EXHIBIT 10.2
GUARANTY
THIS GUARANTY dated as of
November 21, 2006, executed and delivered by each of the
undersigned and the other Persons from time to time party hereto
pursuant to the execution and delivery of an Accession Agreement in
the form of Annex I hereto (all of the undersigned, together with
such other Persons each a “Guarantor” and collectively,
the “Guarantors”) in favor of (a) WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as Agent (the
“Agent”) for the Lenders under that certain Credit
Agreement dated as of November 21, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among U-Store-It, L.P. (the
“Borrower”), U-Store-It Trust, the financial
institutions party thereto and their assignees under
Section 13.5. thereof (the “Lenders”), the Agent,
and the other parties thereto, and (b) the Lenders and the
Swingline Lender.
WHEREAS, pursuant to the Credit
Agreement, the Agent and the Lenders have agreed to make available
to the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, the Borrower and each of the
Guarantors, though separate legal entities, are mutually dependent
on each other in the conduct of their respective businesses as an
integrated operation and have determined it to be in their mutual
best interests to obtain financing from the Agent and the Lenders
through their collective efforts;
WHEREAS, each Guarantor acknowledges
that it will receive direct and indirect benefits from the Agent
and the Lenders making such financial accommodations available to
the Borrower under the Credit Agreement and, accordingly, each
Guarantor is willing to guarantee the Borrower’s obligations
to the Agent and the Lenders on the terms and conditions contained
herein; and
WHEREAS, each Guarantor’s
execution and delivery of this Guaranty is a condition to the Agent
and the Lenders making, and continuing to make, such financial
accommodations to the Borrower.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by each Guarantor, each Guarantor agrees as
follows:
Section 1. Guaranty .
Each Guarantor hereby absolutely, irrevocably and unconditionally
guaranties the due and punctual payment and performance when due,
whether at stated maturity, by acceleration or otherwise, of all of
the following (collectively referred to as the “Guarantied
Obligations”): (a) all indebtedness and obligations
owing by the Borrower to any Lender or the Agent under or in
connection with the Credit Agreement and any other Loan Document,
including without limitation, the repayment of all principal of the
Loans and the Reimbursement Obligations, and the payment of all
interest, Fees, charges, reasonable attorneys’ fees and other
amounts payable to any Lender or the Agent thereunder or in
connection therewith; (b) any and all extensions, renewals,
modifications, amendments or substitutions of the foregoing;
(c) all expenses, including, without limitation, reasonable
attorneys’ fees and disbursements, that are incurred by the
Lenders and the Agent in the enforcement of any of the foregoing or
any obligation of such Guarantor hereunder; and (d) all other
Obligations.
Section 2. Guaranty of
Payment and Not of Collection . This Guaranty is a guaranty of
payment, and not of collection, and a debt of each Guarantor for
its own account. Accordingly, none of the Lenders or the Agent
shall be obligated or required before enforcing this Guaranty
against any Guarantor: (a) to pursue any right or remedy any
of them may have against the Borrower, any other Guarantor or any
other Person or commence any suit or other proceeding against the
Borrower, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or
bankruptcy of the Borrower, any other Guarantor or any other
Person; or (c) to make demand of the Borrower, any other
Guarantor or any other Person or to enforce or seek to enforce or
realize upon any collateral security held by the Lenders or the
Agent which may secure any of the Guarantied Obligations.
Section 3. Guaranty
Absolute . Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of
the documents evidencing the same, regardless of any Applicable Law
now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of the Agent or the Lenders with respect
thereto. The liability of each Guarantor under this Guaranty shall
be absolute, irrevocable and unconditional in accordance with its
terms and shall remain in full force and effect without regard to,
and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever,
including without limitation, the following (whether or not such
Guarantor consents thereto or has notice thereof):
(a) (i) any change in the
amount, interest rate or due date or other term of any of the
Guarantied Obligations, (ii) any change in the time, place or
manner of payment of all or any portion of the Guarantied
Obligations, (iii) any amendment or waiver of, or consent to
the departure from or other indulgence with respect to, the Credit
Agreement, any other Loan Document, or any other document or
instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement
to, or deletion from, or any other action or inaction under or in
respect of, the Credit Agreement, any of the other Loan Documents,
or any other documents, instruments or agreements relating to the
Guarantied Obligations or any other instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(b) any lack of validity or
enforceability of the Credit Agreement, any of the other Loan
Documents, or any other document, instrument or agreement referred
to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(c) any furnishing to the Agent
or the Lenders of any security for the Guarantied Obligations, or
any sale, exchange, release or surrender of, or realization on, any
collateral securing any of the Obligations;
(d) any settlement or compromise
of any of the Guarantied Obligations, any security therefor, or any
liability of any other party with respect to the Guarantied
Obligations, or any
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subordination of the payment of the Guarantied Obligations to
the payment of any other liability of the Borrower or any other
Loan Party;
(e) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation
or other like proceeding relating to such Guarantor, the Borrower,
any other Loan Party or any other Person, or any action taken with
respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding;
(f) any act or failure to act by
the Borrower, any other Loan Party or any other Person which may
adversely affect such Guarantor’s subrogation rights, if any,
against the Borrower to recover payments made under this
Guaranty;
(g) any nonperfection or
impairment of any security interest or other Lien on any
collateral, if any, securing in any way any of the Obligations;
(h) any application of sums paid
by the Borrower, any other Guarantor or any other Person with
respect to the liabilities of the Borrower to the Agent or the
Lenders, regardless of what liabilities of the Borrower remain
unpaid;
(i) any defect, limitation or
insufficiency in the borrowing powers of the Borrower or in the
exercise thereof;
(j) any defense, set-off, claim
or counterclaim (other than indefeasible payment and performance in
full) which may at any time be available to or be asserted by the
Borrower, any other Loan Party or any other Person against the
Agent or any Lender;
(k) any change in the corporate
existence, structure or ownership of the Borrower or any other Loan
Party;
(l) any statement,
representation or warranty made or deemed made by or on behalf of
the Borrower, any Guarantor or any other Loan Party under any Loan
Document, or any amendment hereto or thereto, proves to have been
incorrect or misleading in any respect; or
(m) any other circumstance which
might otherwise constitute a defense available to, or a discharge
of, a Guarantor hereunder (other than indefeasible payment and
performance in full).
Section 4. Action with
Respect to Guarantied Obligations . The Lenders and the Agent
may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor
from its obligations hereunder, take any and all actions described
in Section 3 and may otherwise: (a) amend, modify, alter
or supplement the terms of any of the Guarantied Obligations,
including, but not limited to, extending or shortening the time of
payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations;
(b) amend, modify, alter or supplement the Credit Agreement or
any other Loan Document; (c) sell, exchange, release or
otherwise deal with all, or any part, of any collateral securing
any of the Obligations; (d) release any other Loan Party or
other Person
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liable in any manner for the payment or collection of the
Guarantied Obligations; (e) exercise, or refrain from
exercising, any rights against the Borrower, any other Guarantor or
any other Person; and (f) apply any sum, by whomsoever paid or
however realized, to the Guarantied Obligations in such order as
the Lenders shall elect.
Section 5. Representations
and Warranties . Each Guarantor hereby makes to the Agent and
the Lenders all of the representations and warranties made by the
Borrower with respect to or in any way relating to such Guarantor
in the Credit Agreement and the other Loan Documents, as if the
same were set forth herein in full.
Section 6. Covenants .
Each Guarantor will comply with all covenants which the Borrower is
to cause such Guarantor to comply with under the terms of the
Credit Agreement or any of the other Loan Documents.
Section 7. Waiver . Each
Guarantor, to the fullest extent permitted by Applicable Law,
hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing,
or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or
which otherwise might operate to discharge such Guarantor from its
obligations hereunder.
Section 8. Inability to
Accelerate Loan . If the Agent and/or the Lenders are prevented
under Applicable Law or otherwise from demanding or accelerating
payment of any of the Guarantied Obligations by reason of any
automatic stay or otherwise, the Agent and/or the Lenders shall be
entitled to receive from each Guarantor, upon demand therefor, the
sums which otherwise would have been due had such demand or
acceleration occurred.
Section 9. Reinstatement of
Guarantied Obligations . If claim is ever made on the Agent or
any Lender for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guarantied
Obligations, and the Agent or such Lender repays all or part of
said amount by reason of (a) any judgment, decree or order of
any court or administrative body of competent jurisdiction, or
(b) any settlement or compromise of any such claim effected by
the Agent or such Lender with any such claimant (including the
Borrower or a trustee in bankruptcy for the Borrower), then and in
such event each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding on it,
notwithstanding any revocation hereof or the cancellation of the
Credit Agreement, any of the other Loan Documents, or any other
instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the Agent or such Lender
for the amounts so repaid or recovered to the same extent as if
such amount had never originally been paid to the Agent or such
Lender.
Section 10. Subrogation .
Upon the making by any Guarantor of any payment hereunder for the
account of the Borrower, such Guarantor shall be subrogated to the
rights of the payee against the Borrower; provided, however, that
such Guarantor shall not enforce any right or receive any payment
by way of subrogation or otherwise take any action in respect of
any other claim or cause of action such Guarantor may have against
the Borrower arising by reason of any payment or performance by
such Guarantor pursuant to this Guaranty, unless and until all of
the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall
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be paid to such Guarantor on account of or in respect of such
subrogation rights or other claims or causes of action, such
Guarantor shall hold such amount in trust for the benefit of the
Agent and the Lenders and shall forthwith pay such amount to the
Agent to be credited and applied against
