NON-REVOLVING TERM FACILITY CREDIT AGREEMENT BETWEEN SST VI 1450 DON MILLS RD, ULC AND SST VI 1450 DON MILLS RD, LLC AND NATIONAL BANK OF CANADA AND STRATEGIC STORAGE TRUST VI, INC. as Guarantor MADE AS OF January 31, 2023 McCarthy Tétrault LLP

Exhibit 10.4

NON-REVOLVING TERM FACILITY CREDIT AGREEMENT

 

BETWEEN

SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, ULC AND SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, LLC

AND

NATIONAL BANK OF CANADA

AND

STRATEGIC STORAGE TRUST VI, INC.
as Guarantor
 

MADE AS OF

January 31, 2023

 

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP

 

 

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Exhibit 10.4

TABLE OF CONTENTS

 

Article 1 – INTERPRETATION 2

1.01 Definitions 2

1.02 Extended Meanings and References 23

1.03 Knowledge 23

1.04 Accounting Principles 23

1.05 Interest Calculations and Payments 24

1.06 Permitted Encumbrances 25

1.07 Currency 25

1.08 Entire Agreement and Conflicts 25

1.09 Severability 25

1.10 Further Assurances 25

1.11 Schedules 26

Article 2 – THE CREDIT FACILITY 26

2.01 Credit Facility 26

2.02 Purpose of Credit Facility 26

2.03 Manner of Borrowing 26

2.04 Non-Revolving Nature of Credit Facility 26

2.05 Drawdowns, Conversions and Rollovers 27

2.06 ▇▇▇▇▇▇’s Obligations with Respect to Loans 27

2.07 Irrevocability 27

2.08 Market Disruption 28

Article 3 – DRAWDOWN CONDITIONS 28

3.01 Conditions Precedent to Drawdown under the Credit Facility 28

3.02 Waiver 32

Article 4 – PAYMENTS OF INTEREST AND FEES 32

4.01 Interest on Prime Rate Loans 32

4.02 Upfront Fee 33

4.03 Default Interest 33

Article 5 – BANKERS’ ACCEPTANCES 33

5.01 Bankers’ Acceptances 33

5.02 General Mechanics 33

5.03 Purchase of Bankers’ Acceptances 33

5.04 Drawdowns 34

5.05 Rollovers 34

5.06 Conversions 34

5.07 Maturity 34

5.08 Bankers’ Acceptances Stamping Fees 35

5.09 General re Bankers’ Acceptances 35

5.10 Cash Collateralization 36

 

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Article 6 – REPAYMENT 36

6.01 Mandatory Repayment – Credit Facility 36

6.02 Voluntary Repayments 37

6.03 Repayment Compensation 37

Article 7 – PLACE AND APPLICATION OF PAYMENTS 37

7.01 Place of Payment of Principal, Interest and Fees 37

Article 8 – SECURITY 38

8.01 Security 38

8.02 Registration and Protection of Security. 39

8.03 Further Assurances 39

8.04 Form of Security 39

8.05 Qualifying Hedge Arrangements 39

Article 9 – REPRESENTATIONS AND WARRANTIES 39

9.01 Representations and Warranties 39

9.02 Survival and Repetition of Representations and Warranties 47

Article 10 – COVENANTS 48

10.01 Positive Covenants 48

10.02 Financial Covenants 56

10.03 Reporting Requirements 56

10.04 Negative Covenants 58

10.05 SmartStop Transaction 62

Article 11 – DEFAULT 63

11.01 Events of Default 63

11.02 Acceleration and Enforcement 66

11.03 Remedies Cumulative 67

11.04 Perform Obligations 67

11.05 Third Parties 67

11.06 Application of Payments 67

Article 12 – guarantee 68

12.01 Guarantees and Indemnity 68

12.02 Obligations Absolute 68

12.03 No Release 69

12.04 No Exhaustion of Remedies 70

12.05 Prima Facie Evidence 70

12.06 Guarantor Rights 71

12.07 Continuing Guarantee 71

12.08 Waivers by Guarantors 71

12.09 Demand 71

12.10 Interest 71

12.11 Limitation 71

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Article 13 – COMPENSATION and set-off 72

13.01 Increased Costs 72

13.02 Taxes 73

13.03 Illegality 74

Article 14 – RIGHT OF SETOFF 74

14.01 Right of Setoff 74

Article 15 – NOTICES: EFFECTIVENESS; ELECTRONIC COMMUNICATION 75

15.01 Notices, etc. 75

Article 16 – EXPENSES; INDEMNITY: DAMAGE WAIVER 76

16.01 Expenses; Indemnity: Damage Waiver 76

Article 17 – SUCCESSORS AND ASSIGNS 78

17.01 Successors and Assigns 78

Article 18 – amendments and waivers 78

18.01 Amendments and Waivers 78

Article 19 – GOVERNING LAW; JURISDICTION; ETC. 78

19.01 Governing Law; Jurisdiction; Etc. 78

Article 20 – WAIVER OF JURY TRIAL 79

20.01 Waiver of Jury Trial 79

Article 21 – COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION 79

21.01 Counterparts; Integration; Effectiveness; Electronic Execution 79

Article 22 – TREATMENT OF CERTAIN INFORMATION: CONFIDENTIALITY 80

22.01 Treatment of Certain Information: Confidentiality 80

Article 23 – language 81

23.01 Language 81

Article 24 – Nature of Obligations, Recourse and direction 81

24.01 Nature of Obligations under this Agreement and Recourse 81

 

 

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Exhibit 10.4

NON-REVOLVING TERM FACILITY CREDIT AGREEMENT
 

THIS AGREEMENT is made as of January 31, 2023

BETWEEN

SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, LLC
(the “Beneficial Owner”)

- and –

SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, ULC
(the “Nominee” and, together with the Beneficial Owner, collectively, the “Borrowers” and individually, a “Borrower”)

- and –

NATIONAL BANK OF CANADA
(the “Lender”)

- and -

STRATEGIC STORAGE TRUST VI, INC.
(the “Guarantor”)

WHEREAS the Borrowers have requested the Credit Facility and the Lender has agreed to provide the Credit Facility to the Borrowers for the purposes set out in Section 2.02 and upon and subject to the terms and conditions set out in this Agreement;

AND WHEREAS it is a condition of providing the Credit Facility that the Guarantor guarantee the obligations of the Borrowers on the terms and conditions herein set forth;

AND WHEREAS the Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this Agreement and the Loan Documents and each of the Credit Parties acknowledges that they are jointly and severally liable for the Obligations; and

AND WHEREAS the Lender confirms and acknowledges that the Nominee holds legal title to the Secured Property (as defined below), for the benefit and on behalf of the Beneficial Owner, and that the Credit Facility has been established in accordance with the provisions of this Agreement, for the sole use and benefit of the Beneficial Owner.

NOW THEREFORE, in consideration of the covenants and agreements herein contained, the parties agree as follows:

In this Agreement, unless something in the subject matter or context is inconsistent therewith:

“Acceptable Appraisal” means a “market value” appraisal of the Secured Property prepared in accordance with the requirements of the Uniform Standards of Professional Appraisal Practice adopted by the Appraisal Institute of Canada and conducted in accordance with the standards of the Appraisal Institute of Canada by an Independent Appraiser, which is approved by the Lender in form, substance and which is addressed to the Lender.

 

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“Acquisition” means the acquisition by the Beneficial Owner of the Secured Property pursuant to the terms of the Purchase Agreement.

“Additional Compensation” has the meaning set out in Section 13.01(2).

“Adjusted Net Operating Income” means, for a given period, the sum of the following (without duplication but as adjusted pursuant to the provisions of the definition of Calculation Period): (i) rents and other revenues received in the ordinary course from the leasing or operating of such assets (including proceeds of rent loss insurance but excluding prepaid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligations for rent) determined in accordance with GAAP, minus (ii) all expenses paid or accrued by the relevant owner related to the ownership, operation or maintenance of such assets, including but not limited to realty taxes, assessments and other similar charges, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses and on site marketing expenses, but in any event excluding amortization and depreciation and general administrative expenses of the relevant owner, determined in accordance with GAAP, minus (iii) non-recoverable expenses. For certainty, paragraphs (ii) and (iii) of this definition of Adjusted Net Operating Income shall exclude any extraordinary or non-recurring expenses, any asset management fees, any payments on account of interest, fees and amortization of principal in respect of any Indebtedness, income tax expense and cash reserves.

“Advance” means an advance of funds made hereunder to any Borrower by the Lender by way of a Loan.

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled By or is Under Common Control With the Person specified.

“Aggregate Hedge Exposure” means, at any time, the negative net marked to market amount, if any, that would be carried in the accounts of the Borrower on a Consolidated basis at such time with respect to Qualifying Hedge Arrangements as a liability.

“Agreement” means this credit agreement, including its recitals and schedules, as refinanced, amended, restated, supplemented and otherwise modified from time to time.

“AML Laws” has the meaning set out in Section 9.01(37)(a).

“Anti-Corruption Laws” has the meaning set out in Section 9.01(37)(d).

“Applicable Canadian Pension Laws” means any law (statutory or common), rule, regulation, guideline, directive, order or notice of any Canadian federal or provincial (or other political subdivision thereof) Governmental Authority or any entity exercising executive, legislative, quasi-judicial, regulatory or administrative functions pertaining to, having jurisdiction over or affecting any Canadian Pension Plan or Canadian Plan in each case to the extent having the force of law.

“Applicable Law” means, at any time, in respect of any Person, property, transaction, event or other matter, as applicable, all then current laws, rules, statutes, regulations, treaties, orders, judgments and decrees and all official directives, rules, guidelines, orders, policies, decisions and other requirements of any Governmental Authority (collectively, the “Law”) relating or applicable to such Person, property, transaction, event or other matters and shall also include any interpretation of the Law, or any part of the Law, by any person having jurisdiction over it or charged with its administration or interpretation.

“Applicable Margin” means on any date for any period, the percentage rate per annum determined in accordance with the applicable table below:

 

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Prime Rate Margin	BA Stamping Fee Rate
1.40	2.40

 

“Applicable Market Capitalization Rate” means, for each relevant property, the proposed capitalization rate by the Guarantor for such property (and the Guarantor shall provide evidence in support thereof) for review and consideration by the Lender, in its discretion.

“Appraised Market Value” means the appraised value of the Secured Property as set forth in the most recent Acceptable Appraisal.

“Availability Period” means the period commencing on the Closing Date and ending on the Maturity Date.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of a Contract Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

“BA Cessation Effective Date” has the meaning ascribed thereto in Section 2.09(7).

“BA Cessation Notice” has the meaning ascribed thereto in Section 2.09(7).

“BA Discount Proceeds” means, with respect to a particular Bankers’ Acceptance, the following amount:

 

(	1	)	x BA
	1 + (DR*(IP/365))

 

Where:

with the amount as so determined being rounded to the nearest whole cent, with one half of one cent being rounded up.

“BA Discount Rate” means, for any Drawdown Date in respect of Bankers’ Acceptances to be purchased pursuant to Article 5, CDOR.

“BA Market Disruption Notice” has the meaning set out in Section 2.08.

“BA Resumption Notice” has the meaning set out in Section 2.08.

“BA Stamping Fee” means the amount calculated by multiplying the face amount of a Bankers’ Acceptance by the BA Stamping Fee Rate and then multiplying the result by a fraction, the numerator of which is the number of days to

 

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elapse from and including the date of acceptance of such Bankers’ Acceptance by a Lender up to but excluding the maturity date of such Bankers’ Acceptance, and the denominator of which is the number of days in the calendar year in question.

“BA Stamping Fee Rate” means, with respect to a Bankers’ Acceptance, the applicable percentage rate per annum indicated below the reference to “BA Stamping Fee Rate in the definition of “Applicable Margin”.

“Bankers’ Acceptance” means a depository bill, as defined in the Depository Bills and Notes Act (Canada), in Canadian Dollars that is in the form of a Draft signed by the Borrower and accepted by the Lender as contemplated under Section 5.09(1).

“Benchmark” means, initially, CDOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 2.09, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” means, for any Available Tenor:

provided that, if the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Prime Rate,” the definition of “Business Day,” the definition of “Contract Period,” the definition of “Bankers’ Acceptance”, the definition of “BA Equivalent Advance,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters, including with respect to the obligation of the Lender to create, maintain or issue Bankers’ Acceptance) that the Lender decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Lender in a manner substantially consistent with market practice (or, if the Lender decides that adoption of any portion of such market practice is not administratively feasible or if the Lender determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Lender decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). Without limiting the foregoing, Benchmark Replacement Conforming Changes made in connection with the replacement of CDOR with a Benchmark Replacement may include the implementation of mechanics for borrowing loans that bear interest by reference to the Benchmark Replacement, to replace the creation or purchase of drafts or Bankers’ Acceptances.

 

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“Benchmark Transition Event” means, with respect to any then-current Benchmark other than CDOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Bank of Canada, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.

“Beneficial Owner” means SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, LLC, and its successors and assigns permitted by this Agreement.

“Borrowers” means collectively, the Nominee and the Beneficial Owner, and “Borrower” means either one of them, in each case, and their respective successors and assigns permitted by this Agreement.

“Borrower’s Account” means the account maintained by the Beneficial Owner and designated by the Beneficial Owner from time to time as the Borrowers’ Account hereunder.

“Borrowers’ Counsel” means ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Canada LLP, or such other firm of legal counsel as the Borrowers may from time to time designate and that is acceptable to the Lender, acting reasonably.

“Business Day” means a day on which chartered banks are open for over-the-counter business in the Province of Ontario and excludes Saturday, Sunday and any other day which is a statutory holiday in the Province of Ontario.

“Calculation Period” means the trailing twelve month period, provided that for the purposes of such calculations, in respect of the Secured Property, historical calculations for the period prior to the acquisition thereof by the Borrowers until such time as twelve months have elapsed since the acquisition date thereof (such calculation to be acceptable to the Lender, acting reasonably), after which, the Calculation Period as of any time shall be deemed to be the trailing twelve month period.

“Canadian Dollars”, “Cdn. Dollar” and “Cdn. $” mean the lawful money of Canada.

“Canadian Pension Plan” means each and every registered pension plan established under Canadian federal or provincial law and sponsored, maintained or contributed to, by or on behalf of the Borrowers or the Guarantor for the benefit of any of their respective employees.

“Canadian Plan” shall mean any employee benefit plan (other than a Canadian Pension Plan) established or maintained by, or on behalf of the Borrowers or the Guarantor for the benefit of its employees.

“Capital Expenditures” means any capital expenditure made by a Credit Party for the construction, maintenance, repair, replacement, addition, alteration or refurbishment of the Secured Property.

“Capital Lease Obligation” of any Person means the obligation of such Person, as lessee, to pay rent or other payment amounts under a lease of real or personal property which is required to be classified and accounted for as a capital lease or a liability on a Consolidated balance sheet of such Person in accordance with GAAP.

“CDOR” means the Canadian Dollar rate for bankers’ acceptance borrowings, including the rate known as the Canadian Dollar Offered Rate provided by RBSL, as the administrator of the benchmark (or a successor administrator).

“Change in Laws” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Applicable Laws, (b) any change in any Applicable Laws or in the administration, interpretation,

 

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implementation or application thereof by any Governmental Authority or (c) the making or issuance of any Applicable Laws by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or Canada, the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Laws”, regardless of the date enacted, adopted or issued.

“Claims” means, in respect of any event, circumstance, matter or thing, all actions, proceedings, losses, damages, liabilities, taxes, claims, demands, judgments, rights (including set-off), remedies, costs and expenses of any nature or kind, including legal fees and disbursements on a full indemnity basis, and “Claim” means any one of them.

“Closing Date” means January 31, 2023.

“Collateral” means the Secured Property and all real and personal property (and the revenues, insurance proceeds, issues, profits, proceeds and products of the foregoing) which are subject, or are intended or required to become subject, to the security or Encumbrance granted under any of the Loan Documents.

“Commitment” means Cdn $25,000,000.

“Compliance Certificate” means the certificate required pursuant to Section 10.03(3), which for the Borrowers shall be substantially in the form attached as Schedule 1.01(B), signed by any one of the Chief Executive Officer or the Chief Financial Officer of the Borrower, or such other senior financial officer of the Borrowers approved by the Lender, and which for the Guarantor, shall be substantially in the form attached as Schedule 1.01(B-1), signed by any one of the Chief Executive Officer or the Chief Financial Officer of the Guarantor, or such other senior financial officer of the Guarantor approved by the Lender.

“Consolidated” means consolidated financial calculations of the relevant Person and its Subsidiaries in accordance with GAAP.

“Consolidated Indebtedness” means, with respect to the Guarantor, as at any date, the Indebtedness (without duplication), calculated on a Consolidated basis, as at such date determined in accordance with GAAP.

“Construction Lien Legislation” has the meaning ascribed thereto in Section 10.01(21).

“Contingent Obligation” means, with respect to any Person, any obligation, whether secured or unsecured, of such Person guaranteeing or indemnifying, or in effect guaranteeing or indemnifying, any indebtedness, leases, dividends, letters of credit or other monetary obligations (the “primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person as an account party in respect of a letter of credit or letter of guarantee issued to assure payment by the primary obligor of any such primary obligation and any obligations of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds for the purchase or payment of any such primary obligation or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the obligee under any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the obligee under such primary obligation against loss in respect of such primary obligation; provided, however, that the term Contingent Obligation does not include endorsements of instruments for deposit or collection in the ordinary course of business.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlled By”, “Controls” and “Under Common Control With” have meanings correlative thereto.

“Conversion” means a conversion of one type of Loan into another type of Loan pursuant to Section 2.05 or Section 5.06.

 

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“Conversion Date” means the Business Day specified by the Borrowers in a Conversion Notice as being the date on which the Borrowers have elected to convert one type of Loan into another type of Loan.

“Conversion Notice” means a Notice, substantially in the form set out in Schedule 1.01(C), to be given to the Lender by the Borrowers pursuant to Section 2.05.

“▇▇▇▇▇” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).

“Credit Facility” has the meaning set out in Section 2.01.

“Credit Parties” means the Borrowers and the Guarantor, and their respective successors and assigns permitted by this Agreement, and “Credit Party” means any one of them. For the purposes of Article 9, Article 10, Article 11 and Article 13 of this Agreement, reference to “Credit Party” or “Credit Parties” therein shall include each general partner of such Credit Parties, if any.

“Cure Right” has the meaning ascribed thereto pursuant to Section 10.03(6)(a) and 10.03(7)(a), as applicable.

“Daily Compounded ▇▇▇▇▇” means, for any day, ▇▇▇▇▇ with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by the Lender in accordance with the methodology and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded ▇▇▇▇▇ for business loans; provided that if the Lender decides that any such convention is not administratively feasible for the Lender, then the Lender may establish another convention in its reasonable discretion; and provided that if the administrator has not provided or published ▇▇▇▇▇ and a Benchmark Transition Event with respect to ▇▇▇▇▇ has not occurred, then, in respect of any day for which ▇▇▇▇▇ is required, references to ▇▇▇▇▇ will be deemed to be references to the last provided or published ▇▇▇▇▇

“Debt Service Reserve Account” has the meaning ascribed thereto in Section 10.07(1).

“Debtor Relief Laws” means the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and any similar federal, provincial state or foreign law (including all liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar laws of any applicable jurisdictions and affecting the rights of creditors generally) for the relief of debtors.

“Default” means any event or condition, the occurrence of which would, with the lapse of time or giving of notice, or both, becomes an Event of Default.

“discretion” means the discretion of the Lender, acting reasonably.

Disposition” means, with respect to a Person, any sale, assignment, transfer, conveyance, lease, licence or other disposition of any nature or kind whatsoever of any property, asset or of any right, title or interest in or to any property or asset, and the verb “Dispose” has a corresponding meaning.

“Distribution” means (i) any payment, declaration of dividend or other distribution, whether in cash or property to any holder of Equity Interests of any class of any of the Credit Parties, (ii) any repurchase, redemption, retraction or other retirement or purchase for cancellation of Equity Interests of any Credit Party or of any options, warrants or other rights to acquire any of such Equity Interests; (iii) any issuance of Equity Interests of a Credit Party pursuant to a distribution re-investment plan, (iv) the payment by any Credit Party of any royalty, consulting fee, management fee, bonus or other fee to any Credit Party, any Affiliate of any Credit Party or to any director, officer or other management personnel; (iv) making of any payment on account of any fees, principal, interest or otherwise on any subordinated debt (including the Intercompany Indebtedness) to any Affiliates, or (v) making of any payment on account of any fees and re-imbursements relating to any advisory agreements or property management agreements entered into by a Credit Party.

 

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“Draft” has the meaning set out in Section 5.09(1).

“Drawdown” means:

“Drawdown Date” means the date on which a Drawdown is made by the Borrower pursuant to the provisions hereof.

“Drawdown Notice” means a notice, substantially in the form set out in Schedule 1.01(D), to be given to the Lender by the Borrowers pursuant to Section 2.05.

“Encumbrance” means, with respect to any Person, any mortgage, debenture, pledge, hypothec, lien, charge, lease, sublease, easement, preference, priority, assignment by way of security, hypothecation or security interest granted or permitted by such Person or arising by operation of law, in respect of any of such Person’s property or assets, or any consignment by way of security or Capital Lease Obligations by such Person as consignee or lessee, as the case may be, or any other security agreement, trust or arrangement having the effect of security for the payment of any debt, liability or other obligation, including title reservations, limitations, provisos or conditions, and “Encumbrances”, “Encumbrancer”, “Encumber” and “Encumbered” have corresponding meanings.

“Environmental Law” means any Applicable Law in the jurisdiction where the Secured Property is located relating to the natural environment including those pertaining to:

“Equity Interests” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized on any date of determination.

“Event of Default” has the meaning set out in Section 11.01.

“Excluded Taxes” means (a) taxes imposed on or measured by its net income, capital gains, or capital, and franchise taxes imposed on it by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of the Lender, in which its applicable Lending Office is located, (b) any branch tax, branch profits tax or any similar tax imposed by any jurisdiction, or (c) any taxes imposed under FATCA.

“Fair Market Value” means, at a specified date, the aggregate amount of the fair market values of all real properties 100% owned or leased by the Guarantor, as tenant, under long term ground leases (directly or indirectly), being determined on a property by property basis based on Adjusted Net Operating Income for the most recently completed Calculation Period for each such property divided by the percentage of the Applicable Market Capitalization Rate plus the total book value of all other real property assets of the Guarantor plus accumulated amortization and depreciation of such other assets, on a Consolidated basis, as shown on the Consolidated financial statements of the Guarantor prepared in accordance with GAAP, such calculations to be satisfactory to the Lender, in its discretion.

 

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“FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof.

“Financial Assistance” means, without duplication and with respect to any Person, all loans granted by that Person and guarantees or Contingent Obligations incurred by that Person for the purpose of or having the effect of providing financial assistance to another Person or Persons, including letters of guarantee, letters of credit, legally binding comfort letters or indemnities issued in connection therewith, endorsements of bills of exchange (other than for collection or deposit in the ordinary course of business), obligations to purchase assets regardless of the delivery or non-delivery thereof and obligations to make advances or otherwise provide financial assistance to any other Person.

“Fiscal Quarter” means each successive three-month period of each Credit Party’s and the Secured Property’s Fiscal Year ending on or about March 31, June 30, September 30 and December 31.

“Floor” means zero percent (0%).

“Fiscal Year” means, in respect of each Credit Party and the Secured Property, the twelve month period ending on or about the last day of December in any year.

“GAAP” means those generally accepted accounting principles in the United States of America.

“Government of Canada Rate” means, at any particular date, that rate of interest and referred to as the “benchmark bond yield” (expressed as a percentage rate per annum) published by the Bank of Canada correlating to the Government of Canada bond having a term of five years.

“Governmental Authority” means the government of Canada, the United States or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including a Minister of the Crown, Superintendent of Financial Institutions or other comparable authority or agency.

“Guarantor” means Strategic Storage Trust VI, Inc., and its successors and assigns permitted by this Agreement.

“Hazardous Substance” means any substance or material that is prohibited, controlled or regulated by any Governmental Authority pursuant to Environmental Laws, including pollutants, contaminants, dangerous goods or substances, toxic or hazardous substances or materials, wastes (including solid non-hazardous wastes and subject wastes), petroleum and its derivatives and by‑products and other hydrocarbons, all as defined in or pursuant to any Environmental Law.

“Hedge Arrangement” means, with respect to any Person, any arrangement or transaction between such Person and any other Person that is a rate swap transaction, basis swap, forward rate transaction, commodity swap, interest rate option, forward foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of such transactions or arrangements) designed to protect or mitigate against risks in interest, currency exchange or commodity price fluctuations.

“IFRS” mean International Financial Reporting Standards for public companies, as adopted by the Canadian Accounting Standards Board, in effect from time to time.

“Impermissible Qualification” means relative to the financial statements (including notes thereto) of any Person or report or opinion of any independent auditor in respect thereof, any qualification or exemption to such financial statements (or notes thereto) or report or opinion thereon which is of a “going concern” or similar nature.

“Indebtedness” of any Person means (without duplication), on a Consolidated basis and in accordance with GAAP:

 

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Obligations referred to in clauses (a) through (c) exclude (A) trade accounts payable, (B) distributions payable to holders of securities, (C) accrued liabilities arising in the ordinary course of business which are not overdue or which are being contested in good faith, (D) intangible liabilities and (E) deferred revenues, all of which will be deemed not to be Indebtedness for the purposes of this definition. In calculating the amount of any Indebtedness under (i) any securitization of any receipts or receivables, the amount shall be the discounted amount of proceeds paid in exchange for the receipts or receivables, (ii) any Capital Lease Obligations, the amount shall be the aggregate portion of all rent in the nature of principal, and (iii) any Hedge Arrangements, the amount shall be the net amount owing calculated on a mark to market basis.

“Indemnified Taxes” means Taxes, other than Excluded Taxes.

“Indemnitee” has the meaning set out in Section 16.01(2).

“Independent Appraiser” means a professional real estate appraiser who is a member in good standing of the Appraisal Institute of Canada (and its successors), who is independent of the Borrowers, who is certified and licensed in the jurisdiction of the Secured Property, who has a minimum of five years’ experience in the subject property type and market, and who is approved by the Lender, acting reasonably, provided that each of the parties hereto acknowledges and agrees that Colliers International shall be deemed to be an Independent Appraiser hereunder.

“Independent Insurance Consultant” means InTech Risk Management Inc. or such other insurance consultant appointed by the Lender.

 

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“Intellectual Property” means any and all intellectual and industrial property, whether recorded or not and regardless of form or method of recording, including all works in which copyright subsists or may subsist (such as computer software), data bases (whether or not protected by copyright), designs, documentation, manuals, specifications, industrial designs, trade secrets, confidential information, ideas, concepts, know-how, trade marks, service marks, trade names, domain names, discoveries, inventions, formulae, recipes, product formulations, processes and processing methods, technology and techniques, improvements and modifications, integrated circuit topographies and mask works.

“Intellectual Property Rights” includes all intellectual and industrial and other proprietary rights in any Intellectual Property.

“Interbank Reference Rate” means the interest rate expressed as a percentage per annum that is customarily used by the Lender when calculating interest due by it or owing to it arising from the correction of errors and other adjustments between the Lender and other Canadian chartered banks.

“Intercompany Indebtedness” means all unsecured, subordinated and postponed indebtedness, liabilities and obligations, of any nature or kind, present or future, direct or indirect, absolute or contingent, whether as primary debtor or surety, matured or not and at any time owing by each Credit Party to each other Credit Party.

“Interest Payment Date” means, with respect to each Prime Rate Loan, the first Business Day of each calendar month.

“Interest Only Period” means the period of time beginning on the Closing Date and ending on January 31, 2024.

“Interest Period” means:

provided that in any case the last day of each Interest Period will be also the first day of the next Interest Period and further provided that the last day of each Interest Period will be a Business Day. If the last day of an Interest Period selected by the Borrowers is not a Business Day the Borrowers will be deemed to have selected an Interest Period the last day of which is the Business Day next following the last day of the Interest Period otherwise selected unless such next following Business Day falls in the next calendar month in which event the Borrowers will be deemed to have selected an Interest Period the last day of which is the Business Day next preceding the last day of the Interest Period otherwise selected and further provided that the last Interest Period hereunder must expire on or prior to the Maturity Date.

“Investment” means any direct or indirect (i) acquisition of any shares, partnership interests, participation interests in any arrangement, options or warrants, or any indebtedness, whether or not evidenced by any bond, debenture or other written evidence of a Person, (ii) an investment (including, without limitation, by way of loan) made or held by a Person, directly or indirectly, in another Person (whether such investment was made by the first-mentioned Person in such other Person or acquired from a third party), (iii) acquisition, by purchase or otherwise, of all or substantially all of the business, assets or stock or other evidence of beneficial ownership of a Person, or (iv) acquisition by purchase or otherwise of any real property and related personal property of a Person. Any binding commitment to make an Investment in any Person or property and assets, as well as any option of another Person to require an Investment in such Person or property and assets, shall constitute an Investment. The amount of any Investment will be the original cost of such Investment, plus the cost of all additions thereto and minus the amount of any portion of such Investment repaid to such Person in cash as a return of capital, but without any other adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment. In determining the amount of any

 

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Investment involving a transfer of any property other than cash, such property will be valued at its fair market value at the time of such transfer.

“IRC” means the Internal Revenue Code of 1986 of the United States of America.

“Leases” means any leases, subleases, agreements to lease, licences or grants of rights of occupation (including storage unit agreements) (other than an easement, servitude or a right in the nature of an easement or servitude) granted, from time to time, by any Person entitling the lessee, sublessee, licensee or grantee thereunder to use or occupy any part of the Secured Property, and “Lease” means any one of them.

“Lender” means National Bank of Canada and such Persons who signs a joinder agreement in a form satisfactory to the Lender agreeing to be bound as “Lender”

“▇▇▇▇▇▇’s Counsel” means the firm of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such other firm of legal counsel as the Lender may from time to time designate.

“Lending Office” means, with respect to the Lender, the branch or office specified signature pages of this Agreement from which the Lender makes advances and to which the Lender disburses payments received for the benefit of the Lender.

“Loan” means any extension of credit by a Lender under this Agreement, including by way of Bankers’ Acceptance or Prime Rate Loan.

“Loan Documents” means (a) this Agreement, (b) the Security, (c) Qualifying Hedge Arrangements; (d) Qualifying Cash Management Arrangements and (e) all present and future agreements, documents, certificates and instruments delivered by any Credit Party to the Lender pursuant to or in respect of this Agreement or the Security, in each case as the same may from time to time be amended, restated, supplemented and otherwise modified, and “Loan Document” means any one of the Loan Documents.

“Material Adverse Change” means:

which, individually or in the aggregate, would reasonably be expected to result in, or has resulted in, an impairment of the ability of such Credit Party to perform any of its Obligations;

 

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“Material Agreements” means, with respect to a particular Credit Party, the contracts set out in Schedule 1.01(F) and all other contracts to which such Person is a party or by which it is bound or may hereafter become a party or be bound, which are material and which relate to the operation or ownership of the Secured Property (or its business, where such agreement is designated by the Lender, acting reasonably, as a “Material Agreement” provided the Lender has notified the Borrower of such designation), in each case as amended, restated, supplemented and otherwise modified from time to time in accordance with the terms of this Agreement and the other Loan Documents, and “Material Agreement” means any one thereof.

“Material Licences” means all licences, permits or approvals issued by any Governmental Authority, or any applicable stock exchange or securities commission, to any Credit Party, and which are at any time on or after the date of this Agreement,

“Maturity Date” means January 31, 2025.

“Modified Total Property Debt Service Coverage Ratio” means the ratio obtained by dividing: (a) the sum of (i) Property Net Operating Income for the most recently completed Calculation Period and (ii) the balance of the Debt Service Reserve Account as of the date of such calculation by (b) implied interest and principal payments due, or which would have been due in the absence of the Interest Only Period, in respect of all debt secured by the Borrowers’ interest in the Secured Property, including without limitation the Loan, payable for the same period, such calculation to be satisfactory to the Lender, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement.

“New Borrower” has the meaning set out in Section 10.05(2)(b).

“Nominee” means SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, ULC, and its successors and assigns permitted by this Agreement.

“Nominee Agreement” means the nominee agreement in respect of the Secured Property dated January 31, 2023, between the Beneficial Owner and the Nominee.

“Obligations” means all obligations of the Credit Parties to the Lender under or in connection with this Agreement and the other Loan Documents and the Qualifying Hedge Arrangements and the Qualifying Cash Management Arrangements including all debts and liabilities, present or future, direct or indirect, absolute or contingent, matured or not, and obligations of performance, at any time and howsoever arising, owing by the Credit Parties to the Lender in any currency or remaining unpaid by the Credit Parties to the Lender under or in connection with this Agreement, the other Loan Documents, the Qualifying Hedge Arrangements or the Qualifying Cash Management Arrangements or from any other dealings or proceedings by which the Lender may be or become in any manner whatever a creditor or obligee of the Credit Parties pursuant to this Agreement, the other Loan Documents, the Qualifying Hedge Arrangements and the Qualifying Cash Management Arrangements, and wherever incurred, and whether incurred by any Credit Party alone or with another or others and whether as principal or surety, and all principal, interest, Termination Amount, fees, legal and other costs, charges and expenses relating thereto.

“Officer’s Certificate” means a certificate in writing signed by any one of the Chief Executive Officer, the President, the Chief Financial Officer, an Executive Vice-President, a Senior Vice-President, a Vice-President, an Assistant Vice-President, the Treasurer, the Secretary, an Assistant Treasurer or an Assistant Secretary or any other duly authorized

 

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signing officer of the applicable Credit Party, which certificate shall be to the such person’s knowledge, on behalf of such Credit Party, and not in his or her personal capacity.

“Opinion of Counsel” means an opinion or opinions in writing in form and subject to qualifications satisfactory to the Lender, acting reasonably, signed by ▇▇▇▇▇▇▇▇▇’ Counsel.

“Organizational Documents” means, with respect to any Person, such Person’s articles, memorandum or other charter documents, partnership agreement, joint venture agreement, declaration of trust, trust agreement, by-laws, unanimous shareholder agreement, or any and all other similar agreements, documents and instruments pursuant to which such Person is constituted, organized or governed.

“Other Taxes” means all present or future stamp or documentary taxes or any other similar excise or property taxes, charges or levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of this Agreement or any other Loan Document, but does not include Excluded Taxes.

“Pension Plan” means (i) a “pension plan” or “plan” which is a “registered pension plan” as defined in the Income Tax Act (Canada) or is subject to the funding requirements of applicable pension benefits legislation in any Canadian jurisdiction and is applicable to employees resident in Canada of a Credit Party, or (ii) any other pension benefit plan or similar arrangement applicable to employees of a Credit Party.

“Permitted Distributions” means:

provided that in each case, no Default or Event of Default then exists, and that the making of such Distribution does not cause or will result in a Default or Event of Default.

“Permitted Encumbrances” means, the following (for greater certainty the term “property” includes, without limitation, the Secured Property):

 

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“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership, Governmental Authority or other entity.

“Prime Rate” means the greater of (i) the variable per annum reference rate of interest announced and adjusted by the Lender from time to time for Canadian Dollar loans in Canada, and (ii) the rate of interest per annum that is equal to the sum of (A) CDOR on the particular day for one-month Bankers’ Acceptances, and (B) 1.00% per annum.

“Prime Rate Loan” means a Loan in or a Conversion into Canadian Dollars made by the Lender to the Borrowers with respect to which the Borrowers has specified that interest is to be calculated by reference to the Prime Rate.

“Prime Rate Margin” means, for any period, the applicable percentage rate per annum applicable to that period as set out below the heading “Prime Rate Margin” in the definition of “Applicable Margin”.

“Principal Payment Date” has the meaning set out in Section 6.01(2) or Section 6.01(3), as applicable.

“Property Manager” means Strategic Storage Property Management VI, LLC, a Delaware limited liability company, or any other manager for the Property approved by the Lender from time to time.

“Property Net Operating Income” means, with respect to the Secured Property, determined for any period on an aggregate basis means, for any period, actual total revenue generated by the Secured Property, (but excluding asset management fees and straight-line rent accruals) during such period less operating expenses incurred for the Secured Property, (for greater certainty excluding depreciation and capital expenditures) for the same period.

 

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“Purchase Agreement” means the purchase and sale agreement made between NYX ▇▇▇ ▇▇▇▇▇ Storage LP, as seller, ▇▇▇ ▇▇▇▇▇ Storage Inc., as nominee, and SST Acquisitions, LLC, as buyer, dated December 22, 2023, as such agreement may, from time to time, be amended, modified, restated or assigned as permitted hereunder.

“Purchase Money Security Interest” means an Encumbrance created or incurred by the Borrowers securing Indebtedness incurred to finance the acquisition of property (including the cost of installation thereof), provided that (i) such Encumbrance is created substantially simultaneously with the acquisition of such property, (ii) such Encumbrance does not at any time encumber any property other than the property financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased subsequent to such acquisition, and (iv) the principal amount of Indebtedness secured by any such Encumbrance at no time exceeds 100% of the original purchase price of such property and the cost of installation thereof, and for the purposes of this definition the term “acquisition” includes Capital Lease Obligations.

“Qualifying Cash Management Arrangements” means all agreements entered into by the Borrowers or its Subsidiaries with the Lender from time to time with respect to cash management arrangements which is collaterally secured by the Security, as such agreements are amended, modified, supplemented or replaced from time to time.

“Qualifying Hedge Arrangements” means a Hedge Arrangement that is entered into (except in the case of (g) below) on or after the Closing Date and meets each of the following requirements:

“Related Persons” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates and “Related Person” means any one of them.

“Release” means any release or discharge of any Hazardous Substance including any discharge, spray, injection, inoculation, abandonment, deposit, spillage, leakage, seepage, pouring, emission, emptying, throwing, dumping, placing, exhausting, escape, leaching, migration, dispersal, dispensing or disposal.

“Relevant Governmental Body” means the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto.

“Relevant Jurisdiction” means, from time to time, with respect to a Person that is granting Security hereunder, any province or territory of Canada or other relevant jurisdiction in which such Person has its chief executive office or chief place of business or has Collateral and, for greater certainty, includes the provinces and jurisdictions set out in Schedule 1.01(G).

“Rents” means all revenues, receipts, income, credits, deposits, profits, royalties, rents, additional rents, recoveries, accounts receivable and other receivables of any kind and nature whatsoever arising from or relating to each of the Secured Property or any part thereof (including all amounts payable to the Beneficial Owner under any Lease).

 

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“Repayment Notice” means the notice substantially in the form set out in Schedule 1.01(H).

“Requirements of Law” means, with respect to any Person, the Organizational Documents of such Person and any Applicable Law or any determination of a Governmental Authority, in each case applicable to or binding upon such Person or any of its business or property or to which such Person or any of its business or property is subject.

“Rollover” means the acceptance of a Bankers’ Acceptance in like face amount upon the maturity of a Bankers’ Acceptance for an additional Interest Period.

“Rollover Date” means the date of commencement of a new Interest Period applicable to a Bankers’ Acceptance that is being rolled over.

“Rollover Notice” means the notice, substantially in the form set out in Schedule 1.01(I), to be given to the Lender by the Borrowers in connection with the Rollover of a Bankers’ Acceptance.

“Sanctioned Person” has the meaning set out in Section 9.01(37)(b).

“Sanctions” has the meaning set out in Section 9.01(37)(b).

“Secured Property” means the real property described on Schedule 1.01(E) and the undertaking and personal property relating thereto which are security for the Obligations of the Borrowers hereunder and the property subject to the Security, on terms satisfactory to the Lender and the Lender; and includes the lands, premises, buildings, improvements, structures, lease rights and rights of superficies and personal property and appurtenant rights relating thereto owned or leased by the Borrowers from time to time.

“Security” means the documents creating an Encumbrance in favour of, or any collateral held from time to time by, the Lender or on behalf of the Lender by the Lender, in each case securing or intended to secure repayment of the Obligations, including all security described in Article 8.

“Sellers Leases” has the meaning set out in Section 9.01(36)(b).

“Shareholders Equity” means, with respect to any Person, at any time, the shareholders’ equity, as shown on the most recent Consolidated balance sheet of the Borrowers, calculated in accordance with GAAP.

“Shares” means common shares of the Borrowers issued and outstanding from time to time.

“SmartStop REIT” means SmartStop Self Storage REIT, Inc., a Maryland corporation.

“SmartStop Transaction” has the meaning set out in Section 10.05.

“Subsidiary” means, at any time, with respect to any Person, any other Person, if at such time the first mentioned Person (i) owns, directly or indirectly, securities or other ownership interests in such other Person, having ordinary voting power to elect a majority of the board of directors or persons performing similar functions for such other Person, and (ii) directly or indirectly, through the operation of any agreement or otherwise, the ability to elect or cause the election of a majority of the board of directors or other persons performing similar functions for such other Person or otherwise exercise Control over the management and policies of such other Person, and in either case will include any other Person in like relationship to a Subsidiary of such first mentioned Person.

“Tangible Net Worth” shall mean, as of any date of calculation, with respect to any Person, total assets (without deduction for accumulated depreciation and accumulated amortization of lease intangibles, including accumulated depreciation and accumulated amortization of lease intangibles of non-wholly owned Subsidiaries, Affiliates and other Persons (other than a Person whose stock is traded on a national trading exchange) in whom such Person holds a voting equity or ownership interest) less (i) intangible assets and (ii) all liabilities (including contingent and indirect liabilities), in each case, of such Person as of such date, all determined in accordance with GAAP, unless otherwise indicated in this definition. The term “intangible assets” shall include, without limitation, (x) deferred charges, and

 

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(y) the aggregate of all amounts appearing on the assets side of any such balance sheet for franchises, licenses, permits, patents, patent applications, copyrights, trademarks, trade names, goodwill, treasury stock, experimental or organizational expenses and other like intangibles (other than amounts related to the purchase price of a real property which are allocated to lease intangibles). The term “liabilities” shall include, without limitation, (i) Indebtedness secured by Encumbrances on property or assets of the Person with respect to which Tangible Net Worth is being computed whether or not such Person is liable for the payment thereof, (ii) deferred liabilities, and (iii) Capital Lease Obligations. Tangible Net Worth shall be calculated on a consolidated basis in accordance with GAAP, unless otherwise indicated in this definition, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement.

“Tax” and “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, and including any realty taxes, duties, rates, imposts, levies, assessments and other similar charges, whether general or special, ordinary or extraordinary, or foreseen or unforeseen including municipal taxes, school taxes and local improvement charges and all related interest, penalties and fines which at any time may be levied, assessed, imposed or form an Encumbrances upon real property.

“Term ▇▇▇▇▇ Notice” means the notification by the Lender to the Borrower of the occurrence of a Term ▇▇▇▇▇ Transition Event.

“Term ▇▇▇▇▇ Transition Date” means, in the case of a Term ▇▇▇▇▇ Transition Event, the date that is set forth in the Term ▇▇▇▇▇ Notice provided to the Borrower, for the replacement of the then-current Benchmark with the Benchmark Replacement described in clause 1(a) of the definition of “Benchmark Replacement”, which date shall be at least thirty (30) Business Days from the date of the Term ▇▇▇▇▇ Notice.

“Term ▇▇▇▇▇ Transition Event” means the determination by the Lender that (a) Term ▇▇▇▇▇ has been recommended for use by the Relevant Governmental Body, and is determinable for any Available Tenor, (b) the administration of Term ▇▇▇▇▇ is administratively feasible for the Lender and (c) a Benchmark Replacement, other than Term ▇▇▇▇▇, has replaced CDOR in accordance with Section 2.09(1).

“Termination Amount” means, with respect to any Qualifying Hedge Arrangement all amounts due to a Lender party to a Qualifying Hedge Arrangement under the relevant ISDA Master Agreement related thereto as a result of a Termination Event.

“Termination Event” means any event that causes a Qualifying Hedge Arrangement to terminate prior to its maturity date.

“Total Debt to Assets Ratio” means the ratio of Consolidated Indebtedness of the Guarantor (determined on a Consolidated basis) to Fair Market Value, such calculation to be satisfactory to the Lender, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement.

“Total Property Debt Service Coverage Ratio” means the ratio obtained by dividing: (a) Property Net Operating Income for the most recently completed Calculation Period by (b) scheduled interest and principal payments due in respect of all debt secured by the Borrowers’ interest in the Secured Property, including without limitation the Loan, payable for the same period, such calculation to be satisfactory to the Lender, such calculations as of the date hereof being shown in the most recent Compliance Certificate delivered pursuant to the provision of Section 3.01(l) and Section 10.03(3) of this Agreement.

In this Agreement words importing the singular number include the plural and vice versa, words importing any gender include all genders and words importing persons include individuals, corporations, limited and unlimited liability companies, general and limited partnerships, associations, trusts, unincorporated organizations, joint ventures and Governmental Authorities. The term “including” means “including without limiting the generality

 

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of the foregoing” and the term “third party” means any person other than a person who is a party to this Agreement and any of its Affiliates. The term "References 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, and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time in accordance with the terms of this Agreement and in effect at any given time. Any reference to any Person shall include its successors and permitted assigns in the capacity indicated, and in the case of any Governmental Authority, any Person succeeding to its functions and capacities. Any reference to Requirements of Law and Applicable Laws shall include all references to such Requirements of Law and Applicable Laws as amended, supplemented or replaced. The Loan Documents are the result of negotiations between, and have been reviewed by each Credit Party, the Lender and their respective counsel. Accordingly, the Loan Documents shall be deemed to be the product of all parties thereto, and no ambiguity shall be construed in favour of or against any Credit Party, the Lender except as expressly provided under the Loan Documents. Upon an acceleration of the Loans following the occurrence of an Event of Default pursuant to Section 11.02, any reference in this Agreement or any Loan Document to an Event of Default that has occurred and is “continuing” shall be deemed to be an Event of Default that has occurred and is continuing for all times thereafter unless otherwise agreed in writing by the Lender in its discretion; and the terms “continued”, “continuation” and “discontinuation” shall have corresponding meanings.

Where this Agreement references “to the knowledge of”: (a) the Credit Parties, and/or (b) the Borrowers, in each case, shall mean the actual knowledge of each of ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, after due inquiry and all reasonable investigation.

 

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The inclusion of reference to Permitted Encumbrances in any Loan Document is not intended to, de facto, subordinate any Encumbrance created by any of the Security to any Permitted Encumbrance.

Unless otherwise specified in this Agreement, all references to currency (without further description) are to lawful money of Canada.

This Agreement and the other Loan Documents constitute the whole and entire agreement between the Credit Parties and the Lender and cancels and supersedes any prior agreements, undertakings, declarations, commitments, representations, written or oral, in respect thereof. In the event of a conflict between the provisions of this Agreement and the provisions of any other Loan Document, then, unless such Loan Document or an acknowledgement from the Credit Party and the Lender relative to such Loan Document expressly states that this Section 1.08 is not applicable to such Loan Document, notwithstanding anything else contained in such other Loan Document, the provisions of this Agreement will prevail and the provisions of such other Loan Document will be deemed to be amended to the extent necessary to eliminate such conflict.

If any provision of this Agreement is determined by any court of competent jurisdiction to be illegal or unenforceable, that provision will be severed from this Agreement and the remaining provisions will continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any of the parties

 

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Each Credit Party will promptly cure any Default by it in the execution and delivery of this Agreement, the Loan Documents or of any of the agreements provided for hereunder to which it is a party. Each Credit Party, at its expense, will promptly execute and deliver to the Lender, upon request by the Lender, all such other and further documents, agreements, opinions, certificates and instruments in compliance with, or for the accomplishment of the covenants and agreements of such Credit Party hereunder or more fully to state the obligations of such Credit Party as set forth herein or to make any recording, file any notice or obtain any consent, all as may be reasonably necessary or appropriate in connection therewith.

Schedule 1.01(B)	-	Compliance Certificate
Schedule 1.01(C)	-	Conversion Notice
Schedule 1.01(D)	-	Drawdown Notice
Schedule 1.01(E)	-	Secured Property
Schedule 1.01(F)	-	Material Agreements
Schedule 1.01(G)	-	Relevant Jurisdictions
Schedule 1.01(H)	-	Repayment Notice
Schedule 1.01(I)	-	Rollover Notice
Schedule 1.01(J)	-	Specific Permitted Encumbrances
Schedule 9.01(14)	-	Ownership Structure

Subject to the terms and conditions of this Agreement, the Lender hereby establishes in favour of the Borrowers a non-revolving senior secured term credit facility in the maximum principal amount of the Commitment or such lesser amount pursuant to this Agreement, which facility will be made available only during the Availability Period (the “Credit Facility”).

Loans under the Credit Facility will only be used to assist in completing the Acquisition and to pay fees and transaction expenses relating to the Acquisition and following the completion of the Acquisition, for operating expenditures relating to the Secured Property. The Borrowers may not use the proceeds of any Loans under the Credit Facility to make a hostile take-over bid for any other Person.

The Borrowers may, during the Availability Period, in Canadian Dollars, make a single Drawdown, and thereafter Conversions and Rollovers under the Credit Facility of Prime Rate Loans and Bankers’ Acceptances.

The Credit Facility is non-revolving and amounts repaid may not be re-borrowed.

 

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If the Borrowers fail to deliver a Conversion Notice or Rollover Notice to the Lender as set out above in respect of Bankers’ Acceptance prior to such Loan’s applicable maturity date, the Lender shall effect a Conversion of any maturing Bankers’ Acceptance into a Prime Rate Loan. The Borrower’s right to make a Drawdown under the Credit Facility shall be subject to the satisfaction of the conditions in Section 3.01. A Drawdown Date, Conversion Date and Rollover Date must be a Business Day and each Drawdown Notice, Conversion Notice or Rollover Notice, as the case may be, must be delivered to the Lender on a Business Day.

The proceeds of the Drawdown shall, subject to Article 3, be advanced by the Lender to the Beneficial Owner by bank transfer to the credit of the account designated in the Drawdown Notice for the Drawdown.

Each Drawdown Notice, Conversion Notice and Rollover Notice given by the Borrowers hereunder is irrevocable and will oblige the Borrowers to take the action contemplated on the date specified therein.

If the Lender determines that a market for Bankers’ Acceptances does not exist at any time or the Lender cannot for other reasons, after reasonable commercial efforts, readily sell Bankers’ Acceptances or perform its other obligations under this Agreement with respect to Bankers’ Acceptances, the Lender will promptly so notify the Borrowers (such notification, a “BA Market Disruption Notice”). From and after the receipt of the BA Market Disruption Notice by the Borrowers from the Lender, the Lender shall not be obliged to accept, and the Borrower shall not be entitled to issue, Bankers’ Acceptances until the Lender determines in good faith that such market (or a comparable or replacement market, including to the extent instruments or loans equivalent to Bankers’ Acceptances are issued at a rate other than the BA Equivalent Rate) does exist and gives notice thereof to the Borrowers (such notification, a “BA Resumption Notice”). Following issuance of a BA Market Disruption Notice and until issuance of a BA Resumption Notice any Drawdown Notice, Conversion Notice or Rollover Notice requesting Bankers’ Acceptances shall be deemed to be a Drawdown Notice, Conversion Notice or Rollover Notice, as applicable, requesting Prime Loans in a similar aggregate principal amount.

Notwithstanding anything to the contrary herein or in any other Loan Document (and any Qualifying Hedge Arrangements shall be deemed not to be a “Loan Document” for purposes of this Section 2.09):

 

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The obligation of the Lender under this Agreement to make the advance hereunder is subject to and conditional upon the prior satisfaction of the conditions precedent as set out below:

 

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and the results of such due diligence will be satisfactory to the Lender, in its discretion;

 

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provided that all documents delivered pursuant to this Section 3.01 must be in full force and effect, and in form and substance satisfactory to the Lender, acting reasonably.

The conditions set forth in Section 3.01 are inserted for the sole benefit of the Lender and may be waived by the Lender, in whole or in part (with or without terms or conditions), in respect of any Drawdown without prejudicing the right of the Lender at any time to assert such conditions in respect of any subsequent Drawdown.

The Borrowers will pay interest on each Prime Rate Loan during each Interest Period applicable thereto in Canadian Dollars at a rate per annum equal to the sum of (i) the Prime Rate in effect from time to time during such Interest Period, plus (ii) the Prime Rate Margin. Each determination by the Lender of the Prime Rate and the Prime Rate Margin applicable from time to time during an Interest Period will, in the absence of manifest error, be binding upon the Borrowers. Such interest will be payable in arrears on each Interest Payment Date for such Loan for the period from and including the Drawdown Date, Conversion Date or preceding Interest Payment Date, as the case may be, for such Loan to but excluding such Interest Payment Date (or, if such Interest Payment Date follows the repayment of such Loan or the Conversion of such Loan, to but excluding the date of such repayment or Conversion) and will be calculated on the principal amount of the Prime Rate Loan outstanding during such period and on the basis of the actual number of days elapsed in a year of 365 days or 366 days, as the case may be. Changes in the Prime Rate will cause an immediate adjustment of the interest rate applicable to such Loan without the necessity of any notice to the Borrowers.

 

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In consideration of the Lender providing the Credit Facility, the Borrowers shall pay to the Lender, for the account of the Lender an upfront fee equal to $50,000, with such fee being payable and fully earned on the first date of the first Drawdown hereunder.

Unless the payment of interest is otherwise specifically provided for herein, where the Credit Parties fail to pay any amount required to be paid by them hereunder when due having received notice that such amount is due, the Credit Parties shall pay interest or fees on such unpaid amount from the time such amount is due until paid at the rates otherwise applicable plus 2% per annum in order to compensate the Lender for the additional risk.

The Lender acknowledges that the Borrower shall only be required to make monthly interest only payments, beginning on first day of the month following closing and continuing on the first day of each successive month during the Interest Only Period.

All Bankers’ Acceptances hereunder shall be issued in accordance with the provisions of this Article 5.

The Lender shall purchase each Bankers’ Acceptance accepted by it for a price equal to the face amount thereof less the discount to the face amount thereof required to yield an interest rate per annum equal to the BA Discount Rate in effect on the applicable Drawdown Date, Rollover Date or Conversion Date. The Lender may at any time and from time to time hold, rediscount or Dispose of any Bankers’ Acceptance purchased by it.

The Lender shall make available to the Borrowers by depositing the amount set forth in the Drawdown Notice in immediately available funds on the applicable Drawdown Date according to the instructions in the Drawdown Notice.

In the case of a Rollover of a Bankers’ Acceptance, in order to satisfy the continuing liability of the Borrowers to the Lender for the face amount of the maturing Bankers’ Acceptance, the Lender shall determine and retain the BA Discount Proceeds of the new Bankers’ Acceptance and the Borrowers shall, on the maturity date of the maturing Bankers’ Acceptance, pay to the Lender’s account at the Lender’s Office (i) the difference between the principal amount of the maturing Bankers’ Acceptance and the BA Discount Proceeds from the new Bankers’ Acceptance, and (ii) the BA Stamping Fee in respect of the new Bankers’ Acceptance.

 

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Prior to the maturity date of a Bankers’ Acceptance, the Borrowers shall deliver to the Lender one of the following:

If the Borrowers fail to so notify the Lender, the Lender shall effect a Conversion into a Prime Rate Loan as if a Conversion Notice pursuant to paragraph (c) above had been given by the Borrowers to the Lender electing to convert such maturing Bankers’ Acceptance into a Prime Rate Loan.

Upon the acceptance by the Lender of any Draft of the Borrowers pursuant to this Agreement, the Borrowers shall be obliged to the Lender’s account, for the account of the Lender, a fee in Canadian Dollars equal to the BA Stamping Fee on the face amount at maturity of the Bankers’ Acceptance for its term, being the actual number of days in the period from and including the date of acceptance of the Bankers’ Acceptance to but excluding the maturity date of the Bankers’ Acceptance and, for purposes of calculation, calculated on the basis of a 365 day year.

 

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The Borrowers acknowledge that Advances made by a Lender by way of Bankers’ Acceptances may not, save and except as expressly provided otherwise in this Agreement, be repaid prior to the maturity thereof. In connection with each voluntary or mandatory repayment hereunder in connection with Bankers’ Acceptances which are to be repaid prior to their respective maturity or expiry dates, the Borrowers shall deposit cash (to be held in a non-interest bearing account) with the Lender equal to the full face amount at maturity of such Bankers’ Acceptance and shall concurrently deliver to the Lender a cash collateral agreement, supporting resolutions, certificates and opinions in form and substance satisfactory to the Lender.

 

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The Borrowers may at any time, from time to time, repay without penalty, the whole or any part of any Loan provided that the Borrower shall give a Repayment Notice to the Lender at least two (2) Business Days prior to the repayment date, provided that (a) each such repayment must be in increments of Cdn. $100,000 and (b) other than as contemplated in Section 6.03, a Bankers' Acceptance may only be repaid on the last day of its Interest Period.

If the Borrowers by reason of any repayment hereunder, whether mandatory or voluntary, pay any Bankers’ Acceptances prior to their respective maturity dates, the Borrowers will deposit with the Lender cash collateral equal to the full face amount at maturity of such Bankers’ Acceptance such collateral to be held by the Lender in an interest bearing cash collateral account as security (and subject to the security interests created by the Security) and applied in payment of same as they mature, with the interest thereon paid to the Borrowers unless an Event of Default is then continuing, in which case such interest shall be applied by the Lender in accordance with the terms hereof.

As general and continuing security for the payment and performance of the Obligations the security described below will be granted to the Lender, in each case in a form acceptable to the Lender:

 

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The Borrowers shall provide the Security perfected and protected to the proper satisfaction of the Lender and shall, at the Borrowers’ expense, register, file or record or cause the registration, filing or recording of the Security granted by it in all offices in each jurisdiction where such registration, filing or recording is necessary or of advantage to the creation, perfection and preserving of the Security applicable to it. The Borrowers shall provide the Lender with such assistance and do such acts as the Lender may from time to time request and to provide such other materials of conveyance, assignment, transfer or charge to properly effect the Lender’s Security as contemplated and shall renew and maintain such registrations, filings and recordings from time to time as and when required to keep them in full force and effect and to maintain the required priority of such Security.

The Borrowers will from time to time execute and deliver all such further deeds or other instruments of conveyance, assignment, transfer, mortgage, hypothec, pledge or charge in connection with the Secured Property as may be required to properly perfect the security interest of the Lender in the Secured Property and collateral subject to the Security.

The Security will be in form satisfactory to the Lender, acting reasonably.

 

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Each Credit Party, in respect of Sections 9.01(1), (2), (3), (4), (5), (6), (7), (8), (9), (12), (18), (19), (20), (22), (23) and (37), on a joint and several basis, and the Borrowers, in respect of Sections 9.01(10), (11), (13), (14), (15), (16), (17), (21), (24), (25), (26), (27), (28), (29), (30), (31), (32), (33), (34), (35) and (36), on a joint and several basis, and acknowledges and confirms that the Lender is relying upon such representations and warranties:

 

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Any projections from time to time delivered hereunder or in connection herewith by the Borrowers to the Lender are or will be based upon the estimates and assumptions stated therein, all of which the Borrowers believed at the time of delivery to be reasonable and fair in light of current conditions and current facts known to the Borrowers as of such delivery date, and reflect the Borrower’s good faith and reasonable estimates of the future financial performance of the Borrowers and of the other information projected therein for the period set forth therein. Such projections are not a guarantee of future performance and actual results may differ from those set forth in such projections.

 

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The representations and warranties set out in Section 9.01 survive the execution and delivery of this Agreement and all other Loan Documents and will be deemed to be repeated by the Borrowers so long as any Obligations remain outstanding.

So long as this Agreement is in force, each Credit Party, in respect of Sections 10.01(1),(2)(a),(3), (4), (16), (17), (18), (23), and (24) on a joint and several basis, and the Borrowers, in respect of Sections 10.01(2)(b), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (19), (20) (21) and (22) on a joint and several basis, will:

 

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all with insurance companies having a Best’s A-VII rating at time of placement and at all times thereafter with such insurance companies having comparable claims paying ability as approved by the Lender in its discretion. Such insurance is to be in such form and amounts and with such deductibles as are customary in the case of owners of projects similar to the Secured Property and in any event as are acceptable to the Lender.

and such insurance policies may contain reasonable deductibles per occurrence as approved by the Lender in consultation with the Independent Insurance Consultant;

 

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Notwithstanding the above, in the event that the Debt Service Reserve Account is closed in accordance with the provisions herein, beginning in the next Fiscal Quarter the financial covenant set out in Section 10.02(A) shall be replaced with the following

(B) So long as this Agreement is in force, the Guarantor will ensure that:

So long as this Agreement is in force, the Borrowers will deliver to the Lender (in sufficient quantities for the Lender in form acceptable to the Lender):

 

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So long as this Agreement is in force, each Credit Party, on a joint and several basis, in respect of Sections 10.04 (2), (3), (8), (9), (13) and (23), and the Borrowers, jointly and severally, in respect of Sections 10.04 (1), (4), (5), (6), (7), (10), (11), (12), (14), (15), (16), (17), (18), (19), (20), (21) and (22) will not:

 

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Notwithstanding anything set out in this Agreement, the Borrowers shall be entitled to a partial discharge of a portion of the Secured Property in connection with the sale thereof, subject to the Borrowers completing a subdivision of the Secured Property, in accordance with all Applicable Law, the result of which creates a standalone parcel capable of being transferred to a third party. In addition, any such sale of vacant land shall not result in a Material Adverse Change in respect of the retained portion of the Secured Property and the operation of the Borrower’s business thereon, and shall require the Borrowers repay the Loan by an amount which reduces the Loan to value ratio on the retained Secured Property to 50% using the then outstanding Commitment and the fair market value of the retained portion of the Secured Property as set out in an updated Acceptable Appraisal delivered to the Lender in connection with such prepayment. Any such prepayment made pursuant to this Section shall be subject to the repayment provisions set out herein, including without limitation those in Section 6.03. It shall be a condition to any discharge request that, following repayment, the Modified Total Property Level Debt Service Coverage Ratio, or the Total Property Level Debt Service Coverage Ratio shall not be less than 1.30:1:00 or 1.25:1:00, as applicable, in each case as determined in accordance with the terms hereof.

 

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The occurrence of any one or more of the following events (each such event being referred to as an “Event of Default”) will constitute a default under this Agreement:

 

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For greater certainty, it is expressly understood that the respective rights and remedies of the Lender and the Lender hereunder or under any other Loan Document or instrument executed pursuant to this Agreement are cumulative and are in addition to and not in substitution for any rights or remedies provided by law or by equity; and any single or partial exercise by the Lender and the Lender of any right or remedy for a default or breach of any term, covenant, condition or agreement contained in this Agreement or any other Loan Document will not be deemed to be

 

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a waiver of or to alter, affect or prejudice any other right or remedy or other rights or remedies to which any one or more of the Lender and the Lender may be lawfully entitled in connection with such default or breach.

If an Event of Default has occurred and is continuing and if any Credit Party has failed to perform any of its covenants or agreements in the Loan Documents, the Lender, may, but will be under no obligation to perform any such covenants or agreements in any manner deemed fit by the Lender without thereby waiving any rights to enforce the Loan Documents. The reasonable expenses (including any legal costs) paid by the Lender in respect of the foregoing will be an Obligation and will be secured by the Security.

It is not necessary for any Person dealing with the Lender, the Lender or any other agent of the Lender to inquire whether the Security has become enforceable, or whether the powers that the Lender are purporting to exercise may be exercised, or whether any Obligations remain outstanding upon the security thereof, or as to the necessity or expediency of the stipulations and conditions subject to which any sale is to be made, or otherwise as to the propriety or regularity of any sale or other disposition or any other dealing with the collateral charged by such Security or any part thereof.

All proceeds received by the Lender from or in respect of any realization of Security, any judgment against a Borrower or any Guarantor obtained by the Lender, any other realization of a Borrower’s or any Guarantor’s assets, any set-off or combination of accounts in respect of any credit balance, any recovery, distribution or payment arising out of any bankruptcy of a Borrower or any Guarantor or any proposal or re-organization, plan of arrangement, liquidation or winding-up of a Borrower or any Guarantor, shall be paid to the Lender and, upon receipt by the Lender shall, subject to the provisions hereof, be allocated from time to time by the Lender as follows:

 

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The liability of the Guarantor hereunder is absolute and unconditional and is not affected by:

Each of the foregoing is hereby waived by the Guarantor to the fullest extent permitted under Applicable Law. The foregoing provisions apply and the foregoing waivers will be effective to the fullest extent permitted under Applicable Law even if the effect of any action or failure to take action by the Lender is to destroy or diminish the Guarantor’s subrogation rights, the Guarantor’s right to proceed against any Credit Party for reimbursement, the Guarantor’s right to recover contribution from any other Person or any other right or remedy of the Guarantor.

Save and except as expressly provide in Section 12.02 above, the liability of the Guarantor hereunder is not released, discharged, limited or in any way affected by anything done, suffered or permitted by the Lender or any other Person in connection with any duties or liabilities of any Credit Party to the Lender or any Security including any loss of or in respect of any Security. Without limiting the generality of the foregoing and without releasing,

 

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discharging, limiting or otherwise affecting in whole or in part the liability of the Guarantor hereunder, without obtaining the consent of or giving notice to the Guarantor, the Lender may, subject to the terms of this Agreement:

The Lender is not bound or obligated to exhaust its recourse against any Credit Party or other Person or any Security it or they may hold, or take any other action before being entitled to demand payment from the Guarantor hereunder. The Guarantor agrees that the Lender may seek payment or performance of any of the Obligations from the Guarantor in accordance with the terms set out in this Agreement, whether or not the Lender shall have realized the value of the Secured Property secured under the Security or shall have proceeded against any of the Credit Parties principally or secondarily obligated for any of the Obligations.

Any account settled or stated in writing by or between the Lender and each Credit Party will, absent manifest error, be prima facie evidence that the balance or amount thereof appearing due to the Lender is so due.

 

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Notwithstanding anything to the contrary contained in this Article 12, in any claim by the Lender against the Guarantor, nothing shall impair or prevent the Guarantor from asserting any set-off or counterclaim, claim or other right that the Borrowers may have against the Lender and arising in respect of this Agreement.

The Obligations of the Guarantor hereunder will constitute and be continuing obligations and will apply to and secure any ultimate balance due or remaining due to the Lender and will not be considered as wholly or partially satisfied by the payment or liquidation at any time of any sum of money for the time being due or remaining unpaid to any such Person. The Obligations of the Guarantor hereunder will continue to be effective even if at any time any payment of any of the Obligations is rendered unenforceable or is rescinded or must otherwise be returned by the recipient of such payment upon the occurrence of any action or event including the insolvency, bankruptcy or reorganization of any Credit Party or otherwise, all as though such payment had not been made.

The Guarantor hereby irrevocably waives acceptance hereof, presentation, demand, protest and any notice, as well as any requirement that at any time any action be taken by any Person against the Guarantor, any other Credit Party or any other Person.

The Guarantor will make payment to the Lender of the full amount of the Obligations and all other amounts payable by it hereunder forthwith after demand therefor is made to it. The Guarantor will also make payment to the Lender of all costs and expenses incurred by the Lender in enforcing the provisions of this Article 13.

The Guarantor will pay interest to the Lender and each of them at the interest rate of Prime Rate (i) plus the Applicable Margin, and (ii) plus 2.00%, on all amounts payable by the Guarantor hereunder, such interest to accrue from and including the date of demand on the Guarantor, and will be compounded monthly.

Notwithstanding anything contained to the contrary in this Agreement, the recourse of the Lender under this guarantee against the Guarantor shall not exceed Twenty Seven Million Dollars ($27,000,000).

 

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and the result of any of the foregoing shall be to increase the cost to the Lender of making converting to, continuing or maintaining any Loans (or of maintaining its obligation to make any such Loans), or to increase the cost to the Lender, or to reduce the amount of any sum received or receivable by the Lender hereunder (whether of principal, interest or any other amount), then upon request of the Lender and subject to the Lender providing the certificate referred to in Subsection (2), the Credit Parties will pay to the Lender such additional amount or amounts as will compensate the Lender for such additional costs incurred or reduction suffered.

 

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If the Lender determines that any Applicable Laws has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for the Lender or its applicable Lending Office to make or maintain any Loans (or to maintain its obligations to make any Loan) or to determine or charge interest rates based upon any particular rate, then, on notice thereof by the Lender to the Borrower through the Lender, any obligation of the Lender with respect to the activity that is unlawful shall be suspended until the Lender notifies the Lender and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from the Lender (with a copy to the Lender), prepay or, if conversion would avoid the activity that is unlawful, convert any Loans. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted. The Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of the Lender, otherwise be materially disadvantageous to the Lender.

If an Event of Default has occurred and is continuing, the Lender and each of its Affiliates is hereby authorized at any time and from time to time in its sole discretion to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by the Lender or any such Affiliate to or for the credit or the account of the Borrowers against any and all of the Obligations of the Borrowers now or hereafter existing under this Agreement or any other Loan Document to the Lender, irrespective of whether or not the Lender has made any demand under this Agreement or any other Loan Document and although such Obligations of the Credit Parties may be contingent or unmatured or

 

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are owed to a branch or office of the Lender different from the branch or office holding such deposit or obligated on such indebtedness.

The rights of the Lender and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff, consolidation of accounts and bankers’ lien) that the Lender or their respective Affiliates may have. The Lender agrees to promptly notify the Borrowers and the Lender after any such setoff and application, but the failure to give such notice shall not affect the validity of such setoff and application.

 

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The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the no Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Lender and the Lender may assign or otherwise transfer any of its rights or obligations hereunder. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby) any legal or equitable right, remedy or claim under or by reason of this Agreement.

No amendment to this Agreement will be valid or binding unless set forth in writing and duly executed by the Borrowers and the Lender. No waiver of any breach of any provision of the Loan Documents and no consent required hereunder will be effective or binding unless made in writing and signed by the party purporting to give the same. Unless otherwise provided, any waiver or consent given hereunder will be limited to the specific breach waived or matter consented to, as the case may be, and may be subject to such conditions as the party giving such waiver or consent considers appropriate.

 

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EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

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The parties acknowledge that they have required that this Agreement, as well as all documents, notices and legal proceedings executed, given or instituted pursuant or relating directly or indirectly hereto, be drawn up in English (except as the parties may otherwise agree in writing). Les parties reconnaissent avoir exigé la rédaction en anglais de ce contrat, ainsi que de tous documents exécutés, ▇▇▇▇ ▇▇▇▇▇▇ et procédures judiciaires intentées, directement ou indirectement, à la suite de ou relativement au présent contrat.

 

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[Signature pages follow]

 

 

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IN WITNESS WHEREOF the parties have executed this Agreement.

 

BORROWER:			SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, ULC
	Address:   ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇		By:	/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Attention:   ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇			Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Chief Executive Officer and President
	Email: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇ ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇			I have authority to bind the corporation

 

BORROWER:			SST VI ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ limited liability company   By: Strategic Storage Trust VI, Inc.        a Maryland corporation        its Manager
	Address:   ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇			/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Attention: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇			Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Chief Executive Officer and President
	Email: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇ ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇			I have authority to bind the LLC

 

 

 

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GUARANTOR:			STRATEGIC STORAGE TRUST VI, INC.
	Address:   ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇		By:	/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Attention: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇			Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Chief Executive Officer and President
	Email: ▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇ ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇			Name: Title:
				I/We have authority to bind the corporation

 

 

 

 

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LENDER:	NATIONAL BANK OF CANADA as Lender
	Address:   National Bank of Canada 130 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ 1J9 Attention: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇.▇▇	By:	/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
			Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Title: Director, Origination   /s/ ▇▇▇▇▇▇ ▇▇▇▇
			Name: ▇▇▇▇▇▇ ▇▇▇▇ Title: Director & Head of Execution

 

 

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