First Amendment to LOAN Agreement
Exhibit 10.40
First Amendment to LOAN Agreement
This FIRST AMENDMENT TO LOAN AGREEMENT (this “Amendment”) is dated February 12, 2019 (the “Effective Date”) by and among THE ENTITIES LISTED ON SCHEDULE 1, each a Delaware limited liability company (jointly, severally and collectively, “Borrower”), KEYBANK NATIONAL ASSOCIATION, a national banking association (together with its successors and assigns, “KeyBank”), and CITI REAL ESTATE FUNDING INC., a New York corporation (together with its successors and assigns, “Citi”, together with KeyBank, collectively, together with their respective successors and assigns, “Lender”).
RECITALS:
WHEREAS, Borrower and Lender are parties to that certain Loan Agreement (the “Loan Agreement”), dated as of January 24, 2019, pursuant to which Lender agreed, subject to the terms and conditions set forth in the Loan Agreement, to make a loan to Borrower in the original principal amount of $180,000,000.00 (“Loan”), as provided in the Loan Agreement. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Loan Agreement.
WHEREAS, the parties to the Loan Agreement desire to amend the Loan Agreement as set forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual promises of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties mutually agree as follows:
AGREEMENT
1.Amendments to Loan Agreement. The Loan Agreement is hereby amended as follows:
(a)The definition of “Spread” in Section 1.1 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
“Spread” shall mean (i) prior to the date the Loan is divided into two or more Components, 2.4958333333% per annum, and (ii) from and after the date the Loan is divided into two or more Components, with respect to each Component, the Component Spread applicable to such Component set forth in the Componentization Notice in accordance with and subject to the provisions of Section 13.6(B).
2.Effect Upon Loan Documents.
(a)The Loan Agreement and the other Loan Documents shall remain in full force and effect and, except as specifically set forth herein, shall remain unmodified. All references to “Loan Agreement” in the Loan Documents shall mean and refer to the Loan Agreement as modified and amended hereby.
(b)The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Lender under the Loan Documents, or any other document, instrument or agreement executed and/or delivered in connection therewith.
3.Governing Law. IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AMENDMENT AND THE NOTE, AND THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
4.Parties Bound/Execution. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and legal representatives. Each party represents that any individual executing this Amendment on behalf of such party has the authority to so act on behalf of such party.
5.Invalid Provision. If any provision of this Amendment is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of the Amendment, such provision shall be fully severable and this Amendment shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Amendment and the remaining provisions of this Amendment shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Amendment, unless such continued effectiveness of this Amendment, as modified, would be contrary to the basic understandings and intentions of the parties as expressed herein.
6.Counterparts. This Amendment may be executed in any number of counterparts, and all such counterparts shall together constitute the same agreement.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first set forth above.
BORROWER:
SSGT 0000 XXXXXXXX XX, LLC
SSGT 0000 X XXXXXXXXX XX, LLC
SSGT 0000 XXXXXXXXX XX, LLC
SSGT 0000 XXXXXXXXX XX, LLC
SSGT 0000 X XXXXX XXXX, LLC
SSGT 0000 X XXXXXXX XX, LLC
SSGT 0000 XXXXXXXXX XXX, LLC
SSGT 0000 XXXXXXXX XXX, LLC
SSGT 0000 XXXXXXXX XX, LLC
SST II 00000 XX 00XX XX, LLC
SST II 000 XXXXXXXXXX XX, LLC
SST II 0000 XXXXXX XXX, LLC
SST II 0000 X XXXXX XX 7, LLC
SST II 1401 ENTERPRISE ST, LLC
SST II 000 XXXXXXX XXXX, LLC
SST II 0000 XXXXXX XX, LLC
SST II 0000 XXXXXXXX XX, LLC
SST II 0000 XXXXXXXXXXXX XXXX, LLC
SST II 0000 XXXXXXXXX XXX, LLC
SST II 21 KINGS CHAPEL DR, LLC
SST II 0000 XXXXXXX XXX, LLC
SST II 5012 NEW BERN AVE, LLC
SST II 0000 XXXXXXXX XXX, LLC
SST II 000 XX XXXXX XXXXXX XXXX, LLC
SST II 000 XXXXXX XXX, LLC
SST II 0000 X XXXXXXXX XX, LLC
SST II 000 XXXXXXX XX, LLC
SST II 7755 PRESERVE LN, LLC
SST II ROSSVILLE BLVD, LLC
each a Delaware limited liability company
By: Strategic Storage Trust II, Inc., a Maryland corporation, its Manager
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By: |
/s/ Xxxxxxx X. XxXxxxx |
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Name: |
Xxxxxxx X. XxXxxxx |
|
Title: |
President |
First Amendment to Loan Agreement
SST II TRS MORTGAGE, LLC,
a Delaware limited liability company
By: Strategic Storage TRS II, Inc,
a Delaware corporation, its Manager
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By: |
/s/ Xxxxxxx X. XxXxxxx |
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Name: |
Xxxxxxx X. XxXxxxx |
|
Title: |
President |
SSGT TRS MORTGAGE, LLC,
a Delaware limited liability company
By: SS Growth TRS, Inc.,
a Delaware corporation, its Manager
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By: |
/s/ Xxxxxxx X. XxXxxxx |
|
Name: |
Xxxxxxx X. XxXxxxx |
|
Title: |
President |
[Signature Pages Continue]
First Amendment to Loan Agreement
LENDER:
KEYBANK NATIONAL ASSOCIATION,
a national banking association
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Vice President |
CITI REAL ESTATE FUNDING INC.,
a New York corporation
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By: |
/s/ Xxxxx Xxxxxx |
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Name: |
Xxxxx Xxxxxx |
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Title: |
Vice President |
First Amendment to Loan Agreement
BORROWER LIST
SSGT 0000 Xxxxxxxx XX, LLC
SSGT 0000 X Xxxxxxxxx XX, LLC
SSGT 0000 Xxxxxxxxx XX, LLC
SSGT 0000 Xxxxxxxxx Xx, LLC
SSGT 0000 X Xxxxx XXXX, LLC
SSGT 0000 X Xxxxxxx XX, LLC
SSGT 0000 Xxxxxxxxx XXX, LLC
SSGT 0000 Xxxxxxxx XXX, LLC
SSGT 0000 Xxxxxxxx Xx, LLC
SST II 00000 XX 00xx Xx, LLC
SST II 000 Xxxxxxxxxx XX, LLC
SST II 0000 Xxxxxx Xxx, LLC
SST II 0000 X Xxxxx Xx 7, LLC
SST II 1401 Enterprise ST, LLC
SST II 000 Xxxxxxx XXXX, LLC
SST II 0000 Xxxxxx Xx, LLC
SST II 0000 Xxxxxxxx Xx, LLC
SST II 0000 Xxxxxxxxxxxx Xxxx, LLC
SST II 0000 Xxxxxxxxx Xxx, LLC
SST II 21 Kings Chapel Dr, LLC
SST II 0000 Xxxxxxx Xxx, LLC
SST II 5012 New Bern AVE, LLC
SST II 0000 Xxxxxxxx Xxx, LLC
SST II 000 XX Xxxxx Xxxxxx Xxxx, LLC
SST II 000 Xxxxxx Xxx, LLC
SST II 0000 X Xxxxxxxx Xx, LLC
SST II 000 Xxxxxxx Xx, LLC
SST II 7755 Preserve Ln, LLC
SST II Rossville Blvd, LLC
SST II TRS Mortgage, LLC
SSGT TRS Mortgage, LLC
CONSENT AND RATIFICATION OF GUARANTOR
The undersigned, as Guarantor under that certain Guaranty Agreement and that certain Environmental Indemnity Agreement, each dated as of January 24, 2019 (collectively, the “Guaranty Documents”) hereby unconditionally and irrevocably: (a) consents to the execution and delivery of, and performance under, the First Amendment to Loan Agreement to which this consent is attached (the “Amendment”); (b) affirms its obligations under the Guaranty Documents to which it is a party; and (c) agrees that the execution and delivery of the Amendment shall not operate to release, discharge, serve as a defense to, or in any way alter or amend the obligations of the undersigned under the Guaranty Documents as to which it is a party, except as may specifically be amended or modified pursuant to the Amendment.
Executed as of February ____, 2019.
STRATEGIC STORAGE TRUST II, INC.,
a Maryland corporation
By: /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: President