[22020-0081/Exhibit 10.2 Chase] 08/10/00
LIMITED LIABILITY COMPANY AGREEMENT
OF
CCP/SHURGARD VENTURE, LLC
BETWEEN
SHURGARD DEVELOPMENT IV, INC.
AND
CCPRE-STORAGE, LLC
May __, 2000
TABLE OF CONTENTS
ARTICLE I GENERAL PROVISIONS 1
1.1 Name 1
1.2 Principal Place of Business; Registered
Office and Agent 2
1.3 Formation of Company; Certificate 2
1.4 Term 2
1.5 Purpose 2
1.6 Title to Company Property 3
1.7 Publicity 3
1.8 Confidentiality 3
1.9 Failure to Observe Formalities 4
1.10 Liability of Members to Third Parties 4
1.11 Reliance by Third Parties 4
1.12 Operative Date 4
ARTICLE II CAPITAL CONTRIBUTIONS; PROFITS AND LOSSES 5
2.1 Anticipated Capital Requirements 5
2.2 Capital Contributions 5
2.3 Capital Accounts 7
2.4 Allocation of Net Income and Losses 8
2.5 Allocations of Income and Loss for Federal
Income Tax Purposes; Curative Tax Allocations 9
2.6 Tax Status and Returns 10
ARTICLE III CASH DISTRIBUTIONS 10
3.1 Distributions of Net Cash Flow From
Operations 10
3.2 Distributions of Net Cash Flow From Capital
Transactions 11
3.3 Excess Tax Payment 12
ARTICLE IV CONTRIBUTION OF PROPERTIES 12
4.1 Identification of Properties to Be
Contributed 12
4.2 Closing of Property Contributions 13
ARTICLE V MANAGEMENT AND OPERATION 13
5.1 Management 13
5.2 Annual Budget 14
5.3 Engagement of Property Manager 14
5.4 Management Decisions 15
5.5 Company Expenses 17
5.6 Liability of Members; Indemnification 18
ARTICLE VI OTHER AGREEMENTS OF THE MEMBERS 19
6.1 No Restrictions on Competitive Business
Activities 19
6.2 Exclusivity 19
6.3 Shurgard Notice 20
6.4 Credit Facility 20
ARTICLE VII SALE AGREEMENT AND LIMITED GUARANTY 21
7.1 Exercise of Sale Right 21
7.2 Sale Exercise Period 21
7.3 Shurgard Failure to Purchase 21
7.4 Limited Guaranty 23
ARTICLE VIII SALE, ASSIGNMENT OR TRANSFER OF COMPANY
INTEREST 23
8.1 Prohibited Transfers 23
8.2 Permitted Transfers 24
8.3 Other Transfers 24
ARTICLE IX TERM, DISSOLUTION AND TERMINATION,
VOLUNTARY WITHDRAWAL AND DEFAULT 24
9.1 Term and Dissolution 24
9.2 Termination and Distributions 26
9.3 Distribution Upon Liquidation 27
9.4 Clawback Obligations of Shurgard Return of
Capital 28
9.5 Prohibition Against Withdrawal and Voluntary
Withdrawal 28
9.6 Default 28
ARTICLE X BOOKS, RECORDS AND BANK ACCOUNTS 30
10.1 Books and Records 30
10.2 Reports 30
10.3 Fiscal Year 32
10.4 Bank Accounts 32
ARTICLE XI REPRESENTATIONS AND WARRANTIES 33
11.1 Representations and Warranties by Each Member 33
11.2 Shurgard's Representations and Warranties 33
11.3 Chase's Representations and Warranties 34
ARTICLE XII MISCELLANEOUS 34
12.1 Notices 34
12.2 Successors and Assigns 35
12.3 Entire Agreement; Amendments 35
12.4 No Waiver 35
12.5 Foreign Status 35
12.6 Captions 35
12.7 Counterparts 35
12.8 Applicable Law 36
12.9 Affiliate 36
12.10 Covenant of Good Faith 36
12.11 Severability 36
12.12 No In Kind Distributions 36
12.13 Required Amendments 36
12.14 Regulatory Matters 37
EXHIBIT A PRO FORMA STATEMENT
EXHIBIT B INITIAL PROPERTIES
EXHIBIT C ADDITIONAL PROPERTIES
EXHIBIT D FORM OF CONTRIBUTION AGREEMENT
EXHIBITE D FORM OF MANAGEMENT AGREEMENT
EXHIBIT FE IDENTIFIED PROPERTIES
EXHIBIT GF EXISTING JOINT VENTURES
EXHIBIT HG INVESTMENT CRITERIA
EXHIBIT IH TERMS OF CREDIT FACILITY
EXHIBIT JI FORM OF PURCHASE AND SALE AGREEMENT
EXHIBIT K FORM OF GUARANTY
EXHIBIT LJ FORM OF MONTHLY FINANCIAL OPERATING SUMMARY
EXHIBIT M REGULATORY SIDELETTER
This LIMITED LIABILITY
COMPANY AGREEMENT (this
"Agreement") of CCP/SHURGARD
VENTURE, LLC (the "Company") is
made and entered into as of
May __, 2000 (the "Effective
Date") by and between SHURGARD
DEVELOPMENT IV, INC., a
Washington corporation
("Shurgard"), and CCPRE -
STORAGE, LLC, a Delaware limited
liability company ("Chase").
Shurgard and Chase may each be
referred to herein individually
as a "Member" and collectively
as the "Members."
RECITALS
A. Shurgard is a wholly owned subsidiary of Shurgard
Storage Centers, Inc., a Washington corporation ("SSCI"), and
Chase is a wholly owned subsidiary of Chase Capital
Investments, L.P., a Delaware limited partnership.
B. SSCI is a developer and manager of real estate with
extensive experience related to locating, purchasing,
developing, leasing, financing and selling facilities used
principally for self-service storage property and with
extensive experience in operating such facilities and
providing equipment and services related thereto.
C. Shurgard and Chase desire to form the Company on the
terms set forth herein to acquire certain self-service storage
properties developed or to be developed by SSCI and to operate
such properties.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the Members hereby agree as follows (certain
capitalized terms used herein shall have the meanings set
forth in Annex A attached hereto):
ARTICLE I
GENERAL PROVISIONS
1.1 Name
The name of the Company shall be "CCP/Shurgard Venture,
LLC." All business of the Company shall be conducted under
such name and under such variations thereof as the Members
deem necessary or appropriate to comply with the requirements
of law in any jurisdiction in which the Company may elect to
do business.
1.2 Principal Place of Business; Registered Office and
Agent
(a) The principal place of business of the Company will
be located in the same place as Shurgard's principal place of
business, as the same may change from time to time. The
Members may at any time and from time to time, change the
location of the Company's principal place of business to a
location other than Shurgard's principal place of business.
The Board shall take all actions required under the laws of
the states in which the Company carries on business or owns
its properties to qualify the Company to so carry on its
business, or own its properties and enforce its contracts as
is contemplated hereby.
(b) The registered office of the Company in the state of
Delaware is located at Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The registered agent of
the Company to accept service of process at that address is
Corporation Trust Center.
1.3 Formation of Company; Certificate
The Members have formed the Company under and pursuant to
the Delaware Limited Liability Company Act (the "Act") by
filing the Certificate of Formation for the Company (the
"Certificate") with the Secretary of State of the state of
Delaware on May __April 3, 2000. The Company shall exist
under and be governed by, and this Agreement shall be
construed in accordance with, the Act and other applicable
laws of the state of Delaware. The Members shall make all
filings and disclosures required by, and shall otherwise
comply with, all such laws. Each Member hereby acknowledges,
adopts, confirms and ratifies the form, terms and provisions
of the Certificate and the filing thereof with the Secretary
of State of the state of Delaware.
1.4 Term
The term of the Company commenced upon the filing of the
Certificate with the Secretary of State of the state of
Delaware and shall continue until terminated in accordance
with Article IX.
1.5 Purpose
(a) The business of the Company shall be to operate
certain newly constructed self-service storage facilities
contributed by Shurgard for use by members of the public
(including corporate entities), to sell and lease personal
property, including vehicles, storage containers and other
property, used or useful to the users of such facilities in
connection with such storage (including the hauling of
property to and from such facilities), to engage in any and
all general business activities not inconsistent with the
operation of such facilities and to sell such self-service
storage facilities. In furtherance of the Company's purpose
and subject to the limitations set forth in this Agreement,
the Company shall have the power to enter into and perform
contracts, to own, mortgage, pledge or otherwise deal in
property, real or personal, to exercise all rights, powers,
and privileges and other incidents of ownership with respect
to assets or investments, to borrow money and issue notes,
drafts and bills of exchange, to lend any of its assets or
funds, and to carry on any other activities necessary to, in
connection with or incidental to, the foregoing.
(b) The investment objective of the Members is the long-
term appreciation in the value of the Properties and the
provision by the Company of monthly distributions, beginning
at such time as there is sufficient cash from operations to
make such distributions after satisfaction of the Company's
working capital requirements.
1.6 Title to Company Property
All property owned by the Company whether real or
personal, tangible or intangible, shall be the property of the
Company as an entity, and no Member, individually, shall have
any ownership interest in any such property.
1.7 Publicity
Neither the Company nor any Member may issue any public
statement or press release regarding the Company or its
business without the prior consent of all Members, except as
required by law or any competent governmental authority
(provided that in the event of any such required disclosure,
the disclosing Member or the Company shall give the other
Members advance notice of such disclosure).
1.8 Confidentiality
(a) Each Member agrees: (i) to take all reasonable
precautions and to use commercially reasonable efforts to
maintain the confidentiality of all Confidential Information
(as defined below) that such Member (the "Recipient") obtains
in respect to any other Member or the Company (the "Disclosing
Party"); and (ii) not to use or disclose such Confidential
Information to any third parties other than with the written
approval of the Disclosing Party or as permitted by Section
1.8(b). For purposes of this Section 1.8, "Confidential
Information" means all proprietary or confidential information
owned or provided by a Disclosing Party other than information
that (A) was previously known to the Recipient or any of its
Affiliates (other than from a Disclosing Party or an Affiliate
thereof), or (B) is available or, without the fault of the
Recipient or any of its Affiliates (other than the Company),
becomes available to the general public, or (C) is lawfully
received by the Recipient from a third party that, to the
Recipient's knowledge, is not bound by any similar obligation
of confidentiality. The disclosure of Confidential
Information shall not constitute any grant of license or any
other rights nor generate any business arrangements unless
specifically set forth herein or in another agreement. The
obligations of Recipients under this Section 1.8 shall remain
in effect until the fifth anniversary after the termination of
this Agreement.
(b) A Recipient may disclose Confidential Information to
appropriate regulatory authorities, attorneys, accountants and
pursuant to any order of a court, administrative agency or
other governmental authority and may take any lawful action
that it deems necessary to protect its interests or the
interests of its Affiliates under, or to enforce compliance
with the terms and conditions of, this Agreement.
1.9 Failure to Observe Formalities
A failure to observe any formalities or requirements of
this Agreement, the Certificate or the Act shall not be
grounds for imposing personal liability on the Members for the
liabilities of the Company.
1.10 Liability of Members to Third Parties
Except as otherwise provided in the Act, no Member or
Managing Member shall be personally liable for any debt,
obligation or liability of the Company solely by reason of
being a Member or Managing Member of the Company.
1.11 Reliance by Third Parties
This Agreement is entered into between the Members for
the exclusive benefit of the Company, the Members, and their
successors and permitted assigns. This Agreement is not
intended for the benefit of any creditor of the Company or any
other person. Except to the extent provided by applicable
statute and as set forth in this Agreement, and then only to
that extent, no creditor or third party shall have any rights
under this Agreement or under any other agreement between the
Company and any Member with respect to any contribution to the
Company or otherwise.
1.12 Operative Date
If the Operative Date has not occurred on or before
June 30, 2000 (or such later date as reasonably requested by
Chase to complete the closing of the Credit Facility) then
either Member shall be entitled to unilaterally terminate this
Agreement by notice to the other and dissolve the Company in
accordance with Section 9.1(a) hereof. If, before the
Operative Date Shurgard and Chase are not able to proceed with
the transactions contemplated hereby because of the willful
default of either Shurgard or Chase, then the defaulting party
will be responsible to reimburse the non-defaulting party
there is a Change in Control of SSCI, then Shurgard and/or
SSCI agree to jointly and severally reimburse Chase for all
costs (including reasonable attorneys fees, accounting fees
and other third party fees) incurred in connection with the
performance of due diligence, the obtaining of appraisals, the
preparation of agreements, instruments and other documents in
connection with the transactions contemplated hereby, by the
other Transaction Documents, and by the Credit Facility, and
otherwise in connection with the consummation of such
transactions. Notwithstanding the foregoing, the non-
defaulting party shall have the right to seek all available
legal and equitable remedies from the defaulting party,
including specific performance.
Before the Operative Date, the activities of the Company
shall be limited to the negotiation of the Credit Facility and
performing administrative functions, such as applying for
business licenses and qualifications, establishing bank
accounts, and the performance of such other activities as the
Members may mutually agree. Unless the Members otherwise
mutually agree, neither Member shall have any obligation to
make capital contributions prior to the Operative Date. All
costs of the Company incurred before the Operative Date
relating to its formation will be allocated between the
Members based on their proportionate capital contribution, not
to exceed $5,000.00.
ARTICLE II
CAPITAL CONTRIBUTIONS; PROFITS AND LOSSES
2.1 Anticipated Capital Requirements
(a) The total capital needs of the Company to fund the
development, operation (including operating losses),
maintenance and sale of self-service storage facilities of the
Company and the administration of the Company's business and
affairs are estimated to total approximately $159.375 million.
Of the Company's total capital needs, 40% are to be funded
through capital contributions of the Members as provided in
Section 2.2. Any remaining amounts of the Company's capital
needs will be funded through the Credit Facility such that of
the Company's total estimated capital needs, the capital
contributions of the Members and the Credit Facility will be
40% and 60%, respectively. The Credit Facility will be
secured by a first priority security interest in the
Properties.
2.2 Capital Contributions
(a) Subject to Section 2.2(c), the Members will
contribute an aggregate of $63.75 million with $51.0 million
credited to Chase and $12.75 million credited to Shurgard.
Any and all capital contributions made by Chase and Shurgard
shall be made in cash, except the contribution of a portion of
each Property by Shurgard as provided in the Contribution
Agreement. All capital contributions shall be made from time
to time pursuant to an Annual Budget (with it being understood
that the initial budget shall be set forth in the pro forma
statement attached hereto as Exhibit A, which pro forma will
be updated as properties are contributed to the Company (the
"Pro Forma")) as funds are needed by the Company to fund
operations and acquisitions of Property and requested by the
Managing Member in accordance with the procedures described
below.
(b) Shurgard shall contribute the Properties listed on
Exhibit B attached hereto to the Company pursuant to the terms
of the Contribution Agreement in substantially the form
attached hereto as Exhibit D and to be dated as of the date
hereofOperative Date, among Shurgard, Chase, SSCI, Shurgard
Texas Limited Partnership, SSC Evergreen and the Company (the
"Contribution Agreement") and Article IV of this Agreement. In
addition, from time to time, upon the satisfaction of the
conditions set forth in Section 4.1.2 of the Contribution
Agreement, Shurgard shall contribute to the Company the
Properties listed on Exhibit C hereof. To effect such
contributions, Shurgard may direct that title to such
properties be transferred directly from SSCI to the Company;
provided, however, that for purposes of this Agreement,
Shurgard shall be treated as having made any such contribution
directly.
(c) No Member shall be required to contribute any
capital to the Company prior to the execution of documentation
evidencing the availability of no less than $95.625 million
pursuant to the Credit Facility. The maximum amount of
capital contributions that Chase and Shurgard (net of any
reimbursements received by Shurgard pursuant to Section 4.2)
shall make to the Company pursuant to this Agreement are $51.0
million and $12.75 million, respectively. If additional
capital is required, the Members shall mutually agree as to
the source of such capital, giving consideration to the
availability of third-party loans, loans from the Members, and
additional capital contributions.
(d) Chase and Shurgard shall make capital contributions
upon 10 Business Days' written notice from the Managing Member
of the need for such funds, whether to consummate the
acquisition of one or more Properties listed on Exhibit C
attached hereto or otherwise, which notice shall be consistent
with the applicable Annual Budget, and shall contain such
additional documentation, explanation and certification as
Chase may reasonably require.
(e) The Company shall use its best efforts to operate
the Properties in accordance with the Pro Forma or the
applicable Annual Budgets, as the case may be. The Members
hereby acknowledge and agree that the Pro Forma and the Annual
Budgets have been and will be prepared for planning purposes
and to permit the Members to monitor the costs and the success
of the Company's operations. Except as provided in Section
7.4, neither Shurgard nor any Affiliate thereof has, however,
guaranteed that the Properties will perform as favorably as
budgeted in the applicable Annual Budget.
(f) No interest shall accrue on any contribution to the
capital of the Company. No Member shall have the right to
withdraw, or to be repaid, any capital contributed by it,
except as specifically provided in this Agreement.
(g) Except as set forth in this Article II and Article
IV, no Member has any obligation to make any capital
contributions or to extend any loans to the Company.
2.3 Capital Accounts
(a) There shall be established for each Member on the
books of the Company a "Capital Account," which shall be
maintained and adjusted as provided in this Section 2.3. The
Capital Account of a Member shall be initially credited by the
amount of cash and the fair market value of any property
contributed by such Member to the Company (net of any
liabilities secured by such property that the Company is
considered to assume or take subject to Section 752 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any
reimbursements due such Member pursuant to the Contribution
Agreement). For purposes of the foregoing sentence, the
parties agree that the fair market value of each Property
contributed by Shurgard pursuant to Article IV shall be such
Property's Contribution Value plus the Cost Overrun, if any.
The Capital Account of a Member shall be further increased by
any additional capital contributions to the Company and the
amount of Net Profits (or items of gross income or gain)
allocated to such Member pursuant to Section 2.4. The Capital
Account of a Member shall be decreased by (i) the amount of
any Net Losses (or items of loss or deduction) allocated to
such Member pursuant to Section 2.4, (ii) the amount of any
cash distributed to such Member pursuant to Article III, and
(iii) the fair market value of any property distributed to
such Member by the Company (net of any liabilities secured by
such property that the Member is considered to assume or take
subject to under Section 752 of the Code). The Capital
Account of each Member shall be adjusted appropriately to
reflect any other adjustment required pursuant to Treasury
Regulations Section 1.704-1 or 1.704-2.
(b) Upon the occurrence of any event specified in
Treasury Regulations Section 1.704-1(b)(2)(iv)(f), the Company
may cause the Capital Accounts of the Members to be adjusted
to reflect the fair market value of the Company's assets at
such time in accordance with such Treasury Regulation.
(c) If any assets of the Company are distributed in kind
pursuant to this Agreement, the amount of Net Profits or Net
Losses that would have been realized had such assets been sold
at their fair market value, as determined by the Members,
shall be allocated to the Members pursuant to Section 2.4
immediately prior to such distribution.
(d) If any interest in the Company is transferred in
accordance with the terms of this Agreement, the transferee
shall succeed to the Capital Account of the transferor to the
extent it relates to the transferred interest.
2.4 Allocation of Net Income and Losses
(a) Subject to Section 2.4(c), the Net Income of the
Company from Capital Transactions for each taxable year shall,
after giving effect to all Capital Account adjustments
attributable to contributions and distributions (other than
liquidating distributions) made during such year, be allocated
among the Members as follows:
(i) first, to the Members, if any, with negative MG
Capital Account balances in an amount up to such Members'
aggregate negative MG Capital Account balances, in proportion
to their respective negative MG Capital Account balances;
(ii) second, to the Members in the amounts and
proportions necessary to cause their respective MG Capital
Account balances (as adjusted to reflect any allocations of
tax items for such year pursuant to Section 2.4(c)) to equal
their respective Target Amounts as of the end of such year;
and
(iii) third, to the Members in accordance with
their respective Percentage Interests.
(b) Subject to Section 2.4(c), the Net Losses of the
Company from Capital Transactions for each taxable year shall,
after giving effect to all Capital Account adjustments
attributable to contributions and distributions (other than
liquidating distributions) made during such year, be allocated
among the Members as follows:
(i) first, to the Members with MG Capital Account
balances (as adjusted to reflect any allocations of tax items
for such year pursuant to Section 2.4(c)) in excess of their
respective Target Amounts, to the extent of and in proportion
to excess amounts;
(ii) second, to the Members with positive Capital
Account balances (as adjusted to reflect any allocations of
tax items for such year pursuant to Section 2.4(c)) pro rata
to the extent of their respective Capital Account balances;
and
(iii) third, to the Members in accordance with
their respective Percentage Interests.
(c) The Net Income and Net Losses of the Company other
than from Capital Transactions shall be allocated to the
Members pro rata, based on their respective Percentage
Interests.
(d) Notwithstanding Sections 2.4(a), 2.4(b) and 2.4(c),
special allocations of Net Income, Net Loss or specific items
of income, gain, loss or deduction may be required for any
taxable year as follows:
(i) The Company shall allocate items of Company
income and gain among the Members at such times and in such
amounts as necessary to satisfy the minimum gain chargeback
requirements of Treasury Regulation Sections 1.704-2(f) and
1.704-2(i) (4).
(ii) Any deductions attributable to any "partner
nonrecourse debt" (as defined in Treasury Regulation Section
1.704-2(b) (4)) shall be allocated among the Members that bear
the economic risk of loss for such liability in accordance
with the ratios in which such Members share such economic risk
of loss and in a manner consistent with the requirements of
Treasury Regulation Sections 1.704-2(c), 1.704-2(i) (2) and
1.704-2 (j) (1) .
(iii) The Company shall specially allocate Net
Loss and items of income and gain when and to the extent
required to satisfy the "qualified income offset" requirement
within the meaning of Treasury Regulation Section 1.704-1(b)
(2) (ii) (d).
2.5 Allocations of Income and Loss for Federal Income
Tax Purposes; Curative Tax Allocations
(a) The Company's ordinary income and losses and capital
gains and losses as determined for federal income tax purposes
(and each item of income, gain, loss or deduction entering
into the computation thereof) shall be allocated to the
Members in the same proportions as the corresponding "book"
items are allocated pursuant to Section 2.4. Notwithstanding
the foregoing sentence, federal income tax items relating to
any "Section 704(c) Property" (as defined in Treasury
Regulations Section 1.704-3(a)(3)) shall be allocated among
the Members in accordance with Section 704(c) of the Code and
Treasury Regulations Section 1.704-1(b)(2)(iv)(g) to take into
account the difference between the fair market value and the
tax basis of such Section 704(c) Property as of the date of
contribution (with respect to contributed property having book
value differing from tax basis) or its revaluation pursuant to
Section 2.3(b) (in the case of revalued property). Items
described in this Section 2.5 shall neither be credited nor
charged to the Members' Capital Accounts.
(b) In the event the adjusted tax basis of a Property
contributed by Shurgard to the Company pursuant to Article IV
differs from its Contribution Value, solely for income tax
purposes, allocations of income, gain, loss and deduction
attributable to such Property shall be specially allocated
among the Members so as to take into account such difference
in a manner consistent with the principles of Section 704(c)
of the Code so that the aggregate allocations of taxable
income or loss allocated to each Member (other than Shurgard)
for any fiscal year of the Company is, to the greatest extent
possible, equal to the amount of taxable income or loss each
would have been allocated had the tax basis of such Property
been equal to its Contribution Value.
2.6 Tax Status and Returns
(a) It is the express intention of the Members that the
Company be classified as a partnership for federal income
taxation and not as an association taxable as a corporation.
No Member or Manager shall take any action inconsistent with
such treatment. It is the further intention of the Members
that this Agreement be interpreted and applied accordingly.
(b) The Company shall prepare or cause to be prepared by
the principal certified public accountant for the Company not
later than thirty (30) days prior to the date of the required
filing thereof (including extensions) all tax returns and
statements, if any, that must be filed on behalf of the
Company with any taxing authority, and shall submit such
returns and statements to all the Members for their approval
prior to filing, and when approved by the Members, or when
due, if necessary, without approval, make timely filing
thereof. Shurgard shall provide preliminary tax information
with respect to the Company's immediately preceding taxable
year (which will be based on unaudited financial information)
to Chase not later than forty-five (45) days prior to the
required filing date of the Company's tax returns (without
extensions).
(c) Shurgard shall act as the "tax matters partner" of
the Company within the meaning of Section 6231(a)(7) of the
Code and in any similar capacity under applicable state or
local tax law. Shurgard shall keep the other Members fully
informed and consult with them regarding matters for which it
is responsible while acting in such capacity. All expenses
incurred by Shurgard while acting in such capacity shall be
paid or reimbursed by the Company. Notwithstanding the
foregoing, Shurgard shall not have the authority to make
elections or settle any tax-related disputes with respect to
the Company without the prior written agreement of Chase.
ARTICLE III
CASH DISTRIBUTIONS
3.1 Distributions of Net Cash Flow From Operations
(a) Within 30 days after the end of each month, the
Company shall review the financial results of the fiscal
period to determine if there is any Net Cash Flow From
Operations available for distribution to the Members. Before
making any distributions to the Members, the Company shall
repay Company borrowings, pursuant to the terms of such
borrowings (including loans made by the Members), then due and
payable, and shall set aside such cash as may be necessary to
cover the other liabilities and expenses, working capital and
reserves that the Company deems reasonably required for the
proper operation of the business of the Company.
(b) Except as provided in Section 3.2 with respect to
distributions of Net Cash Flow From Capital Transactions and
as provided in Section 9.3 with respect to distributions upon
liquidation of the Company, the Company shall make quarterly
distributions of Net Cash Flow From Operations as follows:
(i) first, to Chase until the cumulative amount
distributed to Chase pursuant to this Section 3.1(b)(i) and
Section 3.2(a) equals the Equity Deficit of Chase; and
(ii) thereafter, between the Members in proportion
to their respective Percentage Interests.
3.2 Distributions of Net Cash Flow From Capital
Transactions
The Company shall distribute Net Cash Flow From Capital
Transactions within 3 business days' receipt thereof unless
otherwise agreed upon by both of the Members. Any retained
Net Cash Flow From Capital Transactions may, upon the
unanimous consent of the Members, be reinvested by the Company
in additional Property investments consistent with the Annual
Budget or as otherwise approved by both Members. Subject to
Section 7.3, all distributions of Net Cash Flow From Capital
Transactions, other than upon liquidation of the Company,
shall be made between the Members in the following order and
priority:
(a) First, to Chase until the cumulative amount
distributed to Chase pursuant to this Section 3.2(a) and
Section 3.1(b)(i) equals the Equity Deficit of Chase
immediately prior to the applicable Capital Transaction;
(b) Second, for so long as the Investment Return of
Chase, taking into account all current and prior distributions
pursuant to Section 3.1 and this Section 3.2, is less than
12%, between the Members in proportion to their Percentage
Interest;
(c) Third, for so long as the Investment Return of
Chase, taking into account all current and prior distributions
pursuant to Sections 3.1 and 3.2, is less than 18% but greater
than or equal to 12%, (i) 66.4% to Chase and (ii) 33.6% to
Shurgard; and
(d) Fourth, for so long as the Investment Return of
Chase, taking into account all current and prior distributions
pursuant to Sections 3.1 and 3.2, is greater than or equal to
18%, (i) 62.4% to Chase and (ii) 37.6% to Shurgard.
3.3 Excess Tax Payment
If Chase is allocated Net Income or items of gross income
or gain in excess of the amount of Net Income or items of
gross income or gain that would be allocated to Chase if all
allocations were made pro rata based on Percentage Interests,
or Chase is advised by its tax advisors that it is required to
recognize income or gain as a result of a capital shift upon
execution of this Agreement (either such amount, the "Excess
Tax Amount"), then the Company shall promptly (and in no event
later than 15 days after such allocation or advice) make a
distribution to Chase equal to the product of .5 multiplied by
the Excess Tax Amount (such amount being the "Excess Tax
Distribution"). Notwithstanding anything contained herein to
the contrary, the Excess Tax Distribution shall not be
included in determining Chase's Investment Return or Equity
Deficit. Any amounts distributed pursuant to this Section 3.3
will be applied against the amount otherwise distributed to
Chase pursuant to Section 3.1(b)(ii) and Section 3.2(b).
ARTICLE IV
CONTRIBUTION OF PROPERTIES
4.1 Identification of Properties to Be Contributed
(a) Exhibit B and Exhibit C hereto set forth a list of
certain self-service storage facilities owned or leased and
recently constructed or currently under construction or
proposed by SSCI or one of its affiliates (each, a "Property"
and, together, the "Properties"). Also setSet forth on
Exhibit B and Exhibit CF areis the radius of the relevant
trade area for each Property (a "Trade Area"). On the
Operative Date, Shurgard will cause each Property listed on
Exhibit B to be contributed to the Company in accordance with
the terms of the Contribution Agreement. On or following the
Operative Date, Shurgard will cause each Property listed on
Exhibit C to be contributed to the Company following the
completion of construction of such Property by SSCI pursuant
to and in accordance with the Contribution Agreement.
(b) Notwithstanding the foregoing, with the express
consent of Chase and the Lender, Shurgard shall be permitted,
in order to facilitate the construction of the Property and
minimize transfer costs associated with the contribution of
the Property to the Company, to contribute title to a Property
on or about the Operative Date, or thereafter, to the Company
(or if required by Chase or the Lender under the Credit
Facility, to a limited liability company owned in the same
proportion and by the same members as the Company), prior to
the completion of construction of the Property, provided,
however, that Shurgard agrees to indemnify Chase for any cost
or liability that may arise from the contribution of a
Property to the Company or such limited liabityliability
company before construction is complete; provided further,
however, that Shurgard shall pay any additional accounting and
legal fees that may be associated with such early
contribution, to the extent such early contribution only
benefits Shurgard. After completion of construction of such
Property, any such limited liability company shall be merged
with and into the Company.
4.2 Closing of Property Contributions
In connection with the closing of Shurgard's contribution
of each Property to the Company pursuant to the terms of the
Contribution Agreement, the Company shall reimburse Shurgard
as provided in the Contribution Agreement, with reimbursement
funded through the Credit Facility and capital contributions
by Chase and Shurgard in proportion to the funding percentages
described in Sections 2.1(a) and 2.2 hereof. For example, if
Shurgard contributes a Property having a Contribution Value of
$1,000,000, the Company shall reimburse Shurgard for $920,000
funded with $600,000 through the Credit Facility (60% of the
Contribution Value) and $320,000 from Chase capital
contributions (80% of the Contribution Value remaining after
reimbursement from the Credit Facility). Shurgard's capital
account would accordingly be credited for $80,000 (reflecting
20% of such remaining Contribution Value).
ARTICLE V
MANAGEMENT AND OPERATION
5.1 Management
(a) The business and affairs of the Company shall be
managed by the managing member (the "Managing Member").
(b) The initial Managing Member shall be Shurgard.
(c) Chase may remove Shurgard as the Managing Member and
become the Managing Member of the Company, by giving notice to
Shurgard upon (a) Shurgard becoming a Defaulting Member
pursuant to Section 9.6 of this Agreement, (b) a Change of
Control , (c) any act of gross negligence, fraud or willful
misconduct of Shurgard (d) Shurgard becoming the subject of a
Bankruptcy or (e) the default by the Company of any material
obligation of the Company under any contract or loan agreement
beyond any applicable notice or cure periods, which default is
under Shurgard's control; provided, however, this clause will
not apply to any default that is being contested in good faith
and for which adequate reserves have been established on the
books of the Company. Notwithstanding anything in this
Agreement to the contrary, in the event of the replacement of
Shurgard as the Managing Member hereunder by Chase, Shurgard
shall no longer posses any of the rights or duties of the
Managing Member and such rights and duties shall be then
deemed transferred to Chase.
(d) Subject to limitations and restrictions set forth in
Section 5.4, the Managing Member shall have the sole and
exclusive right to independently manage the day-to-day
business of the Company. The signature of the Managing Member
designated pursuant to this Agreement shall be sufficient to
bind the Company to any agreement or on any document or
instrument. Any person dealing with the Company may rely upon
a certificate signed by the Managing Member as to (a) the
identity of any Member, (b) any fact relevant to the Company,
and (c) the due authority of persons purporting to act on
behalf of the Company.
5.2 Annual Budget[Need to discuss further]
(a) The Managing Member shall prepare or cause to be
prepared and submit to Chase annually, for Chase's approval,
an operating budget and/or a capital improvement budget and
leasing and operating plan with respect to each Property
individually, and all of the Properties in the aggregate for
the next-succeeding fiscal year (the "Annual Budget"). The
Annual Budget shall be submitted to Chase at least 30 days
prior to the beginning of such fiscal year. The operating
budget shall set forth the projected income and receipts from
each Property for such next succeeding fiscal year and the
operating costs to be incurred during such fiscal year,
including all costs associated with leasing activities, such
operating costs to be set forth in reasonable detail with each
category of income and expense listed on a separate line. The
capital improvement budget shall set forth in reasonable
detail a description of all capital improvements, repairs,
replacements and alterations in respect of which the Managing
Member proposes to incur capital costs during the next-
succeeding fiscal year and the estimated cost of each thereof,
with each such improvement, repair, replacement or alteration
to be listed on a separate line. The leasing and operating
plan shall set forth in reasonable detail a description of all
expected leasing activities, and a plan of operation of each
Property for the following fiscal year. Within a reasonable
time after receipt of the proposed Annual Budget, Chase shall
approve or disapprove all or any part of the Annual Budget.
The Managing Member may propose changes to the Annual Budget
in response to the items disapproved by Chase.
(b) If the Managing Member is unable to provide Chase
with an acceptable Annual Budget for any fiscal year then (i)
the last Annual Budget that was approved by Chase shall
continue to be effective until a new Annual Budget is approved
by ChaseChase approves a new Annual Budget.
5.3 Engagement of Property Manager
On or prior to the Operative Date, the Company shall
engage SSCI to act as property manager (the "Property
Manager") of the Properties acquired by the Company, on the
terms set forth in a Management Services Agreement (the
"Management Agreement"), substantially in the form attached
hereto as Exhibit DE. Pursuant to the Management Agreement
and as more fully described therein, Shurgard will cause SSCI
to prepare for presentation to the Members as provided in
Section 5.2 an Annual Budget.
5.4 Management Decisions
(a) Subject to, and without limiting, the delegation of
authority to SSCI under the Management Agreement, all
decisions pertaining to the business, affairs and operations
of the Company must be approved by each Member.
(b) Except as otherwise expressly contemplated by this
Agreement, no action may be taken by either Member, nor may
the Property Manager be given the authority to take any action
in the name and/or on behalf of the Company, with respect to
any matter that is a Major Decision unless the Major Decision
is approved by both Members; provided, however, that items (i)
and (iii) of this Section 5.4(b) shall only require the
unilateral approval of Chase. The following are "Major
Decisions":
(i) Approving the Annual Budget;
(ii) Entering into any amendment to the Management
Agreement or permitting the manager under the Management
Agreement to do any act that represents a material departure
from the Management Agreement;
(iii) Making any amendment to any Annual Budget
previously approved by the Members;
(iv) Except for insured claims (including those
settled within the deductible or self-insured retention),
compromising, settling or adjusting claims, liabilities or
causes of action of or against the Company or a Property;
(v) Purchasing any real property other than as
specifically contemplated and identified by the capital
budget;
(vi) Selling, exchanging or mortgaging a Property or
any interest in a Property, or any other assets of a Property,
except as specifically set forth in an Annual Budget;
(vii) Incurring any indebtedness of the Company,
including entering into senior financing agreements (other
than the Credit Facility), or causing the Company to become
liable as an endorser, guarantor, surety or otherwise for any
debt obligation or undertaking of any other Person, except for
Company endorsements for deposit or collection of checks,
drafts and similar instruments received by the Company in the
ordinary course of business;
(viii) Causing or permitting the Company to grant
any lien, mortgage, pledge or hypothecate Company assets to
secure any indebtedness for borrowed money of the Company or
prepaying any indebtedness of the Company;
(ix) The making of any loan;
(x) Merging or consolidating with, or acquisition
of any equity interest in, any corporation, limited liability
company, partnership, association or other business
organization;
(xi) Entering into material agreements with an
annual value in excess of $50,000 that is not in the ordinary
course of business;
(xii) Admitting any additional Members to the
Company (other than pursuant to a permitted transfer);
(xiii) The issuance of any equity securities or
causing the Company to invest in or become a member,
participant, venturer or shareholder, in any other company,
venture, corporation, business, enterprise or the like;
(xiv) Taking any action that would have a
material adverse impact upon the viability of allocations of
Net Profits and Net Losses under Section 704(b) of the Code;
(xv) Taking any action that would be an Event of
Bankruptcy;
(xvi) Filing or revoking any election or
otherwise causing the Company to be characterized other than
as a Company for federal, state, local or other tax purposes;
(xvii) With respect to each Property owned by the
Company, causing the Company to perform any services or enter
into any lease or other contract that would cause any or all
of the gross income received by the Company attributable to
such Property to be treated as other than "rents from real
property" as defined in Section 856(d) of the Code;
(xviii) Performing any act that would adversely
affect the qualification of SSCI as a real estate investment
trust pursuant to Sections 856-860 of the Code;
(xix) Approving the Company's attorneys and
certified public accountants.
(xx) Any changes or modifications to this Agreement;
(xxi) Liquidation of the Company;
(xxii) The making of any distributions other than
as provided by Sections 3.1 and 3.2;
(xxiii) The setting aside of reserves for the
Company whether from Capital Transactions or otherwise; or
(xxiv) Any commitment, agreement or understanding
to do any of the foregoing.
(c) For so long as SSCI or any Affiliate of SSCI is
Property Manager, any Company decisions, including, without
limitation, Major Decisions, with respect solely to the
Management Agreement shall be made unilaterally by Chase.
(d) Action on all Major Decisions submitted to the
Members for approval in accordance with Section 5.4(a) shall
be taken by the Members as soon as reasonably practicable, and
in any event within 15 days of the date such Major Decision
was submitted for approval, except with respect to the Major
Decisions described in Sections 5.4(b) (ii), (iv) and (xxiv),
as to which action shall be taken within 5 business days of
the date such Major Decision was submitted for approval if a
Member does not approve such Major Decision within the time
period set forth above, such Major Decision shall not be
approved.
(e) With respect to all Company decisions other than
Major Decisions, any such matter will be deemed disapproved
within 5 Business Days after it is submitted to a Member for
approval, unless prior to the expiration of such period, such
Member in writing indicates its approval or requests further
information reasonably necessary to make such decision.
(f) The written approval by a Member of a proposed
Annual Budget shall constitute for all purposes that Member's
written consent to each specific item expressly set forth in
such Annual Budget.
5.5 Company Expenses
(a) The Company shall pay and be responsible for all
reasonable costs and expenses incurred by or on behalf of the
Company. To the extent practicable, all Company expenses
shall be billed directly to and paid by the Company. If,
however, acting within the scope of such Member's authority as
granted by this Agreement, a Member should incur any of those
expenses, the Company shall promptly reimburse such Member for
such expenses upon receipt of satisfactory evidence of such
payment.
(b) By way of illustration, and not in limitation upon
the scope of Section 5.8(a), the Company shall pay the
following costs and expenses:
(i) All state and local filing or similar expenses
incurred by the Members in connection with the formation of
the Company;
(ii) All costs and expenses incurred by or on behalf
of SSCI in accordance with the Management Agreement that are
allocable to and are to be borne by the Company pursuant to
the terms of the Management Agreement; and
(iii) The actual out-of-pocket expenses incurred
by a Member for goods, materials and services used for or by
the Company (provided any such services performed by a Member
must be approved in advance to be eligible for reimbursement).
(c) Except as expressly provided for herein or in the
Management Agreement or as hereafter approved by the Members,
no payment will be made to any Member for the services of such
Member or of any member, director, officer or employee of such
Member rendered in connection with the business or affairs of
the Company.
5.6 Liability of Members; Indemnification
The Company shall (to an extent not in excess of the net
assets of the Company, without additional contribution or loan
by any Member) indemnify and hold harmless each Member and
each partner, member or shareholder of any Member and each of
their respective officers and directors and the successors,
heirs, executors and administrators of each of them and each
member of the Board (herein "Indemnified Parties"), from and
against any loss, expense, damage or injury suffered or
sustained by such Indemnified Party by reason of any act,
omission or alleged act or omission arising in connection with
the business of the Company, including, but not limited to,
any judgment, fine, penalty, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in
connection with the defense or prosecution of any actual or
threatened action, suit, proceeding, appeal, investigation or
claim, be it civil, criminal, administrative, legislative or
other, or any appeal relating thereto that is brought or
threatened by any person, entity, governmental authority or
instrumentality, provided that the act, omission or alleged
act or omission upon which such actual or threatened action,
suit, proceeding, investigation or claim is based (a) is
within the scope of authority granted to such person pursuant
to the terms of this Agreement, (b) was performed or omitted
in good faith in what the Indemnified Party reasonably
believed to be in the best interests of the Company and (c)
was not performed fraudulently or as a result of gross
negligence or willful malfeasance by such Indemnified Party.
The Company shall advance to any Indemnified Party its
expenses incurred in connection with such defense or
prosecution so long as net assets of the Company are available
therefor, neither the Company nor any Member has any reason to
believe the Indemnified Party is not in fact entitled to
indemnification pursuant to this Section 5.6 and the
Indemnified Party agrees in writing to return the funds so
advanced if it is subsequently determined that such
Indemnified Party was not entitled to indemnification
hereunder. To the extent that an Indemnified Party has been
successful on the merits in defense of any such proceeding or
in defense of any claim or matter therein, it shall be deemed
that the applicable criteria established in clauses (a) and
(b) have been satisfied. The indemnification provided
hereunder shall not be deemed exclusive of any other rights to
which the Indemnified Parties may be entitled under any
applicable statute, agreement, vote of the Members or
otherwise.
ARTICLE VI
OTHER AGREEMENTS OF THE MEMBERS
6.1 No Restrictions on Competitive Business Activities
(a) Except as expressly provided in Sections 6.1(b) and
6.2, each Member and its Affiliates shall be free to engage in
any and all business activities whatsoever, including
activities that compete with the Company's business.
(b) Notwithstanding the foregoing paragraph (a), SSCI
and Shurgard hereby agree that, during the term of this
Agreement, they shall not, nor shall they approve any action
by an Affiliate of SSCI and/or Shurgard to, own an economic
interest in, operate, or otherwise participate in the
management of any self-service storage facilities within a
three mile radius of the Trade Area of any Property, which
radius shall be reduced with respect to those properties
identified on Exhibit EF.
6.2 Exclusivity
Shurgard and SSCI agree that, except as otherwise
provided in Section 4.1 and this Section 6.2, the Company will
be the sole entity through which either SSCI or Shurgard may
develop self-service storage facilities or properties during
the term of this Agreement or until such time as the Members'
capital commitments have been fully funded. This exclusivity
agreement, however, shall not apply to (i) any existing
development joint ventures listed on Exhibit F G attached
hereto or (ii) self-service storage facility development joint
ventures that Shurgard or SSCI may enter into with regional
development partners similar to those development joint
ventures currently in existence in Orlando, Florida,
Nashville, Tennessee and Orange County, California that fit
the investment criteria set forth on Exhibit GH attached
hereto; provided, that Shurgard and/or SSCI shall, within 10
days of executing definitive documentation for any joint
venture during the term of this Agreement, provide written
notice, including a reasonable description of such joint
venture, to Chase. This exclusivity provision shall not apply
to any development properties for which Shurgard and/or SSCI
have provided Chase with investment criteria and all
reasonably requested due diligence materials, if available,
and in which Chase, after having the exclusive opportunity to
invest on materially similar terms and for no less than 15
Business Days, elects not to invest. If Chase declines to
invest in three development transactions that are consistent
with the investment criteria set forth in this Agreement, the
exclusivity provisions of this Section 6.2 shall terminate.
6.3 Shurgard Notice
In the event that Shurgard, SSCI, or any Affiliate of
Shurgard and/or SSCI acquires an economic interest in,
manages, or enters into bona fide negotiations to acquire an
economic interest in or manage any property within a three
mile radius (which radius shall be reduced with respect to
those Properties identified on Exhibit E) of any Property,
SSCI and/or Shurgard shall, within 5 days, give Chase written
notice of such relationship or negotiations. Any such notice
shall describe, in reasonable details, the nature of SSCI or
Shurgard's economic interests in and obligations to,
including, without limitation, management of, such property.
6.4 Credit Facility
The Company shall seek permanent senior financing from a
third party institutional lender for no less than $95.625
million on commercially reasonable terms that are acceptable
to Chase, in its reasonable discretion (the "Credit
Facility"). Upon obtaining a firm financing commitment for a
Credit Facility with terms substantially similar to those set
forth on Exhibit H I attached hereto, Shurgard hereby agrees
to negotiate the final terms of such Credit Facility;
provided, however, that Shurgard will not be required to
consent to such Credit Facility if the Credit Facility places
restrictions on Shurgard or SSCI not contemplated in Exhibit I
such as payment guarantees, subordination of SSCI management
fees or the requirement to pledge additional money. If
Shurgard fails to tender consent within 10 days of receipt of
the firm financing commitment as a result of a Change of
Control for reasons other than the willful default of Chase,
Chase shall have the option to terminate this Agreement and
promptly dissolve the Company. Upon any termination of this
Agreement pursuant to this Section 6.4, Shurgard and/or SSCI
agree to jointly and severally reimburse Chase for all costs
(including reasonable attorneys fees, accounting fees and
other third party fees) incurred in connection with the
performance of due diligence, the preparation of agreements,
instruments and other documents in connection with the
transactions contemplated hereby, of the other Transaction
Documents, and of the Credit Facility, and otherwise in
connection with the consummation of such transactions.
Notwithstanding the foregoing, if Shurgard fails to tender
such consent under this Section 6.4, Chase shall have the
right to seek all available legal and equitable remedies from
Shurgard, including specific performance.
ARTICLE VII
SALE AGREEMENT AND LIMITED GUARANTY
7.1 Exercise of Sale Right
Chase shall have the right, but not the obligation, to
cause the Company to sell to Shurgard and to require Shurgard
to purchase from the Company, such Property at the Sale Price
of such Property (the "Sale Right"), as follows:
(a) For the Initial Properties, from and after the thirty-
first month following the issuance of a certificate of
occupancy;
(b) For the Properties which are contributed prior to
completion in accordance with Section 1.2 of the Contribution
Agreement, from and after the thirty-first full month from the
earlier of (i) the date the Property is open for business and
operating (which shall mean for those Properties which open on
the first (1st) day of the month, the month in which such
Properties are open, and for those Properties which open on
any day other than the first of the month, the first day of
the following month), or (ii) receipt of a final certificate
of occupancy; or
(c) For any Properties other than those specified in (a) or
(b) above, from and after the thirty-first full month
following the acquisition of such Property by the Company.
In order to exercise a Sale Right, Chase shall provide
Shurgard with written notice (a "Sale Notice") stating that
Chase is exercising its Sale Right and specifying the
particular parcel of Property that is the subject of the Sale
Notice (the "Sale Property"). The Company shall execute a
purchase and sale agreement (the "Purchase Agreement") in the
form of the agreement attached hereto as Exhibit JI for each
such Sale Property and deliver it to Shurgard together with
the Sale Notice.
7.2 Sale Exercise Period
Upon receipt of a Sale Notice from Chase, SSCI shall
execute the Purchase Agreement and deliver it to Chase and
shall thereafter have twelve months from the date of the Sale
Notice to consummate the purchase of the Sale Property.
7.3 Shurgard Failure to Purchase
Notwithstanding anything in Section 9.6 to the contrary,
if SSCI or Shurgard fails to purchase the Sale Property within
twelve months of receipt of a Sale Notice:
(a) Chase shall have the right, without the need to
obtain the consent of Shurgard, to: (i) sell the Sale Property
to a third party without any further obligation to Shurgard
with respect to such Property; or (ii) sell the Property and
liquidate the Company with all distributions arising therefrom
being based upon the Adjusted Percentage Interest of each
Member; or (iii) sell its Adjusted Percentage Interest, cause
Shurgard to sell its Adjusted Percentage Interest and
distribute the proceeds of such sale pursuant solely to
Sections 3.2(a) and (b) and without regard to Sections 3.2(c)
and (d) (a sale pursuant to clause (ii) or (iii) shall
hereinafter be referred to as a "Default Sale"); provided,
however, that Chase shall not sell any Property nor cause
Shurgard to sell its Adjusted Percentage Interest in the
Company, pursuant to clauses (ii) or (iii) above, unless and
until Shurgard fails to purchase a Sale Property with respect
to Property in which Chase's allocable portion of capital
invested in such Property equals or exceeds $10 million.
(b) If Shurgard fails to purchase the Sale Property
and Chase exercises its right to sell the subject Sale
Property, at the time the Sale Property is sold, Shurgard
shall be subject to a reduction in its Percentage Interest
equal to the quotient of (i) twice the amount that Chase would
have received had Shurgard consummated the purchase of the
Sale Property and the Company distributed the proceeds of such
sale to the Members according to their Percentage Interest,
less (x) the actual amount (if any) that the Company
distributed to Chase from the sale of the Sale Property and
(y) the amount of any Shurgard forfeited distributions
(described below) , over (ii) Shurgard's Invested Capital.
For purposes of this Section 7.3, the Percentage Interest of
each Member after adjustment provided for in this subparagraph
shall be referred to as the "Adjusted Percentage Interest".
If Shurgard fails to purchase the Sale Property, the Company
shall not make any distributions to Shurgard with respect to,
(x) the Sale Property that Shurgard failed to purchase until
such Property is sold, and (y) all Property until such time as
the Company has distributed the equivalent of the Sale Price
for that Sale Property that Shurgard failed to purchase to
Chase. Once Chase has received the equivalent of the Sale
Price with respect to the Sale Property that Shurgard failed
to purchase, the Company shall make all further distributions
to the Members solely in accordance with Section 3.2(a) and
(b) and without regard to Section 3.2(c) and (d).
(c) If Chase elects to cause a Default Sale,
Shurgard shall consent to and raise no objections against such
Default Sale, and if the Default Sale is structured as (i) a
merger or consolidation of the Company, or a sale of all or
substantially all of the Company's assets, Shurgard shall, and
hereby agrees to, waive any dissenters' rights, appraisal
rights or similar rights in connection with such merger,
consolidation or asset sale, or (ii) a sale of each Member's
Adjusted Percentage Interest, Shurgard shall, and hereby
agrees to, sell its Adjusted Percentage Interest on the terms
and conditions approved by Chase and in each such instance
shall, and hereby agrees to, waive any claims Shurgard may
have against the Members, including Chase in connection with
such Default Sale. All Members shall take all necessary and
desirable actions approved by Chase, in connection with the
consummation of the Default Sale, including the execution of
such agreements and such instruments and other actions
reasonably necessary to (1) provide the representations,
warranties, indemnities, covenants, conditions, escrow
agreements and other provisions and agreements relating to
such Default Sale and (2) effectuate the allocation and
distribution of the aggregate consideration upon the Default
Sale as if it were a liquidating distribution.
(d) Upon the occurrence of Shurgard's failure to
purchase a Sale Property and until the earlier of the
consummation of a Default Sale or the date that Chase receives
the equivalent of the Sale Price with respect to the Sale
Property that Shurgard failed to purchase, neither Shurgard
nor its designated Manager shall be entitled to vote on any
matters for which Member approval is required under the terms
of this Agreement, including, without limitation, all Major
Decisions.
7.4 Limited Guaranty
For purposes of calculating the Sale Price under Section
7.1, Shurgard guaranties that the Sale Price for the Helotes
Property and the East Washington Property (each as identified
on Exhibit B attached hereto) shall be $3,421,000 and
$3,601,000, respectively. Such amounts will be paid directly
to ChaseIf such Sale Price is not realized by the Company upon
a sale of such Properties, Shurgard will pay to Chase such
amounts as Chase would have received if such Sale Price were
realized and such payment made to Chase and shall not be
treated as a contribution of capital pursuant to this
Agreement. To the extent that actual net operating income
exceeds the original pro forma net operating income used to
establish the price for these properties then the excess net
operating income as reflected in the Pro Forma will be
distributed to Shurgard. In connection with this Article VII
and Section 9.4, the Members will sign, on the Operative Date,
the Guarantee Agreement in substantially the form attached
hereto as Exhibit K.
ARTICLE VIII
SALE, ASSIGNMENT OR TRANSFER OF COMPANY INTEREST
8.1 Prohibited Transfers
Except as specifically permitted in this Article VIII, no
Member may transfer, pledge, encumber, or xxxxx x xxxx or
security interest in, or make a gift of (any such transaction
being generically referred to as a "Transfer") all or any part
of its interest in the Company or in its rights to profits,
losses or cash distributions of the Company, either as an
owner or a creditor. Any such Transfer prohibited by this
Article VIII shall be ineffective, null and void.
8.2 Permitted Transfers
(a) A Member may Transfer an interest in itself without
obtaining any prior consent from the other Member, so long as
the following conditions are satisfied: (a) all voting and
other management rights (including, without limitation, all
rights to receive information, to give and receive notices,
etc.) are not in any way affected by the Transfer of the
interest, (b) the Company does not bear any of the costs and
expenses of any such Transfer, (c) any such Transfer complies
with all state and federal laws applicable thereto, (d) the
Transferring Member shall first indemnify the other Member and
the Company against any and all loss, damage, liability,
claim, demand and expense (including increased or accelerated
income or property tax expense) arising from or in any way
connected with the Member's Transfer pursuant to a written
indemnity in form and substance reasonably satisfactory to the
nontransferring Member, (e) the Transfer does not in any way
limit the Transferring Member's obligation to make capital
contributions or to satisfy any of its other obligations under
this Agreement, and (f) the Transfer does not result in a
default under or breach of any material agreement to which the
Company is a party.
(b) Notwithstanding anything to the contrary contained
herein, Chase may (i) Transfer all or any portion of its
interests in the Company to an institutional investor
reasonably acceptable to Shurgard and/or (ii) pledge,
hypothecate or otherwise leverage its interest in the Company
to secure financing; provided that such pledge, hypothecation
or leveraging does not have an unreasonable adverse effect on
Shurgard or the Company.
8.3 Other Transfers
Transfers, other than those expressly permitted by
Sections 8.1 and 8.2, shall be permitted only with the prior
written consent of the nontransferring Member, which consent
may be withheld in the sole discretion of such Member.
ARTICLE IX
TERM, DISSOLUTION AND TERMINATION,
VOLUNTARY WITHDRAWAL AND DEFAULT
9.1 Term and Dissolution
(a) If the Transaction Documents and documents relating
to the Credit Facility have not closed pursuant to their terms
on or prior to the Operative Date, then either Member may
unilaterally terminate this Agreement by notice to the other
Member, and dissolve the Company promptly thereafter. For
purposes of this paragraph (a), the execution of a firm,
written financing commitment which has been approved by the
Members shall constitute the execution of documents relating
to the Credit Facility. Upon any termination of this
Agreement before the Operative Date as a result of a Change of
Control of SSCI or its inability or unwillingness to perform
under the Transaction Documents, Shurgard and/or SSCI agree to
jointly and severally reimburse Chase for all costs (including
reasonable attorneys fees, accounting fees and other third
party fees) incurred in connection with the performance of due
diligence, the preparation of agreements, instruments and
other documents in connection with the transactions
contemplated hereby, by the other Transaction Documents, and
by the Credit Facility, and otherwise in connection with the
consummation of such transactions.
(b) Following the Operative Date, the Company will
continue until the happening of any of the following events
(individually referred to as an "Event of Dissolution") at
which time, subject to the rights contained herein of the
Members to continue the Company, the Company will be dissolved
upon:
(i) Both of the Members mutually agreeing in
writing that the Company will be dissolved;
(ii) The sale or other disposition of all or
substantially all the assets of the Company and the collection
of all proceeds therefrom;
(iii) The occurrence of an Event of Bankruptcy
(as defined below) with respect to any Member or the attempt
by any Member to cause the Property to be partitioned in
violation of Section 9.3, unless within 90 days after such
event the other Member elects not to treat such event as an
Event of Dissolution;
(iv) The tenth anniversary date of this Agreement;
or
(v) A Member causing a dissolution of the Company
in contravention of Section 9.4.
(c) A Member to whom an Event of Bankruptcy has occurred
is referred to herein as a "Bankrupt Member." A Bankrupt
Member shall have no right to participate in the management
and control of the Company (including, without limitation, the
approval or disapproval of a Major Decision) and shall have no
authority to legally bind the Company. The term "Event of
Bankruptcy" as used herein means any one or more of the
following:
(i) If a Member files a voluntary petition in
bankruptcy, or files any petition or answer seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under
the present or any future Federal Bankruptcy Code or any other
present or future applicable federal, state or other statute
or law relating to bankruptcy, insolvency or other relief for
debtors, or seeks or consents to or acquiesces in the
appointment of any trustee, receiver, custodian, conservator
or liquidator of the Member or of all or any substantial part
of such Member's properties or such Member's interest in the
Company (the term "acquiesces" as used in this Article IX
includes, but is not limited to, the failure to file a
petition or motion to vacate or discharge any order, judgment
or decree within 15 Business Days after the date of such
order, judgment or decree); or
(ii) If a court of competent jurisdiction enters an
order, judgment or decree approving a petition filed against a
Member seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
the present or any future Federal Bankruptcy Code or any other
present or future applicable federal, state or other statute
or law relating to bankruptcy, insolvency or other relief for
debtors, and such Member acquiesces in the entry of such
order, judgment or decree, or such order, judgment or decree
remains unvacated and unstayed for an aggregate of 60 days
(whether or not consecutive) from the date of entry thereof,
or any trustee, receiver, custodian, conservator or liquidator
of such Member or of all or any substantial part of such
Member's properties or interest in the Company is appointed
without the consent or acquiescence of such party and such
appointment remains unvacated and unstayed for an aggregate of
60 days (whether or not consecutive); or
(iii) If a Member is unable to pay its debts as
they become due or mature; or
(iv) If a Member makes an assignment (other than
assignments solely for security purposes) of all or
substantially all its assets for the benefit of creditors or
takes any other similar action for the protection or benefit
of creditors.
(d) Dissolution of the Company shall be effective on the
day on which the event giving rise to the dissolution occurs,
but the Company shall not terminate until the assets of the
Company have been distributed as provided in Section 9.2.
Notwithstanding the dissolution of the Company, prior to the
termination of the Company the business of the Company and the
affairs of the Members will continue to be governed by this
Agreement.
9.2 Termination and Distributions
(a) Upon the occurrence of an Event of Dissolution,
Shurgard shall act as the liquidating Member on the terms set
forth in this Section 9.2, unless Shurgard has caused the
Event of Dissolution under Section 9.1(b)(iii), (iv) or (v),
in which case Chase shall act as the liquidating Member. Any
Member who caused the Event of Dissolution shall have no
authority or power to bind the Company or the other Members,
but such Member shall be obligated to assist the liquidating
Member (the "Liquidator") in the dissolution and winding-up of
the Company and the assets thereof.
(b) The Liquidator shall undertake to wind up and
liquidate the assets of the Company as promptly as business
circumstances and orderly business practices will permit.
During the period of such winding-up, the Company's business
and affairs shall be conducted in a manner to maintain and to
preserve the value of its assets, consistent with the winding-
up of the affairs thereof, and no further business shall be
undertaken except for the completion of any incomplete
transactions that may be necessary to wind up the affairs of
the Company in an orderly manner and except that the
Properties may be operated in the ordinary course of business
if the Member not causing the Event of Dissolution so elects.
9.3 Distribution Upon Liquidation
(a) The Liquidator shall apply and distribute the
proceeds of the liquidation of the assets of the Company (to
the extent available) in the following order of priority:
(i) To the payment of the debts and liabilities of
the Company (other than those to Members) in the order of
priority provided by law; provided, however, that the
Liquidator shall first pay, to the extent permitted by law,
liabilities with respect to which any Member is or may be
personally liable;
(ii) To the payment of the expenses of liquidation
of the Company in the order of priority provided by law;
provided, however, the Liquidator shall first pay, to the
extent permitted by law, expenses with respect to which any
Member is or may be personally liable;
(iii) To the setting up of such reserves as the
Liquidator may deem reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Company arising
out of or in connection with its business; provided, however,
that any such reserves will be held by the Liquidator for the
purposes of (A) disbursing such reserves in payment of any of
such contingencies and (B) at the expiration of such period as
the Liquidator deems advisable, distributing the balance
thereafter remaining in the manner and in the priority
provided below;
(iv) To the payment of any loans from the Members to
the Company;
(v) To and among the Members as provided in Article
III:
(b) Except as set forth in Section 9.4, if distributions
pursuant to Section 9.3(a)(v) are insufficient to return to
any Member the full amount of such Member's Capital Account,
such Member shall have no recourse against any other Member.
Except as set forth in this Agreement, no Member shall have
any obligation to restore a deficit in such Member's Capital
Account either on liquidation of the Company or liquidation of
such Member's interest in the Company.
9.4 Clawback Obligations of Shurgard Return of Capital
(a) To the extent the cumulative amount distributed to
Chase from the Company pursuant to Sections 3.1, 3.2 and
9.3(a)(i) through (v) is less than the greater of (A) the
amount necessary for Chase to have realized an Investment
Return equal to at least 12% or (B) the amount that Chase
would have received had each Property been sold for a value
equal to its Net Operating Income divided by 9.25% (such
deficiency being referred to as the "Deficiency Amount"), then
Shurgard shall pay to the Company (and such amount will be
distributed to Chase) an amount equal to the lesser of the
Deficiency Amount or the aggregate amount of cash distributed
to Shurgard pursuant to Sections 3.1, 3.2 and 9.3 (the
"Clawback Amount"); provided, however, that Shurgard shall not
be obligated to pay a Clawback Amount in excess of Shurgard's
aggregate Capital Contributions to the Company (excluding the
Clawback Amount) as of the date of the liquidation.
(b) In addition to the foregoing, notwithstanding
Section 9.3(a)(v), after the final distribution of the assets
of the Company among the Members as provided in
Section 9.3(a)(v), if the aggregate amount distributed to
Shurgard pursuant to Sections 3.2(c) and 3.2(d) is in excess
of the amount that Shurgard would have been entitled to
receive after applying the Investment Return of Chase over the
life of the Company (such excess being referred to as the
"Excess Distributions"), Shurgard will pay to the Company (and
such amount will be distributed to Chase) an amount equal to
the amount of such Excess Distributions; provided, however,
that Shurgard shall not be obligated to pay an amount in
excess of the aggregate distributions it has received from the
Company.
(c) No amounts paid by Shurgard pursuant to this Section
9.4 will be included in (i) Shurgard's Capital Account, (ii)
the calculation of any Member's Invested Capital, or (iii) the
calculation of any Members' Percentage Interest.
9.5 Prohibition Against Withdrawal and Voluntary
Withdrawal
Neither Member may withdraw from the Company without the
prior written consent of the other Member. Subject to the
terms of this Agreement, no Member shall have the right to
voluntarily cause the dissolution of the Company in any manner
or for any reason whatsoever. The provisions hereof with
respect to distributions upon withdrawal are exclusive, and no
Member shall be entitled to claim any further or different
distribution upon withdrawal under Section 18-604 of the Act
or otherwise. This Section 9.5 shall not apply to Transfers
permitted under this Agreement
9.6 Default
If any Member fails to perform in any material respect
any of its obligations hereunder or violates the terms of this
Agreement in any material respect (such Member being referred
to as the "Defaulting Member"), any other Member (a "Non-
Defaulting Member") shall have the right to give the
Defaulting Member a default notice specifically setting forth
the nature of the default and stating that the Defaulting
Member has a period of 10 days to cure such default, if it is
a default in payment of money (a "Payment Default") to the
Company or the Non-Defaulting Member pursuant to this
Agreement, or a period of 30 45 days to cure such default, if
it is any default other than a Payment Default, provided that
such Defaulting Member has provided evidence to the non-
defaulting member that it is diligently seeking to cure such
default. If the Defaulting Member does not cure such Payment
Default within such 10-day period, or in the case of any other
default the Defaulting Member has not cured such default
within such 3045-day period, a Non-Defaulting Member shall, in
addition to other rights and remedies it may have hereunder or
at law or in equity:
(a) have the right to bring any proceeding in the
nature of specific performance, injunction or other equitable
remedy, it being acknowledged by each of the Members that
damages at law may be an inadequate remedy for a default or
threatened breach of this Agreement;
(b) bring any action at law by or on behalf of the
Company as may be permitted by applicable law, in order to
recover damages
(c) the Defaulting Member shall lose its rights to
participate in the making of Major Decisions or other
decisions affecting the Company pursuant to Section 5.4;
(d) if Shurgard is the Defaulting Member, (i) Chase
shall have the right to remove Shurgard as the Managing Member
and become the Managing Member of the Company and (ii) Chase
shall have the right to terminate SSCI as the Property
Manager;
(e) if Shurgard is the Defaulting Member then all
future distributions of Net cash Flow from Capital
Transactions will be made solely pursuant to Sections 3.2(a)
and (b) and without regard to Sections 3.2(c) and (d);
(f) in the case of a Payment Default, the Non-
Defaulting Member shall have the option of either (i) making a
loan to the Company in the amount of such Payment Default at
an annual interest rate equal to the lesser of 20% and the
highest rate allowed by law or (ii) make a capital
contribution to the Company equal to the amount of such
Payment Default, provided that, for all purposes of this
Agreement, such amount shall be deemed to equal 200% of the
amount actually contributed; and
(g) in addition to and without limiting the
foregoing, if the Defaulting Member does not cure a default as
required above, the Non-Defaulting Member shall also be
entitled, in its sole discretion, to not make any further
capital contributions to the Company until such monetary
default has been cured by the Defaulting Member.
ARTICLE X
BOOKS, RECORDS AND BANK ACCOUNTS
10.1 Books and Records
The Managing Member in consultation with Chase shall keep
or cause to be kept complete and accurate books of account and
records which shall reflect all transactions and other matters
and include all documents and other materials with respect to
the Company business as are usually entered and maintained by
persons engaged in similar businesses. Such books of account
shall be kept on the accrual basis in accordance with the
accounting methods and elections followed by the Company for
Federal income tax purposes applied in a consistent manner.
The Managing Member in consultation with Chase shall establish
procedures to ensure that all deeds, leases, contracts, title
matters, surveys and other documentation, records and
financial information relating to the ownership, maintenance,
development and sale of the Property are maintained in
safekeeping and organized and accessible to the Members. Each
Member and its duly authorized representatives shall have the
right to examine the Company books, records and documents at
all reasonable times, and copies of Company books, records and
documents shall be furnished to any Member upon reasonable
request therefor.
10.2 Reports
(a) The Managing Member in consultation with Chase
shall, at the cost of the Company, cause to be prepared and
shall deliver to Chase:
(i) no later than the twenty-fifth day of the next
following month, the monthly financial operating summary in
the form attached hereto as Exhibit JL.
(ii) within 30 days after the end of each quarter of
each fiscal year:
(A) a balance sheet of the Company as of the
end of such quarter and statements of operations and
source and application of funds (including changes in
financial position) of the Company for such quarter and
for that part of the fiscal year ending at the end of
such quarter, each prepared on an accrual basis in
accordance with generally accepted accounting principles
and procedures, subject, however, to audit and year-end
adjustment;
(B) statements of operations, source and
application of funds (including changes in financial
position) Net Cash Flow from Operations and Net Cash Flow
From Capital Transactions for such quarter and for that
part of the fiscal year ending at the end of such
quarter, each prepared on a cash basis; and
(C) a report of any significant Company
activities during such quarter; indicating, in the case
of the cash and accrual statements of operations,
comparisons with the corresponding items in the then
current approved Annual Budget for such period, and all
certified by the Managing Member, subject, however, to
audit and year-end adjustment;
(iii) within 60 days after the end of each
fiscal year:
(A) a balance sheet of the Company as of the
end of such year, statements of operations and source and
application of funds (including changes in financial
position) of the Company for such year, and a statement
showing distributions to the Members and allocations to
the Members of Company taxable income, gains, losses,
deductions, credits and items of tax preference,
indicating, in the case of the statement of operations,
comparisons with the corresponding items in the then
current approved Annual Budget for such period; such
financial statements to set forth in comparative form the
figures for the preceding year and to be in reasonable
detail and accompanied by an opinion thereon of the
Company's accountants to the effect that such financial
statements have been prepared in accordance with
generally accepted accounting principles and procedures
consistently applied (except for changes in application
specified in such opinion and in which the Company's
accountants concur) and that the examination of such
accountants in connection with such financial statements
has been made in accordance with generally accepted
auditing standards and accordingly included such tests of
the accounting records, internal controls and such other
auditing procedures as were considered necessary in the
circumstances; and
(B) statements of operations and source and
application of funds (including changes in financial
position), Net Cash Flow from Operations and Net Cash
Flow from Capital Transactions of the Company for such
year, indicating, in the case of the statement of
operations, comparisons with the corresponding items in
the then current approved Annual Budget for such period
and an analysis of the amount and type of all
distributions made to the Members and the sources and
users of all Company funds;
such financial statements to set forth in comparative form the
figures for the preceding year and to be in reasonable detail
and accompanied by a special report and/or an audit opinion of
the Company's accountants to the effect that such financial
statements present fairly the financial condition of the
Company on a cash receipts and disbursements basis and that
the examination of such accountants in connection with such
financial statements has been made in accordance with
generally accepted auditing standards and accordingly included
such tests of the accounting records, internal controls and
such other auditing procedures as were considered necessary in
the circumstances;
(iv) promptly after receipt thereof, one copy of
each other report or management letter submitted to the
Company by the Company's accountants in connection with any
annual, interim or special audit made by them of the books of
the Company;
(v) after the end of each fiscal year, a copy of
the Company's Federal and state income tax returns and reports
for such year, with Schedule K-1 attached to the Federal
return, prepared by the Company's accountants and subject to
the consent of Chase, such returns to be delivered within 90
days after the end of such year; and
(vi) such other reports as Chase any Member shall
from time to time reasonably request in connection with the
ownership, operation or management of the Property.
(b) Each quarterly or annual report furnished to the
Members hereunder shall also state whether any default exists
with respect to any material obligation of the Company or
whether any material litigation is pending against the Company
or the Property. The Managing Member shall promptly notify
Chase of the occurrence of any event which if not cured or
resolved would be required to be described in the next
quarterly or annual report to be furnished hereunder.
(c) The Company's accountants shall be Deloitte & Touche
LLP or such other nationally recognized accounting firm as the
Members shall jointly agree to.
10.3 Fiscal Year
The fiscal year of the Company for both reporting and
Federal income tax purposes shall begin with the first day of
January and end on the thirty-first day of December in each
calendar year.
10.4 Bank Accounts
Subject to Section 5.4, the bank accounts of the Company
will be maintained in such banking institutions as the Members
may determine. Such accounts may be used for the payment of
the expenditures incurred in connection with the business of
the Company and for payments to the Members in accordance with
this Agreement. Any and all cash receipts of the Company
shall be deposited in such accounts. All such amounts shall
be and remain the property of the Company, and shall be
received, held and disbursed by the Members for the purposes
specified in this Agreement. There may not be deposited in
any of said accounts any funds other than funds belonging to
the Company, and no other funds may in any way be commingled
with such funds. This Section 10.4 is not intended to in
anyway limit or define SSCI's rights and obligations to
establish and maintain accounts pursuant to the Management
Agreement.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 Representations and Warranties by Each Member
Each Member hereby represents and warrants to the other
Member the following:
(a) It has the legal power, right and authority to
consummate the transactions contemplated hereby. All actions
required to be taken by it to consummate the transactions
contemplated hereby have been taken.
(b) This Agreement and all other documents that
have been executed and delivered by such Member pursuant to
this Agreement constitute valid and binding obligations of
such Member, enforceable against such Member in accordance
with their respective terms.
(c) The execution and delivery of this Agreement by
such Member, the incurrence by it of the obligations herein
set forth, the consummation of the transactions contemplated
hereby, the compliance by such Member with the terms of this
Agreement and the operation by it of the business of the
Company do not and will not conflict with or result in a
breach of any of the terms, conditions or provisions of, or do
not and will not constitute a default under, (i) any bond,
note or other evidence of indebtedness or other contract,
indenture, mortgage, deed of trust, loan agreement, lease or
other instrument to which such Member is a party or by which
it is bound or (ii) any order, finding or decree of any court
or governmental authority having jurisdiction.
11.2 Shurgard's Representations and Warranties
Shurgard hereby represents and warrants to Chase that it
is a corporation duly organized and validly existing under the
laws of the state of Washington and that the individuals who
executed this Agreement on behalf of Shurgard have full power
and authority to enter into this Agreement. For all purposes
Chase is entitled to rely on the approval by either of
Shurgard's designated representatives on the Board, acting
individually, as to all matters relating to or arising out of
this Agreement and the transactions contemplated hereby.
11.3 Chase's Representations and Warranties
Chase hereby represents and warrants to Shurgard that it
is a limited liability company duly organized and validly
existing under the laws of the state of Delaware and that the
individuals who executed this Agreement on behalf of Chase
have full power and authority to enter into this Agreement.
For all purposes Shurgard is entitled to rely on the approval
by either of Chase's designated representatives on the Board,
acting individually, as to all matters relating to or arising
out of this Agreement and the transactions contemplated
hereby.
ARTICLE XII
MISCELLANEOUS
12.1 Notices
Any and all notices, elections or demands permitted or
required to be made under this Agreement must be in writing,
signed by the Member giving such notice, election or demand,
and must be delivered personally, transmitted by electronic
facsimile with receipt confirmed or sent by nationally reputed
courier service that provides verification of delivery, to the
other Member, at the address set forth below, or at such other
address as may be supplied by written notice given in
conformity with the terms of this Section 12.1. The date of
personal delivery or the date of refusal or receipt, as the
case may be, is the date such notice is effective.
If a Shurgard: If to Chase:
Shurgard Development III, Inc. CCPRE - Storage, LLC
Attn: Chief Executive Officer x/x Xxxxx Xxxxxxx Xxxxxxxx
Xxxxx 000, 0000 Xxxxxx Xxxxxx Attn: Xxxxxxx X. Xxxxxxxx
Xxxxxxx, XX 00000 000 Xxxxxxx Xxxxxx, 00xx Floor
Facsimile: (000) 000-0000 Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: with a copy to:
Shurgard Storage Centers, Inc. X'Xxxxxxxx Graev & Karabell, LLP
Attn: Division Counsel Attn: Xxxxxx X. Xxxxxx
Xxxxx 000, 0000 Xxxxxx Xx. 00 Xxxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Facsimile: (000)000-0000 Facsimile: (000)000-0000
12.2 Successors and Assigns
Subject to the restrictions on Transfer set forth in
Article VIII, this Agreement shall be binding on and shall
inure to the benefit of the respective parties hereto and
their permitted successors and assigns.
12.3 Entire Agreement; Amendments
This Agreement, together with the agreements expressly
contemplated hereby, constitutes the full and complete
agreement of the parties hereto with respect to the subject
matter hereof.
This Agreement may be amended, modified or otherwise
changed only in writing signed by both Members hereto.
Without limiting the generality of the foregoing, no amendment
to this Agreement may be effected nor may any other action be
taken that would result in the admission of additional members
to the Membership, except by the specific written agreement of
both Members.
12.4 No Waiver
The failure of any Member to insist on strict performance
of a covenant hereunder or of any obligation hereunder,
irrespective of the length of time for which such failure
continues, will not be a waiver of such Member's rights to
demand strict compliance in the future. No consent or waiver,
express or implied, to or of any breach or default in the
performance of any obligation hereunder will constitute a
consent or waiver to or of any other breach or default in the
performance of the same or any other obligation hereunder.
12.5 Foreign Status
By executing this Agreement, each Member declares under
penalties of perjury that, for purposes of Section 1446 of the
Code, it is not a foreign person, that its name, office
address and tax identification number are accurately set forth
herein and that it will notify the Company within 60 days of
any change to foreign status.
12.6 Captions
Titles or captions of Articles or Sections contained in
this Agreement are inserted only as a matter of convenience
and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any
provision hereof.
12.7 Counterparts
This Agreement and any amendments hereto may be executed
in any number of counterparts, all of which together for all
purposes constitute one agreement, binding on both the Members
notwithstanding that both Members have not signed the same
counterpart.
12.8 Applicable Law
This Agreement and the rights and obligations of the
parties hereunder shall be governed by and interpreted,
construed and enforced in accordance with the laws of the
state of Delaware. References in this Agreement to provisions
of the Code and Treasury Regulations thereunder shall apply to
corresponding successor provisions.
12.9 Affiliate
The term "Affiliate" means any person or entity owning,
directly or indirectly, a 10% or greater legal or beneficial
interest in such entity or any entity in which such person or
entity, directly or indirectly, owns a 10% or greater legal or
beneficial interest or is serving as an executive officer
thereof.
12.10 Covenant of Good Faith
Each Member covenants and agrees that whenever it is
authorized by this Agreement to take or omit to take any
action, or to give or withhold any approval or consent,
whether or not in its sole discretion, it will take or omit to
take such action, or give or withhold such approval or
consent, in good faith and not in an arbitrary or capricious
manner.
12.11 Severability
If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement
and the application of such provision to other persons or
circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
12.12 No In Kind Distributions
The Company shall not make any distributions in kind.
12.13 Required Amendments
The Members shall cooperate by incorporation into this
Agreement, by suitable amendment, from time to time, any
provision that may reasonably be required by the Lender under
the Credit Facility. The Members each agree to execute and
deliver any agreement necessary to effect any such amendment;
provided, however, that any such amendment shall not in any
way affect the economic terms under this Agreement or
otherwise, in any materially adverse way.
12.14 Regulatory Matters
(a) Each Member agrees to cooperate with the Company in
all reasonable respects in complying with the terms and
provisions of the letter agreement between the Company and
Investor, a copy of which is attached hereto as Exhibit M,
regarding regulatory matters (the "Regulatory Sideletter"),
including without limitation, voting to approve amending this
Agreement in a manner reasonably acceptable to the Members and
the Investor or any Affiliate of the Investor entitled to make
such request pursuant to the Regulatory Sideletter in order to
remedy a Regulatory Problem (as defined in the Regulatory
Sideletter). Anything contained in this Section 12.14 to the
contrary notwithstanding, no Member shall be required under
this Section 12.14 to take any action that would adversely
affect in any material respect such Members rights under this
Agreement or as a member of the Company.
(b) The Company and each Member agree not to amend or
waive the voting or other provisions of this Agreement if such
amendment or waiver would cause the Investor or any its
Affiliates to have a Regulatory Problem (as defined in the
Regulatory Sideletter). The Investor agrees to notify the
Company as to whether or not it would have a Regulatory
Problem promptly after the Investor has notice of such
amendment or waiver.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SHURGARD DEVELOPMENT IV, INC.
a Washington corporation
By /s/ Xxxxxxx Xxxx
Its Senior Vice President
CCPRE-STORAGE, LLC
a Delaware limited liability
company
By: Chase Capital Investments,
L.P.
its Sole Member
By: Chase Capital Partners,
as Investment Manager
By /s/ Xxxxxxx X. Xxxxxxxx
The undersigned hereby accepts and agrees to guaranty Shurgard's
obligations under Sections 1.12, 6.4, Article VII and Section 9.4
of this Agreement:
SHURGARD STORAGE CENTERS, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
The undersigned hereby accepts and agrees to guaranty CCPRE-
Storage, LLC's obligations under Section 1.12 and 6.4 of this
Agreement:
Chase Capital Investments,
L.P.
By: Chase Capital Partners,
as Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
Name:
Title:
ANNEX I
DEFINITIONS
"Act" shall mean the Delaware Limited Liability Company
Act.
"Adjusted Percentage Interest" shall have the meaning set
forth in Section 7.3(b).
"Affiliate" shall have the meaning set forth in Section
12.9.
"Agreement" shall mean this Agreement.
"Annual Budget" shall have the meaning set forth in
Section 5.2(a).
"Bankrupt or Bankruptcy" means, with respect to a Member,
the filing by such Member of a petition in bankruptcy or for
an arrangement, composition, readjustment, liquidation,
dissolution, reorganization, or similar relief pursuant to
Title 11 of the United States Code entitled "Bankruptcy", as
amended (the "Bankruptcy Code"), and any judicial and
administrative interpretation thereof (section references to
the Bankruptcy Code are to the Bankruptcy Code as in effect on
the date of this Agreement and any subsequent provisions of
the Bankruptcy Code, amendatory thereof, supplemental thereto
or in substitution thereof or any similar or successor law,
Federal or state); or a decree by a court of competent
jurisdiction, adjudicating such Member a bankrupt, or
declaring such Member insolvent or the entering of an order
for relief against such Member in any bankruptcy or insolvency
proceeding; or the making by such Member of an assignment for
the benefit of creditors, or the admission in writing by such
Member of its inability to pay its debts generally as they
become due, or the consenting by such Member to the
appointment of a receiver or receivers of all or any
substantial part of its property; or the filing by any of the
creditors of such Member of a petition in bankruptcy against
such Member or for an arrangement, composition, readjustment,
liquidation, dissolution, reorganization, or similar relief
with respect to such Member pursuant to the Bankruptcy Code or
similar or successor law, Federal or state, if such petition
shall not be discharged or dismissed within sixty (60) days
after the date on which such petition is filed.
"Bankrupt Member" shall have the meaning set forth in
Section 9.1(c).
"Business Days" means a day on which banks are open for
business in New York City, New York.
"Capital Account" shall have the meaning set forth in
Section 2.3(a).
"Capital Contribution" shall mean an actual or deemed
contribution of capital (either in cash or the fair value of
property) to the Company (other than a loan from a Member)
that is required or permitted pursuant to this Agreement.
"Capital Transaction" means, with respect to each
Property, a sale, Transfer, exchange, refinancing,
condemnation or other disposition of the Property, or a
casualty loss, affecting all or a substantial portion of the
Property in which the Property is not rebuilt within twenty-
four (24) months of such casualty loss.
"Certificate" shall have the meaning set forth in Section
1.3.
"Change in Control" means the (i) purchase of fifty
percent or more of the common stock or assets of SSCI by any
party, or (ii) replacement of the incumbent Board of Directors
with individuals nominated other then by incumbent Board of
Directors.
"Chase" shall have the meaning set forth in the preamble.
"Clawback Amount" shall have the meaning set forth in
Section 9.4(a).
"Code" has the meaning set forth in Section 2.3.
"Company" has the meaning set forth in the caption of
this Agreement.
"Confidential Information" has the meaning set forth in
Section 1.8(a).
"Contractual Net Cash Flow" means, with respect to each
Capital Transaction, the Net Cash Flow that would have been
realized by the Company attributable to such Capital
Transaction assuming the Property being sold, Transferred,
exchanged or otherwise disposed were valued based on the
Property's Net Operating Income divided by a 9.25%
capitalization rate.
"Contribution Agreement" shall have the meaning set forth
in Section 2.2(b).
"Contribution Value" shall have the meaning set forth in
the Contribution Agreement.
"Cost Overrun" means, with respect to each Property, the
amount by which the cost to Shurgard of acquiring and
constructing such Property exceeds such Property's
Contribution Value; provided that, the total Cost Overrun
shall never exceed 2% of the Contribution Value of all the
Properties.
"Credit Facility" shall have the meaning set forth in
Section 6.4.
"Defaulting Member" shall have the meaning set forth in
Section 9.6.
"Default Sale" shall have the meaning set forth in
Section 7.3(a).
"Deficiency Amount" shall have the meaning set forth in
Section 9.4(a).
"Disclosing Party" shall have the meaning set forth in
Section 1.8(a).
"Effective Date" shall have the meaning set forth in the
Preamble.
"Equity Deficit" means, with respect to Chase, the
excess, if any (in the aggregate, when required by the use of
this defined term), of the Contractual Net Cash Flow
attributable to each Capital Transaction that would (i) be
distributed to Chase pursuant to such Section 3.2 without
taking into account the provisions of Section 3.2(a) if each
Property that was sold was sold for Contractual Net Cash Flow
over (ii) the Net Cash Flow be distributed to Chase pursuant
to Section 3.2, again without taking into account the
provisions of Section 3.2(a).
"Event of Bankruptcy" shall have the meaning set forth in
Section 9.1(c).
"Event of Dissolution" shall have the meaning set forth
in Section 9.1(b).
"Excess Distributions" shall have the meaning set forth
in Section 9.4(b).
"Indemnified Parties" shall have the meaning set forth in
Section 5.6.
"Invested Capital" for each Member means the sum of such
Member's initial capital contribution and any additional
capital contributions or loans made to the Company by such
Member pursuant to the terms of this Agreement, less (i) the
aggregate amount of any capital distributed to such Member
pursuant to Article III or Article IX provided that any
amounts paid to the Company pursuant to Section 7.4 shall not
be part of Invested Capital.
"Investment Return" means as of any date (the
"Calculation Date"), that unique positive discount rate (if
any), compounded annually, realized by Chase at which the sum
of: (i) the present value of all Capital Contributions made
by Chase pursuant to Section 2.2 reflected as a negative
amount (taken into account as of the date such Capital
Contributions were made) plus (ii) the present value of all
distributions of Net Cash Flow distributed to Chase pursuant
to Sections 3.1 and 3.2 equals zero. For the avoidance of
doubt, it is acknowledged that Chase will not have received a
positive Investment Return of any amount until such time as
the aggregate distributions of Net Cash Flow received by Chase
exceed its aggregate Capital Contributions. The Investment
Return calculation will be made by the accounting firm
preparing the annual financial statements of the
Companyaccounting firm preparing the annual financial
statements of the Company will make the Investment Return
calculation.
"Liquidator" has the meaning set forth in Section 9.2.
"Major Decision" shall have the meaning set forth in
Section 5.4(b).
"Management Agreement" shall have the meaning set forth
in Section 5.3.
"Managing Member" shall have the meaning set forth in
Section 5.1(a).
"Members" has the meaning set forth in the preamble.
"MG Capital Account" of any Member as of the end of any
taxable year means such Member's Capital Account balance
(whether positive or negative) as of the end of such taxable
year (after all distributions for such year other than any
liquidating distributions, but before any allocations of tax
items for such year), increased by such Member's share of any
Minimum Gain of the Company as of the end of such taxable
year.
"Minimum Gain" has the meaning prescribed by Treasury
Regulation Sections 1.704-2(d) and 1.704-2(i)(3).
"Net Cash Flow From Capital Transactions" means, during
the fiscal period for which Net Cash Flow From Capital
Transactions is being determined, the gross cash proceeds
actually received by the Company from Capital Transactions
less the sum of the following items: (i) expenses incurred
and paid with respect to such Capital Transactions to the
extent that such expenses have not already been reflected in
the Company's Net Cash Flow From Operations for such fiscal
period, and (ii) amounts that the Company has decided to set
aside as reserves for working capital, debt service payments,
capital expenditures, contingent liabilities, and other future
costs and expenses of the Company.
"Net Cash Flow From Operations" means the sum of (i) all
cash received from rents, lease payments and all other
sources, but excluding (A) security or other deposits, (B)
Capital Contributions and interest thereon (other than if used
to pay for an item deducted below in determining cash flow),
(C) proceeds from Capital Transactions, (D) Shurgard's return
of cash proceeds required under Section 2.2 of the
Contribution Agreement and (E) interest on reserves not
available for distribution, (ii) the net proceeds of any
insurance, other than fire and extended coverage and title
insurance, to the extent not reinvested, and (iii) any other
funds deemed available for distribution by Chase, less the sum
of (i) all cash expenditures, and all expenses unpaid but
properly accrued, which have been incurred in the operation of
the Company's business (whether or not such expenditure is
deducted, amortized or capitalized for tax purposes), (ii) all
payments on account of any loans made to the Company (whether
such loan is made by a Member or otherwise), and (iii) any
cash reserves for working capital, capital expenditures,
repairs, replacements and anticipated expenditures, in such
amounts as may be required under the Credit Facility or may be
determined from time to time by the Members to be advisable
for the operation of the Company.
"Net Income" or "Net Loss", as appropriate, means, for
any period, the taxable income or tax loss of the Company for
such period for Federal income tax purposes, determined taking
into account any separately stated tax items and increased by
the amount of any tax-exempt income of the Company during such
period and decreased by the amount of any Section 705(a) (2)
(B) expenditures (within the meaning of Treasury Regulation
Section 1.704-1(b) (2) (iv) (i)) of the Company; provided,
however, that (i) items of income, gain, loss and deduction
attributable to Section 704(c) Property shall be determined in
accordance with the principles of Treasury Regulation Section
1.704-l(b) (2) (iv) (q) and (ii) the Net Income and Net Loss
of the Company shall be computed without regard to the amount
of any items of income, gain, loss or deduction that are
specially allocated pursuant to Section 2.4(c). In the event
that the Capital Accounts are adjusted pursuant to Section
2.3(b), the Net Income and Net Loss of the Company (and the
constituent items of income, gain, loss and deduction)
realized thereafter shall be computed in accordance with the
principles of Treasury Regulation Section 1.704-
1(b)(2)(iv)(g).
"Non-Defaulting Member" has the meaning set forth in
Section 9.6.
"Operative Date" means the date on which the last of the
Transaction Documents shall be deemed "closed" pursuant to its
terms.
"Payment Default" has the meaning set forth in Section
9.6.
"Percentage Interest" means, as of any time with respect
to each Member, the percentage equivalent of a fraction, the
numerator of which shall be the amount of such Member's
Invested Capital and the denominator of which shall be the
amount of the aggregate Invested Capital of all of the
Members, subject to adjustment as provided in this Agreement
(including, without limitation, Section 7.3(b) hereof). It is
contemplated by the MembersThe Members contemplate that the
Percentage Interest of the Members will be 80% for Chase and
20% for Shurgard.
"Person" shall mean any individual, partnership,
corporation, association, joint venture, trust or other legal
entity (including any heirs, executors, administrators, legal
representatives, successors and assigns), governments or
agencies or political subdivisions thereof, multistate compact
authorities and other associations and entities where the
context requires.
"Pro Forma" shall have the meaning set forth in Section
2.2(a).
"Property" shall mean each of the self-storage facility
properties listed on Exhibit B and Exhibit C.
"Property Manager" shall have the meaning set forth in
Section 5.3.
"Purchase Agreement" shall have the meaning set forth in
Section 7.1.
"Recipient" shall have the meaning set forth in
Section 1.8(a).
"Regulatory Sideletter shall have the meaning set forth
in Section 12.14.
"Sale Agreement" shall have the meaning set forth in
Section 7.1.
"Sale Notice" shall have the meaning set forth in Section
7.1.
"Sale Price" with respect to any parcel of Property means
the greater of: (i) the amount necessary to provide Chase with
a 12% Investment Return on its Invested Capital with respect
to such Property, or (ii) the annualized net operating income
for the Sale Property for the six month period ending on the
date of delivery of the Sale Notice with respect to such Sale
Property, capitalized at 9.25%; provided, however, that should
the annualized net operating income for the Sale Property for
the six month period ending on the date of the consummation of
the sale of the Sale Property to Shurgard be higher than the
net operating income for the Sale Property for the six month
period ending on the date of delivery of the Sale Notice, the
higher number shall be used in calculating the Sale Price.
"Sale Property" shall have the meaning set forth in
Section 7.1.
"Sale Right" shall have the meaning set forth in
Section 7.1.
"SSCI" has the meaning set forth in the recitals.
"Shurgard" means the radius of the relevant trade area of
a Property as set forth on Exhibit B and Exhibit C.
"Target Amount" means, with respect to any Member as of
the end of any taxable year, the maximum amount that
hypothetically would be distributable to such Member as of the
end of such year pursuant to Article III if the Company were
to sell each of its noncash assets on hand as of the end of
such year for an amount of cash equal to its adjusted "book"
basis in such asset (as determined under the principles for
the computation of Net Income and Net Losses) and then
liquidate, distributing the Net Cash Flow from Capital
Transactions from such sale and all its other assets pursuant
to Article VIII (taking into account any distributions
previously made during such year).
"Trade Area" means the radius of the relevant trade area
of a Property as set forth on Exhibit B and Exhibit C.
"Transfer" shall have the meaning set forth in Section
8.1.
"Transaction Documents" shall mean this Agreement, the
Contribution Agreement, the Management Agreement and the
Purchase Agreement.
EXHIBIT A
PRO FORMA STATEMENT FOR PROPERTIES
EXHIBIT B
INITIAL PROPERTIES
EXHIBIT C
ADDITIONAL PROPERTIES
EXHIBIT D
FORM OF CONTRIBUTION AGREEMENT
EXHIBIT DE
FORM OF MANAGEMENT AGREEMENT
EXHIBIT EF
IDENTIFIED PROPERTIES
EXHIBIT FG
EXISTING JOINT VENTURES
EXHIBIT GH
INVESTMENT CRITERIA
EXHIBIT HI
TERMS OF CREDIT FACILITY
EXHIBIT IJ
FORM OF PURCHASE AND SALE AGREEMENT
EXHIBIT K
FORM OF GUARANTEE AGREEMENT
EXHIBIT JL
MONTHLY PROJECT REPORT
SCHEDULE 4.1
PRE-COMPLETION CONTRIBUTION CONDITIONS
