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EXHIBIT 10.31
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SECURITY AGREEMENT
Dated as of February 26, 2001
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Owner Trustee under the Storage Centers Trust 2001
and
BANK OF AMERICA, N.A.,
as the Agent for the Lenders and the Holders
and accepted and agreed to by
SHURGARD STORAGE CENTERS, INC.
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TABLE OF CONTENTS
1. Definitions ................................................. 2
2. Grant of Security Interest .................................. 3
3. Payment of Obligations ...................................... 5
4. Other Covenants ............................................. 6
5. Default; Remedies ........................................... 6
6. Remedies Not Exclusive ...................................... 7
7. Performance by the Agent of the Borrower's Obligations ...... 7
8. Duty of the Agent ........................................... 7
9. Powers Coupled with an Interest ............................. 8
10. Execution of Financing Statements ........................... 8
11. Security Agreement Under Uniform Commercial Code ............ 8
12. Authority of the Agent ...................................... 9
13. Notices ..................................................... 9
14. Severability ................................................ 9
15. Amendment in Writing; No Waivers; Cumulative Remedies ....... 9
16. Section Headings ............................................ 10
17. Successors and Assigns ...................................... 10
18. The Borrower's Waiver of Rights ............................. 10
19. GOVERNING LAW ............................................... 10
20. Obligations Are Without Recourse ............................ 11
21. Partial Release; Full Release ............................... 11
22. Miscellaneous ............................................... 11
23. Conflicts with Participation Agreement ...................... 12
24. LESSEE AS A PARTY ........................................... 12
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SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of February 26, 2001 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Security Agreement"), is made between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, as Owner Trustee under the Storage
Centers Trust 2001 (the "Borrower"), and BANK OF AMERICA, N.A., a national
banking association ("Bank"), as agent for (a) the Lenders (hereinafter defined)
under the Credit Agreement dated as of February 26, 2001 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the "Credit
Agreement") by and among the Borrower, the lending institutions from time to
time parties thereto (the "Lenders") and Bank as the agent for the Lenders and
(b) the holders of the certificates issued pursuant to the Trust Agreement dated
as of February 26, 2001 (as amended, modified, extended, supplemented, restated
and/or replaced from time to time, the "Trust Agreement") among the holders from
time to time parties thereto (the "Holders") and the Borrower, in its individual
capacity thereunder and in its capacity as Owner Trustee thereunder. The Agent,
the Lenders and the Holders, together with their successors and permitted
assigns, are collectively referred to hereinafter as the "Secured Parties."
Bank, in its capacity as agent for the Secured Parties is referred to
hereinafter as the "Agent", and this Security Agreement is accepted and agreed
to by SHURGARD STORAGE CENTERS, INC., a Washington corporation.
Preliminary Statement
Pursuant to the Credit Agreement, the Lenders have severally agreed to
make Loans to the Borrower in an aggregate amount not to exceed the aggregate
Commitments upon the terms and subject to the conditions set forth therein, to
be evidenced by the Notes issued by the Borrower under the Credit Agreement.
Pursuant to the Trust Agreement, the Holders have agreed to purchase the
ownership interests of the Trust created thereby in an aggregate amount not to
exceed the aggregate Holder Commitments upon the terms and subject to the
conditions set forth therein, to be evidenced by the Certificates issued by the
Borrower under the Trust Agreement. The Borrower is, or shall be upon the date
of the initial Advance with respect to each Property, the legal and beneficial
owner of such Property (except the Borrower may have a ground leasehold interest
in certain Properties pursuant to one or more Ground Leases).
It is a condition, among others, to the obligation of the Lenders to
make their respective Loans to the Borrower under the Credit Agreement and the
Holders to make their respective Holder Advances under the Trust Agreement that
the Borrower shall have executed and delivered this Security Agreement to the
Agent, for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make their respective Loans under the Credit Agreement and to induce
the Holders to make their respective Holder Advances under the Trust Agreement,
the Borrower hereby agrees with the Agent, for the benefit of the Secured
Parties, as follows:
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1. DEFINITIONS.
(a) As used herein, the following terms shall have the following
respective meanings:
"Accounts" shall mean all "accounts," as such term is defined in
the Uniform Commercial Code, now owned or hereafter acquired by the
Borrower, including without limitation (i) all accounts receivable,
other receivables, book debts and other forms of obligations now owned
or hereafter received or acquired by or belonging or owing to the
Borrower, whether arising out of goods sold or leased or services
rendered by it or from any other transaction (including without
limitation any such obligations which may be characterized as an account
under the Uniform Commercial Code), (ii) all of the Borrower's rights
in, to and under all purchase orders or receipts now owned or hereafter
acquired by it for goods or services, (iii) all of the Borrower's rights
to any goods represented by any of the foregoing (including without
limitation unpaid sellers' rights of rescission, replevin, reclamation
and stoppage in transit and rights to returned, reclaimed or repossessed
goods), (iv) all monies due or to become due to the Borrower under all
purchase orders and contracts for the sale or lease of goods or the
performance of services or both by the Borrower (whether or not yet
earned by performance on the part of the Borrower) now or hereafter in
existence, including without limitation the right to receive the
proceeds of said purchase orders and contracts, and (v) all collateral
security and guarantees of any kind, now or hereafter in existence,
given by any Person with respect to any of the foregoing.
"Chattel Paper" shall mean any and all "chattel paper," as such
term is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located.
"Documents" shall mean any and all "documents", as such term is
defined in the Uniform Commercial Code, now owned or hereafter acquired
by the Borrower, wherever located, including without limitation each
xxxx of lading, dock warrant, dock receipt, warehouse receipt or order
for the delivery of goods, and also any other document which in the
regular course of business or financing is treated as adequately
evidencing that the person in possession of it is entitled to receive,
hold and dispose of the document and the goods it covers.
"General Intangibles" shall mean any and all "general
intangibles," as such term is defined in the Uniform Commercial Code,
now owned or hereafter acquired by the Borrower, including without
limitation all contracts, undertakings, or agreements in or under which
the Borrower may now or hereafter have any right (other than any right
evidenced by Chattel Paper, Documents or Instruments), title or
interest, including without limitation any agreements relating to the
terms of payment or the terms of performance of any Account.
"Holders" shall have the meaning specified in the first
paragraph of this Security Agreement.
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"Instruments" shall mean any and all "instruments", as such term
is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located, including without limitation
all certificated securities, all certificates of deposit, and all notes
and other, without limitation, evidences of indebtedness, other than
instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.
"Investment Property" shall mean any and all "investment
property," as such term is defined in the Uniform Commercial Code, now
owned or hereafter acquired by the Borrower, wherever located.
"Lenders" shall have the meaning specified in the first
paragraph of this Security Agreement.
"Lessee" shall mean Shurgard Storage Centers, Inc., a Washington
corporation, its successors, permitted assigns and permitted
transferees.
"Obligations" shall mean any and all obligations now existing or
hereafter arising under the Credit Agreement, the Notes, the Trust
Agreement, the Certificates and/or any other Operative Agreement.
"Proceeds" shall mean any and all "proceeds," as such term is
defined in the Uniform Commercial Code, at any time received or acquired
by the Borrower with respect to the Trust Property.
(b) Capitalized terms used but not otherwise defined in this
Security Agreement shall have the respective meanings specified in the
Credit Agreement or Appendix A to the Participation Agreement dated as
of February 26, 2001 (as amended, modified, extended, supplemented,
restated and/or replaced from time to time in accordance with the
applicable provisions thereof, the "Participation Agreement") among
Lessee, the various parties thereto from time to time, as guarantors,
the Borrower, the Holders, the Lenders and the Bank of America, N.A., as
agent for the Lenders and respecting the Security Documents, as the
agent for the Secured Parties.
(c) The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Agreement.
2. GRANT OF SECURITY INTEREST.
To secure payment of all the amounts advanced under the Credit Agreement
in connection with the Notes, all the amounts advanced or contributed under the
Trust Agreement in connection with the Certificates and all other amounts now or
hereafter owing to the Lenders, the Holders or the Agent thereunder or under any
other Operative Agreement, THE BORROWER HEREBY CONVEYS, GRANTS, ASSIGNS,
TRANSFERS, HYPOTHECATES, MORTGAGES AND SETS OVER TO THE AGENT FOR THE BENEFIT OF
THE SECURED PARTIES, A FIRST PRIORITY SECURITY INTEREST IN AND LIEN ON THE TRUST
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ESTATE, WHETHER NOW EXISTING OR HEREAFTER ACQUIRED INCLUDING WITHOUT LIMITATION
THE FOLLOWING:
(a) all right, title and interest of the Borrower in and to the
Operative Agreements now existing or hereafter acquired by the Borrower
(including without limitation all rights to payment and indemnity rights
of the Borrower under the Participation Agreement) (all of the foregoing
in this paragraph (a) being referred to as the "Rights in Operative
Agreements");
(b) all right, title and interest of the Borrower in and to all
of the Equipment;
(c) all right, title and interest of the Borrower in and to all
of the Fixtures;
(d) all the estate, right, title, claim or demand whatsoever of
the Borrower, in possession or expectancy, in and to each Property,
Fixture or Equipment or any part thereof;
(e) all right, title and interest of the Borrower in and to all
substitutes, modifications and replacements of, and all additions,
accessions and improvements to, the Fixtures and Equipment, subsequently
acquired or leased by the Borrower or constructed, assembled or placed
by the Borrower on any Property, immediately upon such acquisition,
lease, construction, assembling or placement, and in each such case,
without any further conveyance, assignment or other act by the Borrower;
(f) all right, title and interest of the Borrower in, to and
under books and records relating to or used in connection with the
operation of one or more Properties or any part thereof; all rights of
the Borrower to the payment of money and all property; and all rights in
and to any causes of action or choses in action now or hereafter
existing in favor of the Borrower and all rights to any recoveries
therefrom;
(g) all right, title and interest of the Borrower in and to all
unearned premiums under insurance policies now held or subsequently
obtained by the Lessee relating to one or more Properties and the
Borrower's interest in and to all proceeds of any insurance policies
maintained by or for the benefit of the Borrower, including without
limitation any right to collect and receive such proceeds; and all
awards and other compensation, including without limitation the interest
payable thereon and any right to collect and receive the same, made to
the present or any subsequent owner of any Property for the taking by
eminent domain, condemnation or otherwise, of all or any part of any
Property or any easement or other right therein;
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(h) all right, title and interest of the Borrower in and to (i)
all consents, licenses, certificates and other governmental approvals
relating to construction, completion, use or operation of any Property
or any part thereof and (ii) all Plans and Specifications relating to
any Property;
(i) all right, title and interest of the Borrower in and to all
Rent and all other rents, payments, purchase prices, receipts, revenues,
issues and profits payable under the Lease or pursuant to any other
lease with respect to any Property;
(j) all right, title and interest of the Borrower in and to all
Instruments and Documents;
(k) all right, title and interest of the Borrower in and to all
General Intangibles;
(l) all right, title and interest of the Borrower in and to all
Chattel Paper (including without limitation all rights under the Lease)
and each Ground Lease;
(m) all right, title and interest of the Borrower in and to all
money, cash or cash equivalent and bank accounts;
(n) all right, title and interest of the Borrower in and to all
Accounts;
(o) all right, title and interest of the Borrower in and to all
proceeds of letters of credit issued in favor of the Borrower in
connection with any Property; and
(p) all right, title and interest of the Borrower in and to all
Proceeds, both cash and noncash, of any of the foregoing.
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by the Borrower and described in the foregoing
clauses (a) through (p) are collectively referred to as the "Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and privileges
hereby granted unto the Agent (for the benefit of the Secured Parties) its
successors and assigns for the uses and purposes set forth, until all of the
obligations owing to the Lenders, the Holders or the Agent under the Operative
Agreements are paid in full; provided, that EXCLUDED from the Trust Property at
all times and in all respects shall be all Excepted Payments.
3. PAYMENT OF OBLIGATIONS.
The Borrower shall pay all Obligations in accordance with the terms of
the Credit Agreement, the Notes, the Trust Agreement, the Certificates and the
other Operative Agreements
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and perform each term to be performed by it under the Credit Agreement, the
Notes, the Trust Agreement, the Certificates and the other Operative Agreements.
4. OTHER COVENANTS.
At any time and from time to time, upon the written request of the
Agent, and at the expense of the Borrower (with funds provided by the Lessee for
such purpose), the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the Agent
reasonably may request for the purposes of obtaining or preserving the full
benefits of this Security Agreement and of the rights and powers granted by this
Security Agreement.
5. DEFAULT; REMEDIES.
(a) If a Credit Agreement Event of Default has occurred and is
continuing:
(i) the Agent, in addition to all other remedies
available at law or in equity, shall have the right forthwith to
enter upon any Trust Property (or any other place where any
component of any Trust Property is located at such time) without
charge, and take possession of all or any portion of the Trust
Property, and to sell, re-let or otherwise dispossess itself of
the Trust Property and receive the rents, issues and profits
thereof, to make repairs and to apply said rentals and profits,
after payment of all necessary or proper charges and expenses,
on account of the amounts hereby secured (subject to the
Excepted Payments); and
(ii) the Agent, shall, as a matter of right, be entitled
to the appointment of a receiver for the Trust Property, and the
Borrower hereby consents to such appointment and waives notice
of any application therefor.
(b) If a Credit Agreement Event of Default has occurred and is
continuing, the Agent may proceed by an action at law, suit in equity or
other appropriate proceeding, to protect and enforce its rights, whether
for the foreclosure of the Lien of this Security Agreement, or for the
specific performance of any agreement contained herein or for an
injunction against the violation of any of the terms hereof. The
proceeds of any sale of any of the Trust Property shall be applied
pursuant to Section 8.7 of the Participation Agreement. In addition, the
Agent may proceed under Section 11 hereof.
(c) The Borrower hereby waives the benefit of all appraisement,
valuation, stay, extension and redemption laws now or hereafter in force
and all rights of marshalling in the event of any sale of the Trust
Property or any portion thereof or interest therein.
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6. REMEDIES NOT EXCLUSIVE.
The Agent shall be entitled to enforce payment of the indebtedness and
performance of the Obligations and to exercise all rights and powers under this
Security Agreement or under any of the other Operative Agreements or other
agreements or any laws now or hereafter in force, notwithstanding some or all of
the Obligations may now or hereafter be otherwise secured, whether by deed of
trust, mortgage, security agreement, pledge, Lien, assignment or otherwise.
Neither the acceptance of this Security Agreement nor its enforcement, shall
prejudice or in any manner affect the Agent's right to realize upon or enforce
any other security now or hereafter held by the Agent, it being agreed that the
Agent shall be entitled to enforce this Security Agreement and any other
security now or hereafter held by the Agent in such order and manner as the
Agent may determine in its absolute discretion. No remedy conferred hereunder or
under any other Operative Agreement upon or reserved to the Agent is intended to
be exclusive of any other remedy herein or therein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or thereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Operative
Agreements to the Agent or to which it may otherwise be entitled, may be
exercised, concurrently or independently, from time to time and as often as may
be deemed expedient by the Agent. In no event shall the Agent, in the exercise
of the remedies provided in this Security Agreement (including without
limitation in connection with the assignment of Rents to the Agent, or the
appointment of a receiver and the entry of such receiver onto all or any part of
the Land), be deemed a "mortgagee in possession" or a "pledgee in possession",
and the Agent shall not in any way be made liable for any act, either of
commission or omission, in connection with the exercise of such remedies.
7. PERFORMANCE BY THE AGENT OF THE BORROWER'S OBLIGATIONS.
If the Borrower fails to perform or comply with any of its agreements
contained herein the Agent, at its option, but without any obligation so to do,
may perform or comply, or otherwise cause performance or compliance, with such
agreement. The expenses of the Agent incurred in connection with actions
undertaken as provided in this Section 7, together with interest thereon at a
rate per annum equal to the Overdue Rate, from the date of payment by the Agent
to the date reimbursed by the Borrower, shall be payable by the Borrower (with
funds provided by the Lessee for such purpose) to the Agent on demand and
constitute part of the Obligations secured hereby.
8. DUTY OF THE AGENT.
The Agent's sole duty with respect to the custody, safekeeping and
physical preservation of any Trust Property in its possession, under the Uniform
Commercial Code or otherwise, shall be to deal with it in the same manner as the
Agent deals with similar property for its own account. Neither the Agent, any
Lender, any Holder nor any of their respective directors, officers, employees,
shareholders, partners or agents shall be liable for failure to demand, collect
or realize upon any of the Trust Property or for any delay in doing so or shall
be under any obligation to sell or otherwise dispose of any Trust Property upon
the request of the Borrower or
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any other Person or to take any other action whatsoever with regard to the Trust
Property or any part thereof.
9. POWERS COUPLED WITH AN INTEREST.
All powers, authorizations and agencies contained in this Security
Agreement are coupled with an interest and are irrevocable until this Security
Agreement is terminated and the Liens created hereby are released.
10. EXECUTION OF FINANCING STATEMENTS.
The Borrower authorizes the Agent at the expense of the Borrower (such
amounts to be paid with funds provided by the Lessee for such purpose) to file
financing statements with respect to the Trust Property under this Security
Agreement without the signature of the Borrower in such form and in such filing
offices as the Agent reasonably determines appropriate to perfect the security
interests of the Agent under this Security Agreement. A carbon, photographic or
other reproduction of this Security Agreement shall be sufficient as a financing
statement for filing in any jurisdiction. For purposes of such financing
statement, the Borrower shall be deemed to be the debtor, and the Agent shall be
deemed to be the secured party. The address of the Borrower is 00 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Xxx X. Xxxxx, Vice President, and
the address of the Agent is Bank of America, N.A., Xxxxx Xxxxxx Xxxxx, 000 Xxxxx
Xxxxxx, Xxxxx 37, Maile Code: WA1-501-37-20, Xxxxxxx Xxxxxxxxxx, 00000-0000,
Attention: Xxxx X. Xxxxx.
11. SECURITY AGREEMENT UNDER UNIFORM COMMERCIAL CODE.
(a) It is the intention of the parties hereto that this Security
Agreement as it relates to matters of the grant, perfection and priority
of security interests the subject hereof, shall constitute a security
agreement within the meaning of the Uniform Commercial Code of the
States in which the Trust Property is located. If a Credit Agreement
Event of Default shall occur, then in addition to having any other right
or remedy available at law or in equity, the Agent may proceed under the
applicable Uniform Commercial Code and exercise such rights and remedies
as may be provided to a secured party by such Uniform Commercial Code
with respect to all or any portion of the Trust Property which is
personal property (including without limitation taking possession of and
selling such property). If the Agent shall elect to proceed under the
Uniform Commercial Code, then fifteen (15) days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable
expenses of retaking, holding, preparing for sale, selling and the like
incurred by the Agent shall include, but not be limited to, attorneys'
fees and legal expenses. At the Agent's request, the Borrower shall
assemble such personal property and make it available to the Agent at a
place designated by the Agent which is reasonably convenient to both
parties.
(b) The Borrower, upon request by the Agent from time to time,
shall execute, acknowledge and deliver to the Agent one or more separate
security agreements, in form satisfactory to the Agent, covering all or
any part of the Trust Property and will further
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execute,acknowledge and deliver, or cause to be executed, acknowledged
and delivered, any financing statement, affidavit, continuation
statement or certificate or other document as the Agent may request in
order to perfect, preserve, maintain, continue or extend the security
interest under, and the priority of the Liens granted by, this Security
Agreement and such security instrument. The Borrower further agrees to
pay to the Agent (with funds provided by the Lessee for such purpose) on
demand all costs and expenses incurred by the Agent in connection with
the preparation, execution, recording, filing and re-filing of any such
document and all reasonable costs and expenses of any record searches
for financing statements the Agent shall reasonably require. The filing
of any financing or continuation statements in the records relating to
personal property or chattels shall not be construed as in any way
impairing the right of the Agent to proceed against any property
encumbered by this Security Agreement.
12. AUTHORITY OF THE AGENT.
The Borrower acknowledges that the rights and responsibilities of the
Agent under this Security Agreement with respect to any action taken by the
Agent or the exercise or non-exercise by the Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Security Agreement shall be governed by the Credit Agreement
and Section 8.6 of the Participation Agreement and by such other agreements with
respect thereto as may exist from time to time (until such time as all amounts
due and owing to the Secured Parties and the Agent under the Operative
Agreements have been paid in full), but the Agent shall be conclusively presumed
to be acting as agent for the Secured Parties with full and valid authority so
to act or refrain from acting, and the Borrower shall be under no obligation, or
entitlement, to make any inquiry respecting such authority.
13. NOTICES.
All notices required or permitted to be given under this Security
Agreement shall be in writing and delivered as provided in Section 12.2 of the
Participation Agreement.
14. SEVERABILITY.
Any provision of this Security Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
15. AMENDMENT IN WRITING; NO WAIVERS; CUMULATIVE REMEDIES.
(a) None of the terms or provisions of this Security Agreement
may be waived, amended, supplemented or otherwise modified except in
accordance with the terms of Section 12.4 of the Participation
Agreement.
(b) No failure to exercise, nor any delay in exercising, on the
part of the Agent, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any
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other or further exercise thereof or the exercise of any other right,
power or privilege. A waiver by the Agent of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Agent would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
16. SECTION HEADINGS.
The section headings used in this Security Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
17. SUCCESSORS AND ASSIGNS.
This Security Agreement shall be binding upon the successors of the
Borrower, and the Borrower shall not assign any of its rights or obligations
hereunder or with respect to any of the Trust Property without the prior written
consent of the Agent. This Security Agreement shall inure to the benefit of the
Agent, the Lenders, the Holders and their respective successors and assigns, in
accordance with their respective interest herein.
18. THE BORROWER'S WAIVER OF RIGHTS.
Except as otherwise set forth herein, to the fullest extent permitted by
law, the Borrower waives the benefit of all laws now existing or that may
subsequently be enacted providing for (a) any appraisement before sale of any
portion of the Trust Property, (b) any extension of the time for the enforcement
of the collection of the indebtedness or the creation or extension of a period
of redemption from any sale made in collecting such debt and (c) exemption of
any portion of the Trust Property from attachment, levy or sale under execution
or exemption from civil process. Except as otherwise set forth herein, to the
fullest extent the Borrower may do so, the Borrower agrees that the Borrower
will not at any time insist upon, plead, claim or take the benefit or advantage
of any law now or hereafter in force providing for any appraisement, valuation,
stay, exemption, extension or redemption, or requiring foreclosure of this
Security Agreement before exercising any other remedy granted hereunder and the
Borrower, for the Borrower and its successors and assigns, and for any and all
Persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the Obligations and marshalling in the event of
foreclosure of the Liens hereby created.
19. GOVERNING LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 11(a) HEREOF, THIS
SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED,
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INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
WASHINGTON (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW).
20. OBLIGATIONS ARE WITHOUT RECOURSE.
The provisions of the Participation Agreement relating to limitations on
liability are hereby incorporated by reference herein, Mutatis Mutandis.
21. PARTIAL RELEASE; FULL RELEASE.
The Agent may release for such consideration as it may require any
portion of the Trust Property without (as to the remainder of the Trust
Property) in any way impairing or affecting the Lien, security interest and
priority herein provided for the Agent compared to any other Lien holder or
secured party. Further, the Agent shall execute and deliver to the Borrower such
documents and instruments as may be required to release the Lien and security
interest created by this Security Agreement with respect to the Properties as
provided in Section 8.8 of the Participation Agreement or to grant the easements
and permit the other matters provided for in Section 8.5 of the Participation
Agreement.
22. MISCELLANEOUS.
(a) This Security Agreement is one of the documents which create
Liens and security interests that secure payment and performance of the
Obligations. The Agent, at its election, may commence or consolidate in
a single action all proceedings to realize upon all such Liens and
security interests. The Borrower hereby waives (i) any objections to the
commencement or continuation of an action to foreclose the Lien of this
Security Agreement or exercise of any other remedies hereunder based on
any action being prosecuted or any judgment entered with respect to the
Obligations or any Liens or security interests that secure payment and
performance of the Obligations and (ii) any objections to the
commencement of, continuation of, or entry of a judgment in any such
other action based on any action or judgment connected to this Security
Agreement. In case of a foreclosure sale, the Trust Property may be
sold, at the Agent's election, in one parcel or in more than one parcel
and the Agent is specifically empowered (without being required to do
so, and in its sole and absolute discretion) to cause successive sales
of portions of the Trust Property to be held.
(b) This Security Agreement may not be amended, waived,
discharged or terminated except in accordance with Section 12.4 of the
Participation Agreement. Upon the prior written consent of the Majority
Secured Parties and unless such matter is a Unanimous Vote Matter, the
Agent may release any portion of the Trust Property or any other
security, and grant such extensions and indulgences in relation to the
Obligations secured hereby without in any manner affecting the priority
of the Lien hereof on any part of the Trust Property.
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(c) THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
23. CONFLICTS WITH PARTICIPATION AGREEMENT.
Notwithstanding any other provision hereof, in the event of any conflict
between the terms of this Security Agreement and the Participation Agreement,
the terms of the Participation Agreement shall govern.
24. LESSEE AS A PARTY.
LESSEE HAS EXECUTED THIS SECURITY AGREEMENT FOR THE PURPOSE OF
SUBJECTING TO THE SECURITY INTERESTS GRANTED HEREUNDER ALL OF ITS RIGHT, TITLE,
ESTATE AND INTEREST, IF ANY, IN AND TO THE TRUST PROPERTY TO SECURE ALL
OBLIGATIONS OF ALL CREDIT PARTIES UNDER THE OPERATIVE AGREEMENTS. ACCORDINGLY,
LESSEE HEREBY GRANTS TO THE AGENT (FOR THE BENEFIT OF THE SECURED PARTIES) A
SECURITY INTEREST IN AND TO ALL OF ITS RIGHT, TITLE, ESTATE AND INTEREST, IF
ANY, IN AND TO THE TRUST PROPERTY (TO THE EXTENT LESSEE HAS ANY RIGHT, TITLE OR
INTEREST THEREIN AND WITHOUT REGARD TO ANY LANGUAGE IN SECTION 2 OR THE
DEFINITION OF "TRUST PROPERTY" OR ANY DEFINITION OF ANY ITEM CONSTITUTING THE
TRUST PROPERTY WHICH OTHERWISE WOULD LIMIT THE TRUST PROPERTY TO THE RIGHT,
TITLE AND INTEREST OF THE BORROWER THEREIN) TO SECURE ALL OBLIGATIONS OF ALL
CREDIT PARTIES UNDER THE OPERATIVE AGREEMENTS. LESSEE ACKNOWLEDGES AND AGREES
THAT, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, THE AGENT SHALL HAVE THE RIGHT
TO EXERCISE ANY OR ALL OF ITS REMEDIES HEREUNDER AS AGAINST ANY SUCH RIGHT,
TITLE, ESTATE OR INTEREST OF LESSEE IN OR TO THE TRUST PROPERTY.
[signature page follows]
12
15
IN WITNESS WHEREOF, each of the undersigned has caused the Security
Agreement to be duly executed and delivered as of the date first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Owner Trustee under
the Storage Centers Trust 2001
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
BANK OF AMERICA, N.A., as the Agent for
the Lenders and the Holders
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
Accepted and Agreed to:
SHURGARD STORAGE CENTERS, INC.,
as Lessee and Construction Agent
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
-----------------------------------
Title: CFO
----------------------------------
