Shurgard Storage Centers, Inc. FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
Shurgard Storage Centers, Inc.
Exhibit 10.41 - First Amendment to Third Amended and Restated Loan Agreement
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT ("First Amendment") is made as of November 27, 2001, by and among the Lenders, BANK OF AMERICA, N.A., a national banking association, as Administrative Agent for the Lenders ("Agent"), BANK ONE, NA, a national banking association, as Syndication Agent, COMMERZBANK AKTIENGESELLSCHAFT, New York and Grand Cayman Branches, as Documentation Agent, U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Managing Agent; and SHURGARD STORAGE CENTERS, INC., a Washington corporation ("Borrower").
RECITALS
A. Lenders, Agent, Syndication Agent, Managing Agent and Borrower are parties to that certain Third Amended and Restated Loan Agreement dated as of February 26, 2001 (the "Loan Agreement").
B. The parties hereto are entering into this First Amendment to amend certain provisions of the Loan Agreement as set forth herein.
NOW, THEREFORE, Lenders, Agent and Borrower agree as follows:
AGREEMENT
1. Capitalized Terms. Capitalized terms not otherwise defined in this First Amendment shall have the meanings set forth in the Loan Agreement.
2. New Defined Terms. The following defined terms are added to Section 1.1 of the Loan Agreement:
"Identified Joint Ventures" means Shurgard/Fremont Partners I, a Washington general partnership, Shurgard/Fremont Partners II, a Washington general partnership, Shurgard/K&S I, LLC, a New York limited liability company, and CCP/SHURGARD VENTURE LLC, a Delaware limited liability company.
"Restatement Liability" means the liability attributed under generally accepted accounting principles to the amount payable by Borrower to exercise its option to purchase the interests of the other unrelated partners and members of the Identified Joint Ventures.
3. Amendment to Defined Terms. The definition of "Interest Expense" is hereby amended and restated as follows:
"Interest Expense" means, with respect to any fiscal quarter, the sum of: (a) all accrued or paid interest costs of Borrower and its Consolidated Subsidiaries during such fiscal quarter, calculated in accordance with generally accepted accounting principles; plus (b) capitalized interest, fees for performance guaranties, fees for letters of credit, and interest and fees relating to any other relevant liabilities of Borrower and its Consolidated Subsidiaries, in each case, accrued or paid during such fiscal quarter and calculated in accordance with generally accepted accounting principles; minus (c) that portion of Interest Expense attributed under generally accepted accounting principles solely to Restatement Liability.
4. Amendment to Section 7.12. Section 7.12 of the Loan Agreement is amended and restated as follows:
Ratio of Total Indebtedness to Gross Asset Value
. Borrower shall, as of the end of each fiscal quarter, cause the ratio of the Total Indebtedness to Gross Asset Value to be less than or equal to .55 to 1. As used in this Section, "Total Indebtedness" means, with respect to any fiscal quarter, the sum of (a) all Indebtedness of Borrower and the Consolidated Subsidiaries; plus (b) the Leased Property Cost (without duplication of amounts included in clause (a)); minus (c) the lesser of (i) 7.5% of the total assets of Borrower and the Consolidated Subsidiaries or (ii) the consolidated accounts payable and consolidated accrued liabilities of Borrower and the Consolidated Subsidiaries, in each case, as of the end of such fiscal quarter; minus (d) the Restatement Liability as of the end of such fiscal quarter.
5. Amendment to Section 7.14. Section 7.14 of the Loan Agreement is amended and restated as follows:
. Borrower shall, as of the end of each fiscal quarter, maintain a ratio of (a) EBIDA plus Lease Financing Rent Expense to (b) Interest Expense (excluding capitalized interest) plus Lease Financing Rent Expense plus dividends paid on preferred stock plus CPLTD of not less than 2.00 to 1, in each case, as calculated with respect to such fiscal quarter. As used in this Section: (i) "EBIDA" means net income, plus interest expense, depreciation and amortization expense of Borrower and its Consolidated Subsidiaries, plus any expense attributed under generally accepted accounting principles to the Restatement Liability (without duplication with any other amount included in this clause (i)); (ii) "Lease Financing Rent Expense" means the rent accrued under the Lease; and (iii) "CPLTD" means the current portion of long term debt (excluding balloon payments and Restatement Liability), in each case, calculated in accordance with generally accepted accounting principles.
6. Conditions to Effectiveness. Notwithstanding anything contained herein to the contrary, this First Amendment shall not become effective until each of the following conditions is fully and simultaneously satisfied:
(a) Delivery of Amendment. Borrower, Agent and Majority Lenders shall have executed and delivered counterparts of this First Amendment to Agent.
(b) Consent of Guarantors. Each Guarantor shall have executed the Guarantor's Consents attached hereto.
7. Representations and Warranties. Borrower hereby represents and warrants to Lenders and Agent that each of the representations and warranties set forth in Article 6 of the Loan Agreement (other than Section 6.6 thereof) is true and correct in each case as if made on and as of the date of this First Amendment, and Borrower expressly agrees that it shall be an additional Event of Default under the Loan Agreement if any representation or warranty made hereunder shall prove to have been incorrect in any material respect when made.
8. No Further Amendment. Except as expressly modified by this First Amendment, the Loan Agreement and the other Loan Documents shall remain unmodified and, as modified hereby, shall remain in full force and effect and the parties hereby ratify their respective obligations thereunder. Without limiting the foregoing, Borrower expressly reaffirms and ratifies its obligation to pay or reimburse Agent and Lenders on request for all reasonable expenses, including legal fees, actually incurred by Agent or such Lender in connection with the preparation of this First Amendment, the other amendment documents in connection with this First Amendment ("Amendment Documents"), and the closing of the transactions contemplated hereby and thereby.
9. Miscellaneous.
(a) Entire Agreement. This First Amendment and the other Amendment Documents comprise the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or commitments.
(b) Counterparts. This First Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same Fourth Amendment.
(c) Governing Law. This First Amendment and the other agreements provided for herein and the rights and obligations of the parties hereto and thereto shall be construed and interpreted in accordance with the laws of the State of Washington.
(d) Oral Agreements Not Enforceable.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be executed by their respective officers or agents thereunto duly authorized as of the date first above written.
BORROWER:
SHURGARD STORAGE CENTERS, INC.
By /s/Xxxxxxx Xxxx
Xxxxxxx Xxxx
Its Senior Vice President
Address: 0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx XxXxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
LENDERS:
BANK OF AMERICA, N.A.
a national banking association
By /s/Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Its Senior Vice President
Address: Bank of America Tower
WA1-501-35-01
000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Strategy Team
Telephone: (000) 000-0000
Telefax: (000) 000-0000
BANK ONE, NA
a national banking association
By /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Its Director, Capital Markets
Address: Bank One NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN
BRANCHES
a __________ banking corporation
By /s/ Xxxxxxx Xxxxxxxxxxxxx
Xxxxxxx Xxxxxxxxxxxxx
Its Assistant Vice President
By /s/Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Its Assistant Vice President
Address: Commerzbank AG
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telex: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By /s/ Miles X. Xxxxxxxxxxx
Miles X. Xxxxxxxxxxx
Its Vice President
Address: 0000 Xxxxx Xxxxxx,
Xxxxx 00, XXX000
Xxxxxxx, XX 00000
Attn: Miles Xxxxxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
FLEET NATIONAL BANK
a national banking association
By /s/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Its Vice President
Address: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
a national banking association
By /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Its Vice President
Address: 000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
LASALLE BANK NATIONAL ASSOCIATION
By /s/Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Its Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
WASHINGTON MUTUAL BANK
a Washington banking corporation
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx 9;
Its Assistant Vice President
Address: 0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
THE BANK OF NOVA SCOTIA
a Canadian banking corporation
By /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its Director
Address: 000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
SUNTRUST BANK
a Georgia banking corporation
By /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Its Vice President
Address: SunTrust Bank
0000 Xxxxx Xxxxxxxxx, #000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
BANK HAPOALIM B.M.
a banking corporation of Israel
By /s/ Xxxx Xxxx
Xxxx Xxxx
Its Vice President
Address: Bank Hapoalim B.M.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
AGENT:
BANK OF AMERICA, N.A.
By /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Its Vice President
Address: Bank of America Tower
WA1-501-37-20
000 Xxxxx Xxx., Xxxxx 00
Xxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx
Commercial Agency Management
Telephone: (000) 000-0000
Telefax: (000) 000-0000
GUARANTOR'S CONSENT
Shurgard Evergreen Limited Partnership, a Delaware corporation (the "Guarantor"), is a guarantor of the indebtedness, liabilities and obligations of Shurgard Storage Centers, Inc., a Washington corporation (the "Borrower"), under the Third Amended and Restated Loan Agreement referred to in the within and foregoing First Amendment to Third Amended and Restated Loan Agreement (the "First Amendment") and the other Loan Documents described in the Loan Agreement. The Guarantor hereby acknowledges that it has received a copy of the First Amendment and hereby consents to its contents, including all prior and current amendments to the Loan Agreement, and the other Loan Documents described therein (notwithstanding that such consent is not required). The Guarantor hereby confirms that its guarantee of the obligations of Borrower remains in full force and effect, and that the obligations of Borrower under the Loan Documents shall include the obligations of Borrower under the Loan Documents as amended by the First Amendment.
DATED: November __, 2001
GUARANTOR: SHURGARD EVERGREEN LIMITED PARTNERSHIP
By: Shurgard Storage Centers, Inc., its General partner 9;
By /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
Its Senior Vice President
GUARANTOR'S CONSENT
SSC Evergreen, Inc., a Delaware corporation (the "Guarantor"), is a guarantor of the indebtedness, liabilities and obligations of Shurgard Storage Centers, Inc., a Washington corporation (the "Borrower"), under the Third Amended and Restated Loan Agreement referred to in the within and foregoing First Amendment to Third Amended and Restated Loan Agreement (the "First Amendment") and the other Loan Documents described in the Loan Agreement. The Guarantor hereby acknowledges that it has received a copy of the First Amendment and hereby consents to its contents, including all prior and current amendments to the Loan Agreement, and the other Loan Documents described therein (notwithstanding that such consent is not required). The Guarantor hereby confirms that its guarantee of the obligations of Borrower remains in full force and effect, and that the obligations of Borrower under the Loan Documents shall include the obligations of Borrower under the Loan Documents as amended by the First Amendment.
DATED: November __, 2001
GUARANTOR: SSC EVERGREEN, INC.
By: Shurgard Storage Centers, Inc., its General partner ; 9;
By /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
Its Senior Vice President
GUARANTOR'S CONSENT
Shurgard Institutional Fund XX XX (the "Guarantor") is a guarantor of the indebtedness, liabilities and obligations of Shurgard Storage Centers, Inc., a Washington corporation (the "Borrower"), under the Third Amended and Restated Loan Agreement referred to in the within and foregoing First Amendment to Third Amended and Restated Loan Agreement (the "First Amendment") and the other Loan Documents described in the Loan Agreement. The Guarantor hereby acknowledges that it has received a copy of the First Amendment and hereby consents to its contents, including all prior and current amendments to the Loan Agreement, and the other Loan Documents described therein (notwithstanding that such consent is not required). The Guarantor hereby confirms that its guarantee of the obligations of Borrower remains in full force and effect, and that the obligations of Borrower under the Loan Documents shall include the obligations of Borrower under the Loan Documents as amended by the First Amendment.
DATED: November __, 2001
GUARANTOR: SHURGARD INSTITUTIONAL FUND XX XX
By: Shurgard Storage Centers, Inc., its General partner ; 9;
By /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
Its Senior Vice President
GUARANTOR'S CONSENT
Shurgard Texas Limited Partnership (the "Guarantor") is a guarantor of the indebtedness, liabilities and obligations of Shurgard Storage Centers, Inc., a Washington corporation (the "Borrower"), under the Third Amended and Restated Loan Agreement referred to in the within and foregoing First Amendment to Third Amended and Restated Loan Agreement (the "First Amendment") and the other Loan Documents described in the Loan Agreement. The Guarantor hereby acknowledges that it has received a copy of the First Amendment and hereby consents to its contents, including all prior and current amendments to the Loan Agreement, and the other Loan Documents described therein (notwithstanding that such consent is not required). The Guarantor hereby confirms that its guarantee of the obligations of Borrower remains in full force and effect, and that the obligations of Borrower under the Loan Documents shall include the obligations of Borrower under the Loan Documents as amended by the First Amendment.
DATED: November __, 0000
XXXXXXXXX: XXXXXXXX XXXXX LIMITED PARTNERSHIP
By: Shurgard Storage Centers, Inc., its General partner 9;
By /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
Its Senior Vice President
