THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED LOAN
AGREEMENT (this "Third Amendment") is made as of March __, 2000
by and among BANK OF AMERICA, N.A., a national banking
association, BANK ONE, NA, a national banking association,
KEYBANK NATIONAL ASSOCIATION, a national banking association,
U.S. BANK NATIONAL ASSOCIATION, a national banking association,
LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, THE BANK OF NOVA SCOTIA, a Canadian chartered bank
(each individually a "Lender" and collectively the "Lenders"),
BANK OF AMERICA, N.A., a national banking association, as agent
for Lenders (the "Agent"), and SHURGARD STORAGE CENTERS, INC., a
Washington corporation ("Borrower").
RECITALS
A. Lenders, Agent and Borrower are parties to that certain
Second Amended and Restated Loan Agreement dated as of September
30, 1999 which was amended by that certain First Amendment to
Second Amended and Restated Loan Agreement dated as of September
30, 1999, and by that certain Second Amendment to Second Amended
and Restated Loan Agreement dated as of December 16, 1999. Such
Loan Agreement, as so amended and as amended from time to time,
is referred to in this Third Amendment as the "Loan Agreement."
B. The parties hereto are entering into this Third
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 Third Amendment (including, without limitation,
Schedule 6 hereto) shall have the meanings set forth in the Loan
Agreement.
2. Amendments to Definitions in Loan Agreement.
a. The definition of "Available Amount" is amended
and restated to read as follows:
"Available Amount" means, on any date during any
Applicable Measurement Period, the lesser of (a) the amount,
if any, by which 50% of the Unencumbered Property Value
(calculated with respect to the full fiscal quarter
immediately preceding the first day of such Applicable
Measurement Period) exceeds the Deducted Liabilities as of
the end of such fiscal quarter, calculated in accordance
with generally accepted accounting principles; and (b) the
Commitment in effect as of such date. The "Available
Amount" shall be calculated as set forth in the Quarterly
Compliance Certificate.
b. The following are added as new definitions:
"Deducted Liabilities" means, as of the end of any
fiscal quarter: (i) all Unsecured Liabilities of Borrower
and the Consolidated Subsidiaries (other than the
Subsidiaries referred to in clauses (ii), (iii) and (iv) of
the definition of "Relevant Subsidiaries") then outstanding
(including, without limitation, Borrower's obligations with
respect to the principal amount then outstanding of all
Liabilities of Recom & Co., S.N.C.); less (ii) all
obligations referred to in Schedule 6 hereto as such
Schedule 6 may be amended from time to time with the prior
written consent of Majority Lenders and Borrower.
"Guaranty Obligations" means, with respect to any
Person, without duplication, any obligations (other than
endorsements in the ordinary course of business of
negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Liabilities of any
other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not
contingent, (a) to purchase any such Liabilities or any
property constituting security therefor, (b) to advance or
provide funds or other support for the payment or purchase
of such Liabilities or to maintain working capital, solvency
or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements,
comfort letters, take or pay arrangements, put agreements or
similar agreements or arrangements) for the benefit of the
holder of Liabilities of such other Person, (c) to lease or
purchase property, securities or services primarily for the
purpose of assuring the owner of such Liabilities or (d) to
otherwise assure or hold harmless the owner of such
Liabilities or obligation against loss in respect thereof.
The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to
be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Liabilities in
respect of which such Guaranty Obligation is made.
"Liabilities" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by
such Person to the extent of the value of such property
(other than customary reservations or retention of title
under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations, other than
intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by
such Person which would appear as liabilities on a balance
sheet of such Person, (e) all Guaranty Obligations of such
Person, (f) the principal portion of all obligations of such
Person under (i) capital leases of real property and (ii)
any synthetic lease of real property, any tax retention
operating lease of real property, and any off-balance sheet
loan or similar off-balance sheet financing product of such
Person where, in each case, such transaction relates to real
property and is considered borrowed money indebtedness for
tax purposes but is classified as an operating lease in
accordance with generally accepted accounting principles,
(g) the maximum amount of all performance and standby
letters of credit issued or bankers' acceptances facilities
created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent
unreimbursed), and (h) all preferred stock issued by such
Person after the date of the Third Amendment and required by
the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date. The
Liabilities of any Person shall include the Liabilities of
any partnership or unincorporated joint venture in which
such Person is legally obligated or has a reasonable
expectation of being liable with respect thereto.
"Third Amendment" means the Third Amendment to
Second Amended and Restated Loan Agreement dated as of March
31, 2000 (the "Third Amendment") among Lenders, Agent and
Borrower.
"Unsecured Liabilities" means all Liabilities to
the extent not secured by Lien on any property of Borrower
or any Consolidated subsidiary.
3. Amendments to Other Provisions of Loan Agreement.
a. The second sentence of Section 7.12 of the Loan
Agreement is amended and restated to read as follows:
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
as of the end of such fiscal quarter; plus (b) Borrower's
Pro Rata Share of all the Indebtedness of each of the
Unconsolidated Subsidiaries and of the end of such fiscal
quarter; less (c) the consolidated accounts payable and
consolidated accrued liabilities of Borrower and its
Consolidated Subsidiaries as of the end of such fiscal
quarter.
b. The following is added as a new Section 7.23 to
the Loan Agreement.
Section 7.23 Accounts Payable and Accruals.
Borrower shall, at all times during each Applicable
Measurement Period, cause the sum of the consolidated
accounts payable plus the consolidated accrued liabilities
of Borrower and its Consolidated Subsidiaries to be less
than or equal to 7.5% of the consolidated total assets of
Borrower and its Consolidated Subsidiaries.
4. Conditions to Effectiveness. Notwithstanding anything
contained herein to the contrary, this Third Amendment shall not
become effective until each of the following conditions is fully
and simultaneously satisfied:
(a) Delivery of Amendment. Borrower, Agent and each
Lender shall have executed and delivered counterparts of this
Third Amendment to Agent.
(b) Consent of Guarantors. Shurgard Texas Limited
Partnership, a Washington limited partnership, Shurgard Evergreen
Limited Partnership, a Delaware limited partnership, and SSC
Evergreen, Inc., a Delaware corporation, shall have executed the
Guarantor's Consents attached hereto.
5. 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 is true and correct in each case as if made on and as
of the date of this Third 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.
6. No Further Amendment. Except as expressly modified by
this Third 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 Third Amendment, the other amendment documents in connection
with this Third Amendment ("Amendment Documents"), and the
closing of the transactions contemplated hereby and thereby.
7. Miscellaneous.
(a) Entire Agreement. This Third 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 Third 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 Third Amendment.
(c) Governing Law. This Third 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
Third 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
Its Chief Financial Officer
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.
By /s/ Xxxxxxx X. Xxxxxxx
Its Vice President
Address: Bank of America Tower
000 Xxxxx Xxxxxx, Xxxxx 00
WA1-102-12-07
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Commercial Banking Division
Telephone:(000) 000-0000
Telefax: (000) 000-0000
BANK ONE, NA
By /s/ Xxxxxxx X. Xxxxx
Its First Vice President
Address: Bank One NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone:(000) 000-0000
Telefax: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxx X. Xxxxx
Its Assistant Vice President
Address: 000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone:(000) 000-0000
Telefax: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By /s/ Miles 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
LASALLE BANK NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxxxxx
Its Assistant Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Telephone:(000) 000-0000
Telefax: (000) 000-0000
THE BANK OF NOVA SCOTIA
By /s/ Xxxxxx 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
AGENT:
BANK OF AMERICA, N.A.
By /s/ Xxxx Xxxxx
Its Vice President
Address: Bank of America Tower
000 Xxxxx Xxx., Xxxxx 00
XX0-000-00-00
Xxxxxxx, XX 98104-7001
Attn: Xxxx X. Xxxxx
Agency Management Services
Telephone:(000) 000-0000
Telefax: (000) 000-0000
GUARANTOR'S CONSENT
Shurgard Texas Limited Partnership, a Washington 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 Second Amended and Restated Loan Agreement referred to in the
within and foregoing Third Amendment to Second Amended and
Restated Loan Agreement (the "Third Amendment") and the other
Loan Documents described in the Loan Agreement. The Guarantor
hereby acknowledges that it has received a copy of the Third
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 Third Amendment.
DATED: March 31, 0000
XXXXXXXXX: XXXXXXXX XXXXX LIMITED PARTNERSHIP,
By: Shurgard
Storage Centers, Inc., its General
Partner
By /s/ Xxxxxxx Xxxx
Its Senior Vice President
GUARANTOR'S CONSENT
Shurgard Evergreen Limited Partnership, a Delaware 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 Second Amended and Restated Loan Agreement referred to in the
within and foregoing Third Amendment to Second Amended and
Restated Loan Agreement (the "Third Amendment") and the other
Loan Documents described in the Loan Agreement. The Guarantor
hereby acknowledges that it has received a copy of the Third
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 under the Loan
Documents as amended by the Third Amendment.
DATED: March 31, 2000
GUARANTOR: SHURGARD EVERGREEN LIMITED PARTNERSHIP,
By: Shurgard
Storage Centers, Inc., its General
Partner
By /s/ 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 Second Amended and
Restated Loan Agreement referred to in the within and foregoing
Third Amendment to Second Amended and Restated Loan Agreement
(the "Third Amendment") and the other Loan Documents described in
the Loan Agreement. The Guarantor hereby acknowledges that it
has received a copy of the Third 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 Third Amendment.
DATED: March 31, 2000
GUARANTOR: SSC EVERGREEN, INC.
By /s/ Xxxxxxx Xxxx
Its Senior Vice President
SCHEDULE 6
(to Third Amendment to Second Amended
and Restated Loan Agreement)
OBLIGATIONS EXCLUDED FROM DEDUCTED LIABILITIES
1. Borrower's obligation as guarantor of the obligations now or
hereafter owing by Resco Self-Storage, LLC under that
certain Loan Agreement dated as of January 27, 1998 among
Resco Self-Storage, LLC, as Borrower, Bank of America, N.A.,
Keybank National Association, U.S. Bank National Association
and LaSalle Bank National Association in the amount of
$30,000,000
2. Borrower's obligations with respect to the Debt now or
hereafter owing by the Joint Venture or the Second Joint
Venture whether as general partner, guarantor or otherwise.
3. Borrower's obligations with respect to the Debt now or
hereafter owing by the various Xxxxxxxxx entities or Xxxxxxx
entities identified in the Quarterly Compliance Certificate
dated December 31, 1999 and any other entities that may be
formed from time to time hereafter pursuant to the existing
joint venture agreements between Borrower and Xxxxxxxxx or
between Borrower and Xxxxxxx as such joint venture
agreements may be amended from time to time.
