Exhibit 10.64
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SUPPORT PARTY AGREEMENT
dated as of December 30, 1997
made by
AMERCO,
as Support Party
and
PRIVATE MINI STORAGE REALTY, L.P.,
as Borrower
in favor of
THE CHASE MANHATTAN BANK,
as Administrative Agent
for the benefit of
THE
VARIOUS FINANCIAL INSTITUTIONS
IDENTIFIED HEREIN
as Lenders
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS ......................................................................... 2
SECTION 1.1. Definitions .................................................... 2
ARTICLE II
SUPPORT PARTY OBLIGATIONS ........................................................... 3
SECTION 2.1. Obligations ................................................... 3
SECTION 2.2. Issuance and Purchase Procedures .............................. 5
SECTION 2.3. Rights of Administrative Agent and Lenders .................... 6
SECTION 2.4. Obligations Absolute, etc. .................................... 7
SECTION 2.5. Reinstatement, etc. ........................................... 9
SECTION 2.6. Waiver, etc. .................................................. 9
SECTION 2.7. Borrower's Agreement .......................................... 10
SECTION 2.8. Subordination ................................................. 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES ...................................................... 11
SECTION 3.1. Organization; Powers .......................................... 11
SECTION 3.2. Authorization; Enforceability ................................. 11
SECTION 3.3. Governmental Approvals; No Conflicts .......................... 11
SECTION 3.4. Properties .................................................... 12
SECTION 3.5. Litigation and Environmental Matters .......................... 12
SECTION 3.6. Compliance with Laws and Agreements ........................... 13
SECTION 3.7. Investment and Holding Company Status ......................... 13
SECTION 3.8. Taxes ......................................................... 13
SECTION 3.9. ERISA ......................................................... 13
SECTION 3.10. Disclosure .................................................... 14
SECTION 3.11. Federal Reserve Regulations ................................... 14
SECTION 3.12. Environmental and Safety Matters .............................. 14
SECTION 3.13. Financial Statements .......................................... 15
SECTION 3.14. No Material Adverse Change .................................... 15
SECTION 3.15. Agreements .................................................... 15
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SECTION 3.16. Borrower's Business ........................................... 15
ARTICLE IV
COVENANTS ........................................................................... 16
SECTION 4.1. Notices of Material Events .................................... 16
SECTION 4.2. Existence; Conduct of Business ................................ 17
SECTION 4.3. Payment of Obligations ........................................ 17
SECTION 4.4. Maintenance of Properties; Insurance .......................... 17
SECTION 4.5. Books and Records; Inspection Rights .......................... 18
SECTION 4.6. Compliance with Laws .......................................... 18
SECTION 4.7. Financial Statements, Reports, etc. ........................... 18
SECTION 4.8. Pari Passu Ranking ............................................ 21
SECTION 4.9. Equal Security for Revolving Credit Exposure .................. 21
ARTICLE V
SUPPORT PARTY DEFAULT ............................................................... 22
ARTICLE VI
MISCELLANEOUS PROVISIONS ............................................................ 24
SECTION 6.1. Binding on Successors, Transferees and Assigns;
Assignment of Support Party Agreement ........................ 24
SECTION 6.2. Amendments, etc. ............................................ 24
SECTION 6.3. Addresses for Notices ........................................ 25
SECTION 6.4. No Waiver; Remedies .......................................... 25
SECTION 6.5. Section Captions ............................................. 25
SECTION 6.6. Severability ................................................. 26
SECTION 6.7. Termination of Support Party Agreement ....................... 26
SECTION 6.8. Governing Law ................................................ 26
SECTION 6.9. Waiver of Jury Trial ......................................... 26
SECTION 6.10. Consent to Jurisdiction; Waiver of Immunities ................ 26
SECTION 6.11. Right of Setoff .............................................. 27
SECTION 6.12. Expenses; Indemnity; Damage Waiver ........................... 28
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SUPPORT PARTY AGREEMENT
THIS SUPPORT PARTY AGREEMENT (this "Support Party Agreement"), dated as of
December 30, 1997, is made by AMERCO, as Support Party (the "Support Party") and
PRIVATE MINI STORAGE REALTY, L.P., as Borrower (the "Borrower") in favor of THE
CHASE MANHATTAN BANK, as Administrative Agent (the "Administrative Agent") for
the benefit of the various financial institutions as are or may from time to
time become Lenders under the Credit Agreement (as hereinafter defined)
(together with their respective successors and assigns, the "Lenders").
W I T N E S S E T H :
WHEREAS, as a condition to the occurrence of the Effective Date under the
Credit Agreement dated as of the date hereof (together with all amendments,
supplements, amendments and restatements and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among the
Lenders, the Administrative Agent, the General Partner and the Borrower, the
Support Party is required to execute and deliver this Support Party Agreement in
favor of the Administrative Agent for the benefit of the Lenders;
WHEREAS, the Support Party has duly authorized the execution, delivery and
performance of this Support Party Agreement; and
WHEREAS, it is in the best interests of the Support Party to execute this
Support Party Agreement inasmuch as the Support Party has an economic interest
in the transactions contemplated by the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce the Administrative Agent and the
Lenders to enter into the Credit Agreement with the Borrower, the Support Party
agrees, for the benefit of the Administrative Agent and the Lenders, as follows:
Support Party Agreement
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used but not otherwise defined
in this Support Party Agreement have the respective meanings specified in the
Credit Agreement; and the rules of interpretation set forth therein shall apply
to this Support Party Agreement. As used in this Support Party Agreement, the
following terms have the meanings specified below:
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Support Party, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Support Party or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Support Party or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Support Party or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by the Support Party or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Support Party or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"5-Year Credit Facility" means the 5-Year Credit Agreement dated as
of June 30, 1997, among the Support Party, as borrower, the financial
institutions listed therein, as lenders and The Chase Manhattan Bank, as
administrative agent for
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Support Party Agreement
the lenders, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time.
"Material Subsidiary" shall mean any subsidiary of the Support Party
having a tangible net worth, determined in accordance with GAAP, equal to or
greater than $10,000,000.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 4
12 of the Code or Section 302 of ERISA, and in respect of which the Support
Party or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
ARTICLE II
SUPPORT PARTY OBLIGATIONS
SECTION 2.1. Obligations. (a) The Support Party hereby covenants and
agrees as follows:
(i) if at any time the Borrower's ratio of Annualized
Consolidated Cash Flow to Annualized Consolidated Cash
Interest Expense under Section 6.11 of the Credit Agreement
shall be less than 1.5 to 1.0, the Support Party shall
purchase either (x) additional partnership interests in the
Borrower or (y) Subordinated debt of the Borrower, at the
Support Party's option, in such amounts as shall enable the
Borrower to repay the Revolving Credit Exposures (together
with accrued interest thereon and fees and other obligations
of the Borrower accrued under the Credit Agreement) and
restore the aforesaid ratio to the required level (the
purchase price for such additional partnership interests or
debt, the "Issuance Price"), such purchase to occur on a date
(an Issuance Date") set forth in a notice from the
Administrative Agent to the Support Party given no fewer than
3 Business Days prior to such Issuance Date (an "Issuance
Notice"); and
(ii) in the event Borrower fails to repay all or any
portion of the Revolving Credit Exposures by their due date
(including the
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Support Party Agreement
Maturity Date and on the date of any mandatory repayment) the
Support Party shall, at the option of the Administrative Agent
and from time to time as directed by it, either (x) purchase
such of the Properties from the Borrower for the Allocated
Collateral Value thereof, (the "Property Purchase Option"), or
(y) purchase so much of the right, title and interest of the
Lenders in and to their respective Commitments and Revolving
Credit Exposures for the Repayment Amount, as defined below,
(the "Loan Purchase Option"), in the case of each of (x) and
(y) as shall be designated, and on a date (a "Purchase Date")
designated in a notice from the Administrative Agent to the
Support Party given at least three Business Days prior to such
Purchase Date (a "Purchase Notice"). The "Repayment Amount"
means the principal of such Revolving Credit Exposures plus
accrued interest thereon and fees and other obligations of the
Borrower accrued under the Credit Agreement.
(b) The Support Party hereby agrees that any debt issued by
the Borrower to the Support Party in accordance with clause
(a)(i)(y) of this Section or Revolving Credit Exposures purchased in
accordance with clause (a)(ii)(y) of this Section shall, in each
case, be Subordinated to the rights of the Lenders in accordance
with Section 2.8 hereof.
(c) The Support Party acknowledges that it is the intent of
the parties hereunder to cause the purchases referred to in Sections
2.1(a)(i) and 2.1(a)(ii)(x) in order to provide the Borrower with
sufficient funds to repay the Revolving Credit Exposures as and when
due (together with accrued interest thereon and fees and other
obligations of the Borrower accrued under the Credit Agreement) and
restore the ratio under Section 6.11 of the Credit Agreement to the
required level, as the case may be, and the Support Party hereby
agrees to cause the Borrower to apply the proceeds thereof to repay
the Revolving Credit Exposures, and such other amounts due and
payable, immediately upon receipt of such proceeds.
(d) In the event the credit rating assigned to the Index Debt
falls within Category 2 (as used in the defined term "Applicable
Margin") as of the end of any fiscal quarter, the Support Party
hereby agrees to maintain at all times thereafter aggregate
unutilized commitments under its credit facilities (not including
the Credit Agreement) in an amount equal to (x) the Revolving
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Support Party Agreement
Credit Exposure under the Credit Agreement less (y) the quotient of
(I) the Annualized Consolidated Cash Flow of the Borrower (for the
immediately preceding four quarters or, if fewer than four quarters
of the Borrower then exist, then for the period consisting of the
consecutive fiscal quarters of the Borrower then recently ended)
over (II) .09.
SECTION 2.2. Issuance and Purchase Procedures. (a) On each Issuance
Date, each party to the related Issuance Notice shall take the following actions
required of it:
(i) If the Issuance Notice is with respect to the purchase of
additional partnership interests in the Borrower:
(x) The Support Party shall tender the Issuance Price to
the Borrower in immediately available funds; and
(y) The Borrower shall accept such price and issue to
the Support Party additional partnership interests in the
Borrower.
(ii) If the Issuance Notice is with respect to the purchase of
Subordinated debt of the Borrower:
(x) The Support Party shall tender the Issuance Price to
the Borrower in immediately available funds; and
(y) The Borrower shall accept such price and issue to
the Support Party Subordinated debt in accordance with Section
2.8.
(b) On each Purchase Date, each party to the related Purchase Notice
shall take the following actions required of it:
(i) If the Purchase Notice is with respect to the purchase of
Properties from the Borrower:
(x) The Support Party shall tender the Allocated
Collateral Value for such Properties to the Borrower in
immediately available funds; and
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Support Party Agreement
(y) The Borrower shall accept such Allocated Collateral
Value for such Properties and deliver to the Support Party
title to the Properties.
(ii) If the Purchase Notice is with respect to the purchase of
Revolving Credit Exposures from the Lenders:
(x) The Support Party shall (A) tender the Repayment
Amount to the Administrative Agent in immediately available
funds and (B) execute and deliver to the Administrative Agent
an assignment and acceptance with respect to each Lender, and
affirmation of Subordination, in each case in form and
substance satisfactory to the Administrative Agent; and
(y) The Administrative Agent shall (A) accept such
Re-payment Amount, (B) deliver to the Support Party a
counterpart of each such assignment and acceptance executed by
each respective Lender and (C) deliver to Support Party all
notes, if any, issued in connection with the assignment of the
Revolving Credit Exposures.
(c) The Support Party may, within three Business Days after the
Support Party is required to perform any of its payment obligations
pursuant to this Article II, (i) purchase for the Repayment Amount all of
the right, title and interest of the Lenders in and to their Revolving
Credit Exposures, together with all accrued interest thereon and fees and
other obligations of the Borrower accrued or owing under the Credit
Agreement and (ii) require the Lenders to assign their respective
Commitments to the Support Party. The rights of the Support Party under
this clause (c) shall not otherwise affect the rights of the
Administrative Agent and the Lenders under Article VII of the Credit
Agreement.
SECTION 2.3. Rights of Administrative Agent and Lenders. The Support Party
authorizes the Administrative Agent on behalf of the Lenders to perform any or
all of the following acts at any time in its sole discretion, all without notice
to the Support Party and without affecting the Support Party's obligations under
this Support Party Agreement:
(a) The Administrative Agent at the instruction of the Lenders
pursuant to Section 9.02 of the Credit Agreement may alter any terms
of the
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Support Party Agreement
amounts or Commitments outstanding under the Credit Agreement or any
part thereof, including renewing, compromising, extending or
accelerating, or otherwise changing the time for payment of, or
increasing or decreasing the rate of interest on, the amounts
outstanding under the Credit Agreement or any part thereof.
(b) The Administrative Agent or any Lender may take and hold
security for the amounts or Commitments outstanding under the Credit
Agreement or this Support Party Agreement, accept additional or
substituted security for either, and subordinate, exchange, enforce,
waive, release, compromise, fail to perfect and sell or otherwise
dispose of any such security.
(c) Upon any Event of Default, the Administrative Agent or any
Lender may direct the order and manner of any sale of all or any
part of any security now or later to be held for the amounts or
Commitments outstanding under the Credit Agreement or this Support
Party Agreement, respectively, and the Administrative Agent or any
Lender may also bid at any such sale.
(d) The Administrative Agent or any Lender may apply any
payments or recoveries from the Borrower, the Support Party or any
other source, and any proceeds of any security, to the Borrower's
obligations under the Credit Agreement in such manner, order and
priority as the Administrative Agent or such Lender may elect,
whether or not those obligations are secured at the time of the
application.
(e) The Administrative Agent or any Lender may extend
additional credit to the Borrower or the Support Party in addition
to the amounts and Commitments outstanding under the Credit
Agreement, and may take and hold security for the credit so
extended.
SECTION 2.4. Obligations Absolute, etc. The terms of this Support Party
Agreement shall in all respects be continuing, absolute, unconditional and
irrevocable, and shall remain in full force and effect until all amounts
outstanding under the Credit Agreement have been paid in full, all Commitments
have been terminated and all obligations of the Borrower and the Support Party
shall have been paid in full. The liability of the Support Party under this
Support Party Agreement shall be irrevocable irrespective of:
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Support Party Agreement
(a) any lack of validity, legality or enforceability of the Credit
Agreement;
(b) the failure of any Lender or the Administrative Agent:
(i) to assert any claim or demand or to enforce any right or
remedy against any Private Mini Entity or any other Person under the
provisions of the Credit Agreement or otherwise, or
(ii) to exercise any right or remedy against any guarantor of,
or collateral securing, any amounts or Commitments outstanding under
the Credit Agreement;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the amounts outstanding under the Credit
Agreement, the Commitments thereunder or any extension, compromise or
renewal of any of the amounts outstanding under the Credit Agreement or
Commitments thereunder;
(d) any reduction, limitation, impairment or termination of the
amounts or Commitments outstanding under the Credit Agreement, for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any
other event or occurrence affecting, the amounts or Commitments
outstanding under the Credit Agreement;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit
Agreement;
(f) any addition, exchange, release, surrender or nonperfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any guaranty, held by the Administrative
Agent or any Lender securing any of the amounts or Commitments outstanding
under the Credit Agreement;
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Support Party Agreement
(g) any failure on the part of the Borrower, any other Private Mini
Entity or any other Person in complying with its obligations under this
Support Party Agreement or the Credit Agreement; or
(h) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Private
Mini Entity, any surety or any guarantor.
SECTION 2.5. Reinstatement, etc. The Support Party agrees that this
Support Party Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment (in whole or in part) of any of the
amounts outstanding under the Credit Agreement is rescinded or must otherwise be
restored by the Administrative Agent or any Lender, upon the insolvency,
bankruptcy or reorganization of any Private Mini Entity or otherwise, as though
such payment had not been made.
SECTION 2.6. Waiver, etc. The Support Party hereby waives:
(a) All statutes of limitations as a defense to any action or
proceeding brought against the Support Party by the Administrative Agent
or any Lender, to the fullest extent permitted by law;
(b) Any right it may have to require the Administrative Agent or any
Lender to proceed against the Borrower, proceed against or exhaust any
security held from the Borrower, or pursue any other remedy in the
Administrative Agent's or any Lender's power to pursue;
(c) Any defense based on any claim that the Support Party's
obligations exceed or are more burdensome than those of the Borrower;
(d) Any defense based on: (i) any legal disability of the Borrower,
(ii) any release, discharge, modification, impairment or limitation of the
liability of the Borrower to the Administrative Agent or any Lender from
any cause, whether consented to by the Administrative Agent or any Lender
or arising by operation of law or from any insolvency proceeding and (iii)
any rejection or disaffirmance of the amounts or Commitments outstanding
under the Credit Agreement, or any part thereof, or any security held for
such amounts or Commitments, in any such insolvency proceeding;
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Support Party Agreement
(e) Any defense based on any action taken or omitted by the
Administrative Agent or any Lender in any insolvency proceeding involving
the Borrower, including any election to have the Administrative Agent's or
that Lender's claim allowed as being secured, partially secured or
unsecured, any extension of credit by the Lenders to the Borrower in any
insolvency proceeding, and the taking and holding by the Administrative
Agent or any Lender of any security for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices
of acceptance of this Support Party Agreement and of the existence,
creation, or incurrence of new or additional indebtedness, and demands and
notices of every kind;
(g) Any defense based on or arising out of (i) any defense that the
Borrower may have to the payment or performance of the amounts outstanding
under the Credit Agreement or any part thereof, (ii) any defense that the
Borrower has failed to perform any action required by it hereunder, or in
the state of any Property or (iii) the financial condition of the
Borrower; and
(h) Any defense based on or arising out of any action of the
Administrative Agent or any Lender described in Sections 2.3 or 2.4 above.
SECTION 2.7. Borrower's Agreement. The Borrower hereby agrees to (i)
conduct any action as may be necessary in order for the Support Party to comply
with its obligations under this Support Party Agreement, including, but not
limited to, issuing Subordinated debt and partnership interests to the Support
Party and selling its respective Properties to the Support Party in accordance
with Article II and (ii) apply the proceeds of any amounts received from the
Support Party to the payment or prepayment of amounts as and when due under the
Credit Agreement to the Lenders and the Administrative Agent.
SECTION 2.8. Subordination. In addition to the Support Party's agreement
under Section 2.1(b), the Support Party hereby covenants and agrees that any
rights of the Support Party or any of its subsidiaries, whether now existing or
later arising, to receive payment on account of any indebtedness owed to it by
the Borrower or to receive any payment from the Borrower shall at all times be
Subordinate in accordance with the provisions of Schedule S of the Credit
Agreement ("Schedule S") to the full and prior repayment of the amounts
outstanding under the Credit Agreement.
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Support Party Agreement
Except as expressly provided in Schedule S, neither the Support Party nor any of
its subsidiaries shall be entitled to enforce or receive payment of any sums
hereby Subordinated until the amounts outstanding under the Credit Agreement
have been paid and performed in full and all Commitments terminated, and any
such sums received in violation of this Support Party Agreement or Schedule S
shall be received by the Support Party or its subsidiaries, as applicable, in
trust for the Administrative Agent and the Lenders. The Support Party shall
cause each subsidiary to Subordinate any indebtedness owed to it by the Borrower
in accordance with the terms of this Section 2.8.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Support Party represents and warrants to the Administrative
Agent for the benefit of the Lenders that:
SECTION 3.1. Organization; Powers. The Support Party and each of its
respective subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and as proposed to be
conducted, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification IS required. The Support Party and each of
its respective subsidiaries has the power and authority to own or hold under
lease the properties it purports to own or hold under lease, to transact the
business it transacts and proposes to transact, to execute and deliver this
Support Party Agreement and to perform the Transactions.
SECTION 3.2. Authorization: Enforceability. The Transactions are within
the Support Party's powers and have been duly authorized by all necessary
action. This Support Party Agreement has been duly executed and delivered by the
Support Party and constitutes a legal, valid and binding obligation of the
Support Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.3. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other
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Support Party Agreement
action by, any Governmental Authority, except such as have been obtained or made
and are in full force and effect, (b) will not violate any applicable law,
statute rule or regulation or the charter, by-laws or other organizational
documents of the Support Party (or any of its subsidiaries) or any order, writ,
ruling, injunction or decree of any Governmental Authority, (c) will not violate
or result in a default under any indenture, agreement or other instrument
binding upon the Support Party (or any of its subsidiaries) or its assets, or
give rise to a right thereunder to require any payment to be made by the Support
Party (or any of its subsidiaries), and (d) will not result in the creation or
imposition of any Lien on any asset of the Support Party (or any of its
subsidiaries).
SECTION 3.4. Properties. (a) The Support Party and each of its
subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) The Support Party and each of its subsidiaries owns, or is
licensed to use, all trademarks, tradenames, permits, service marks, licenses,
franchises, formulas, copyrights, patents and other intellectual property or
rights with respect to the foregoing, and has obtained assignments of all leases
and other rights of whatever nature, necessary for the present conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would result in a Material Adverse
Effect on the business, operations, property, assets, nature of assets,
condition (financial or otherwise) or prospects of the Support Party or of the
Support Party and its subsidiaries taken as a whole..
SECTION 3.5.Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Support Party, threatened
against or affecting the Support Party or any of its subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve this
Support Party Agreement or the Transactions.
(b) Except with respect to any matter that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Support Party nor any of its subsidiaries (i) has failed to
comply with any
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Support Party Agreement
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.6. Compliance with Laws and Agreements. The Support Party and
each of its subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Support Party
Default has occurred and is continuing.
SECTION 3.7. Investment and Holding; Company Status. Neither the Support
Party nor any of its subsidiaries is (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940, (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935 or (c) subject to any Federal or state
statute or regulation limiting its ability to incur Indebtedness for money
borrowed. Neither the Support Party nor any of its subsidiaries is subject to
the Interstate Commerce Act.
SECTION 3.8. Taxes. The Support Party and each of its subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and have paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Support Party or such subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.9. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $10,000,000 the fair market value of the assets of such Plan, and the
present value of
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Support Party Agreement
all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $10,000,000 the fair market value of the
assets of all such underfunded Plans.
SECTION 3.10. Disclosure. The Support Party has disclosed to the
Administrative Agent and the Lenders all agreements, instruments and corporate
or other restrictions to which it or any of its subsidiaries is subject, and all
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. None of the
information furnished by or on behalf of the Support Party to the Administrative
Agent or any Lender in connection with the negotiation of this Support Party
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
SECTION 3.11. Federal Reserve Regulations. Neither the Support Party nor
any of its respective subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
SECTION 3.12. Environmental and Safety Matters. The Support Party and each
of its subsidiaries has complied in all material respects with all Federal,
state, local and other statutes, ordinances, orders, judgments, rulings and
regulations relating to environmental pollution or to environmental regulation
or control or to employee health or safety. Neither the Support Party nor any of
its subsidiaries has received notice of any material failure so to comply. The
Support Party's and its subsidiaries' facilities do not manage any hazardous
wastes, hazardous substances, hazardous materials, toxic substances, toxic
pollutants or substances similarly denominated, as those terms or similar terms
are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other applicable law relating to environmental pollution
or employee health and safety, in violation in any material respect of any law
or any regulations promulgated pursuant thereto. The Support Party is not aware
of any events, conditions or circumstances involving
14
Support Party Agreement
environmental pollution or contamination or employee health or safety that could
reasonably be expected to result in material liability on the part of the
Support Party or any of its subsidiaries.
SECTION 3.13. Financial Statements. The Support Party has heretofore
furnished to the Administrative Agent and the Lenders its consolidated and
consolidating balance sheets and statements of income and cash flows as of and
for the fiscal year ended March 31, 1997, audited by and accompanied by the
opinion of Price Waterhouse, independent public accountants. Such financial
statements present fairly the financial condition and results of operations of
the Support Party and its consolidated subsidiaries as of such date and for such
period. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of the Support Party and its consolidated
subsidiaries as of the date thereof. Such financial statements were prepared in
accordance with GAAP applied on a consistent basis.
SECTION 3.14. No Material Adverse Change. There has been no material
adverse change in the business, assets, nature of assets, operations, prospects
or condition, financial or otherwise, of the Support Party and its subsidiaries,
taken as a whole, since March 31 ,1997.
SECTION 3.15. Agreements. (a) Neither the Support Party nor any of its
subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could result in a Material Adverse
Effect.
(b) Neither the Support Party nor any of its subsidiaries is in
default in any manner under any provision of any indenture or other
agreement or instrument evidencing Indebtedness, or any other material
agreement or instrument to which it is a party or by which it or any of
its properties or assets are or may be bound, where such default could
result in a Material Adverse Effect.
SECTION 3.16. Borrower's Business. The Support Party is familiar with
Borrower's financial condition and business operations and has done all
diligence to enter into this Support Party Agreement and has not relied on the
Administrative Agent with respect to such diligence. The Support Party has
received a copy of the Credit Agreement and hereby acknowledges and consents to
the terms and conditions thereunder.
15
Support Party Agreement
ARTICLE IV
COVENANTS
The Support Party covenants and agrees that, so long as any portion
of the amounts outstanding under the Credit Agreement shall remain unpaid or any
portion of the Commitment remains outstanding, it will observe the following
covenants:
SECTION 4.1. Notices of Material Events. The Support Party will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Support Party Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Support Party or any Affiliate thereof that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Support Party and its subsidiaries in an
aggregate amount exceeding $10,000,000;
(d) any action by the Support Party pursuant to Article II of this
Support Party Agreement, or any agreement to do so;
(e) any provision of this Support Agreement is held to be invalid,
illegal or unenforceable in any jurisdiction resulting in a Material
Adverse Effect on the ability of the Support Party to perform its
obligations hereunder;
(f) any change by ▇▇▇▇▇'▇ or S&P in the rating of the Support
Party's senior, unsecured, non-credit-enhanced long-term indebtedness for
borrowed money after the date hereof; and
(g) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
16
Support Party Agreement
Each notice delivered under this Section shall be accompanied by a statement of
an executive officer of the Support Party setting forth the details of the event
or development requiring such notice and any action taken or proposed to be
taken with respect thereto.
SECTION 4.2. Existence; Conduct of Business. The Support Party will, and
will cause each of its subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business and will maintain and operate such business in
substantially the manner in which it is presently conducted and operated. The
Support Party shall, directly or through its wholly-owned subsidiaries, own and
control not less than 50% of the Voting Stock of the General Partner.
SECTION 4.3. Payment of Obligations. The Support Party will, and will
cause each of its subsidiaries to, pay its Indebtedness and other obligations
promptly and in accordance with their terms and pay and discharge promptly when
due all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Support Party or such
subsidiary of the Support Party shall have set aside on its respective books
adequate reserves with respect thereto.
SECTION 4.4. Maintenance of Properties; Insurance. The Support Party will,
and will cause each of its subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, through a program of self
insurance consistent with sound business practices or with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it, or as may be required by law.
17
Support Party Agreement
SECTION 4.5. Books and Records; Inspection Rights. The Support Party will,
and will cause each of its subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its respective business and activities. The
Support Party will, and will cause each of its subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender through the
Administrative Agent, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 4.6. Compliance with Laws. The Support Party will, and will cause
each of its subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority, whether now in effect or hereafter enacted,
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 4.7. Financial Statements, Reports, etc. The Support Party will
furnish to the Administrative Agent and each Lender:
(a) as soon as practicable and in any event within 60 days after the
end of each fiscal quarter, (i) consolidated balance sheets of the Support
Party and its subsidiaries and (ii) consolidated balance sheets of the
Support Party, each as at the end of such period, and the related
statements of income, stockholders' equity and cash flows for such fiscal
quarter, setting forth in each case in comparative form the figures for
the corresponding periods of the previous fiscal year (but together with
the consolidating intercompany eliminations and adjustments in the case of
(i) and (ii)), all in reasonable detail and certified by a Financial
Officer of the Support Party that they fairly present the financial
condition of the Support Party and its subsidiaries as at the date
indicated and the results of their operations and changes in their
financial position for the periods indicated, subject to changes resulting
from audit and normal year-end adjustment;
(b) as soon as practicable and in any event within 120 days after
the end of each fiscal year of the Support Party, consolidated balance
sheets of the Support Party and its subsidiaries, as at the end of such
year, and the related consolidated statements of income, stockholders'
equity and cash
18
Support Party Agreement
flows for such fiscal year, setting forth in each case, in comparative
form the consolidated figures for the previous year, all in reasonable
detail and accompanied by a report thereon of Price Waterhouse or other
independent certified public accountants of recognized national standing
selected by the Support Party and reasonably satisfactory to the Required
Lenders, which report shall be unqualified as to going concern and scope
of audit and shall state that such consolidated financial statements
present fairly, in all material respects, the financial position of the
Support Party and its subsidiaries, as at the dates indicated, and the
results of their operations and cash flows for the periods indicated in
conformity with GAAP (applied on a basis consistent with prior years
unless as otherwise stated therein) and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;
(c) together with each delivery of financial statements of the
Support Party and its subsidiaries pursuant to Sections 4.7(a) and (b)
above, (i) a certificate of a Financial Officer stating that the signer
thereof has reviewed the terms of this Support Party Agreement and has
made, or caused to be made, a review in reasonable detail of the
transactions and condition of the Support Party and its subsidiaries
during the accounting period covered by such financial statements and that
such review has not disclosed the existence during or at the end of such
accounting period, and that the signer does not have knowledge of the
existence as at the date of such certificate, of any condition or event
which constitutes a Support Party Default, or, if any such condition or
event existed or exists, specifying the nature and period of existence
thereof and what action the Support Party has taken, is taking and
proposes to take with respect thereto;
(d) together with each delivery of financial statements of the
Support Party and its subsidiaries pursuant to Section 4.7(b) above, a
written statement by the independent public accountants giving the report
thereon (i) stating that their audit examination has included a review of
the terms of this Support Party Agreement as they relate to accounting
matters, (ii) stating whether, in connection with their audit examination,
any condition or event which constitutes a Support Party Default has come
to their attention, and if such a condition or event has come to their
attention, specifying the nature and period of existence thereof; provided
that such accountants shall not be liable by reason of any failure to
obtain knowledge of any such Support Party
19
Support Party Agreement
Default that would not be disclosed in the course of their audit
examination, and (iii) stating that based on their audit examination
nothing has come to their attention that causes them to believe that
either or both the information contained in the certificates delivered
therewith pursuant to Section 4.7(b) above is not correct;
(e) promptly upon request therefor, copies of all reports submitted
to the Support Party by independent public accountants in connection with
each annual, interim or special audit of the financial statements of the
Support Party made by such accountants, including any comment letter
submitted by such accountants to management in connection with their
annual audit;
(f) promptly upon their becoming available, copies of all (i)
financial statements, reports, notices and proxy statements sent or made
available generally by the Support Party to its security holders or by any
of its subsidiaries to its security holders other than the Support Party
or another of its subsidiaries, (ii) regular and periodic reports and all
registration statements and prospectuses, if any, filed by the Support
Party or any of its subsidiaries with any securities exchange or with the
Securities and Exchange Commission or any Governmental Authority
succeeding to any of its functions, and (iii) press releases and other
statements made available generally by the Borrower or any of it
Subsidiaries to the public concerning material developments in the
business of the Support Party and its subsidiaries;
(g) promptly upon any officer of the Support Party obtaining
knowledge (i) of any condition or event which constitutes a Support Party
Default, or becoming aware that any Lender or the Administrative Agent has
given any notice or taken any other action with respect to a claimed
Support Party Default under this Support Party Agreement, (ii) that any
Person has given any notice to the Support Party or any of its
subsidiaries of the Support Party or taken any other action with respect
to a claimed default or event or condition of the type referred to in
paragraph (c) of Article V or (iii) of any condition or event that might
have a Material Adverse Effect, a certificate of a Financial Officer
specifying the nature and period of existence of any such condition or
event, or specifying the notice given or action taken by such holder or
Person and the nature of such claimed default, Support Party
20
Support Party Agreement
Default, event or condition, and what action the Support Party has taken,
is taking and proposes to take with respect thereto;
(h) promptly upon any officer of the Support Party obtaining
knowledge of (i) the institution of, or threat of any action, suit,
proceeding, governmental investigation or arbitration against or affecting
the Support Party or any of its subsidiaries or any property of the
Support Party or any of its subsidiaries not previously disclosed by the
Support Party to the Lenders, or (ii) any material development in any
action, suit, proceeding, governmental investigation or arbitration,
which, in either case, if adversely determined, might have a Material
Adverse Effect, the Support Party shall promptly give notice thereof to
the Lenders and provide such other information as may be reasonably
available to it to enable the Lenders and their counsel to evaluate such
matters; and
(i) with reasonable promptness, such other information and data with
respect to the Support Party or any of its subsidiaries as from time to
time may be reasonably requested by any Lender.
SECTION 4.8. Pari Passu Ranking. The Support Party shall take, or cause to
be taken, all action that may be or become necessary or appropriate to ensure
that its obligations under this Support Party Agreement will continue to rank at
least pari passu in right of payment with all other present and fixture
unsecured Indebtedness of the Support Party (including, but not limited to,
Indebtedness owing under the 5-Year Credit Facility).
SECTION 4.9. Equal Security for Revolving Credit Exposure. In the event
the Support Party shall create, incur, assume or permit to exist any Lien upon
any of its property or assets, whether now owned or hereafter acquired, other
than Liens permitted pursuant to the provisions of Section 6.04 of the 5-Year
Credit Facility (unless prior written consent to the creation or assumption
thereof shall have been obtained from the Required Lenders), the Support Party
shall make or cause to be made, at the request of the Required Lenders,
effective provision whereby the Support Party's obligations hereunder will be
secured by such Lien equally and ratably with any and all other Indebtedness
thereby secured as long as any such other Indebtedness shall be so secured.
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Support Party Agreement
ARTICLE V
SUPPORT PARTY DEFAULT
Each of the following events shall constitute an event of default
under this Support Party Agreement (a "Support Party Default"):
(a) any representation or warranty made or deemed made by or on
behalf of the Support Party or any subsidiary in or in connection with
this Support Party Agreement or any amendment or modification hereof or
waiver hereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Support
Party Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect when made or deemed made;
(b) the Borrower or the Support Party shall fail to observe or
perform any covenant, condition or agreement contained in Section 2.1 or
2.2 of this Support Party Agreement;
(c) the Borrower or the Support Party shall fail to observe or
perform any covenant, condition or agreement other than as provided in
this Support Party Agreement (other than as referred to in clause (b) of
this Article) and such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent to the Support
Party (which notice shall be given at the request of the Administrative
Agent or any Lender through the Administrative Agent);
(d) any event or condition occurs that results in any Material
Indebtedness (including amounts outstanding under the 5-Year Credit
Facility) becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time, or
both) the holder or holders of any such Material Indebtedness or any
trustee or agent on its or their behalf to cause any such Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
22
Support Party Agreement
(e) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Support Party or any of its Material
Subsidiaries or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Support Party or any of its Material Subsidiaries or for
a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(f) the Support Party or any of its Material Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking liquida-
tion, reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (e) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Support Party or any of its Material Subsidiaries or for
a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(g) the Support Party shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(h) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Support
Party, any of its subsidiaries or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Support Party or any of its subsidiaries to enforce any such judgment;
(i) an ERISA Event shall have occurred that, in the opinion of the
Administrative Agent, when taken together with all other ERISA Events that
23
Support Party Agreement
have occurred, could reasonably be expected to result in a
Material Adverse Effect; and
(j) a Change of Control (as defined in the 5-Year Facility)
shall have occurred.
then, in addition to any rights the Administrative Agent or the Lenders may
have under the Credit Agreement, and irrespective of whether (i) such Support
Party Default is the result, directly or indirectly, of the failure of the
Support Party, the Borrower, any other Private Mini Entity or any other Person
in complying with its obligations under this Support Party Agreement or (ii)
any amounts outstanding under the Credit Agreement have become or have been
declared immediately due and payable under Article VII of the Credit Agreement
or if the Commitments have been terminated thereunder, the Administrative Agent
may, and at the request of the Required Lenders shall, proceed to protect and
enforce the rights of the Lenders by an action at law, a suit in equity or
other appropriate proceeding, whether for specific performance of any agreement
contained herein, or for an injunction against a violation of any terms hereof,
or in aid of the exercise of any power granted hereby or by law or otherwise.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. Binding on Successors, Transferees and Assigns; Assignment
of Support Party Agreement. This Support Party Agreement shall be binding upon
the Support Party and its successors, transferees and assigns and shall inure
to the benefit of and be enforceable by the Administrative Agent on behalf of
the Lenders and their respective permitted successors and assigns; provided,
however, that the Support Party may not assign any of its obligations hereunder
without the prior written consent of all of the Lenders in accordance with
Section 9.02 of the Credit Agreement.
SECTION 6.2. Amendments, etc. No amendment to or waiver of any provision
of this Support Party Agreement, nor consent to any departure by the Support
Party herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent, and then such waiver or consent
24
Support Party Agreement
shall be effective only in the specific instance and for the specific purpose
for which given; provided that any amendment, waiver or consent with respect to
Article I1 shall require the approval of all of the Lenders.
SECTION 6.3. Addresses for Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or the Administrative Agent, as
provided in Section 9.01 of the Credit Agreement; and
(b) if to the Support Party, to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇).
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Support Party Agreement shall be deemed to have been
given on the date of receipt.
SECTION 6.4. No Waiver; Remedies. No failure on the part of the
Administrative Agent to exercise, and no delay in exercising, any right
hereunder (including, but not limited to, the issuance of the Issuance Notice or
Purchase Notice) shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 6.5. Section Captions. Section captions used in this Support
Party Agreement are for convenience of reference only, and shall not affect the
construction of this Support Party Agreement.
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Support Party Agreement
SECTION 6.6. Severability. Wherever possible each provision of this
Support Party Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Support Party
Agreement shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Support Party Agreement.
SECTION 6.7. Termination of Support Party Agreement. The Support Party's
obligations under this Support Party Agreement shall terminate (a) on the date
upon which all amounts outstanding under the Credit Agreement have been paid in
full, the Commitments terminated and all other obligations under the Credit
Agreement and this Support Party Agreement shall have been fully and finally
discharged or (b) upon consummation of the transactions referred to in clauses
(i) and (ii) of Section 2.2(c) of this Support Party Agreement; provided that
the agreements in Section 6.12 of this Support Party Agreement shall survive.
SECTION 6.8. Governing Law. THIS Support Party Agreement SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SECTION 6.9. Waiver of Jury Trial. THE SUPPORT PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS SUPPORT PARTY AGREEMENT. THE SUPPORT PARTY ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO THE CREDIT AGREEMENT.
SECTION 6.10. Consent to Jurisdiction; Waiver of Immunities.
The Support Party hereby acknowledges and agrees that:
(a) It irrevocably submits to the jurisdiction of any federal court
sitting in the Southern District of New York in any action or proceeding
arising out of or relating to this Support Party Agreement, and the
Support Party hereby irrevocably agrees that all claims in respect of such
action or
26
Support Party Agreement
proceeding may be heard and detennined in such federal court. The Support
Party hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such
action or proceeding. The Support Party agrees that a final, unappealable
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) It hereby irrevocably designates, appoints and empowers C.T.
Corporation System, presently located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (together with any successor thereto, the "Service of Process
Agent"), as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its properties,
service of any and all legal process, summons, notices and documents
which may be served in any such action or proceeding. If for any reason
the Service of Process shall cease to be available to act as such, the
Support Party agrees to designate a new Service of Process Agent in New
York City on the terms and for the purposes of this provision
satisfactory to the Administrative Agent. The Support Party further
irrevocably consents to service of process in the manner provided for
notices in Section 6.3. Nothing in this Support Agreement will affect the
right of any party to this Support Agreement to serve process in other
manner permitted by law.
(c) Nothing in this Section shall affect the right of the
Administrative Agent or any Lender to serve legal process in any manner
permitted by law affect the right of the Administrative Agent or any
Lender to bring any or proceeding against the Support Party or its
property in the courts of any other jurisdictions.
SECTION 6.11. Right of Setoff. If a Support Party Default shall have
occurred and be continuing, the Administrative Agent, each Lender and each of
its Affiliates is hereby authorized at any time and from time to time, to the
hllest permitted by law, to set off and apply any and all deposits (general or
special, time demand, provisional or final) at any time held and other
obligations at any time owing by such Administrative Agent, Lender or Affiliate
to or for the credit or the account of the Support Party against any of and all
the obligations of the Support Party now or hereafter existing under this
Support Party Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand
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Support Party Agreement
under this Support Party Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 6.12. Expenses; Indemnity: Damage Waiver. (a) The Support
Party shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in
connection with the preparation and administration of this Support Party
Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby
shall be consummated) and (ii) all out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender,
in connection with the enforcement or protection of its rights in
connection with this Support Party Agreement, including its rights under
this Section.
(b) The Support Party shall indemnify and hold harmless the Admin-
istrative Agent, each Lender and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") from and against and pay them for any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or disbursements (including
attorney costs) of any kind or nature whatsoever with respect to the
execution, delivery and enforcement of this Support Party Agreement, or
the Transactions, and with respect to any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of
whether any Indemnitee is a party thereto related to this Support Party
Agreement, whether or not any Indemnified Person is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities"); provided,
that the Support Party shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities directly
arising from the gross negligence or willful misconduct of such
Indemnified Person as determined by a court of competent jurisdiction.
The agreements in this Section 6.12 shall survive payment of the amounts
outstanding under the Credit Agreement and termination of the Commitments
thereunder.
(c) To the extent permitted by applicable law, the Support Party
shall not assert, and hereby waives, any claim against any Indemnitee, on
any
28
Support Party Agreement
theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Support Party Agreement or any
agreement or instrument contemplated hereby or the Transactions.
(d) All amounts due under this Section shall be payable promptly
after written demand therefor.
29
Support Party Agreement
IN WITNESS WHEREOF, the Support Party and the Borrower have each caused
this Support Party Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
AMERCO,
as Support Party
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name:
Title:
PRIVATE MINI STORAGE REALTY, L.P.
By STORAGE REALTY L.L.C., as
general partner
By
----------------------------------
Name:
Title:
Agreed to and accepted by:
THE CHASE MANHATTAN BANK, as
Administrative Agent
BY
-------------------------------------
Name:
Title:
Support Party Agreement
IN WITNESS WHEREOF, the Support Party and the Borrower have each caused
this Support Party Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
AMERCO,
as Support Party
By
----------------------------------
Name:
Title:
PRIVATE MINI STORAGE REALTY, L.P.
By STORAGE REALTY L.L.C., as
general partner
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager
Agreed to and accepted by:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By
----------------------------------
Name:
Title:
Support Party Agreement
IN WITNESS WHEREOF, the Support Party and the Borrower have each caused
this Support Party Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
AMERCO,
as Support Party
By
----------------------------------
Name:
Title:
PRIVATE MINI STORAGE REALTY, L.P.
By STORAGE REALTY L.L.C., as
general partner
By
----------------------------------
Name:
Title:
Agreed to and accepted by:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President