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EXHIBIT 10.1
SIXTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this "Sixth
Amendment") is made as of October 27, 1998 by and among BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, a national banking association, d/b/a Seafirst
Bank, KEYBANK NATIONAL ASSOCIATION, a national banking association, U.S. BANK
NATIONAL ASSOCIATION, a national banking association, and LASALLE NATIONAL BANK,
a national banking association (each individually a "Lender" and collectively
the "Lenders"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association, d/b/a Seafirst Bank, 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 Amended and
Restated Loan Agreement dated as of September 9, 1996, as amended by that
certain First Amendment to Amended and Restated Loan Agreement dated as of
November 14, 1996, that certain Second Amendment to Amended and Restated Loan
Agreement dated as of March 12, 1997, that certain Third Amendment to Amended
and Restated Loan Agreement dated as of July 28, 1997, that certain Fourth
Amendment to Amended and Restated Loan Agreement dated as of January 30, 1998,
and that certain Fifth Amendment to Amended and Restated Loan Agreement dated as
of May 1, 1998 (collectively, the "Loan Agreement").
B. Borrower has requested, and Lenders and Agent have agreed, to amend
the Loan Agreement upon certain terms and conditions contained in this Sixth
Amendment.
NOW, THEREFORE, Lenders, Agent and Borrower agree as follows:
AGREEMENT
1. Capitalized Terms. Capitalized terms not otherwise defined in this
Sixth Amendment shall have the meanings set forth in the Loan Agreement.
2. Amendments to Definitions in Loan Agreement.
a. The definition of "Applicable LIBOR Spread" found in Section
1.1 of the Loan Agreement shall be amended to read as follows:
"Applicable LIBOR Spread" means (a) for any LIBOR
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Rate whose Reset Date occurs on a date when Borrower's Rating is less than
BBB-/Baa3, 1.875%; (b) for any LIBOR Rate whose Reset Date occurs on a
date when Borrower's Rating is BBB-/Baa3 or higher but less than BBB/Baa2,
1.075%; (c) for any LIBOR Rate whose Reset Date occurs on a date when
Borrower's Rating is BBB/Baa2 or higher but less than BBB+/Baa1, .95%; (d)
for any LIBOR Rate whose Reset Date occurs on a date when Borrower's
Rating is BBB+/Baa1 or higher but less than A-/A3, .825%; and (e) for any
LIBOR Rate whose Reset Date occurs on a date when Borrower's Rating is
A-/A3 or higher, .70%.
b. The definition of "Commitment" found in Section 1.1 of the
Loan Agreement shall be amended to read as follows:
"Commitment" means One Hundred Fifty Million Dollars ($150,000,000).
c. The definition of "Gross Asset Value" found in Section 1.1 of
the Loan Agreement shall be amended to read as follows:
"Gross Asset Value" means, with respect to any fiscal quarter: (a)
the Stabilized Asset Value as of the end of such fiscal quarter, plus (b)
the Development Asset Value as of the end of such fiscal quarter (c) plus
unrestricted cash and Cash Equivalents (excluding tenant deposits) as of
the end of such fiscal quarter, plus (d) the outstanding principal balance
of any loans owing from the Joint Venture to Borrower up to a maximum of
Fifty Million Dollars ($50,000,000).
d. The definition of "Supplemental Commitment Period" shall be
stricken from Section 1.1 of the Loan Agreement.
e. The definition of "Unencumbered Property Value" found in
Section 1.1 of the Loan Agreement shall be amended to read as follows:
"Unencumbered Property Value" means, with respect to any fiscal
quarter, Unencumbered Stabilized Asset Value as of the end of such fiscal
quarter plus Unencumbered Development Asset Value as of such date plus
unrestricted cash and Cash Equivalents as of such date, plus the
outstanding principal balance of any loans owing from the Joint Venture to
Borrower up to a maximum of Fifty Million Dollars ($50,000,000).
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3. Extension of Revolving Commitment Term. Section 2.1(d) of the Loan
Agreement shall be amended to read as follows:
(d) EXTENSION OF REVOLVING COMMITMENT TERM(d) EXTENSION OF
REVOLVING COMMITMENT TERM(d) EXTENSION OF REVOLVING COMMITMENT TERM(d)
EXTENSION OF REVOLVING COMMITMENT TERM(d) EXTENSION OF REVOLVING
COMMITMENT TERM. Subject to the terms and conditions of this Agreement,
each Lender agrees that Borrower may extend the Commitment Period and the
Revolving Loan Maturity Date to September 30, 2000. During such extension
period, the Revolving Loans described in Section 2.1(a) and 2.1(b) shall
continue to constitute a revolving credit and, subject to the limits set
forth in this Agreement, Borrower may pay, prepay and reborrow.
4. Year 2000. The following is added as a new Section 7.23 to the Loan
Agreement:
SECTION 7.23 YEAR 2000. On the basis of a comprehensive review and
assessment of Borrower's systems and equipment and inquiry made of
Borrower's material suppliers, vendors and customers, Borrower reasonably
believes that the "Year 2000 problem" (that is, the inability of
computers, as well as embedded microchips in non-computing devices, to
perform properly date-sensitive functions with respect to certain dates
prior to and after December 31, 1999), including costs of remediation,
will not result in a material adverse change in the operations, business,
properties, condition (financial or otherwise) or prospects of Borrower.
Borrower has developed feasible contingency plans adequately to ensure
uninterrupted and unimpaired business operation in the event of failure of
its own or a third party's systems or equipment due to the Year 2000
problem, including those of vendors, customers, and suppliers, as well as
a general failure of or interruption in its communications and delivery
infrastructure.
5. Conditions to Effectiveness. Notwithstanding anything contained
herein to the contrary, this Sixth 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 Sixth Amendment to Agent.
(b) Consent of Guarantor. Shurgard Texas Limited Partnership, a
Washington limited partnership, shall have executed the Guarantor's Consent
attached hereto.
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(c) Other Documents. Agent and Lenders shall have received such
other documents, instruments, and undertakings as Agent and such Lender may
reasonably request.
(d) Agency Letter. Borrower shall have delivered to Agent that
certain agency letter to be executed in connection with this Sixth Amendment.
6. 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 Sixth 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.
7. No Further Amendment. Except as expressly modified by this Sixth
Amendment, the Loan Agreement and the other Loan Documents shall remain
unmodified and 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
Sixth Amendment, the other Amendment Documents, and the closing of the
transactions contemplated hereby and thereby.
8. Miscellaneous.
(a) Entire Agreement. This Sixth 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 Sixth Amendment may be executed in any
number of counterparts, and by different parties hereto in separate
counterparts, including by facsimile transmission, 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 Sixth Amendment.
(c) Governing Law. This Sixth 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.
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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 Sixth 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
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Its Chief Financial Officer
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Address: 0000 Xxxxxx Xx., Xxx. 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
LENDERS:
Pro Rata Share of
Total Commitment
From Closing until BANK OF AMERICA NATIONAL TRUST
September 30, 2000: AND SAVINGS ASSOCIATION
$45,450,000 30.3%
By /s/ XXXXXX XXXXXX
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Its Vice President
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Address: Columbia Seafirst Center
Floor 12
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Metropolitan Commercial Banking
Division
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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From Closing until KEYBANK NATIONAL ASSOCIATION
September 30, 2000:
$37,350,000 24.9% By /s/ XXXXXXX X. XXXXX, XX.
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Its Assistant Vice President
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Address: 000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Telefax: (000) 000-0000
From Closing until U.S. BANK NATIONAL ASSOCIATION
September 30, 2000:
$37,350,000 24.9%
By /s/ MILES XXXXXXXXXXX
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Its Vice President
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Address: 0000 Xxxxx Xxxxxx,
Xxxxx 00, XXX000
Xxxxxxx, XX 00000
Attn: Miles Xxxxxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
From Closing until LASALLE NATIONAL BANK
September 30, 2000:
$29,850,000 19.9% By /s/ XXXXX XXXXXXXXXX
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Its First Vice President
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Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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AGENT:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ XXXX XXXXX
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Its Vice President
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Address: Bank of America National Trust
and Savings Association d/b/a
Seafirst Bank
000 Xxxxx Xxx., Xxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Seafirst
Agency Services
Telephone: (000) 000-0000
Telefax: (000) 000-0000
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