

 	 
	 	 	 
	 	 	 
	 	 	 



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