FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from--------------to--------------
Commission file number 0-23466
SHURGARD STORAGE CENTERS, INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1603837
------------------------------- -----------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1155 Valley St., SUITE 400, SEATTLE, WASHINGTON 98109
----------------------------------------------- --------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 206-624-8100
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
-----
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable
date.
Shares outstanding at November 2, 1999:
Class A Common Stock, $.001 par value, 29,019,637 shares outstanding
Class B Common Stock, $.001 par value, 154,604 shares outstanding
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Consolidated Balance Sheets
(unaudited)
(Amounts in thousands except share data)
<TABLE>
September 30, December 31,
1999 1998
------------ -----------
<S> <C> <C>
Assets
Storage centers:
Land $ 226,642 $ 212,154
Buildings and equipment, net 785,620 750,700
Construction in progress 129,365 81,043
--------- ---------
Total storage centers 1,141,627 1,043,897
Other real estate investments 34,753 33,057
Cash and cash equivalents 16,725 9,474
Restricted cash and investments 7,092 6,864
Other assets 63,102 60,615
--------- ----------
Total assets $1,263,299 $1,153,907
========== ==========
Liabilities and Shareholders' Equity
Accounts payable and other liabilities $ 41,552 $ 41,312
Lines of credit 160,273 95,028
Notes payable 386,830 330,998
------- -------
Total liabilities 588,655 467,338
------- -------
Minority interest in other real estate
investments 32,187 34,759
Commitments and contingencies (Notes D and E)
Shareholders' equity:
Series B Cumulative Redeemable Preferred
Stock; $0.001 par value; 2,300,000
authorized; 2,000,000 shares issued
and outstanding; liquidation preference 48,056 48,056
Series C Cumulative Redeemable Preferred
Stock; $0.001 par value: 2,000,000
authorized; 2,000,000 shares issued
and outstanding; liquidation preference 48,115 48,115
Class A Common Stock, $0.001 par value;
120,000,000 authorized; 29,019,642 and
28,677,367 issued and outstanding 610,235 605,484
Class B Common Stock, $0.001 par value;
500,000 authorized, 154,604 issued
and outstanding; net of loans to shareholders
of $4,002 (1,086) (1,086)
Accumulated net income less distributions (60,200) (47,312)
Accumulated other comprehensive income (2,663) (1,447)
------- -------
Total shareholders' equity 642,457 651,810
------- -------
Total liabilities and shareholders'
equity $ 1,263,299 $ 1,153,907
=========== ===========
</TABLE>
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Consolidated Statements of Net Income
(unaudited)
(Amounts in thousands except per share data)
<TABLE>
For the three For the three
months ended months ended
Sept. 30, 1999 Sept. 30, 1998
-------------- --------------
<S> <C> <C>
Revenue:
Rental $ 48,203 $ 41,639
Other real estate investments (395) (715)
Property management 337 625
------ ------
Total revenue 48,145 41,549
------ ------
Expenses:
Operating expense 13,821 11,850
Depreciation and amortization 10,498 8,496
Real estate taxes 4,015 3,323
General, administrative and
other 1,477 1,130
------ ------
Total expenses 29,811 24,799
------ ------
Income from operations 18,334 16,750
------ ------
Interest and other income 585 352
Interest expense (6,744) (6,007)
------ ------
Other income
(expense), net (6,159) (5,655)
------ ------
Minority interest 1,843 699
------ ------
Income before cumulative
effect of a change in
accounting principle 14,018 11,794
Cumulative effect of a change
in accounting principle
--------- ---------
Net income $ 14,018 $ 11,794
========= =========
Basic net income per common share:
Income before change in
accounting principle $ .41 $ 0.37
Cumulative effect of a change
in accounting principle $
--------- ---------
Net income $ .41 $ 0.37
========= =========
Diluted net income per common share:
Income before change
in accounting principle $ .41 $ 0.37
Cumulative effect of a change
in accounting principle $
--------- ---------
Net income $ .41 $ 0.37
========= =========
Distributions per common share:
Basic $ .50 $ 0.49
========= =========
Diluted $ .50 $ 0.49
========= =========
</TABLE>
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Consolidated Statements of Net Income
(unaudited)
(Amounts in thousands except per share data)
<TABLE>
For the nine For the nine
months ended months ended
Sept. 30, 1999 Sept. 30, 1998
-------------- --------------
<S> <C> <C>
Revenue:
Rental $ 135,572 $ 116,492
Other real estate investments (1,385) (1,244)
Property management 1,047 1,803
------- -------
Total revenue 135,234 117,051
------- -------
Expenses:
Operating expense 39,713 33,724
Depreciation and amortization 29,835 24,269
Real estate taxes 11,660 9,508
General, administrative and
other 4,564 2,899
------ ------
Total expenses 85,772 70,400
------ ------
Income from operations 49,462 46,651
------ ------
Interest and other income 1,163 1,042
Interest expense (19,217) (15,441)
------- -------
Other income
(expense), net (18,054) (14,399)
------- -------
Minority interest 6,916 1,250
------- -------
Income before cumulative
effect of a change
in accounting principle 38,324 33,502
Cumulative effect of a change
in accounting principle (1,366)
--------- ---------
Net income $ 36,958 $ 33,502
========= =========
Basic net income per common share:
Income before change in
accounting principle $ 1.09 $ 1.05
Cumulative effect of a change in
accounting principle $ (0.05)
--------- ---------
Net income $ 1.04 $ 1.05
========= =========
Diluted net income per common share:
Income before change in
accounting principle $ 1.09 $ 1.05
Cumulative effect of a change in
accounting principle $ (0.05)
--------- ---------
Net income $ 1.04 $ 1.05
========= =========
Distributions per common share:
Basic $ 1.49 $ 1.46
========= =========
Diluted $ 1.49 $ 1.46
========= =========
</TABLE>
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Consolidated Statements of Cash Flows
(unaudited)
(Amounts in thousands)
<TABLE>
Nine months Nine months
ended ended
Sept. 30, Sept. 30,
1999 1998
--------- ---------
<S> <C> <C>
Operating activities:
Net income $36,958 $33,502
Adjustments to reconcile earnings
to net cash provided by operating
activities:
Cumulative change in accounting
principle 1,366
Depreciation and amortization 29,835 24,269
Other (163) (294)
Loss from other real estate
investments 3,047 3,091
Minority interest in earnings
from investments in other
real estate investments (6,916) (1,250)
Changes in operating accounts:
Restricted cash (228) 240
Other assets (2,765) (4,110)
Accounts payable and other
liabilities 8,047 6,929
------ ------
Net cash provided by
operating activities 69,181 62,377
------ ------
Investing activities:
Construction, acquisition and
improvements to storage centers (134,581) (126,603)
Payment for purchase of units of
an affiliated partnership (21,181)
Proceeds from sale of real estate 2,000
Purchase of other real estate
investments (5,518) (5,998)
Purchase of non-competition
agreements and other amortizable
assets (885) (2,080)
Increase in loans to affiliates (1,195) (5,131)
Purchase of additional interest in
an affiliated partnership (1,191)
Distributions in excess of earnings
from other real estate investments 1,387
------- ------
Net cash used in investing
activities (143,370) (157,606)
-------- --------
Financing activities:
Net Proceeds from notes payable 56,612 71,589
Net proceeds from lines of credit 66,198 56,329
Payment of loan costs (1,997) (1,139)
Proceeds from exercise of stock options
and dividend reinvestment plan 3,696 4,523
Distributions paid (49,843) (45,115)
Contributions received from minority
partners 7,650 15,095
Distributions to minority partners (692) (499)
----- ------
Net cash provided by financing
activities 81,624 100,783
------ -------
Net effect of translation on cash (185)
------ -------
Increase in cash and cash equivalents 7,250 5,554
Cash and cash equivalents at beginning
of period 9,475 7,248
------ ------
Cash and cash equivalents at end of
period $16,725 $12,802
======= =======
Supplemental schedule of cash flow information:
Cash paid for interest, net of
interest capitalized $17,719 $16,519
======= =======
</TABLE>
<PAGE>
Shurgard Storage Centers, Inc.
Part I, Item 1: Notes to Consolidated Financial Statements
Nine Months Ended September 30, 1999
(unaudited)
Note A - Basis of Presentation
The consolidated financial statements include the accounts of
Shurgard Storage Centers, Inc. and its subsidiaries, including U.S.
and foreign subsidiaries. All intercompany balances and
transactions have been eliminated upon consolidation.
The consolidated financial statements included in this report
are unaudited. In our opinion, all adjustments necessary for a fair
presentation of such financial statements have been included and
such adjustments consisted only of normal recurring items. The
interim financial statements should be read in conjunction with our
1998 Annual Report. Interim results are not necessarily indicative
of results for a full year.
The preparation of financial statements in conformity with
generally accepted accounting principles requires us to make
estimates and assumptions that affect the reported amount of assets
and liabilities, disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenue and expenses during the reporting period. Actual results
could differ from those estimates.
Effective December 31, 1998, we adopted Statements of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income"
(SFAS 130) and No. 131, "Disclosures about Segments of an
Enterprise and Related Information" (SFAS 131). SFAS No. 130
establishes standards for reporting and display of comprehensive
income and its components. SFAS No. 131 establishes standards for
determining an entity's operating segments and the type and level of
financial information to be disclosed in both annual and interim
financial statements. It also establishes standards for related
disclosures about products and services, geographic areas and major
customers (see Note G).
On April 3, 1998, the AICPA Accounting Standards Executive
Committee (AcSEC) issued Statement of Position 98-5 (SOP 98-5),
"Reporting on the Costs of Start-Up Activities", which is effective
for fiscal years beginning after December 15, 1998. SOP 98-5
requires start-up activities and organization expenses to be
expensed as incurred. We have implemented SOP 98-5 in the first
quarter of 1999. This initial application for consolidated entities
is reported as a cumulative effect of a change in accounting
principle.
Basic average shares outstanding for the nine months ended
September 30, 1999 and 1998 were 29,068,053 and 28,660,673, while
the three months ended September 30, 1999 and 1998 were 29,137,330
and 28,715,259, respectively. Diluted average shares outstanding
for the nine months ended September 30, 1999 and 1998 were
29,103,294 and 28,674,856, while the three months ended
September 30, 1999 and 1998 were 29,174,533 and 28,729,442, respectively.
Certain amounts in the 1998 financial statements have been
reclassified to conform to the current presentation.
Accumulated other comprehensive income consists of foreign
currency translation adjustments.
Note B - Lines of Credit
On September 30, 1999, we increased the amount available under
our unsecured domestic line of credit to borrow up to $200 million
at a spread over LIBOR, maturing September 30, 2001, with the option
to extend until September 2002. The amount available and the spread
vary based on the terms of the agreement; as of September 30, 1999,
the current available amount is $200 million, of which approximately
$148.6 million was outstanding. At September 30, 1999, the weighted
average interest rate was 6.4%.
We have European credit lines (denominated in local currencies)
to borrow up to a total of $13.5 million of which $11.7 million had
been drawn down as of September 30, 1999. Of this amount,
$9.7 million matures in 2001, and the remaining matures between 2002
and 2005. The weighted average effective interest rate on these
lines at September 30, 1999 was 5%.
NOTE C - Notes Payable
<TABLE>
(in thousands) Sept. 31, 1999 Dec. 31, 1998
-------------- -------------
<S> <C>
Note payable to financial
services company $ 122,580 $ 122,580
Senior notes payable 100,000 100,000
Mortgage notes payable 72,628 51,536
Notes payable to affiliated
joint venture 91,622 56,882
--------- ---------
$ 386,830 $ 330,998
========= =========
</TABLE>
The $122.6 million non-recourse note payable to a financial
services company requires monthly payments of interest only at 8.28%
until it matures June 2001 and is secured by 86 properties with a
book value of $226 million.
In April 1997, we issued $100 million in senior unsecured
notes, $50 million of which are seven year notes due April 2004
bearing interest at 7.5% and $50 million of which are ten year notes
due April 2007 bearing interest at 7.625%. The notes require semi-
annual interest payments due April 25th and October 25th.
Mortgage notes payable increased $21.1 million due to the
formation of Shurgard/Fremont Partners II, a partnership, formed on
March 17, 1999. For a further discussion of this partnership see
NEW DEVELOPMENT FINANCING ARRANGEMENT.
As of September 30, 1999, Benelux SCS had borrowed a total of
$91.6 million with a weighted average interest rate of 6.9%. The
notes are from an affiliated joint venture in which we own a 9.15%
interest and mature December 31, 2000.
The maturities of principal on both domestic and foreign debt
over the next five fiscal years are approximately $91.6 million in
2000; $325.9 million in 2001; $21.1 million in 2002, $7.3 million in
2003 and $50 million in 2004. For a further discussion see NOTE H-
Notes Payable in our 1998 Annual Report on Form 10-k.
Note D - Storage Centers
Building and equipment are presented net of accumulated
depreciation of $133.6 million and $106.5 million as of September 30,
1999 and December 31, 1998, respectively. We have entered into
32 construction contracts for developments of new or improvements to
current storage centers. Outstanding commitments under these
contracts total $36 million.
On March 17, 1999, we formed a partnership, Shurgard/Fremont
Partners II (SFPII), with Fremont Realty Capital L.L.C. (Fremont).
One of our wholly owned subsidiaries and an affiliate of Fremont are
the general partners of SFPII. We have a 10% equity interest and
the Fremont affiliate has a 90% equity interest in SFPII. Under the
terms of the agreements executed in connection with the formation of
SFPII, we contribute properties to SFPII shortly after construction
is completed. The first six properties were contributed on May 21,
1999. SFPII has granted us an option to acquire all of the
properties owned by the Partnership. The purchase option is
exercisable at certain times between December 15, 2001 and November 30,
2003, depending upon the performance of the properties.
Subsequent to the end of the quarter, two additional properties were
contributed to SFPII.
On May 29, 1998, we formed a partnership, Shurgard/Fremont
Partners I (SFP1), with Fremont Realty Capital L.L.C. (Fremont). The
general partners of SFP1 consist of one of our wholly owned
subsidiaries and an affiliate of Fremont. SFP1 has granted us an
option to acquire all of the properties owned by SFP1. The purchase
option is exercisable at certain times between December 15, 2000 and
December 31, 2002, depending upon the performance of the properties.
For a further discussion of this partnership, see NEW DEVELOPMENT
FINANCING ARRANGEMENT in our 1998 Annual Report on Form 10-K.
Note E - Shareholders' Equity
During the first nine months of 1999, 174,766 shares of Class A
common stock were issued in connection with our Dividend
Reinvestment Plan (the Plan). The Plan offers shareholders an
opportunity to invest cash dividends in additional shares at a 2%
discount from the current market price. All shareholders are
eligible to participate. Additionally, 22,223 shares were issued in
connection with the exercise of employee stock options.
Under the Merger Agreement with Shurgard Inc., we are
contingently obligated to issue additional shares as consideration
for certain partnership interests held by Shurgard Inc. which were
not valued at the time of the merger. During the first quarter of
1999, we issued 145,286 shares related to this obligation.
Additional shares may be issued over the next two years as
consideration for similar interests in two other partnerships.
Note F -Contingent Liability and Commitments
As a general partner, we are contingently liable for the debt
of a European joint venture, which at September 30, 1999 totaled
$22.7 million. We have also guaranteed all or portions of the debt
of certain domestic joint ventures and joint venture partners, which
at September 30, 1999 totaled $46.1 million.
Additionally, we have guaranteed $10.5 million in lease
obligations for Shurgard Storage to Go, Inc., a containerized
storage business. We own only nonvoting stock in this start-up
venture which is not a qualified REIT subsidiary and is subject to
corporate level tax.
Note G - Purchase of Units of an Affiliated Party
On March 31, 1999, we purchased one Limited Partner unit in
Shurgard Institutional Fund LP II, from an unaffiliated third party,
for $1.2 million in cash. We now own 6.5 of the 9.5 limited partner
units and are entitled to 67% of limited partner distributions. We
continue to own a general partnership interest in this partnership
which is consolidated in our financial statements.
Note H - Segment Reporting
SSCI has three reportable segments; Same, New and European
Stores. Our definition of Same Stores includes existing domestic
facilities acquired prior to January 1 of 1998 as well as developed
properties that have been operating a full two years as of July 1,
1999. We project that newly developed properties will reach
stabilization in an average of 21 to 24 months. New Stores include
existing domestic facilities that had not been acquired as of
January 1, 1998 as well as domestic developed properties that had
not been operating a full two years as of July 1, 1999. European
Stores include all of our non-domestic stores. We are currently
located in five European countries: Belgium, France, Sweden, the
Netherlands, and the United Kingdom.
The three reportable segments allow us to focus on increasing
net operating income from our existing domestic real estate assets,
renting up our new domestic properties, and becoming a dominant
player in the European market. We evaluate each segment's
performance based on net operating income (NOI) which is defined as
rental revenue less direct operating expenses and real estate taxes.
NOI does not include any allocation of off-site management or
overhead costs.
The accounting policies of the segments are the same as those
described in the summary of significant accounting policies. There
are no inter-segment sales and transfers.
SSCI does not allocate non-direct operating expenses,
depreciation & amortization, general, administrative and other,
interest expense, interest and other income (net) and minority
interest to the segments.
Using the definition of Same Store and New Store described
above, the portfolio of assets reported in these segments changes
from year to year. Assets transition from New Store to Same Store
over time. The following tables illustrate the results using the
1999 Same Store, New Store and European Store base for reportable
segments as of and for the three months and nine months ended
September 30, 1999 and 1998.
(in thousands)
<TABLE>
Same New European Total
Stores Stores Stores
------- ------ -------- ------
<S> <C> <C> <C> <C>
Quarter ended
September 30, 1999
Rental revenue $43,710 $5,040 $2,700 $51,450
Less unconsolidated
joint ventures (2,000) (1,247) (3,247)
------ ------ ------ ------
Consolidated revenue 41,710 3,793 2,700 48,203
Operating expenses 12,051 2,169 1,482 15,702
Less unconsolidated
joint ventures (541) (839) (1,380)
------ ----- ----- ------
Consolidated
operating expenses 11,510 1,330 1,482 14,322
------ ----- ----- ------
Consolidated NOI $30,200 $2,463 $1,218 $33,881
======= ====== ====== =======
Quarter ended
September 30, 1998
Rental revenue $41,891 $1,975 $1,255 $45,121
Less uncounsolidated
joint ventures (1,925) (1,557) (3,482)
------ ------ ------ ------
Consolidated 39,966 418 1,255 41,639
revenue
Operating expenses 11,612 927 343 12,882
Less unconsolidated
joint ventures (418) (726) (1,144)
------ ---- ---- ------
Consolidated
operating expenses 11,194 201 343 11,738
------ ---- ----- -------
Consolidated NOI $28,772 $217 $912 $29,901
======= ===== ===== =======
</TABLE>
(in thousands)
<TABLE>
Same News European Total
Stores Stores Stores
------ ------ -------- -----
<S> <C> <C> <C> <C>
Nine months ended
September 30, 1999
Rental revenue $125,742 $11,999 $6,077 $143,818
Less unconsolidated
joint ventures (5,661) (2,585) (8,246)
------- ------ ----- -------
Consolidated revenue 120,081 9,414 6,077 135,572
Operating expenses 35,498 5,417 3,642 44,557
Less unconsolidated
joint ventures (1,485) (1,457) (2,942)
------ ------ ------ ------
Consolidated
operating expenses 34,013 3,960 3,642 41,615
------- ------ ------ -------
Consolidated NOI $86,068 $5,454 $2,435 $93,957
======= ====== ====== =======
Nine months ended
September 30, 1998
Rental revenue $120,565 $3,667 $2,741 $126,973
Less unconsolidated
joint ventures (7,700) (2,781) (10,481)
------- ------ ----- -------
Consolidated revenue 112,865 886 2,741 116,492
Operating expenses 35,176 1,748 1,503 38,427
Less unconsolidated
joint ventures (2,023) (1,458) (3,481)
------ ------ ----- ------
Consolidated
operating expenses 33,153 290 1,503 34,946
------- ---- ----- -------
Consolidated NOI $79,712 $596 $1,238 $81,546
======= ==== ====== =======
</TABLE>
The following table reconciles the reportable segments' rental
revenue per the table above to consolidated total revenue for the
quarters and nine months ended September 30, 1999 and 1998.
<TABLE>
(in thousands) Three months ended Nine months ended
September 30, September 30,
----------------- ------------------
1999 1998 1999 1998
------ ------ ------- ------
<S> <C> <C> <C> <C>
Consolidated rental
revenue $48,203 $41,639 $135,572 $116,492
Other real estate
investments income (loss) (395) (715) (1,385) (1,244)
Property management
revenue 337 625 1,047 1,803
------- ------- -------- --------
Total revenue $48,145 $41,549 $135,234 $117,051
======= ======= ======== ========
</TABLE>
The following table reconciles the reportable segments' NOI per
the table above to consolidated net income for the quarters and nine
months ended September 30, 1999 and 1998.
<TABLE>
(in thousands) Three months ended Nine months ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
------- ------- ------- ------
<S> <C> <C> <C> <C>
Consolidated NOI $33,881 $29,901 $93,957 $81,546
Other real estate
investments income (loss) (395) (715) (1,385) (1,244)
Property management revenue 337 625 1,047 1,803
Other operating expenses (15,489) (13,061) (44,157) (35,454)
Interest & other income (6,159) (5,655) (18,054) (14,399)
Minority interest 1,843 699 6,916 1,250
Change in accounting principle (1,366)
------- ------- ------- -------
Net income $14,018 $11,794 $36,958 $33,502
======= ======= ======= =======
</TABLE>
Note I - Subsequent Events
On October 12, 1999, Shurgard Storage Centers, Inc. along with
the other existing investors of SSC Benelux & Co., SCA (previously
SSC Benelux & Co., SCS) entered into a European joint venture
agreement with San Francisco based Fremont Realty Capital, Deutsche
Bank AG, AIG Global Real Estate Investment Corporation and Credit
Suisse First Boston. The new investors have committed 122 million
Euro to Shurgard Benelux & Co. SCA, Shurgard's European operating
company, in exchange for a 43% interest in this company.
Concurrently, the company established a 140 million Euro credit
facility with Credit Suisse First Boston. The additional financial
resources provided by these agreements will be used to execute the
company's European expansion plan.
Part I, Item 2: Management's Discussion and Analysis of Financial
Condition and Results of Operations
When used in this discussion and elsewhere in this Quarterly
Report on Form 10-Q, the words "believes," "anticipates," "expects,"
"projects" and similar expressions are intended to identify forward-
looking statements regarding financial performance. ACTUAL RESULTS
MAY DIFFER MATERIALLY DUE TO UNCERTAINTIES INCLUDING THE RISK THAT
COMPETITION FROM NEW SELF STORAGE FACILITIES OR OTHER STORAGE
ALTERNATIVES MAY CAUSE RENT TO DECLINE, OCCUPANCY RATES TO DROP AND
DELAYS IN THE RENT-UP OF NEWLY DEVELOPED PROPERTIES, TAX LAW CHANGES
MAY CHANGE THE TAXABILITY OF FUTURE INCOME, AND LITIGATION MAY
MATERIALLY DECREASE LATE FEE REVENUE. ACTUAL RESULTS MAY DIFFER IF
INCREASES IN LABOR, TAXES, MARKETING, LITIGATION AND OTHER OPERATING
AND CONSTRUCTION EXPENSES OCCUR. Other factors which could affect
our financial results are described below and in Item 1 (Business)
and Item 7A of our most recent Annual Report on Form 10-K. Forward-
looking statements are based on estimates as of the date of this
report. The Company disclaims any obligation to publicly release
the results of any revisions to these forward-looking statements
reflecting new estimates, events or circumstances after the date of
this report.
INTERNAL GROWTH
The primary way we analyze our performance is to measure year
over year improvements in Same Store operating results. Our
definition of Same Stores includes existing stores acquired prior to
January 1 of 1998 as well as developed properties that have been
operating for a full two years as of July 1, 1999. We project that
newly developed properties will reach stabilization in an average of
21 to 24 months. Please note that our definition of Same Stores
results in the addition of stores each quarter as new acquisitions
and developments meet the criteria for inclusion, and that we then
include these stores in the previous year's comparable data. Other
storage companies may define Same Stores differently, which will
affect the comparability of the data. The following tables summarize
Same Store operating performance for the 3rd quarter and first nine
months of 1999 and 1998:
Same Store Results
<TABLE>
(dollars in thousands except Three months ended September 30,(3)
average rent) -----------------------------------
1999 1998 % Change
------- ------- --------
<S> <C> <C> <C>
Rental revenue $43,710 $41,891 4.3%
Property operating expenses (1) 12,051 11,612 3.8%
------- -------
Net operating income $31,659 $30,279 4.6%
======= =======
Avg. annual rent per sq. ft. (2) $10.47 $10.03 4.4%
Avg. sq. ft. occupancy 88% 88%
Total net rentable sq. ft. 17,300,000 17,300,000
Number of properties 268 268
</TABLE>
_______________
(1) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(2) Average annual rent per square foot is calculated by dividing
actual rent collected by the average number of square feet occupied
during the period.
(3) Table includes the total operating results of each store
regardless of our ownership interest in that store. Note G to the
consolidated financial statements reconciles Same Store results to
our consolidated net income.
Third quarter net operating income (NOI) for these centers has
risen 4.6% over the same quarter last year due to increases in
revenue. Revenue gains were primarily a function of changes in
rental rates and were partially offset by a decline in Ryder truck
rentals. Third quarter 1999 operating expenses increased 3.8% from
1998 levels primarily due to increases in marketing costs, increases
in real estate tax assessments for newer stores, and the timing of
certain other expenses.
<TABLE>
(dollars in thousands except Nine months ended September,30 (3)
average rent) ----------------------------------
1999 1998 % Change
-------- -------- --------
<S> <C> <C> <C>
Rental revenue $125,742 $120,565 4.3%
Property operating expenses (1) 35,498 35,176 0.9%
------- -------
Net operating income $90,244 $85,389 5.7%
======= =======
Avg. annual rent per sq. ft. (2) $10.32 $9.86 4.7%
Avg. sq. ft. occupancy 86% 86%
Total net rentable sq. ft. 17,300,000 17,300,000
Number of properties 268 268
</TABLE>
_______________
(1) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(2) Average annual rent per square foot is calculated by
dividing actual rent collected by the average number of square
feet occupied during the period.
(3) Table includes the total operating results of each store
regardless of our ownership interest in that store. Note G to
the consolidated financial statements reconciles Same Store
results to our consolidated net income.
Same store NOI for the first nine months of 1999 rose 5.7% over
the same period last year primarily due to rent increases. Revenue
gains were partially offset by declines in Ryder truck rentals and
retail sales. Operating expenses for the first nine months of 1999
increased 0.9%. Increases in marketing, real estate taxes and
repairs and maintenance expenditures offset by declines in personnel
costs, which include decreased health insurance costs and lower on-
site employee bonuses.
New Store Results
Our definition of New Stores, as shown in the table below,
includes existing domestic facilities that had not been acquired as
of January 1, 1998 as well as domestic developed properties that
have not been operating a full two years as of July 1, 1999.
<TABLE>
(dollars in thousands Three months Nine months
except average rent) ended ended
September 30, (3) September 30, (3)
----------------- -----------------
1999 1998 1999 1998
------- ------ ------ -------
<S> <C> <C> <C> <C>
Rental revenue $ 5,040 $ 1,975 $ 11,999 $ 3,667
Property operating
expenses (1) 2,169 927 5,417 1,748
------- ------- -------- -------
Net operating income $ 2,871 $ 1,048 $ 6,582 $ 1,919
======= ======= ======== =======
Number of properties 51 27 51 27
Number of property
months (2) 148 74 396 147
Total invested cost as
of September 30, 1999 $217.5 million
</TABLE>
_______________
(1) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(2) Represents the sum of the number of months we operated each
property during the year.
(3) Table includes the total operating results of each store
regardless of our ownership interest in that store. Note G to the
consolidated financial statements reconciles New Store results to
our consolidated net income.
Increases from year to year in net operating income (NOI) for the
new store portfolio reflect the greater number of property months
included for the periods presented. Although this increase gives
some indication of how much of our overall NOI growth results from
this segment, it is not a good method of evaluating the performance
of assets within this segment. Acquisitions and development
properties are evaluated based on comparisons of actual results to
pro forma NOI for the appropriate period from opening or at
maturity. The performance of our acquisitions and developments are
discussed in the sections that follow.
Domestic Acquisitions
During the first nine months of 1999, we purchased three
storage centers totaling 140,000 net rentable square feet at a total
cost of $8.2 million (including the cost associated with the related
non-competition agreements). These properties are located in
Florida, Texas and Washington. The Florida acquisition was
purchased with our Florida joint venture storage operator. Two of
these properties were purchased in the second quarter of 1999 and
the third was purchased in the latter part of the third quarter of
1999. Together these three properties contributed $259,000 to net
operating income for the nine months ended September 30, 1999.
<TABLE>
Dollars in thousands Quarter Nine months
except average rent ended ended
September 30, (1) September 30, (1)
----------------- -----------------
Results for 1999 1999 1999
Acquisitions ----------------- -----------------
<S> <C> <C>
Rental revenue $ 254 $ 356
Property operating
expenses (2) 83 97
------ -----
Net operating income $ 171 $ 259
====== =====
Avg. annual rent per
sq. ft. (3) $ 9.80 $ 10.00
Avg. sq.ft. occupancy 80% 82%
Total net rentable sq. ft. 140,000 140,000
Number of properties 3 3
Number of property
months (4) 8 12
Purchase price $ 8,175
</TABLE>
(1) Table includes the total operating results of each store
regardless of our ownership interest in that store.
(2) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(3) Average annual rent per square foot is calculated by dividing
actual rents collected by the average number of square feet occupied
during the period.
(4) Represents the sum of the number of months we operated each
property during the applicable period.
During 1998, we purchased seven storage centers totaling
450,000 net rentable square feet for a total cost of $23.8 million
(including the cost associated with the related non-competition
agreements). We also acquired a leasehold in an existing self
storage center containing 41,000 net rentable square feet for $1.2
million. Seven of these acquisitions were purchased during the
first nine months of 1998 of which one was purchased on September 25,
1998 and therefore had no operating results to report for the
quarter or nine months. These acquisitions were located as follows:
one in Arizona, one in California, one in Indiana, two in Tennessee,
and three in Texas. The table below summarizes the operating
performance of these properties during the third quarter and first
nine months of 1999. For a discussion of purchases of partnership
units, see Liquidity and Capital Resources.
<TABLE>
Dollars in thousands Three months ended Nine months ended
except average rent September 30, (1) September 30, (1)
------------------ -----------------
Results for 1998 1999 1998 1999 1998
Acquisitions ------ ------- ------ -------
<S> <C> <C> <C> <C>
Rental revenue $907 $529 $2,654 $940
Property operating
expenses (2) 278 201 864 309
---- ---- ------ ----
Net operating income $629 $328 $1,790 $631
==== ===== ====== ====
Avg. annual rent per
sq.ft. (3) $9.15 $7.80 $9.08 $7.96
Avg. sq.ft. occupancy 83% 91% 84% 92%
Total net rentable
sq. ft. 450,000 292,000 450,000 292,000
Number of properties 8 6 8 6
Number of property
months (4) 24 18 72 32
Purchase price $24,908
</TABLE>
(1) Table includes the total operating results of each store
regardless of our ownership interest in that store.
(2) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(3) Average annual rent per square foot is calculated by dividing
actual rents collected by the average number of square feet occupied
during the period.
(4) Represents the sum of the number of months we operated each
property during the applicable period.
Increases in revenue and NOI for the third quarter and nine
months ended September 30, 1999 reflect the increase in the number
of stores as compared to the prior year periods. Decreases in
occupancy over the prior periods reflect the acquisition of stores
that were in rent up at acquisition. For the one month ended
September 30, 1999, these acquisitions had net operating income of
$206,000 which represents 87% of projected monthly NOI at maturity.
The current average yield for these 1998 acquisitions is 9.6%
(calculated as actual net operating income less lease payments for
the first nine months of 1999, annualized, then divided by purchase
price).
Domestic Development
We opened 12 domestic storage centers in the first nine months
of 1999, and, when all phases are complete, these 12 projects will
total approximately 815,000 net rentable square feet with an
estimated total cost of $57.6 million. Four of these storage
centers were developed through our Florida joint ventures and five
are scheduled to be contributed to Shurgard/Fremont Partners II.
We opened 24 storage centers in 1998, representing
approximately 1,600,000 net rentable square feet. Of the 24 stores
opened, one was developed through our California joint venture,
three were developed through our Tennessee and Florida joint
ventures, and 16 were contributed to either Shurgard/Fremont
Partners I or Shurgard/Fremont Partners II, joint ventures in which
we own a 10% interest (see NEW DEVELOPMENT FINANCING ARRANGEMENT in
the following section). These 1998 developments together generated
$2,432,000 in net operating income for the first nine months of
1999. For the month of September 1999, these developments had NOI
of $452,000, which represents 42% of projected monthly NOI at
maturity, and averaged 58% occupancy. The operating results of these
1998 developments are included in the New Store Results in the
previous section. The storage center developed through our
California joint venture is not included in the operating results
above as it is currently a managed property. For a further
discussion see OTHER REAL ESTATE INVESTMENTS in our 1998 Annual
Report on Form 10-K.
The 17 storage centers opened in 1997 (five of which were
contributed to SFP1 and seven of which were developed through our
Tennessee and Florida joint ventures), representing approximately
1,150,000 net rentable square feet, averaged 78% occupancy for the
month of September 1999. These 1997 developments together generated
$4,900,000 in net operating income for the first nine months of
1999. For the one month ended September 30, 1999 these developments
had net operating income of $565,000 which represents 89% of
projected monthly NOI at maturity. The operating results of each of
these 1997 developments are included in either the Same Store
Results or the New Store Results in the previous section depending
on whether they have met the criteria for inclusion in Same Stores.
Total cost to develop these properties was $67.7 million.
In addition to the above completed developments, we had 17
storage centers under construction (two of these are being developed
in Florida through joint ventures) as of September 30, 1999. As a
general rule, to limit the risks of development, we do not purchase
land until the permitting process is complete. Construction usually
begins shortly after we obtain title to the land. We currently
anticipate opening 22-26 developments by the end of 1999. The
following table summarizes domestic development projects in progress
at September 30, 1999.
<TABLE>
Number Estimated Total Cost to
of Completed Cost Date as of
Projects of Projects (1)(2) Sept. 30, 1999 (1)
-------- ------------------ ------------------
<S> <C> <C> <C>
Consolidated Developments:
Construction in progress 15 $76.6 million $ 53.8 million
Land purchased pending
construction 3 $13.3 million $1.6 million
Unconsolidated Developments:
Construction in progress 2 $9.3 million $5.0 million
Expansion of Existing
Properties:
Construction in progress 3 $3.0 million $1.1 million
</TABLE>
(1) Table includes 100% of the costs of projects regardless of our
ownership percentage
(2) The actual completed cost of projects could vary due to delays
during construction caused by weather, unforeseen site conditions
and problems with subcontractors or contractors. For a further
discussion of events that could impact this estimate, see our 1998
Annual Report on Form 10-K.
We believe that a long-term strategy of growth through
development will result in superior returns over the long-term. A
development strategy, however, creates a short-term dilution of
earnings during the rent-up phase of a project. Although certain
costs, including real estate taxes and interest, are capitalized
during the construction period, net operating income does not
generally exceed interest expense on development projects for at
least the first year of operations. This rent-up deficit for our
pro-rata interest in developments was $1,604,000 (net operating
income of $643,000 less $2,247,000 of interest at 8.5% interest on
invested capital) for the first nine months of 1999 compared to
$923,000 for the same period in 1998. For further discussion of the
effect of this dilution, see our 1998 Annual Report on Form 10-K.
DEVELOPMENT FINANCING ARRANGEMENT
In order to expand our development capacity, broaden our access
to capital and minimize the effect of the rent-up deficit on funds
from operations (FFO), we have been pursuing alternative financing
options. In connection with this initiative, during the past two
years we have formed two joint ventures, Shurgard/Fremont Partners I
(SFPI) in May 1998 and Shurgard/Fremont Partners II (SFPII) in March
1999. The terms of these two joint ventures are very similar and
both are consolidated in our financial statements. We have a 10%
equity interest and our affiliate has a 90% equity interest in each
joint venture. All major decisions by the joint ventures require
approval of both partners.
Under the terms of the agreements executed in connection with
the formation of these joint ventures, properties are contributed by
a 100% owned Shurgard subsidiary to the joint venture shortly after
completion of development of the properties by Shurgard. Shurgard is
reimbursed at cost for all expenses it incurred in developing the
properties contributed to the Partnership (including a reimbursement
for internal costs). Each joint venture has an anticipated
capitalization of 30% equity and 70% debt.
Each joint venture has granted Shurgard an option to acquire
all of the properties owned by the joint venture. The purchase
options are exercisable at certain times described below, depending
upon the performance of the properties. The purchase price for the
properties upon exercise of the option is based on a 9 1/4
capitalization rate applied to the net operating income of the
properties for the three or four-month period preceding the exercise
of the option. The option related to SFPII is subject to a collar.
Under a Management Services Agreement between Shurgard and the
joint ventures, Shurgard will act as property manager for the
properties owned by the joint ventures, and Shurgard will receive a
monthly management fee equal to the greater of $2,000 per property
or 5% of gross revenues, as well as certain other fees relating to
accounting and administrative services that Shurgard will perform on
behalf of the joint ventures.
<TABLE>
Dollars in thousands SFPI SFPII
------- ------------
<S> <C> <C>
Estimated total equity $19,400 Up to $27,700
------- -------------
Estimated total debt $45,300 Up to $64,700
------- -------------
Estimated total number
of properties to be
contributed 15 16
------- -------------
Properties contributed
at September 30, 1999 15 6
------- -------------
Purchase option December 2000 December 2001
exercise period to December 2002 to November 2003
---------------- ----------------
</TABLE>
Subsequent to the end of the quarter, two additional properties
were contributed to SFPII.
EUROPEAN OPERATIONS
As of September 30, 1999, SSC Benelux & Co., SCA (Benelux SCA,
previously SSC Benelux & Co., SCS), in which we had a 13% equity
position, was operating in Belgium, Sweden, France, the
Netherlands, and the United Kingdom. For a detailed discussion of
this investment see EUROPEAN OPERATIONS in our 1998 Annual Report on
Form 10-K.
On October 12, 1999, we along with the other existing investors
of Benelux SCA entered into a European joint venture agreement with
San Francisco based Fremont Realty Capital, Deutsche Bank AG, AIG
Global Real Estate Investment Corporation and Credit Suisse First
Boston. The new investors have committed 122 million Euro to
Benelux SCA, in exchange for a 43% interest in this company.
Concurrently, Benelux SCA established a 140 million Euro credit
facility with Credit Suisse First Boston. The additional financial
resources provided by these agreements will be used to execute our
European expansion plan.
Under the terms of the joint venture agreement, the 122 million
Euro in equity capital will be funded through periodic contributions
between now and December 31, 2001. Additionally, the terms of the
agreement provide for an earn out that allows the existing Benelux
SCA shareholders to receive up to 10 million Euro in additional
equity based on exceeding certain development targets prior to
December 31, 2001. Benelux SCA is managed by a board of managers
which consists of all the parties of the transaction. Substantially
all material decisions of the board require agreement of at least
two thirds of the parties. We now own approximately 7% of Benelux
SCA.
Our pro rata portion of operating losses before the cumulative
effect of a change in accounting principle for European operations
was $173,000 and $138,000, for the quarters ended September 30,
1999, and 1998, and $759,000 and $250,000 for the nine months ended
September 30, 1999 and 1998 respectively. Although the operations
of existing stores are improving, we believe Benelux SCA will
produce losses for the next three to four years as financing costs,
start up losses from the additional stores and overhead costs
necessary to carry out current expansion plans will continue to
exceed operating income. The results of our European operations
are consolidated in our financial statements and data included in
the following discussion and tables reflect total European
operations not our pro rata percentage which, prior to the new joint
venture agreement, was 13%.
European Development
The following table summarizes substantially completed European
developments by country in U.S. dollars:
<TABLE>
Total Net
Number of Estimated Rentable Sq. Ft.
Properties Total Cost When Complete
---------- ---------- ----------------
<S> <C> <C> <C>
Opened in 1999
Sweden (1) 1 $4.2 million 63,000
Opened in 1998
Belgium 3 $10.9 million 185,000
Sweden 4 $16.8 million 260,000
Opened in 1997
Belgium 2 $7.8 million 135,000
</TABLE>
(1) The actual completed cost of this project could vary due to
delays during construction caused by weather, unforeseen site
conditions and problems with subcontractors or contractors.
For a further discussion of events that could impact this
estimate, see our 1998 Annual Report on Form 10-K.
During 1999, we opened one storage center in Sweden with an
estimated total cost of $4.2 million and net rentable square feet of
63,000 when all phases are complete. After seven months of
operation, this store has an average occupancy of 18% and generated
$18,000 in net operating losses for the third quarter of 1999. The
seven storage centers opened during 1998 had an average occupancy of
36% after an average of 10 months of operations and together
generated $186,000 in net operating income for the third quarter of
1999. For the first nine months of 1999, these stores generated
$195,000 in net operating income. Although it is too early to
project actual rent-up periods for these projects, they are renting
up according to plan.
The two storage centers opened in Brussels in 1997 together
generated $202,000 in net operating income during the third quarter
and $466,000 in NOI for the first nine months of 1999. For the last
month of this quarter, these developments averaged 75% occupancy and
had net operating income of $62,000 which represents 77% of projected
monthly NOI at maturity (as measured in the relevant local
currency).
Because of the newness of storage to the European market, the
rent-up period for storage centers developed prior to 1998 has been
longer than that of domestic development projects. During the rent
up period, rental rates are below those we anticipate at
stabilization. As each center reaches stabilized occupancy,
management's focus will change from increasing occupancy to
increasing rates.
In addition to the above completed developments, we had 12
properties under construction and had purchased three sites on
which we intend to build storage centers at September 30, 1999. In
order to compete for sites in the United Kingdom, we have departed
from our general policy of purchasing land only after the permitting
process is complete. As a result, we have undertaken the additional
risk that we may be unable to complete the permitting process and
cannot sell the property at a profit. The following table
summarizes European development projects in progress at
September 30, 1999:
<TABLE>
Number Estimated Total Cost to
of Completed Cost Date as of
Projects of Projects (1) Sept. 30, 1999
-------- -------------- ---------------
<S> <C> <C> <C>
New Developments:
Construction in progress 12 $58.8 million $39.8 million
Land purchased pending
construction 3 $16.9 million $9.8 million
</TABLE>
(1) The actual completed cost of projects could vary due to delays
during construction caused by weather, unforeseen site
conditions and problems with subcontractors or contractors.
For a further discussion of events that could impact this
estimate, see our 1998 Annual Report on Form 10-K.
In the current state of the European self storage market, we
believe that a strategy of growth through development will result in
superior returns over the long-term. However, as discussed earlier,
this development strategy creates a short-term dilution of earnings
during the rent-up phase of a project. For further discussion, see
DOMESTIC DEVELOPMENT in our 1998 Annual Report on Form 10-K.
European Acquisitions
During 1997, we purchased three storage centers in France
totaling 116,000 net rentable square feet at a total cost of $7.1
million. One of these storage centers was located in Nice while the
other two were located in Paris. The properties in Paris were
recently developed and were still in the rent-up phase at the time
of acquisition. The Nice acquisition met the criteria for Same
Stores in the previous quarter and is included in the Same Store
results in the following section.
<TABLE>
(dollars in thousands
except average rent)
Three months ended Nine months ended
Sept. 30, Sept. 30,
------------------ -----------------
Results for 1997 1999 1998 1999 1998
Acquisitions ------- ------- ------- -----
<S> <C> <C> <C> <C>
Rental revenue $ 354 $ 214 $ 918 $ 593
Property operating
expenses (1) 151 97 407 334
------ ------ ------- ------
Net operating income $ 203 $ 117 $ 511 $ 259
====== ====== ======= ======
Avg. annual rent per
sq. ft. (2) $20.05 $19.40 $ 20.40 $19.50
Avg. sq.ft. occupancy 83% 57% 72% 47%
Total net rentable sq. ft.83,000 83,000 83,000 83,000
Number of properties 2 2 2 2
Number of property
months (3) 6 6 18 18
Purchase price $3.6 million
</TABLE>
_______________
(1) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred, such as off-site
management personnel.
(2) Average annual rent per square foot is calculated by dividing
actual rents collected by the average number of square feet occupied
during the period.
(3) Represents the sum of the number of months we operated each
property during the applicable period
These French stores have a current yield of 9.10% (calculated
as actual net operating income less lease payments, annualized, then
divided by purchase price).
European Same Store Operations
Our definition for European Same Stores includes existing
facilities acquired prior to January 1 of 1998 as well as developed
properties that have been operating a full two years as of July 1,
1999. The following tables summarize Same Store operating
performance for the quarter and nine months ended September 30, 1999
and 1998.
<TABLE>
(dollars in thousands
except average rent) Quarter ended Sept. 30,
1999 1998 % Change
---------------------- --------
<S> <C> <C> <C>
Rental revenue $ 957 $ 716 34%
Property operating
expenses (1) 315 345 (9)%
------- --------
Net operating income $ 642 $ 371 73%
======= ========
Avg. annual rent per
sq.ft. (2) $ 11.90 $ 10.50 13%
Avg. sq.ft. occupancy 85% 76% 12%
Total net rentable sq. ft. 409,000 409,000
Number of properties 7 7
Total invested cost as
of September 30, 1999 $27.1 million
</TABLE>
_______________
(1) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(2) Average annual rent per square foot is calculated by dividing
actual rent collected by the average number of square feet occupied
during the period.
<TABLE>
(dollars in thousands
except average rent) Nine months ended Sept. 30,
1999 1998 % Change
-------------------------- --------
<S> <C> <C> <C>
Rental revenue $ 3,066 $ 2,307 33%
Property operating 1,210 1,160 4%
expenses (1) --------- ---------
Net operating income $ 1,856 $ 1,147 62%
========= ==========
Avg. annual rent per
sq.ft. (2) $ 11.60 $ 10.00 16%
Avg. sq.ft. occupancy 82% 70% 17%
Total net rentable
sq.ft. 409,000 409,000
Number of properties 7 7
Total invested cost as
of September 30, 1999 $27.7 million
</TABLE>
_______________
(1) Includes all direct property expenses. Does not include any
allocation of joint expenses incurred by the Company such as off-
site management personnel.
(2) Average annual rent per square foot is calculated by dividing
actual rent collected by the average number of square feet
occupied during the period.
In the third quarter of 1999, we increased rental rates for
Same Stores an average of 13% when measured in U.S. dollars and 15%
in local currency as compared to the same quarter in the prior year.
For the nine months ended September 30, 1999, Same Store rental
rates increased an average of 16% in U.S. dollars as compared to the
prior year period. These current rates continue to reflect the
rental rates we anticipated upon investing in the storage centers.
We attribute this success to increased product awareness which was
obtained through extensive marketing efforts.
OTHER REAL ESTATE INVESTMENTS
The following table shows income (loss) from unconsolidated
real estate investments for the three and nine months ended
September 30, 1999 and 1998. All income and loss amounts reflect
our pro rata ownership percentage.
<TABLE>
(dollars in Three months ended Nine months ended
thousands) Sept. 30, Sept. 30,
------------------ -----------------
1999 1998 1999 1998
-------- ------- -------- ------
<S> <C> <C> <C> <C>
Containerized storage $ (533) $ (847) $ (1,945) $ (2,408)
Joint ventures (129) (69) (408) (26)
Participating mortgages 424 307 1,225 1,159
Other partnership
investments (157) (106) (257) 31
------ ------ -------- --------
Total $ (395) $ (715) $ (1,385) $ (1,244)
====== ====== ======== ========
</TABLE>
Containerized Storage
As discussed in our Annual Report, we have invested in Shurgard
Storage To Go, Inc., (STG) a containerized storage business. We own
only nonvoting stock in this start-up venture which is not a
qualified REIT subsidiary and is subject to corporate level tax. As
of September 30, 1999, our gross investment in STG was $4.7 million.
Additionally, we have committed to lend up to $11 million under an
unsecured five-year note of which $9.9 million was outstanding at
September 30, 1999. Our pro rata portion of STG losses was
$1,945,000 for the nine months ended September 30, 1999, which
includes a $92,000 extraordinary expense reflecting the write-off of
start-up costs in accordance with SOP 98-5 and $2,408,000 for the
nine months ended September 30, 1998. Additionally, we currently
guarantee $10.5 million in lease obligations for STG.
Joint Ventures
Pursuant to our affiliation agreements with two storage
operators, we have entered into 20 joint ventures in which our
economic interests ranges from 50% to 90%. As of September 30, 1999,
we had invested a total of $21.5 million in these joint ventures.
Our pro rata portion of joint venture losses totaled $408,000
($819,000 of income before depreciation and amortization) for the
nine months ended September 30, 1999 as losses from new properties
added during the previous and current year offset earnings from
stabilized properties. Performance related to stores developed
through these joint ventures is included in the appropriate tables
and section discussions (Same Stores, Domestic Acquisition or
Domestic Development) under INTERNAL GROWTH.
Additionally, we have entered into an agreement with a
California developer under which it will purchase sites in southern
California and construct storage centers on them according to our
specifications. Upon completion of the rent up period, the storage
centers are purchased by a joint venture in which we own 90%. Prior
to such purchase, we have no ownership in the properties and as
such, they are not included in any of the discussions of operating
results under INTERNAL DEVELOPMENT. At September 30, 1999, this
developer had two properties under construction in connection with
this agreement and two completed stores were in rent up. Subsequent
to the end of the quarter, the joint venture purchased one of the
completed storage centers for $4.3 million. For further detail on
this agreement see our Annual Report on Form 10-K for the year ended
December 31, 1998. At September 30, 1999, we had guaranteed $20.5
million in outstanding debt for four properties related to this
agreement and will guarantee additional amounts as future properties
are approved and developed.
Participating Mortgages and other Partnership Investments
We have $13.3 million invested in three participating mortgage
loans. All three mortgages are non-recourse to the borrower and are
secured by real estate, including four storage centers and
office/warehouse space. The first two mortgages total $11.9
million, bear interest at 8%, and mature in December 2004. The
third loan is for $1.4 million, bears interest at 10%, and matures
in October 1999. Additionally, we receive contingent interest
payments from all the mortgaged properties equal to 50% of both
operating cash flow and distributions from the gain on sale of real
property, as defined. We have options to purchase the properties at
established prices, generally exercisable in 1999 and extending
until maturity of the loans.
OTHER OPERATIONS
Property management revenue for the first nine months of 1999
decreased $756,000 over the same period last year. This decline is
due to the elimination of management fees related to partnerships we
now consolidate for financial reporting purposes as well as a one
time partnership income increase that was included in the first nine
months of 1998.
Interest expense for the first nine months of 1999 increased
$3.8 million over the first nine months of 1998 due to an increase
in the outstanding debt balance (both in lines of credit and notes
payable) from $388 million at September 30, 1998 to $547 million at
September 30, 1999. Additionally, during the first nine months of
1999, we capitalized $7,875,000 in interest related to the
construction of storage centers, while $4,634,000 in interest was
capitalized in the first nine of 1998.
FUNDS FROM OPERATIONS
Funds from operations (FFO), pursuant to the National
Association of Real Estate Investment Trusts' (NAREIT) March 1995,
White Paper on Funds from Operations, is defined as net income
(calculated in accordance with GAAP) excluding gains or losses from
debt restructuring and sales of real estate, plus depreciation of
real estate and amortization of intangible assets exclusive of
deferred financing costs less dividends paid to preferred
stockholders. Contributions to FFO from unconsolidated entities in
which the reporting entity holds an active interest are to be
reflected in FFO on the same basis. We believe FFO is a meaningful
disclosure as a supplement to net income because net income
implicitly assumes that the value of assets diminish predictably
over time while we believe that real estate values have historically
risen or fallen with market conditions. FFO is not a substitute for
net cash provided by operating activities or net income computed in
accordance with GAAP, nor should it be considered an alternative
indication of our operating performance or liquidity. In addition,
FFO is not comparable to "funds from operations" reported by other
REITs that do not define funds from operations in accordance with
the NAREIT definition. The following table sets forth the
calculation of FFO in accordance with the NAREIT definition (in
thousands):
<TABLE>
Quarter ended Nine months ended
Sept. 30, Sept. 30,
---------------- -----------------
1999 1998 1999 1998
------ -------- ------ --------
<S> <C> <C> <C> <C>
Net income $ 14,018 $ 11,794 $ 36,958 $ 33,502
Non-recurring
revenue/expenses (163) 1,482 (416)
Preferred dividend (2,188) (1,100) (6,563) (3,300)
Depreciation/amortization 10,498 8,496 29,835 24,269
Depreciation/amortization
from unconsolidated
joint ventures and
subsidiaries (1,157) 24 (2,309) 270
Deferred financing costs (289) (280) (859) (840)
-------- -------- -------- -------
FFO as currently defined $ 20,719 $ 18,934 $ 58,544 $ 53,485
======== ======== ======== ========
</TABLE>
FFO for the first nine months of 1999 rose $5.1 million over
FFO for the first nine months of 1998. As previously discussed,
this growth reflects the improved performance of the original
portfolio of properties as well as the addition of properties over
the past three years through acquisitions and developments. Non-
recurring revenue and expenses in the table above includes the
effect of the cumulative change in accounting principle relating to
SOP 98-5 for both consolidated entities and our pro-rata portion of
unconsolidated joint ventures. (See Note A)
LIQUIDITY AND CAPITAL RESOURCES
During the first nine months of 1999, we invested $83.5 million
in domestic development and expansion projects, $45.4 million in
European development projects, and $5.7 million in capital
improvements to our existing portfolio and other capital
improvements. The $5.5 million increase in other real estate
investments consists primarily of $5.3 million invested in joint
ventures and $0.2 million invested in our containerized storage
operation.
The balance on the domestic line of credit increased $67.2
million from December 31, 1998 to September 30, 1999. Draws on the
line of credit were used to fund the purchase of a partnership unit,
development activity, and general corporate purposes. Notes payable
increased $55.8 million due to draws on loans from an affiliated
joint venture to fund development activity in Europe, as well as the
addition of SFPII as previously discussed in "NEW DEVELOPMENT
FINANCING ARRANGEMENT". At September 30, 1999, the ratio of the
Company's debt to total assets before depreciation was 39% and its
debt to total market capitalization was 40%.
On September 30, 1999, we increased the amount available under
our unsecured domestic line of credit to borrow up to $200 million
at a spread over LIBOR, maturing September 30, 2001, with the option
to extend until September 2002. The amount available and the spread
vary based on the terms of the agreement; as of September 30, 1999,
the current available amount is $200 million, of which approximately
$148.6 million was outstanding. At September 30, 1999, the weighted
average interest rate was 6.4%.
At September 30, 1999, we had European credit lines
(denominated in local currencies) to borrow up to a total of
$13.5 million of which $11.7 million had been drawn down as of
September 30, 1999. Of this amount, $9.7 million matures in 2001,
and the remaining matures between 2002 and 2005. The weighted
average effective interest rate on these lines at September 30, 1999
was 5%. Subsequent to the end of the quarter, we obtained the 140
million Euro credit facility described under EUROPEAN OPERATIONS.
This credit, along with the additional 122 million Euro in equity
also described there, will fund the current planned expansion of our
European operations.
On March 31, 1999, we purchased one Limited Partner unit in
Shurgard Institutional Fund LP II, from an unaffiliated third party,
for $1.2 million in cash. We now own 6.5 of the 9.5 limited partner
units and are entitled to 67% of limited partner distributions. We
continue to own a general partnership interest in this partnership
which is consolidated in our financial statements.
We anticipate funding 1999 growth and our on-going development
program primarily through a combination of our lines of credit, long
term debt, preferred equity, and alternative capital sources. We
intend to pursue joint ventures with private institutions and public
pension funds to provide these alternative sources of capital. We
believe that our cash flow in 1999 will be sufficient to make
required principal payments and distribution payments in accordance
with REIT requirements. Cash provided by operating activities for
the nine months ended September 30, 1999 was $69.2 million compared
to $62.4 million for the same period of 1998. On October 25, 1999,
we declared a dividend of $0.50 per share to be paid on November 22,
1999. This dividend is approximately 70% of 3rd quarter FFO.
YEAR 2000 COMPLIANCE
We have completed the process of identifying our potential
risks relating to the Year 2000 issue, in both our information
technology and non-information technology systems, and are
implementing solutions to mitigate those risks that have been
identified. We believe we will be able to successfully implement
the necessary changes prior to December 31, 1999.
Our risks relating to the Year 2000 are in the areas of
internal systems, external interface systems and third-party service
providers. We recently replaced most of our internal systems for
reasons other than Year 2000 issues, and due to this, very few
systems needed to be replaced as a result of our Year 2000
compliance program. We estimate that our total cost to replace
noncompliant systems will be approximately $300,000 to $400,000.
Through September 30, 1999, we have spent approximately $175,000 to
replace our network software and 50 out of 51 of our older, non-
compliant gate control systems at certain of our stores. The
remaining gate is expected to be replaced by the end of October
1999. Systems to be replaced include certain computer hardware and
our payroll system. Replacement of the computer hardware is almost
complete with only a few systems left to be replaced. We expect this
replacement process to be completed by November 30, 1999. Our
payroll system is in the process of being replaced. Parallel
testing begins in November 1999 and is expected to be completed by
December 15, 1999.
We have contacted third parties with whom we have material
relationships to attempt to determine their preparedness with
respect to Year 2000 issues and to analyze the risks to us if they
experience significant business interruptions as a result of Year
2000 noncompliance. Through this process, we have confirmed that
many of our external interface systems and third party service
providers, including our primary bank systems, our transfer agent,
and our employee benefits administrator, are now Year 2000 compliant
or have a plan to achieve compliance within a reasonable time frame.
Should these external parties not perform the adjustments they have
indicated are necessary, we could experience inefficiencies in
operations or additional costs associated with fixing the problem or
changing vendors.
We believe the most reasonably likely worst-case scenarios that
we might confront with respect to the Year 2000 issues have to do
with the possible failure of third party systems over which we have
no control, such as, but not limited to, power and telephone
services. With respect to store operations we have developed a
specific Year 2000 contingency plan in order to mitigate our
exposure to third party system failures. Our plan is to print out
all customer data on the last day of the business to ensure we have
hard copies of all account balances, payment history, units, client
data, etc. In the event of power and or computer failures we will be
able to take payments, rent units, and if necessary hire security
personnel to maintain security gates and surveillance equipment. The
statements above regarding our expectations and estimates relating
to the Year 2000 issue constitute forward-looking statements. These
forward-looking statements are based on several assumptions. If any
of these assumptions are not satisfied or prove to be incorrect, our
actual experience could differ materially from that indicated in the
forward-looking statements. The risks and uncertainties that may
cause these assumptions to not be correct include, among others,
whether we have correctly identified our Year 2000 issues and
whether third-party providers adequately address their Year 2000
issues in a timely fashion.
Part II, Item 5: Other Information
Subsequent to quarter end, the Company announced that Michael Rowe
will be stepping down from his role as Chief Operating Officer.
Throughout the remainder of the year Mr. Rowe will transition his
responsibilites to other key management members within the Company.
On October 12, 1999, Shurgard Storage Centers entered into a
European joint venture agreement with San Francisco based Fremont
Realty Capital, Deutsche Bank AG, AIG Global Real Estate Investment
Corporation and Credit Suisse First Boston.
Part II, Item 6: Exhibits and Reports on Form 8-K
Exhibits:
Exhibit 10.1- Second Amended and Restated Loan Agreement among
Shurgard Storage Centers, Inc., Bank of America, N.A., Key Bank
National Association, U.S. Bank National Association, and
LaSalle Bank National Association, dated September 30, 1999.
Exhibit 27 - Financial Data Schedule
Reports on Form 8-K:
During the quarter ended September 30, 1999, no reports were
filed on Form 8-K.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SHURGARD STORAGE CENTERS, INC.
Date: November 15, 1999 By: /s/ Harrell Beck
------------------
Harrell Beck
Chief Financial Officer, Chief Accounting
Officer and Authorized Signatory
SECOND AMENDED AND RESTATED
LOAN AGREEMENT
Among
SHURGARD STORAGE CENTERS, INC.
as Borrower,
and
BANK OF AMERICA, N.A.
KEYBANK NATIONAL ASSOCIATION
U.S. BANK NATIONAL ASSOCIATION
and
LASALLE BANK NATIONAL ASSOCIATION
as Lenders
and
BANK OF AMERICA, N.A.
as Agent for Lenders
Dated as of September 30, 1999
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 2
SECTION 1.1 CERTAIN DEFINED TERMS 2
SECTION 1.2 GENERAL PRINCIPLES APPLICABLE TO DEFINITIONS 16
SECTION 1.3 ACCOUNTING TERMS 17
ARTICLE 2 THE LOANS 17
SECTION 2.1 THE LOANS 17
(A)PRO RATA REVOLVING CREDIT 17
(B)SUPPLEMENTAL REVOLVING LOANS 17
(C)EXTENSION OF REVOLVING COMMITMENT TERM 18
SECTION 2.2 NOTICE OF BORROWING 18
SECTION 2.3 AGENT'S RIGHT TO FUND 18
SECTION 2.4 REPAYMENT OF PRINCIPAL. 19
(A)SCHEDULED REPAYMENTS 19
(B)MANDATORY PREPAYMENTS 19
SECTION 2.5 INTEREST ON LOANS 19
(A)GENERAL PROVISIONS 19
(B)SELECTION OF ALTERNATIVE RATES. 20
(C)UNAVAILABLE ADJUSTED LIBOR RATE 21
(D)COMPENSATION FOR INCREASED COSTS 21
SECTION 2.6 NOTES 22
SECTION 2.7 MANNER OF PAYMENTS. 23
(A)PLACE AND FORM OF PAYMENTS 23
(B)PAYMENTS ON NON-BUSINESS DAYS 23
(C)ORDER OF APPLICATION 23
SECTION 2.8 FEES 23
(A)COMMITMENT FEE 23
(B)UTILIZATION FEE 24
(C)EXTENSION FEE 24
SECTION 2.9 SHARING OF PAYMENTS, ETC 24
SECTION 2.10 PREPAYMENTS 25
ARTICLE 3 SECURITY 25
ARTICLE 4 NEGATIVE PLEDGE PROPERTIES 25
SECTION 4.1 ADDITIONS TO NEGATIVE PLEDGE PROPERTIES 25
SECTION 4.2 REMOVAL OF NEGATIVE PLEDGE PROPERTIES 26
ARTICLE 5 CONDITIONS TO LOANS 26
SECTION 5.1 CONDITIONS TO INITIAL REVOLVING LOAN 26
(A)NEW LOAN DOCUMENTS 26
(B)CORPORATE CERTIFICATES 26
(C)LEGAL OPINION 27
(D)CERTIFICATE 27
(E)FEES AND EXPENSES 27
(F)INSURANCE 27
SECTION 5.2 CONDITIONS TO ALL LOANS 27
(A)PRIOR CONDITIONS 27
(B)NOTICE OF BORROWING 27
(C)NO DEFAULT 27
(D)OTHER INFORMATION 27
SECTION 5.3 CONDITIONS TO EXTENSION OF REVOLVING COMMITMENT
PERIOD 28
(A)REQUEST FOR EXTENSION 28
(B)NO DEFAULT 28
(C)CAPITALIZATION RATE. 28
ARTICLE 6 REPRESENTATIONS AND WARRANTIES 28
SECTION 6.1 EXISTENCE AND POWER 28
SECTION 6.2 AUTHORIZATION 28
SECTION 6.3 GOVERNMENT APPROVALS, ETC 29
SECTION 6.4 BINDING OBLIGATIONS, ETC 29
SECTION 6.5 LITIGATION 29
SECTION 6.6 FINANCIAL CONDITION 29
SECTION 6.7 TAXES 29
SECTION 6.8 LAWS, ORDERS; OTHER AGREEMENTS 30
SECTION 6.9 FEDERAL RESERVE REGULATIONS 30
SECTION 6.10 ERISA. 30
SECTION 6.11 SUBSIDIARIES 31
SECTION 6.12 LIEN CREATION AND PRIORITY; NO ENCUMBRANCES 31
SECTION 6.13 INVESTMENT COMPANY; OTHER REGULATIONS 31
SECTION 6.14 DELINQUENT PROPERTY LIENS 31
SECTION 6.15 IMPROVEMENTS 31
SECTION 6.16 CASUALTY; CONDEMNATION 32
SECTION 6.17 ASSESSMENTS 32
SECTION 6.18 RIGHTS OF OTHERS TO PURCHASE PROPERTY 32
SECTION 6.19 REPRESENTATIONS AS A WHOLE 32
ARTICLE 7 AFFIRMATIVE COVENANTS 32
SECTION 7.1 USE OF PROCEEDS FROM LOANS 32
SECTION 7.2 PRESERVATION OF CORPORATE EXISTENCE, ETC 33
SECTION 7.3 VISITATION RIGHTS 33
SECTION 7.4 KEEPING OF BOOKS AND RECORDS 33
SECTION 7.5 MAINTENANCE OF PROPERTY, ETC 33
SECTION 7.6 COMPLIANCE WITH LAWS, ETC 33
SECTION 7.7 INSURANCE 34
(A)PROPERTY INSURANCE 34
(B)LIABILITY INSURANCE 34
(C)TITLE INSURANCE 35
(D)CERTAIN TERMS OF POLICY 35
(E)EVIDENCE OF PAYMENT 35
(F)APPROVAL NOT WARRANTY 35
SECTION 7.8 FINANCIAL INFORMATION 35
(A)ANNUAL AUDITED FINANCIAL STATEMENTS 35
(B)QUARTERLY UNAUDITED FINANCIAL STATEMENTS 36
(C)QUARTERLY COMPLIANCE CERTIFICATES 36
(D)ANNUAL BUDGET 36
(E)OTHER 36
SECTION 7.9 NOTIFICATION 36
SECTION 7.10 ADDITIONAL PAYMENTS; ADDITIONAL ACTS 37
(A)TAXES ON OR EXPENSES INCURRED IN PREPARATION OF
LOAN DOCUMENTS 37
(B)EXPENSES OF ADMINISTERING LOAN 37
(C)EXPENSES IN CHANGING CLASSIFICATION OF PROPERTY 37
(D)EXPENSES OF ENFORCEMENT 37
(E)EVIDENCE OF GOVERNMENT APPROVALS 38
(F)ADDITIONAL INSTRUMENTS AND ACTS 38
SECTION 7.11 NET WORTH 38
SECTION 7.12 RATIO OF TOTAL INDEBTEDNESS TO GROSS ASSET
VALUE 38
SECTION 7.13 RATIO OF SECURED DEBT TO GROSS ASSET VALUE 38
SECTION 7.14 CASH FLOW COVERAGE 38
SECTION 7.15 UNSECURED INTEREST EXPENSE COVERAGE 39
SECTION 7.16 CAPITAL EXPENDITURE RESERVE 39
SECTION 7.17 COMPLIANCE WITH ENVIRONMENTAL DUE DILIGENCE
STANDARDS 39
SECTION 7.18 INDEMNIFICATION 39
(A)GENERAL INDEMNITY 39
(B)ENVIRONMENTAL INDEMNITY 40
(C)BUILDING LAW INDEMNITY 40
(D)INDEMNIFICATION PROCEDURES 40
SECTION 7.19 TAXES 41
SECTION 7.20 ADDITIONAL GUARANTIES 41
SECTION 7.21 OTHER AGREEMENTS 41
SECTION 7.22 YEAR 2000 41
ARTICLE 8 NEGATIVE COVENANTS 41
SECTION 8.1 LIQUIDATION, MERGER, SALE OF ASSETS 42
SECTION 8.2 LIENS 42
SECTION 8.3 SALE OF PROPERTY 42
SECTION 8.4 OPERATIONS 42
SECTION 8.5 ERISA COMPLIANCE 42
SECTION 8.6 TRANSACTIONS WITH AFFILIATES 43
SECTION 8.7 DISTRIBUTIONS 43
SECTION 8.8 AMENDMENTS TO ORGANIZATIONAL DOCUMENTS 43
SECTION 8.9 IMMATERIAL SUBSIDIARIES 43
ARTICLE 9 EVENTS OF DEFAULT 43
SECTION 9.1 EVENTS OF DEFAULT 43
(A)PAYMENT DEFAULT 43
(B)BREACH OF WARRANTY 44
(C)BREACH OF CERTAIN COVENANTS 44
(D)BREACH OF OTHER COVENANTS 44
(E)CROSS-DEFAULT 44
(F)VOLUNTARY BANKRUPTCY, ETC 45
(G)INVOLUNTARY BANKRUPTCY, ETC 45
(H)INSOLVENCY, ETC 45
(I)JUDGMENT 45
(J)CONDEMNATION 46
(K)GOVERNMENTAL APPROVALS 46
(L)OTHER GOVERNMENT ACTION 46
(M)STOCK LISTING 46
(N)ERISA 46
(O)REIT 46
SECTION 9.2 CONSEQUENCES OF DEFAULT 46
ARTICLE 10 AGENT 47
SECTION 10.1 AUTHORIZATION AND ACTION 47
SECTION 10.2 DUTIES AND OBLIGATIONS. 48
SECTION 10.3 DEALINGS BETWEEN AGENT AND BORROWER 49
SECTION 10.4 LENDER CREDIT DECISION 49
SECTION 10.5 INDEMNIFICATION 49
SECTION 10.6 SUCCESSOR AGENT 49
SECTION 10.7 APPLICATION OF ARTICLE 10 50
ARTICLE 11 MISCELLANEOUS 50
SECTION 11.1 NO WAIVER; REMEDIES CUMULATIVE 50
SECTION 11.2 GOVERNING LAW 50
SECTION 11.3 MANDATORY ARBITRATION. 50
SECTION 11.4 CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES 51
SECTION 11.5 NOTICES 51
SECTION 11.6 ASSIGNMENT. 52
(A)ASSIGNMENTS BY BORROWER 52
(B)ASSIGNMENTS BY LENDER 52
(C)SALE OF PARTICIPATIONS BY LENDER 52
SECTION 11.7 SEVERABILITY 52
SECTION 11.8 SURVIVAL; DISCHARGE 52
SECTION 11.9 EXECUTED IN COUNTERPARTS 52
SECTION 11.10 ENTIRE AGREEMENT; AMENDMENT, ETC 53
SECTION 11.11 EFFECTIVE DATE; TRANSITIONAL MATTERS 53
SECTION 11.12 REAFFIRMATION OF LOAN DOCUMENTS 53
SECTION 11.13 ADDITION OF NEW LENDERS 53
SCHEDULES
SCHEDULE 1 DESIGNATED NEGATIVE PLEDGE PROPERTIES
SCHEDULE 2 PREPAYMENT FEES
SCHEDULE 3 LITIGATION
SCHEDULE 4 GUARANTORS, POTENTIAL GUARANTORS AND
IMMATERIAL SUBSIDIARIES
SCHEDULE 5 PERMITTED ENCUMBRANCES
EXHIBITS
EXHIBIT A REVOLVING PROMISSORY NOTE
EXHIBIT B GUARANTOR CONSENT
EXHIBIT C NOTICE OF BORROWING/INTEREST RATE NOTICE
EXHIBIT D LEGAL OPINION OF BORROWER'S COUNSEL
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT
("Agreement") is made as of September 30, 1999 by and among BANK
OF AMERICA, N.A., successor by name change to BANK OF AMERICA,
N.A., a national banking association, successor by merger to BANK
OF AMERICA NW, N.A., successor by name change to SEATTLE-FIRST
NATIONAL BANK ("Bank of America"), KEYBANK NATIONAL ASSOCIATION,
a national banking association, U.S. BANK NATIONAL ASSOCIATION, a
national banking association, and LASALLE BANK NATIONAL
ASSOCIATION, a national banking association, successor by merger
to LASALLE NATIONAL BANK, a national banking association (each
individually a "Lender" and collectively the "Lenders"); BANK OF
AMERICA, as agent for Lenders (the "Agent"); and SHURGARD STORAGE
CENTERS, INC., a Washington corporation ("Borrower").
RECITALS
WHEREAS, Borrower and Original Lenders entered into the
Original Agreement dated as of August 19, 1994; and
WHEREAS, the Original Agreement was amended and restated
through the Amended and Restated Loan Agreement dated as of
September 9, 1996 (the "First Amended and Restated Loan
Agreement"); and
WHEREAS, the First Amended and Restated Loan Agreement was
amended pursuant to the First Amendment to Amended and Restated
Loan Agreement dated as of November 14, 1996; the Second
Amendment to Amended and Restated Loan Agreement dated as of
March 12, 1997; the Third Amendment to Amended and Restated Loan
Agreement dated as of July 28, 1997; the Fourth Amendment to
Amended and Restated Loan Agreement dated as of January 30, 1998;
the Fifth Amendment to Amended and Restated Loan Agreement dated
as of May 1, 1998; the Sixth Amendment to Amended and Restated
Loan Agreement dated as of October 27, 1998; and the Seventh
Amendment to Amended and Restated Loan Agreement dated as of
April 28, 1999; and
WHEREAS, the Nomura Substitution Date occurred on or before
March 31, 1997, the liens of the Deeds of Trust were released,
and the Secured Property became Negative Pledge Property; and
WHEREAS, the parties hereto wish further to amend and
restate the First Amended and Restated Loan Agreement;
NOW, THEREFORE, the parties to this Agreement hereby agree
as follows:
AGREEMENT
ARTICLE 1
DEFINITIONS
.1 Certain Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"Adjusted LIBOR Rate" means the Applicable LIBOR Spread
per annum plus a fraction whose numerator is the applicable LIBOR
Rate and whose denominator is one minus the aggregate of the
reserve percentages (including, without limitation, any basic,
supplemental, marginal or emergency reserves) expressed as a
decimal established by the Board for Governors of the Federal
Reserve System or other banking authority to which Lenders are
subject for Eurocurrency Liability (as defined in Regulation D of
such Board of Governors). For purposes of this definition, each
LIBOR Loan shall be deemed to constitute a Eurocurrency Liability
and be subject to the reserve requirements of Regulation D,
except that, in no event, shall any adjustment be made to the
Adjusted LIBOR Rate for any such reserve requirement unless the
affected Lender provides Borrower with an Officer's Certificate
stating that the amount of the adjustment to the Adjusted LIBOR
Rate applicable to such Lender's LIBOR Loans is not greater than
Borrower's pro rata share of such Lender's total reserve
requirement for all its Eurocurrency Liabilities (such pro rata
share equaling a fraction whose numerator is the aggregate amount
of Borrower's LIBOR Loans from such Lender and whose denominator
is the total amount of such Lender's Eurocurrency Liabilities).
"Adjusted Pro Rata Share" means, with respect to any
given Funding Lender and any given request for a Supplemental
Revolving Loan, a fraction whose numerator is such Lender's Pro
Rata Share and whose denominator is the sum of the Pro Rata
Shares of all Funding Lenders for such Supplemental Revolving
Loan.
"Affiliate" means (i) any Person controlling,
controlled by, or under direct or indirect common control with,
Borrower, any Guarantor, or any Potential Guarantor; (ii) any
general or limited partner of any Guarantor, Potential Guarantor
or any Person referred to in clause (i) above that is a general
or limited partnership; (iii) any member or manager of any
Guarantor, Potential Guarantor or any Person referred to in
clause (i) above that is a limited liability company; (iv) any
Person that owns 10% or more of any voting class of ownership
interest of Borrower or of any Guarantor, Potential Guarantor or
any Person referred to in clause (i) above that is a corporation.
For purposes of this definition, "control," when used with
respect to a specified Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means Bank of America and any successor agent
selected pursuant to Section 10.6.
"Agreement" means this Second Amended and Restated Loan
Agreement.
"First Amended and Restated Loan Agreement" has the
meaning set forth in the Recitals hereof.
"Applicable Interest Period" means, with respect to any
portion of the Loan that bears interest at a particular
Applicable Interest Rate, the period commencing on the effective
date of an Interest Rate Notice provided in respect of such
portion of the Loan pursuant to Section 2.5(b) and ending:
(a) One week, and one, two, three or six months
thereafter in the case of a LIBOR Loan as specified in the
Interest Rate Notice given by Borrower in respect of such LIBOR
Loan;
(b) On the Revolving Loan Maturity Date in the
case of a Prime Rate Loan.
"Applicable Interest Rate" means the Adjusted LIBOR
Rate or the Prime Rate.
"Applicable LIBOR Spread" means (a) for any LIBOR 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, 1.325%; (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, 1.15%; (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, 1.00%; and (e) for any
LIBOR Rate whose Reset Date occurs on a date when Borrower's
Rating is A-/A3 or higher, .875%.
"Applicable Measurement Period" means, with respect to
the calculation of the Available Amount or Borrower's compliance
with any financial covenant covered by the Quarterly Compliance
Certificate, the period between the date of Borrower's submission
to Agent of the most recent Quarterly Compliance Certificate and
the date of Borrower's submission of the next Quarterly
Compliance Certificate.
"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 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") 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.
"Borrower" means Shurgard Storage Centers, Inc., a
Washington corporation, and any Successor.
"Borrower's Bank Account" means Account No. 67539510
maintained by Borrower with Agent.
"Borrower's Direct Economic Ownership" means, with
respect to any Subsidiary owned directly in whole or in part by
Borrower, the percentage of such Subsidiary's dividends or other
distributions that Borrower is entitled to receive by virtue of
Borrower's direct ownership interest in such Subsidiary.
"Borrower's Indirect Economic Ownership" means, with
respect to any Subsidiary (the "Applicable Subsidiary") owned
indirectly in whole or in part by Borrower, the product of (a)
the aggregate percentage of the Applicable Subsidiary's dividends
or other distributions that those Majority Subsidiaries (the
"First Tier Owners") in the tier of ownership immediately above
the Applicable Subsidiary are entitled to receive by virtue of
their direct ownership interest in the Applicable Subsidiary
multiplied by (b) the aggregate percentage of the First Tier
Owners' dividends or other distributions that those Majority
Subsidiaries (the "Second Tier Owners") in the tier of ownership
immediately above the First Tier Owners are entitled to receive
by virtue of their direct ownership interest in the First Tier
Owners multiplied in like manner by (c) the aggregate percentage
ownership of each successive tier of ownership up to Borrower.
"Borrower's Knowledge," "Best Knowledge of Borrower,"
or "best of Borrower's knowledge" (or equivalent phrase) means
the knowledge of the chief executive officer, the chief financial
officer, the treasurer, any vice president, any secretary or
other officer of Borrower appointed by Borrower's board of
directors or any "reporting person" as that term is used in
Section 16 of the Securities Exchange Act of 1934, as amended.
"Borrower Loan Documents" means those Loan Documents to
which Borrower is a party.
"Borrower's Pro Rata Share" means (a) with respect to
the Indebtedness, Interest Expense or EBIDA of any Unconsolidated
Subsidiary, the sum of the percentage of Borrower's Direct
Economic Ownership plus the percentage of Borrower's Indirect
Economic Ownership of such Subsidiary; (b) with respect to any
Development Property or Stabilized Property which is directly
owned in whole or in part by Borrower, the percentage of the NOI
generated by such Property that Borrower is entitled to receive
by virtue of its ownership interest; (c) with respect to any
Development Property or Stabilized Property which is directly
owned in whole or in part by one or more Majority Subsidiaries,
the percentage of the NOI generated by such Property that such
Subsidiary is entitled to receive by virtue of its ownership
interest multiplied by the aggregate percentage of Borrower's
Direct Economic Ownership and Borrower's Indirect Economic
Ownership of such Subsidiary; (d) with respect to any Property
that is directly owned in part by Borrower and in part by one or
more Majority Subsidiaries, the sum of clauses (b) and (c) above;
and (e) with respect to any other Person or Property, zero
percent. In the event that, for the purpose of any of the
foregoing calculations, Borrower's Pro Rata Share changes on any
date other than the last day of any fiscal quarter, then
Borrower's Pro Rata Share with respect to such fiscal quarter
shall equal the sum of (i) Borrower's Pro Rata Share at the
beginning of such fiscal quarter multiplied by the number of days
thereafter until the change in such Pro Rata Share divided by the
total number of days in such fiscal quarter; plus (ii) Borrower's
new Pro Rata Share multiplied by the number of days after such
change until the end of such fiscal quarter divided by the total
number of days in such fiscal quarter. In the event that
Borrower's Pro Rata Share changes more than once during any given
fiscal quarter, Borrower's Pro Rata Share for such fiscal quarter
shall be calculated in a similar manner.
"Borrower's Rating" means the lower of (a) the Standard
& Poors rating for Borrower's long-term unsecured debt
securities, and (b) the comparable rating by one other nationally
recognized rating agency designated by Borrower and acceptable to
Agent. Moody's Investors Services, Inc., Duff and Phelps, or
Fitch Investors shall be deemed acceptable to Agent unless and
until Agent has notified Borrower in writing that, in Agent's
reasonable judgment, the reputation of such rating agency has
declined and it is no longer acceptable to Agent.
"Building Law Compliance Agreements" means the Initial
Building Law Compliance Agreements, the 1996 Building Law
Compliance Agreement and any similar agreements executed from
time to time by Borrower in favor of Agent and Lenders with
respect to any real property that becomes one of the Negative
Pledge Properties pursuant to Section 4.1.
"Building Laws" means all federal, state and local
laws, regulations, ordinances and requirements applicable to the
development and operation of any Property, including without
limitation all building, zoning, planning, subdivision, fire,
traffic, safety, air quality, wetlands, shoreline, and flood
plain laws, regulations and ordinances. The Building Laws shall
include without limitation, all applicable requirements of the
Fair Housing Act of 1968, as amended by the Fair Housing
Amendments Act of 1988, 42 U.S.C. 3601 et seq.; the Americans
with Disabilities Act of 1990, 42 U.S.C. 12101 et seq.; and all
government and private covenants, conditions and restrictions
applicable to any Property.
"Business Day" means any day other than Saturday,
Sunday or other day on which banks are authorized or obligated to
close in Seattle, Washington.
"Capital Reserve Account" has the meaning set forth in
Section 7.16.
"Cash Equivalents" means (i) marketable direct
obligations issued or unconditionally guaranteed by the United
States Government or issued by an agency thereof and backed by
the full faith and credit of the United States, in each case
maturing within one (1) year after the date of acquisition
thereof; (ii) marketable direct obligations issued by any state
of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing
within ninety (90) days after the date of acquisition thereof
and, at the time of acquisition, having one of the two highest
ratings obtainable from any two of Standard & Poor's Corporation,
Moody's Investors Services, Inc., Duff and Phelps, or Fitch
Investors (or, if at any time no two of the foregoing shall be
rating such obligations, then from such other nationally
recognized rating services as may be reasonably acceptable to
Agent) and not listed for possible down-grades in Credit Watch
published by Standard & Poor's Corporation; (iii) commercial
paper, other than commercial paper issued by Borrower or any of
its Affiliates, maturing no more than ninety (90) days after the
date of creation thereof and, at the time of acquisition, having
a rating of at least A-1 or P-1 from either Standard & Poor's
Corporation or Moody's Investor Service, Inc. (or, if at any time
neither Standard & Poor's Corporation nor Moody's Investor
Service, Inc. shall be rating such obligations, then the highest
rating from such other nationally recognized rating services as
may be reasonably acceptable to Agent); and (iv) domestic and
Eurodollar certificates of deposit or time deposits or bankers'
acceptances maturing within ninety (90) days after the date of
acquisition thereof, overnight securities repurchase agreements,
or reverse repurchase agreements secured by any of the foregoing
types of securities or debt instrument issued, in each case, by
(A) any commercial bank organized under the laws of the United
States of America or any state thereof or the District of
Columbia or Canada having combined capital and surplus of not
less than Two Hundred Fifty Million Dollars ($250,000,000) or (B)
any Lender.
"Casualty Loss Property" has the meaning set forth in
Section 7.18(c).
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Release Date" has the meaning set forth in
Section 3.5.
"Commitment" means, between the date of this Agreement
and March 31, 2000, Two Hundred Million Dollars ($200,000,000)
and after March 31, 2000, One Hundred Fifty Million Dollars
($150,000,000).
"Commitment Period" has the meaning given in
Section 2.1(a).
"Consolidated Subsidiary" means any Subsidiary whose
financial statements are consolidated with Borrower's financial
statements under generally accepted accounting principles.
"Contribution Agreement" means the Contribution
Agreement dated as of September 9, 1996 among the Initial
Guarantors and Borrower and binding upon Shurgard Texas Limited
Partnership and any subsequent Guarantors.
"Controlled Group" means all members of a controlled
group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with
Borrower, Guarantor, or Potential Guarantors, are treated as a
single employer under Section 414(b) or 414(c) of the Code.
"Debt" means (i) indebtedness for borrowed money or for
the deferred purchase price of property or services, other than
trade accounts payable on customary terms in the ordinary course
of business, (ii) financial obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) financial
obligations as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting
principles, recorded as capital leases, and (iv) obligations
under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or financial obligations of others of
the kinds referred to in clauses (i) through (iii) above.
"Default" means any event which but for the passage of
time, the giving of notice, or both would be an Event of Default.
"Designated Negative Pledge Properties" means all of
the real property identified in Schedule 1, including, without
limitation, the land, buildings, fixtures and other improvements
located thereon.
"Development Asset Value" means, with respect to any
fiscal quarter, Borrower's Pro Rata Share of 80% of the cost of
all Properties that were Development Properties as of the end of
such fiscal quarter.
"Development Property" means a mini-storage facility
located in the United States or Canada (a) that is majority owned
(or leased under a Qualifying Lease) and effectively controlled
by Borrower, any Majority Subsidiary or the Joint Venture or the
Second Joint Venture, (b) with respect to which a certificate of
occupancy has been issued by the applicable Governmental
Authority, and (c) that has been open for business for less than
12 months; except that "Development Property" shall not include
any such facility that has been designated by Borrower as a
Stabilized Property.
"Effective Date" has the meaning set forth in
Section 11.12.
"Environmental Agreements" means the Initial
Environmental Agreements, the 1996 Environmental Agreement, and
any similar environmental agreements executed by Borrower in
favor of Agent and Lenders with respect to any other real
property that becomes one of the Negative Pledge Properties
pursuant to Section 4.1 (but not including the Initial
Environmental Agreements, the 1996 Environmental Agreement or any
such subsequent agreements to the extent they apply to any real
property that no longer constitutes Negative Pledge Property).
"Environmental Law" means and includes the
Comprehensive Environmental Response, Compensation, and liability
Act of 1980 ("CERCLA" or the Federal Superfund Act), as amended
by the Superfund Amendments and Reauthorization Act of 1986
("SARA"), 42 U.S.C. 9601-9675; the Resource Conservation and
Recovery Act of 1976 ("RCRA"), 42 U.S.C. 6901 et seq.; The
Clean Water Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42
U.S.C. 7401 et seq.; the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. 136 et seq.; the Toxic Substances
Control Act, 15 U.S.C. 2601-2671; all as the same may be from
time to time amended and any regulations now or hereafter
promulgated thereunder; and any and all other federal, state,
county, municipal, local and other statutes, laws, ordinances,
rules, regulations, judgments, orders, decrees, permits,
licenses, or other governmental restrictions or requirements and
the common law which may from time to time relate to or deal with
protection of human health, pollution or the environment,
including, without limitation, all regulations promulgated by a
regulatory body pursuant to an such statute, law or ordinance.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Event of Default" has the meaning given in
Section 9.1.
"Excluded Subsidiary" means (a) any Subsidiaries that
are not wholly owned, directly or indirectly, by Borrower; and
(b) any Subsidiaries that have no ownership or leasehold interest
in any mini-storage property located in the United States or
Canada.
"Federal Funds Rate" has the meaning given in
Section 2.3.
"Full Insurable Value" means the actual cost of
replacing the property in question, without allowance for
depreciation, as determined from time to time (but not more often
than once every calendar year) by Agent.
"Funded Adjusted Pro Rata Share" means, with respect to
any Funding Lender, a fraction whose numerator is the unpaid
principal amount of such Lender's Supplemental Loans and whose
denominator is the unpaid principal amount of all Supplemental
Loans.
"Funded Pro Rata Share" means, with respect to any
Lender, a fraction whose numerator is the outstanding principal
amount of such Lender's Loans (including such Lender's
Supplemental Loans, if any) and whose denominator is the total
outstanding principal amount of the Loan.
"Funding Lender" means, as of any given time, any
Lender that is then making a Supplemental Revolving Loan or, if
the context so indicates, any Lender that then has one or more
Supplemental Loans outstanding.
"Funds from Operations" shall have the meaning ascribed
to that term by the National Association of Real Estate
Investment Trusts (NAREIT) as in effect as of the date hereof.
"Government Approval" means an approval, permit,
license, authorization, certificate, or consent of any
Governmental Authority.
"Governmental Authority" means the government of the
United States or any State or any foreign country or any
political subdivision of any thereof or any branch, department,
agency, instrumentality, court, tribunal or regulatory authority
which constitutes a part or exercises any sovereign power of any
of the foregoing.
"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, plus (c) unrestricted cash and Cash
Equivalents (excluding tenant deposits) as of the end of such
fiscal quarter.
"Gross Revenues" means, with respect to any Development
Property or Stabilized Property as of the end of any fiscal
quarter, all payments and other revenues (exclusive of any
payments attributable to sales taxes) received during such fiscal
quarter by Borrower or Borrower's property manager from all
sources related to the operation of such Property including,
without limitation, rental of such Property, storage rentals,
late fees, security deposits (if any, unless required to be
segregated), receipts from sales of goods, billboard rentals and
other advertising revenue, and tenant reimbursements of expenses.
"Guaranties" means the Initial Guaranties and the
Guaranty Agreement dated as of January 30, 1998 executed by
Shurgard Texas Limited Partnership together with any similar
guaranties executed by Subsidiaries of Borrower (other than the
Initial Guarantors).
"Guarantor Consent" means a written consent in
substantially the form of Exhibit B hereto executed by each
Guarantor in favor of Agent and Lenders.
"Guarantors" means the Initial Guarantors and Shurgard
Texas Limited Partnership together with any other Persons that
may from time to time execute Guaranties in favor of Agent and
Lenders.
"Hazardous Material" means asbestos, urea formaldehyde,
PCBs, nuclear fuel or materials, chemical waste, radon,
radioactive materials, explosives, known carcinogens, petroleum
products (including crude oil) and any other dangerous, toxic, or
hazardous pollutant, contaminant, chemical, material or substance
defined as hazardous or as a pollutant or contaminant in, or the
release or disposal of which is regulated by, any Environmental
Law.
"Immaterial Subsidiaries" means Shurgard Storage To Go,
Inc., a Delaware corporation; and any other wholly owned
Subsidiaries of Borrower, other than the Guarantors, the
Potential Guarantors and the Excluded Subsidiaries.
"Indebtedness" means, with respect to any Person (a)
all items of indebtedness or liability which would be included in
determining total liabilities as shown on the liability side of a
balance sheet of such Person as of the date as of which
indebtedness is determined in accordance with generally accepted
accounting principles; (b) obligations of such Person with
respect to letters of credit, guaranties, or payment, performance
or other bonds; (c) unfunded pension obligations of such Person;
and (d) any other indebtedness or liability of any third person
for borrowed money or for the deferred purchase price of property
or services for which such Person is contingently liable as
obligor, guarantor, or otherwise (all without redundancy);
provided, however, that the contingent liability of SSC Property
Holdings, Inc. associated with the payment bond posted to secure
payment of any judgment arising out of Rodney Combest v. SSC
Property Holdings, Inc., Cause No. 95-036547, in the District
Court of Harris County, Texas, 113th Judicial District, will not
constitute "Indebtedness" until such date as Borrower is
required, under generally accepted accounting principles, to
create a reserve on its books with respect to such contingent
liability.
"Indemnified Parties" has the meaning set forth in
Section 7.19(a).
"Initial Building Law Compliance Agreements" means the
Certificate and Indemnity Agreement Regarding Compliance with
Building Laws dated as of August 19, 1994, the Certificate and
Indemnity Agreement Regarding Compliance with Building Laws dated
January 31, 1995, in each case executed by Borrower in favor of
Seattle-First National Bank as agent for itself and the Original
Lenders, and the 1996 Building Compliance Agreement.
"Initial Environmental Agreements" means the
Environmental Agreement and Indemnity dated as of August 19, 1994
and the Environmental Agreement and Indemnity dated as of January
31, 1995, in each case executed by Borrower in favor of Seattle-
First National Bank as agent for itself and the Original Lenders
and the 1996 Environmental Agreement.
"Initial Guaranties" means the Guaranties dated as of
September 9, 1996 executed by the Initial Guarantors in favor of
Agent and Lenders.
"Initial Guarantors" means Shurgard Evergreen Limited
Partnership, a Delaware limited partnership and SSC Evergreen,
Inc., a Delaware corporation.
"Insurance and Condemnation Proceeds" has the meaning
set forth in Section 7.18(a).
"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 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; plus (without
redundancy) (b) Borrower's Pro Rata Share of all accrued or paid
interest costs, capitalized interest, fees for performance
guaranties, fees for letters of credit, and interest and fees
relating to any other relevant liabilities of the Unconsolidated
Subsidiaries, in each case, accrued or paid during such fiscal
quarter and calculated in accordance with generally accepted
accounting principles.
"Interest Rate Notice" shall have the meaning given in
Section 2.5(b).
"Joint Venture" means Shurgard/Fremont Partners I, a
Washington general partnership.
"Joint Venture Investor" means Fremont Storage Partners
I, L.P., a California limited partnership.
"JV Subsidiary" means a subsidiary, wholly-owned by
Borrower, that enters into a joint venture with the Joint Venture
Investor or one of its affiliates.
"Lenders" means Bank of America, KeyBank National
Association, U.S. Bank National Association and LaSalle Bank N.A.
and their respective Successors, and any additional lenders to
whom any of the foregoing Lenders assigns its interest in the
Loan Documents pursuant to this Agreement.
"LIBOR Business Day" means any Business Day when the
London Interbank Market is open for business.
"LIBOR Loan" means any portion of the Loan that bears
interest at the Adjusted LIBOR Rate or, if the context so
indicates, that portion of a Revolving Loan advance that bears
interest at the Adjusted LIBOR Rate.
"LIBOR Rate" shall mean, with respect to any LIBOR Loan
for any Applicable Interest Period, an interest rate per annum
equal to the offered rate for deposits in U.S. Dollars for the
Applicable Interest Period commencing on the first day of such
Applicable Interest Period (the "Reset Date") which appears on
the display designated as the "LIBO" page in the Reuter Monitor
Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London inter-
bank offered rates of major banks) as of 11:00 a.m., London time,
on the day that is two Business Days preceding the Reset Date.
If at least two such offered rates appear on such Reuter's screen
LIBO page, the LIBOR Rate in respect of that Reset Date will be
the arithmetic mean of such offered rates. In the event such
Reuters screen LIBO page is not published, the LIBOR Rate shall
be determined from an alternate, generally-recognized source
mutually agreeable to Agent and Borrower, and, in the absence of
such agreement, Borrower shall not have an option to select the
Adjusted LIBOR Rate.
"Lien" means, for any person, any security interest,
pledge, mortgage, charge, assignment, hypothecation, encumbrance,
attachment, garnishment, execution or other voluntary or
involuntary lien upon or affecting the revenues of such person or
any real or personal property in which such person has or
hereafter acquires any interest.
"Loan" means the Revolving Loans or, when used in the
context of a particular Lender, the Revolving Loans by such
Lender.
"Loan Documents" means this Agreement, the Notes, the
Environmental Agreements, the Building Law Compliance Agreements,
the Guaranties, and the Contribution Agreement.
"Losses" has the meaning set forth in Section 7.19(a).
"Majority Lenders" means two or more Lenders which
together have 50.1% or more of the Loan or, if no portion of the
Loan is outstanding, of the commitment to make Revolving Loans.
"Majority Subsidiary" means a Subsidiary that is
controlled by Borrower and with respect to which the sum of
Borrower's Direct Economic Ownership plus Borrower's Indirect
Economic Ownership is 51% or more (but excluding any such
Subsidiary (whether or not a Relevant Subsidiary) with respect to
which an event has occurred and is continuing which would
constitute an Event of Default under Section 9.1(f),
Section 9.1(g) or Section 9.1(h) if such Subsidiary were a
Relevant Subsidiary). For the purposes of this definition,
"controlled by" shall mean the possession directly or indirectly
through the ownership of voting interests of the power to direct
or cause the direction of the management or policies of such
Subsidiary (including, without limitation, the power to declare
dividends or other distributions of income).
"Material Adverse Effect" means, (a) with respect to
Borrower, a material adverse effect on or material adverse change
in (i) (aa) the business, operations, property, financial
condition, liabilities (absolute, accrued, contingent or
otherwise) or assets of Borrower, and (bb) the ability of
Borrower to perform its obligations under this Agreement, the
Notes or any other Loan Documents, or (ii) the rights or remedies
of Agent, any Lender or the holder of any Note under this
Agreement or any of the other Loan Documents upon the occurrence
of an Event of Default; or (b) with respect to any Relevant
Subsidiary, a material adverse effect on or material adverse
change in (i) (aa) the business, operations, property, financial
condition, liabilities (absolute, accrued, contingent or
otherwise) or assets of Borrower and Guarantors, taken as a
whole, and (bb) the ability of Borrower and Guarantors, taken as
a whole, to perform their respective obligations under this
Agreement, the Notes or any other Loan Documents, or (ii) the
rights or remedies of Agent, any Lender or the holder of any Note
under this Agreement or any of the other Loan Documents upon the
occurrence of an Event of Default.
"Negative Pledge Designation Notice" has the meaning
set forth in Section 4.1.
"Negative Pledge Properties" means the Designated
Negative Pledge Properties together with any additional real
property designated by Borrower in accordance with Section 4.1 as
constituting one of the Negative Pledge Properties, but not
including any of the Designated Negative Pledge Properties or any
such subsequently designated real property which no longer
constitutes Negative Pledge Property in accordance with
Section 4.2.
"Negative Pledge Removal Request" has the meaning set
forth in Section 4.2.
"New Loan Documents" means this Agreement, the Notes
and the Guarantor Consents.
"1996 Building Law Compliance Agreement" means the 1996
Certificate and Indemnity Agreement Regarding Compliance with
Building Laws dated as of September 9, 1996 executed by Borrower
in favor of Agent and Lenders.
"1996 Environmental Agreement" means the Environmental
Agreement and Indemnity dated as of September 9, 1996 executed by
Borrower in favor of Agent and Lenders.
"NOI" means, with respect to any Development Property
or Stabilized Property for any fiscal quarter, the Gross Revenues
from such Property less (i) usual and customary operating
expenses for such Property during such fiscal quarter (which
expenses shall include, in the case of any Property subject to a
Qualifying Lease, all lease payments thereunder), and (ii) real
estate taxes with respect to such Property during such fiscal
quarter.
"Nomura Substitution Date" has the meaning set forth in
the First Amended and Restated Loan Agreement.
"Non-Funding Lender" means, as of any given date (a) a
Lender that has failed to make its Pro Rata Share of a requested
Pro Rata Revolving Loan or its Adjusted Pro Rata Share of a
requested Supplemental Revolving Loan, under circumstances which
give Borrower a right to request that other Lenders make
Supplemental Revolving Loans pursuant to Section 2.1(b); or (b)
if the context so indicates, any Lender that has no outstanding
Supplemental Loans at a time when any other Lender has any
Supplemental Loans outstanding.
"Notes" has the meaning given in Section 2.6.
"Notice of Borrowing" means a request for a Revolving
Loan from Borrower delivered to Agent in the manner, at the time
and containing the information required under Section 2.2.
"Officer's Certificate" means a certificate executed
and delivered on behalf of Borrower by its Chief Financial
Officer or his designee.
"Original Agreement" means the Loan Agreement dated as
of August 19, 1994 among Borrower, the Original Lenders and
Seattle-First National Bank, as agent for the Original Lenders,
in the form in which such Loan Agreement was originally executed.
"Original Lenders" means Seattle-First National Bank,
predecessor in interest to Bank of America NW, N.A.; Key Bank of
Washington; and West One Bank, Washington, predecessor in
interest to U.S. Bank National Association.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Pension Plan" means an "employee pension benefit plan"
(as such term is defined in Section 3(a) of ERISA) from time to
time maintained by Borrower, any Guarantor or a member of a
Controlled Group.
"Permitted Encumbrances" means (a) Liens for taxes,
assessments, and other governmental charges not then delinquent;
(b) any mechanic's, laborer's, materialmen's, supplier's or
vendor's lien or other similar statutory lien arising in the
ordinary course of business but only if (i) payment is not yet
due under the contract giving rise to such lien or (ii) such lien
is subject to a bona fide dispute and Borrower has taken whatever
actions may be reasonably necessary to prevent a foreclosure of
such lien and the resulting sale of any of the Negative Pledge
Properties and Borrower causes to be posted a bond equal to one
and a half times the amount of such lien; (c) with respect to any
given Negative Pledge Property, the Liens identified on Schedule
5 as being Permitted Encumbrances for such Property; (d)
nonmonetary encumbrances, restrictions, covenants, conditions,
easements, rights-of-way, encroachments, reservations and other
similar matters affecting title which, in the aggregate do not
materially impair Borrower's use of any Negative Pledge Property
and its operation thereon or materially reduce the fair market
value thereof; and (e) any other Liens expressly approved by
Agent in writing with the consent of Majority Lenders.
"Person" means any individual, partnership,
corporation, business trust, unincorporated organization, joint
venture, association, joint stock company, estate, limited
liability company, or any governmental entity, department, agency
or political subdivision thereof.
"Plan" shall mean, at any time, an employee pension
benefit plan which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and
is either (a) maintained by Borrower, any Guarantor or any member
of a Con-trolled Group for employees of Borrower, any Guarantor
or any member of a Controlled Group or (b) maintained pursuant to
a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which
Borrower, any Guarantor or any member of a Controlled Group is
then making or accruing an obligation to make contributions or
has within the preceding five (5) plan years made contributions.
"Potential Guarantors" means SSC Property Holdings,
Inc., a Delaware corporation, and any other Subsidiaries
designated by Borrower as Potential Guarantors. Any Subsidiary
that has been so designated shall remain a "Potential Guarantor"
until such time as it becomes a Guarantor.
"Precluded Subsidiary" means any Potential Guarantor
that is bound by a legally enforceable contractual obligation
which would be breached by such Subsidiary's execution of, or
otherwise becoming bound by, a Guaranty (except that such
Subsidiary shall cease to be a Precluded Subsidiary immediately
upon its being released from, or otherwise no longer being bound
by, such contractual obligation for any reason).
"Prime Rate" means, on any day, Agent's publicly
announced prime rate of interest at its principal office (which
prime rate is a reference rate and not necessarily the lowest
rate of interest charged by Agent to its prime customers),
changing as such prime rate changes.
"Prime Rate Loan" means any portion of a Loan that
bears interest at the Prime Rate.
"Pro Rata Revolving Loans" means the Revolving Loans
outstanding under the Original Agreement at the time of the
execution and delivery of this Agreement as set forth in
Section 2.1(a), together with any such Revolving Loans made after
the execution and delivery hereof but before the Effective Date
and any loans made on or after the Effective Date under
Section 2.1(a) of this Agreement.
"Pro Rata Share" means, with respect to each Lender,
the percentage set forth opposite such Lender's signature on the
signature pages at the end of this Agreement.
"Proceeds Escrow" has the meaning set forth in
Section 7.18(a).
"Proceeds Trustee" has the meaning set forth in
Section 7.18(a).
"Property" means any real or personal property in which
Borrower or any Subsidiary now or hereafter holds an ownership or
leasehold interest.
"Qualifying Lease" means leases on a maximum of ten
percent (10%) of the sum of (a) the number of existing
Development Properties plus (b) the number of existing Stabilized
Properties so long as such leases create legally enforceable,
arms-length leasehold estates with terms of not less than 20
years, including, without limitation, leases on the Properties
located in Solana Beach, California, and Hillcroft, Texas.
"Quarterly Compliance Certificate" has the meaning set
forth in Section 7.8(c).
"Relevant Subsidiaries" means all Consolidated
Subsidiaries other than (i) the Immaterial Subsidiaries; (ii) SSC
Benelux, Inc., a Delaware corporation; (iii) Shurope SA, a
Belgian corporation; (iv) SSC Benelux & Co., SCS, a Belgian
corporation; (v) Shurgard Institutional Partners, a Washington
general partnership; (vi) Capitol Hill Partners, a Limited
Partnership, a Washington limited partnership; (vii) Shurgard
Institutional Fund L.P., a Washington limited partnership; and
(viii) Shurgard Institutional Fund L.P. II, a Washington limited
partnership; provided, however, in the event that either Shurgard
Institutional Fund L.P. or Shurgard Institutional Fund L.P. II
acquires either an ownership or a leasehold interest in any real
property after the date hereof, it shall, from and after the date
of such acquisition, constitute a "Relevant Subsidiary."
"Restricted Distributions" means dividends on, or other
payment or distributions on account of the purchase, redemption,
retirement or other acquisition of, any shares of any class of
stock.
"Revolving Loan Maturity Date" means September 30, 2001
or, if it extended pursuant to Section 2.1(d), September 30,
2002.
"Revolving Loans" means the Pro Rata Revolving Loans
and the Supplemental Revolving Loans.
"Second Joint Venture" means Shurgard/Fremont Partners
II, a Washington general partnership.
"Second Joint Venture Investor" means Fremont Storage
Partners II, L.P., a Delaware limited liability company.
"Second JV Subsidiary" means Shurgard Development II,
Inc., a Washington corporation.
"Secured Debt" means (a) all Indebtedness of Borrower
and its Consolidated Subsidiaries (other than the Revolving
Loans) that is secured in whole or in part by any Lien on real
property and (b) Borrower's Pro Rata Share of all Indebtedness of
the Unconsolidated Subsidiaries that is secured in whole or in
part by any Lien on real property.
"Secured Property" has the meaning set forth in the
First Amended and Restated Loan Agreement.
"Stabilized Asset Value" means, with respect to any
fiscal quarter of Borrower, Borrower's Pro Rata Share of the NOI
for all Properties, including properties owned by the Joint
Venture and the Second Joint Venture, that were Stabilized
Properties as of the end of such fiscal quarter multiplied by 4
and divided by a capitalization rate of 9.25% (adjusted for
property acquisitions and dispositions).
"Stabilized Property" means (a) all income-producing
real estate currently owned by Borrower located in the United
States or Canada and (b) any mini-storage facility located in the
United States or Canada acquired hereafter (i) that is majority
owned (or leased under a Qualifying Lease) and effectively
controlled by Borrower or any Majority Subsidiary, (ii) with
respect to which a certificate of occupancy has been issued by
the applicable Governmental Authority, and (iii) that has been
open for business for more than 12 months, together with any
Development Property designated by Borrower as Stabilized
Property.
"Subsidiary" shall mean any Person of which Borrower
directly or indirectly holds 10% or more of any voting class of
ownership interest.
"Successor" means, for any corporation or banking
association, any successor by merger or consolidation, or by
acquisition of substantially all of the assets of the
predecessor.
"Supplemental Revolving Loans" has the meaning defined
in Section 2.1(b).
"Tax" means, for any person, any tax, assessment, duty,
levy, impost or other charge imposed by any Governmental
Authority on such person or on any property, revenue, income, or
franchise of such person and any interest or penalty with respect
to any of the foregoing.
"Unconsolidated Subsidiary" means any Subsidiary other
than a Consolidated Subsidiary.
"Unencumbered Development Asset Value" means, with
respect to any fiscal quarter, Borrower's Pro Rata Share of 80%
of the cost basis of all Properties that were Unencumbered
Development Properties as the end of such fiscal quarter.
"Unencumbered Development Property" means any
Development Property that is a Negative Pledge Property.
"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.
"Unencumbered Stabilized Asset Value" means, with
respect to any fiscal quarter, Borrower's Pro Rata Share of the
Unencumbered Stabilized NOI during such fiscal quarter multiplied
by 4 and divided by a capitalization rate of 9.25% (adjusted for
property acquisitions and dispositions).
"Unencumbered Stabilized NOI" means, with respect to
any fiscal quarter, Borrower's Pro Rata Share of the NOI of all
Properties that were Unencumbered Stabilized Properties as of the
end of such fiscal quarter.
"Unencumbered Stabilized Property" means a Stabilized
Property that is a Negative Pledge Property.
"Unfunded Vested Liabilities" means, with respect to
any Plan at any time, the amount (if any) by which (a) the
present value of all vested non forfeitable benefits under such
Plan exceeds (b) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of Borrower or any
member of a Controlled Group to the PBGC or the Plan under Title
IV of ERISA.
.2 General Principles Applicable to Definitions
Definitions given herein shall be equally applicable to
both singular and plural forms of the terms therein defined and
references herein to "he" or "it" shall be applicable to persons
whether masculine, feminine or neuter. References herein to any
document including, but without limitation, this Agreement shall
be deemed a reference to such document as it now exists, and as,
from time to time hereafter, the same may be amended. References
herein to a "person" or "persons" shall be deemed to be
references to an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company,
government (including political subdivisions), Governmental
Authority or agency or any other entity. References herein to
any section, subsection, schedule or exhibit shall, unless
otherwise indicated, be deemed a reference to sections and
subsections within and schedules and exhibits to this Agreement.
.3 Accounting Terms
Except as otherwise provided herein, accounting terms not
specifically defined shall be construed, and all accounting
procedures shall be performed, in accordance with generally
accepted United States accounting principles. Unless otherwise
indicated, any reference to a "fiscal quarter" shall mean a
fiscal quarter of Borrower.
ARTICLE 2
THE LOANS
.1 The Loans
(a) Pro Rata Revolving Credit
. Subject to the terms and conditions of this Agreement,
each Lender hereby severally agrees during the period from the
Effective Date until the Revolving Loan Maturity Date (the
"Commitment Period") to make Pro Rata Revolving Loans duly
requested hereunder to Borrower in amounts equal to such Lender's
Pro Rata Share of each requested Pro Rata Revolving Loan provided
that, after giving effect to any requested Pro Rata Revolving
Loan (i) the aggregate of all Revolving Loans outstanding from
such Lender will not exceed such Lender's Pro Rata Share of the
Commitment; and (ii) the aggregate of all Revolving Loans
outstanding from such Lender will not exceed such Lender's Pro
Rata Share of the Available Amount. The commitment set forth in
this Section 2.1(a) is for a revolving credit, and within the
amounts and times specified herein, Borrower may pay, repay and
reborrow.
(b) Supplemental Revolving Loans
In the event that (A) any Lender fails to make its Pro
Rata Share of any properly requested Pro Rata Revolving Loan on
or before 9:00 a.m. (Seattle time) on the date of any requested
borrowing, and (B) Agent determines in good faith that such
Lender's failure to make its Pro Rata Share of such Pro Rata
Revolving Loan constitutes a violation of such Lender's
commitment to lend under this Agreement, then Agent shall
promptly notify Borrower and each Lender of such determination.
In each such case, Borrower shall have the right, notwithstanding
the notice requirement set forth in Section 2.2, to give
telephonic notice to Agent requesting that each of the Lenders
(other than the Lender whose failure to lend gave rise to such
notice), make a supplemental revolving loan in an amount equal to
the amount of such Lender's Adjusted Pro Rata Share of the Non-
Funding Lender's Pro Rata Share of the initially requested Pro
Rata Revolving Loan, provided that, after giving effect to such
supplemental revolving loan (a) the aggregate of all Revolving
Loans outstanding from such Funding Lender will not exceed such
Funding Lender's Pro Rata Share of the Commitment; and (b) the
aggregate of all Revolving Loans outstanding from such Funding
Lender will not exceed such Funding Lender's Pro Rata Share of
the Available Amount. Each such supplemental revolving loan
shall be referred to in this Agreement as a "Supplemental
Revolving Loan." Each Supplemental Revolving Loan shall be a
Prime Rate Loan unless and until all or any portion of such
Supplemental Revolving Loan has been converted to a LIBOR Loan
pursuant to Section 2.5(b). In the event that a judicial
determination is made that any Non-Funding Lender's failure to
make its Pro Rata Share of any requested Pro Rata Revolving Loan
constituted a breach of such Lender's commitment to lend under
Section 2.1(a), then the Funding Lenders shall be entitled to
repayment from such Non-Funding Lender of the unpaid principal
amount of the Supplemental Revolving Loans that resulted from
such Non-Funding Lender's breach, together with interest thereon
at the Applicable Interest Rate (reduced by any amounts such
Funding Lenders have already received in respect of such
Supplemental Revolving Loans from Borrower) and such Non-Funding
Lender shall, to the extent of such repayment, become a Funding
Lender in respect of the amount of such repayment. The Revolving
Loans described in Section 2.1(a) and in this Section 2.1(b)
constitute a revolving credit and, subject to the limits set
forth in this Agreement, Borrower may pay, prepay and reborrow.
(c) Extension of Revolving Commitment Term
Subject to the terms and conditions of this Agreement,
each Lender agrees that Borrower may, upon not less than sixty
(60) days prior written notice to Agent and each Lender, which
notice shall be received no earlier than ninety (90) days prior
to the Revolving Loan Maturity Date, extend the Commitment Period
and the Revolving Loan Maturity Date to September 30, 2002.
During such extension period, the Revolving Loans described in
Sections 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.
.2 Notice of Borrowing
For each requested Revolving Loan, Borrower shall give
Agent prior notice (a "Notice of Borrowing") specifying the date
of a requested borrowing (which must be a Business Day) and the
amount thereof. Each Notice of Borrowing shall be in writing
except that, in the case of a Supplemental Revolving Loan, such
notice may be oral so long as it is promptly confirmed in writing
in a form acceptable to Agent. Each such written Notice of
Borrowing shall be in substantially the form of Exhibit C hereto.
Except as otherwise required in Section 2.5(b) with respect to
LIBOR Loans or as otherwise permitted with respect to
Supplemental Revolving Loans, Borrower may give a Notice of
Borrowing prior to 11:00 a.m. (Seattle time) on the Business Day
that Borrower requests that the Pro Rata Revolving Loan be made.
Each Notice of Borrowing shall be irrevocable and shall be deemed
to constitute a representation and warranty by Borrower that, as
of the date of such notice (a) the statements set forth in
Article 6 are true and correct; and (b) no Default or Event of
Default has occurred and is continuing or will result from
disbursement of the requested Revolving Loan. Each Pro Rata
Revolving Loan requested by Borrower under this Section 2.2 shall
be in an amount of not less than $250,000. On receipt of a
Notice of Borrowing, Agent shall promptly notify each Lender by
telephone, telex or telefax of the date of the requested
borrowing and the amount thereof. Each Lender shall before 1:00
p.m. (Seattle time) on the date of the requested borrowing, pay
such Lender's Pro Rata Share of the aggregate principal amount of
the requested borrowing in immediately available funds to Agent
at its Commercial Loan Service Center, Seattle, Washington. Upon
fulfillment to Agent's satisfaction of the applicable conditions
set forth in Article 5, and after receipt by Agent of such funds,
Agent will promptly make such funds available to Borrower by
depositing them to Borrower's Bank Account and any funds so
deposited shall be presumed to be for the benefit of Borrower.
.3 Agent's Right to Fund
In the event that, prior to making the requested
borrowing available to Borrower, Agent has received from any
Lender a confirmation that such Lender's Pro Rata Share of the
requested Pro Rata Revolving Loan (or, in the case of a requested
Supplemental Revolving Loan, a confirmation that such Lender's
Adjusted Pro Rata Share of the requested Supplemental Revolving
Loan) has been sent to Agent by wire transfer together with the
wire transfer sequencing numbers related thereto, Agent may
assume that such Lender has made such funds available on the date
such Revolving Loan is to be made in accordance with Section 2.2
and Agent may, in reliance upon such assumption, make available
to Borrower on such date a corresponding amount. If and to the
extent that Agent has not, for any reason, received such
corresponding amount by the close of business on the day such
amount was to be made available, such Lender shall pay to Agent
forthwith on demand such corresponding amount, together with
interest thereon for each day from the date such amount is made
available to Borrower until the date such amount is repaid to
Agent, at the Federal Funds Rate. Until such Lender has made
such payment to Agent, such Lender shall be a Non-Funding Lender
with respect to such Revolving Loan. In the event Agent does not
receive such amount from such Lender within one (1) Business Day
after Agent's demand therefor, then Borrower agrees to pay Agent
forthwith on demand such corresponding amount, together with
interest thereon for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to
Agent, at the Applicable Interest Rate. Borrower may, to the
extent otherwise permitted by Section 2.1(b), repay such
corresponding amount by requesting Supplemental Revolving Loans
from the Funding Lenders. Any such repayment by Borrower shall
be without prejudice to any rights it may have against the Lender
that has failed to make available its funds for any requested
borrowing. As used herein "Federal Funds Rate" means, for any
period, a fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on
transactions received by Agent from three federal funds brokers
of recognized standing selected by Agent.
.4 Repayment of Principal.
(a) Scheduled Repayments
Borrower shall repay the principal amount of the
Revolving Loans on or before the Revolving Loan Maturity Date.
(b) Mandatory Prepayments
If at any time or for any reason, the Available Amount is
less than the outstanding principal amount of the Revolving
Loans, then Borrower shall immediately cause the outstanding
principal amount of the Revolving Loans to be less than or equal
to the Available Amount by (i) making one or more principal
repayments of the Revolving Loans and/or (ii) causing one or more
mini-storage facilities of Borrower to become an additional
Negative Pledge Property in accordance with Section 4.1.
.5 Interest on Loans.
(a) General Provisions
Borrower agrees to pay to Lenders interest on the unpaid
principal amount of the Loan from the date hereof until the Loan
shall be due and payable at a per annum rate equal to the
Applicable Interest Rate. Interest on any past due amount of the
Loan (whether at maturity, upon acceleration, mandatory
prepayment or otherwise) shall accrue, at a per annum rate equal
to three percent (3%) above the Prime Rate. Accrued but unpaid
interest on the LIBOR Loan shall be paid in arrears on the last
day of the Applicable Interest Period and, in addition, for each
LIBOR Loan having an Applicable Interest Period longer than three
months, at the end of the first three months of such Applicable
Interest Period. Accrued but unpaid interest on the Prime Rate
Loan shall be paid in arrears on the first Business Day of each
calendar month and at the Revolving Loan Maturity Date.
Notwithstanding the foregoing, accrued interest on the Loan shall
be payable on demand after the occurrence of an Event of Default.
Computations of interest shall be made on the basis of a year of
360 days for LIBOR Loans and for Prime Rate Loans, for the actual
number of days (including the first day but excluding the last
day) occurring in the period for which such interest is payable.
(b) Selection of Alternative Rates.
(1) Borrower may, on at least three LIBOR Business Days' prior
notice, elect to have interest accrue on any Revolving Loan or
any portion thereof or on all or any portion of the Loan already
outstanding at the Adjusted LIBOR Rate for an Applicable Interest
Period. Such notice (herein, an "Interest Rate Notice") shall be
given in writing and shall be deemed delivered when received by
Agent except that an Interest Rate Notice received by Agent after
10:00 a.m., Seattle time, on any Business Day, shall be deemed to
have been delivered or received on the next Business Day. Each
written Interest Rate Notice shall be in substantially the form
of Exhibit C hereto. Any such Interest Rate Notice shall be
irrevocable and shall constitute a representation and warranty by
Borrower that as of the date of such Interest Rate Notice, the
statements set forth in Article 6 are true and correct and that
no Default or Event of Default has occurred and is continuing.
(2) The ability of Borrower to select the Adjusted LIBOR Rate to
apply to the Loan or any portion thereof shall be subject to the
following conditions: (i) no more than fifteen LIBOR Loans may
be outstanding at any single time; (ii) the Adjusted LIBOR Rate
may not be selected for any portion of the Loan which is already
accruing interest at the Adjusted LIBOR Rate unless such
selection is only to become effective at the maturity of the
Applicable Interest Period then in effect; (iii) Agent shall not
have given notice pursuant to Section 2.5(c) that the Adjusted
LIBOR Rate selected by Borrower is not available; (iv) no Default
or Event of Default shall have occurred and be continuing; and
(v) if Borrower elects to have some portion (but less than all)
of the Loan accrue interest at the Adjusted LIBOR Rate, such
election shall cause a portion of each Lender's outstanding Loan
to accrue interest at such rate in proportion to their respective
Funded Pro Rata Shares.
(3) In the absence of an effective request for the application
of the Adjusted LIBOR Rate, the Loan or the remaining portions
thereof shall accrue interest at the Prime Rate.
(4) The Interest Rate Notice may be given with and contained
in any Notice of Borrowing provided that the requisite number of
days for prior notice for both the borrowing and the selection of
the Adjusted LIBOR Rate shall be satisfied.
(5) If Borrower delivers an Interest Rate Notice with any
Notice of Borrowing for a Revolving Loan and Borrower thereafter
declines to take such Revolving Loan or a condition precedent to
the making of such Revolving Loan is not satisfied or waived,
Borrower shall indemnify Agent and each Lender for all losses and
any costs which Agent or any Lender may sustain as a consequence
thereof including, without limitation, the costs of reemployment
of funds at rates lower than the cost to Lenders of such funds.
A certificate of Agent or any Lender setting forth the amount due
to it pursuant to this Section 2.5(b)(5) and the basis for, and
the calculation of, such amount shall be prima facie evidence of
the amount due to it hereunder, absent a showing by Borrower of
manifest error. Payment of the amount owed shall be due within
15 days after Borrower's receipt of such certificate.
(c) Unavailable Adjusted LIBOR Rate
If, for any reason, any Lender determines that a fair and
adequate means does not exist for establishing the Adjusted LIBOR
Rate or that the making or continuation of any LIBOR Loan by such
Lender has become unlawful, then such Lender may give notice of
that fact to Agent and Borrower and such determination shall
become conclusive and binding absent manifest error. After such
notice has been given and until the Lender notifies Borrower and
Agent that the circumstances giving rise to such notice no longer
exist, such rate shall no longer be available. Any subsequent
request by Borrower to have interest accrue at such rate shall be
deemed to be a request for interest to accrue at the Prime Rate
unless Borrower elects to select another Applicable Interest Rate
which is not unavailable and gives the requisite number of days
notice to select such rate. If the Lender shall thereafter
determine to permit borrowing at such rate, the Lender shall
notify Borrower and Agent in writing of that fact, and Borrower
shall then once again become entitled to request that such rate
apply to the Loans in accordance with Section 2.5(b) hereof.
(d) Compensation for Increased Costs
In the event that after the date hereof any change occurs
in any applicable law, regulation, treaty or directive or
interpretation thereof by any Governmental Authority charged with
the administration or interpretation thereof, or any condition is
imposed by any Governmental Authority after the date hereof or
any change occurs in any condition imposed by any Governmental
Authority on or prior to the date hereof which:
(i) Subjects any Lender to any Tax (other than any Tax
measured by a Lender's net income or gross revenues), or changes the basis
of taxation of any payments to any Lender on account of principal
of or interest on any LIBOR Loan, the Notes (to the extent the
Notes evidence a LIBOR Loan) or fees in respect of the Lender's
obligation to make LIBOR Loans or other amounts payable with
respect to its LIBOR Loans; or
(ii) Imposes, modifies or determines to be applicable any
reserve, deposit or similar requirements against any assets held
by, deposits with or for the account of, or loans or commitments
by, any office of the Lender in connection with its LIBOR Loans
to the extent the amount of which is in excess of, or was not
applicable at the time of computation of, the amounts provided
for in the definition of such LIBOR Loan; or
(iii) Affects the amount of capital required to be
maintained by banks generally or corporations controlling banks and any
Lender determines the amount by which the Lender or any
corporation controlling the Lender is required to maintain or
increase its capital is increased by, or based upon, the
existence of this Agreement or of the Lender's LIBOR Loans or
commitment to make LIBOR Loans hereunder;
(iv) Imposes upon any Lender any other condition with
respect to its LIBOR Loans or its commitment to make LIBOR Loans;
which, as a result thereof, (1) increases the cost to any Lender
of making or maintaining its Loans or its commitment to lend
hereunder, or (2) reduces the net amount of any payment received
by any Lender in respect of its Loans (whether of principal,
interest, commitment fees or otherwise), or (3) requires the
Lender to make any payment on or calculated by reference to the
gross amount of any sum received by it in respect of its LIBOR
Loans, in each case by a material amount, then and in any such
case Borrower shall pay to Agent for the account of such Lender
on demand such amount or amounts as will compensate such Lender
for any increased cost, deduction or payment actually incurred or
made by such Lender. The demand for payment by any Lender shall
be delivered to both Agent and Borrower and shall state the
subjection or change which occurred or the Tax, reserve, deposit
or capital requirements or other conditions which have been
imposed upon such Lender or the request, direction or requirement
with which it has complied, together with the date thereof, the
amount of such cost, reduction or payment and the manner in which
such amount has been calculated. Any such demand for payment
shall be accompanied by an Officer's Certificate from the
affected Lenders stating that the amount assessed against
Borrower with respect to such Lender's LIBOR Loans is not greater
than Borrower's pro rata share of the amount assessed against all
such Lender's LIBOR Loans (such pro rata share equaling a
fraction whose numerator is the aggregate amount of Borrower's
LIBOR Loans from such Lender and whose denominator is total
amount of all such Lender's LIBOR Loans that are subject to the
increased costs, reduction in payment or additional payment
referred to in clauses (1), (2) or (3) above). The statement of
any Lender as to the additional amounts payable pursuant to this
Section 2.5(d) shall be, absent manifest error, prima facie
evidence of the amounts due hereunder.
The protection of this Section 2.5(d) shall be available to
each Lender regardless of any possible contention of invalidity
or inapplicability of the relevant law, regulation, treaty,
directive, condition or interpretation thereof provided that no
amount shall be owing under this Section 2.5(d) to the extent it
is caused or triggered by such Lender's negligence or willful
misconduct. In the event that Borrower pays any Lender the
amount necessary to compensate such Lender for any charge,
deduction or payment incurred or made by such Lender as provided
in this Section 2.5(d) and such charge, deduction or payment or
any part thereof is subsequently returned to the Lender as a
result of the final determination of the invalidity or
inapplicability of the relevant law, regulation, treaty,
directive or condition, then such Lender shall remit to Borrower
the amount paid by Borrower which has actually been returned to
the Lender (together with any interest actually paid to the
Lender on such returned amount). Borrower shall not be obligated
to pay any amount under this Section 2.5(d) with respect to any
Applicable Interest Period prior to the Applicable Interest
Period during which the affected Lender provides notice to
Borrower that such additional payment shall be assessed.
.6 Notes
Each Lender's Revolving Loans shall be evidenced by a
promissory note of Borrower substantially in the form attached
hereto as Exhibit A-1, A-2, A-3 or A-4, as applicable, payable to
the order of such Lender, dated as of the date hereof, in the
face amount of such Lender's Pro Rata Share of the Commitment
(the "Notes"). Agent shall have possession of the original
Notes. Agent is hereby authorized to record the date and amount
of the Revolving Loans each Lender makes, the Applicable Interest
Rate, the Applicable Interest Period and the date and amount of
each payment of principal and interest thereon on a schedule
annexed to or kept in respect of the Notes. Any such recordation
by Agent shall constitute prima facie evidence of the accuracy of
the information so recorded; provided, however, that the failure
to make any such recordation or any error in any such recordation
shall not affect the obligations of Borrower hereunder or under
the Notes.
.7 Manner of Payments.
(a) Place and Form of Payments
All payments of principal and interest on the Loan and
all other amounts payable hereunder or under any other Loan
Document by Borrower to Agent or any Lender shall be made by
paying the same in United States Dollars and in immediately
available funds to Agent at its Commercial Loan Service Center,
Seattle, Washington not later than 12:00 noon, Seattle time, on
the date on which such payment shall become due.
(b) Payments on Non-business Days
. Whenever any payment hereunder or under any other Loan
Document shall be stated to be due or whenever the last day of
any Applicable Interest Period would otherwise occur on a day
other than a Business Day, such payment shall be made and the
last day of such Applicable Interest Period shall occur on the
next succeeding Business Day and such extension of time shall in
such case be included in the computation and payment of interest
or commitment fees, as the case may be, unless, in the case of an
Applicable Interest Period with respect to a LIBOR Loan, such
extension would cause such payment to be made or the last date of
such Applicable Interest Period to occur in the next following
calendar month, in which case such payment shall be made and the
last day of such Applicable Interest Period shall occur on the
next preceding Business Day.
(c) Order of Application
Any payment or other amount received by Agent in respect
of the Loan shall be applied in the following order (i) first, to
any fees, expenses or indemnities then due and owing to Agent
pursuant to the terms hereof; (ii) second, to any fees, expenses
or indemnities owing to any Lender pursuant to the terms hereof
(if such payment or other amount is insufficient to satisfy all
such fees, expenses and indemnities, then each Lender shall
receive its pro rata share of such amounts calculated in
accordance with the amount of such fees, expenses and indemnities
owing to each Lender); (iii) third, to accrued and unpaid
interest on any Supplemental Loans then due and owing (to be
distributed by Agent to each of the Funding Lenders in accordance
with their respective Funded Adjusted Pro Rata Shares); (iv)
fourth, to accrued and unpaid interest then due and owing on the
Pro Rata Revolving Loans (to be distributed by Agent to the
Lenders in accordance with their respective Funded Pro Rata
Shares); (v) fifth, to the unpaid principal amount of any
Supplemental Revolving Loans (to be distributed by Agent to
Lenders in accordance with their respective Funded Adjusted Pro
Rata Shares); (vi) sixth, to the remaining unpaid principal
amount of the Loan (to be distributed by Agent to Lenders in
accordance with their respective Funded Pro Rata Shares); (vii)
seventh, to any other amounts owing under the Loan Documents (to
be distributed by Agent to Lenders in accordance with their
respective Funded Pro Rata Shares).
.8 Fees
(a) Commitment Fee
Borrower agrees to pay to Agent for the account of
Lenders in accordance with their Pro Rata Shares a commitment fee
equal to (i) 0.2% of the Commitment on the date of this
Agreement, payable upon execution of this Agreement; and (ii)
0.2% of the Commitment on September 30, 2000, payable on or
before September 30, 2000. The commitment fees are based upon a
0.2% per annum calculation over the Commitment Period. In the
event that, as a result of unscheduled reductions in the
Commitment, the commitment fee paid under this Section 2.8(a) is
greater than the amount actually accrued, then each Lender shall
promptly reimburse to Borrower an amount equal to such Lender's
Pro Rata Share of such overpayment. Except as provided in the
immediately preceding sentence, the commitment fee for each year
of the Commitment Period shall be fully earned when due and shall
not be reimbursable.
(b) Utilization Fee
On the first day of each fiscal quarter of Borrower,
Borrower shall pay to Agent for the account of Lenders in
accordance with their Pro Rata Shares a utilization fee of (a) if
the average outstanding principal balance of the Revolving Loans
during such preceding fiscal quarter is more than 50% of the
Commitment, then 0.12% per annum of the average unused portion of
the Commitment during the immediately preceding fiscal quarter
(calculated as the average of the amount by which, at the close
of business of each Business Day during such fiscal quarter, the
Commitment exceeds the unpaid principal amount of the Revolving
Loans); and (b) if the average outstanding principal balance of
the Revolving Loans during such preceding fiscal quarter is less
than or equal to 50% of the Commitment, then 0.20% per annum of
the average unused portion of the Commitment during the
immediately preceding fiscal quarter (calculated as the average
of the amount by which, at the close of business of each Business
Day during such fiscal quarter, the Commitment exceeds the unpaid
principal amount of the Revolving Loans).
(c) Extension Fee
If Borrower extends the Revolving Commitment Period,
Borrower shall pay Agent for the account of Lenders in accordance
with their Pro Rata Share an extension fee of 0.20% of the
Commitment on September 30, 2001, payable on or before September
30, 2001.
.9 Sharing of Payments, Etc
If any Lender shall obtain any payment in respect of the
obligations under the Loan Documents (whether voluntary or
involuntary, through the exercise of any right of setoff or
otherwise) in excess of the amount it would have received if all
payments had been made directly to Agent and apportioned in
accordance with the terms of Section 2.7(c)(iii) through
2.7(c)(vii), such Lender shall forthwith purchase from the other
Lenders such participations in the Loans made by them to Borrower
as may be necessary to cause such excess payment to be
apportioned in accordance with the terms of Section 2.7(c)(iii)
through 2.7(c)(vii); provided, however, that if all or any
portion of such excess payment is thereafter recovered from such
purchasing Lender, the purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with
an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment
to (ii) the total amount so recovered by the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. Borrower
agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.9 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of setoff) with respect to such participation as fully
as if such Lender were the direct creditor of Borrower in the
amount of such participation. Agent's books and records shall
constitute prima facie evidence of the accuracy of the
information recorded therein and any statement by Agent
calculating the amount due from any Lender shall be prima facie
evidence thereof absent a showing by such Lender of manifest
error.
.10 Prepayments
Prime Rate Loans may be repaid at any time without
penalty or premium. If a LIBOR Loan is paid prior to the end of
the Applicable Interest Period, a prepayment fee calculated in
the manner set forth in Schedule 2 shall be assessed and paid at
the time of such payment. Such fee shall be calculated by Agent,
and such calculation shall be binding evidence of the amount due
hereunder absent a showing by Borrower of manifest error. Such
fee shall apply in all circumstances where a LIBOR Loan is paid
prior to the end of the Applicable Interest Period, regardless of
whether such payment is voluntary, mandatory (including, without
limitation, payments required pursuant to Section 2.4(b)) or the
result of Agent's or Lenders' collection efforts.
ARTICLE 3
SECURITY
As contemplated by Section 3.5 of the First Amended and
Restated Loan Agreement: (i) the Nomura Substitution Date and
the Collateral Release Date occurred on or before March 31, 1997;
(ii) the liens of the Deeds of Trust were released and the
Secured Property became Negative Pledge Property; (iii) the
Environmental Agreements and the Building Law Compliance
Agreements remain in effect; and (iv) all references to "Lenders"
in the Environmental Agreements and the Building Law Compliance
Agreements the mean all of the Lenders as defined herein.
ARTICLE 4
NEGATIVE PLEDGE PROPERTIES
.1 Additions to Negative Pledge Properties
. Borrower may, from time to time, give written notice (a
"Negative Pledge Designation Notice") to Agent of Borrower's
intent that one or more additional Development Properties or
Stabilized Properties will become Negative Pledge Properties.
Each such proposed Property shall constitute an additional
Negative Pledge Property from and after the effective date of
such addition designated in the related Negative Pledge
Designation Notice. Each Negative Pledge Designation Notice
shall constitute a representation and warranty by Borrower that,
as of the date of such notice and as of the effective date
designated in such notice, no Default or Event of Default has
occurred and is continuing. Upon such Property becoming a
Negative Pledge Property and without any further action by any
party, such Property shall immediately become part of the
"Property" covered by (and as that term is defined in) the New
Environmental Agreement and the New Building Law Compliance
Agreement. Borrower shall, if so requested by Agent, execute a
separate Environmental Agreement and/or Building Law Compliance
Agreement as further evidence of such coverage, but Agent's
failure to request or Borrower's failure to execute such separate
agreements shall not in any way impair the automatic coverage of
such Property by the existing agreements in accordance with the
immediately preceding sentence.
.2 Removal of Negative Pledge Properties
. Agent shall, from time to time upon Borrower's written
request therefor (a "Negative Pledge Removal Request"), remove
one or more of the Negative Pledge Properties from their status
as Negative Pledge Properties provided that (a) at no time
between Agent's receipt of such Negative Pledge Removal Request
and the effective date of such removal does a Default or Event of
Default occur or exist (other than a Default or an Event of
Default which will cease to exist upon giving effect to such
removal); (b) the outstanding principal amount of the Loan does
not then exceed the Available Amount and giving effect to such
removal would not cause the outstanding principal amount of the
Loan to exceed the Available Amount; and (c) (i) the purpose for
the removal of such Negative Pledge Property is the sale of all
or a portion thereof and such Property is in fact sold in an
arm's length transaction at a price determined to be adequate in
the reasonable business judgment of the Borrower, (ii) for
reasons beyond Borrower's control, the Property becomes subject
to Liens (other than Permitted Encumbrances) and therefore fails
to qualify as an Negative Pledge Property, (iii) to the extent
the inclusion of such Property within the Negative Pledge
Property causes a breach under any provision of the Environmental
Agreements or the Building Law Compliance Agreements, (iv) the
Property is one of a maximum of two properties per year not
subject to either (i), (ii) or (iii) above, or (v) Borrower has
received prior written consent from Agent. Each Negative Pledge
Removal Request shall constitute a representation and warranty by
Borrower that, as of the date of and upon giving effect to such
request, no Default or Event of Default has occurred and is
continuing.
ARTICLE 5
CONDITIONS TO LOANS
.1 Conditions to Initial Revolving Loan
In addition to the conditions set forth in Section 5.2,
the obligation of each Lender to make the initial Revolving Loan
on or after the date of this Agreement, and the obligation of
Agent on or after the date of this Agreement to disburse the
proceeds of such Revolving Loan, are subject to fulfillment of
the following conditions precedent prior to the initial Revolving
Loan:
(a) New Loan Documents
The New Loan Documents shall have each been duly executed
and delivered by the respective parties thereto.
(b) Corporate Certificates
. Agent shall have received all of the following, each
reasonably satisfactory to it in form and substance:
(i) The Articles of Incorporation, the Limited Liability
Agreement or other foundational documents of Borrower and each of
the Guarantors, certified by an authorized officer of Borrower or
such Guarantor, as the case may be;
(ii) The Bylaws of Borrower and each of the Guarantors
certified by an authorized officer of Borrower or such Guarantor, as the
case may be;
(iii) Certified copies of the resolutions adopted by the
board of directors of Borrower authorizing the execution,
delivery and performance of the New Loan Documents to which
Borrower is a party; and certified copies of the resolutions
adopted by the boards of directors or other applicable management
bodies of each of the Guarantors authorizing the execution,
delivery and performance of the Guarantor Consents.
(iv) An incumbency certificate describing the office and
identifying the specimen signatures of the individuals authorized
to sign the New Loan Documents on behalf of Borrower or the
Guarantors, as the case may be; and
(v) A Certificate of Good Standing dated as of a recent
date issued by the Secretary of State of the State of Washington in
respect of Borrower and a Certificate of Good Standing dated as
of a recent date issued by the Secretary of State of the state of
incorporation or formation of each Guarantor in respect of such
Guarantor.
(c) Legal Opinion
Agent shall have received the legal opinion of the law
firm of Perkins Coie, as counsel to Borrower addressed to Agent
and Lenders in substantially the form of Exhibit D hereto.
(d) Certificate
. Agent shall have received an Officer's Certificate from
Borrower as to the accuracy of Borrower's representations and
warranties set forth in Article 6 and as to the absence of any
Default or Event of Default.
(e) Fees and Expenses
. Agent shall have received from Borrower all amounts due
under this Agreement on or prior to the date of such initial
Revolving Loan, including, without limitation, the commitment fee
owing under Section 2.8(a) and, if requested by Agent, legal fees
and expenses as specified in Section 7.10.
(f) Insurance
. Agent shall have received evidence reasonably
satisfactory to it that all insurance required by Section 7.7 of
this Agreement is in full force and effect.
.2 Conditions to All Loans
. The obligation of each Lender to make any Revolving Loan
(including the initial Revolving Loan) on or after the date of
this Agreement, and the obligation of Agent on or after the date
of this Agreement to disburse Loan proceeds, are subject to
fulfillment of the following conditions precedent:
(a) Prior Conditions
. All of the conditions set forth in Section 5.1 shall have
been satisfied.
(b) Notice of Borrowing
. Agent shall have received the Notice of Borrowing in
respect of such Loan.
(c) No Default
. At the date of such Revolving Loan, no Default or Event
of Default shall have occurred and be continuing or will have
occurred as the result of the making of such Revolving Loan; and
the representations and warranties of Borrower in Article 6 shall
be true on and as of such date with the same force and effect as
if made on and as of such date.
(d) Other Information
. Agent and each Lender shall have received such other
statements, opinions, certificates, documents and information as
it may reasonably request in order to satisfy itself that the
conditions set forth in this Section 5.2 have been fulfilled.
.3 Conditions to Extension of Revolving Commitment Period
. Borrower's right to extend the Revolving Commitment
Period and the Revolving Loan Maturity Date pursuant to
Section 2.1(c), is subject to the fulfillment of the following
conditions precedent:
(a) Request for Extension
. No more than 90 days prior to the end of the then-
effective Revolving Commitment Period and not less than 60 days
prior to such date, Agent shall have received a written request
for such extension signed by an authorized representative of
Borrower.
(b) No Default
. On the date of such request of extension and on the final
day of the then-effective Revolving Commitment Period, no Default
or Event of Default shall have occurred and be continuing; and
the representations and warranties of Borrower in Article 6 shall
be true on and as of such date with the same force and effect as
if made on and as of such date.
(c) Capitalization Rate.
Borrower and Agent shall have agreed on an appropriate
capitalization rate to be used in the calculation of the
Stabilized Asset Value and the Unencumbered Stabilized Asset
Value.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and Lenders as
follows:
.1 Existence and Power
. Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Washington and is qualified to do business in each and every
state where it owns any Negative Pledge Property. Each of the
Guarantors is organized in the form stated on Schedule 4 and is
validly existing and in good standing under the laws of the state
of its formation as indicated therein and is qualified to do
business in every state where it owns any Applicable Property.
Borrower and each Guarantor is also duly qualified to do business
in each other jurisdiction where the nature of its activities or
the ownership of its properties requires such qualification
except where the failure to be qualified would not have a
Material Adverse Effect. Borrower has full corporate power,
authority and legal right to carry on its business as presently
conducted, to own and operate its properties and assets and to
execute, deliver and perform each of the Loan Documents.
.2 Authorization
. The execution, delivery and performance by Borrower of
the Loan Documents and any borrowing hereunder, have been duly
authorized by all necessary corporate action of Borrower, and do
not require any shareholder approval or the approval or consent
of any trustee or the holders of any Indebtedness of Borrower
except such as have been obtained (certified copies thereof
having been delivered to Agent), do not contravene any law,
regulation, rule or order binding on it or its Articles of
Incorporation or Bylaws and do not contravene the provisions of
or constitute a default under any indenture, mortgage, contract
or other agreement or instrument to which Borrower is a party or
by which Borrower, or any of its properties, may be bound or
affected. The execution, delivery and performance by each
Guarantor of the Contribution Agreement and the Guaranty to which
it is a party have been duly authorized by any necessary
corporate, partnership or company action of such Guarantor, and
do not require any shareholder, partner or member approval or the
approval or consent of any trustee or the holders of any
Indebtedness of such Guarantor except such as have been obtained
(certified copies thereof having been delivered to Agent), do not
contravene any law, regulation, rule or order binding on such
Guarantor or its organizational documents and do not contravene
the provisions of or constitute a default under any indenture,
mortgage, contract or other agreement or instrument to which such
Guarantor is a party or by which such Guarantor, or any of its
properties, may be bound or affected.
.3 Government Approvals, Etc
. No Government Approval or filing or registration with any
Governmental Authority is required for the making and performance
by Borrower or any Guarantor of the Loan Documents or in
connection with any of the transactions contemplated hereby or
thereby, except such as have been heretofore obtained and are in
full force and effect (certified copies thereof having been
delivered to Agent).
.4 Binding Obligations, Etc
. The Loan Documents to which Borrower is a party have been
duly executed and delivered by Borrower and constitute the legal,
valid and binding obligations of Borrower enforceable against it
in accordance with the terms thereof; the Guaranties and the
Contribution Agreement have been duly executed and delivered by
the Guarantors and constitute the legal, valid and binding
obligations of such Guarantors enforceable against them in
accordance with the terms thereof, in each case, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws of general
application relating to or affecting the rights and remedies of
creditors and by general equitable principles, regardless of
whether enforcement is sought in equity or at law.
.5 Litigation
. There are no actions, proceedings, investigations, or
claims against or affecting Borrower or any Guarantor now pending
before any court, arbitrator or Governmental Authority (nor to
the knowledge of Borrower has any thereof been threatened nor
does any basis exist therefor) which might reasonably be
determined adversely to Borrower or such Guarantor and which, if
determined adversely, would have a Material Adverse Effect,
except as described on Schedule 3 hereto.
.6 Financial Condition
. The consolidated balance sheet of Borrower and its
Consolidated Subsidiaries as of June 30, 1999, copies of which
have been furnished to Agent, fairly present the consolidated
financial condition of Borrower and its Consolidated Subsidiaries
at such date, all in conformity with generally accepted
accounting principles. In all material respects, the
consolidated financial statements of Borrower and its
Consolidated Subsidiaries as of June 30, 1999, copies of which
have been furnished to Agent, fairly present the consolidated
financial condition of Borrower and its Consolidated Subsidiaries
as of such date. Since June 30, 1999, there has been no material
adverse change in the financial condition or operations of
Borrower or its Consolidated Subsidiaries that is not reflected
in the June 30, 1999 financial statements and, since June 30,
1999, there has been no material adverse change in the financial
condition or operations of Borrower and its Consolidated
Subsidiaries, taken as a whole.
.7 Taxes
. Borrower and each Relevant Subsidiary has filed all
material tax returns and reports required of it, has paid all
Taxes which are shown to be due and payable on such returns and
reports, and has provided adequate reserves for payment of any
Tax whose payment is being contested. The charges, accruals and
reserves on the books of Borrower or any Relevant Subsidiary in
respect of Taxes for all fiscal periods to date are accurate and
to the best of Borrower's knowledge after due investigation there
are no questions or disputes between Borrower or any Relevant
Subsidiary and any Governmental Authority with respect to any
Taxes except as disclosed in the balance sheet referred to in
Section 6.6 or otherwise disclosed to Agent in writing prior to
the date of this Agreement.
.8 Laws, Orders; Other Agreements
. Other than where failure to so conduct, use, or comply
would not have a Material Adverse Effect (i) the business and
operations of Borrower and the Relevant Subsidiaries have been
and are being conducted in substantial compliance with all
applicable laws, rules and regulations including but not limited
to those relating to the environment; and (ii) all properties of
Borrower and each of the Relevant Subsidiaries and the use
thereof by Borrower and each of the Relevant Subsidiaries comply
in all material respects with applicable zoning and use
restrictions. Neither Borrower nor any of the Relevant
Subsidiaries is in material breach of or default under any
material agreement to which it is a party or which is binding on
it or any of its assets.
.9 Federal Reserve Regulations
. Borrower is not engaged principally or as one of its
important activities in the business of extending credit for the
purpose of purchasing or carrying any margin stock (within the
meaning of Federal Reserve Regulation U), and no part of the
proceeds of the Loan will be used to purchase or carry any such
margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any other
purpose that violates the applicable provisions of any Federal
Reserve Regulation. Borrower will furnish to Agent on request a
statement conforming with the requirements of Regulation U.
.10 ERISA.
(a)
The present value of all benefits vested under all Pension
Plans, if any, did not, as of the most recent valuation date of
any such Pension Plans, exceed the value of the assets of any
such Pension Plans allocable to such vested benefits by an amount
which would represent a potential liability of Borrower or any
Relevant Subsidiaries in excess of $1,000,000 or affect the
ability of Borrower or any Guarantor to perform any Loan
Document.
(b)
No Plan, if any, or trust created thereunder, or any trustee
or administrator thereof, has engaged in a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or
Section 4975(c)(1) of the Code) which could subject Borrower or
any Relevant Subsidiary to any tax or penalty in excess of
$1,000,000 on prohibited transactions imposed by Section 502 of
ERISA or Section 4975 of the Code.
(c)
No Plan, if any, or trust created thereunder has been
terminated, the termination of which had a Material Adverse
Effect, and there have been no "reportable events" as that term
is defined in Section 4043 of ERISA (which are required to be
reported) since the effective date of ERISA.
(d)
No Plan, if any, or trust created thereunder has incurred
any "accumulated funding deficiency" (as such term is defined in
Section 302 of ERISA) whether or not waived, since the effective
date of ERISA.
(e)
The required allocations and contributions to any Pension
Plans will not violate Section 415 of the Code in any material
respect.
(f)
Neither Borrower nor any Relevant Subsidiary participates in
any multi-employer plan (as defined in Section 4001(a)(3) of
ERISA).
.11 Subsidiaries
. Schedule 4 to this Agreement sets forth as of the date of
this Agreement the authorized capitalization of each Guarantor,
Potential Guarantor and Immaterial Subsidiary, the number of
shares of each class of capital stock issued and outstanding of
each such Subsidiary, and the number and percentage of
outstanding shares of each such class of capital stock owned by
Borrower or by any such Subsidiary. The outstanding shares of
each Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable. Borrower and each such
Subsidiary own beneficially and of record and have good title to
all the shares each is listed as owning on Schedule 4. The
Quarterly Compliance Certificate most recently provided to Agent
identifies all Consolidated Subsidiaries and all Unconsolidated
Subsidiaries whose revenues or properties are included in the
calculation of the Available Amount or Borrower's compliance with
any of the financial covenants identified therein and such
Compliance certificate accurately calculates and identifies the
components of Borrower's Pro Rata Share.
.12 Lien Creation and Priority; No Encumbrances
. (a) Each Property that Borrower has identified as a
Negative Pledge Property qualifies as either a Development
Property or a Stabilized Property; (b) all of the Property that
then constitutes Negative Pledge Property is free and clear of
any Liens other than Permitted Encumbrances; and (c) no Negative
Pledge Property is subject to or affected by any contract or
other undertaking (whether contingent or unconditional) providing
for the attachment of any Liens other than Permitted Encumbrances
to such Property.
.13 Investment Company; Other Regulations
. Neither Borrower nor any Guarantor or Potential Guarantor
is an "investment company," or a company "controlled" by an
"investment company," within the meaning of the Investment
Company Act. Neither Borrower nor any such Guarantor or
Potential Guarantor is subject to regulation by any federal or
state statute or regulation (other than margin regulations) which
limits its ability to incur indebtedness. Neither Borrower nor
any Guarantor or Potential Guarantor is subject to any federal or
state law or regulation limiting its ability to issue and perform
its obligations under the Notes and any other Loan Documents.
.14 Delinquent Property Liens
. To the best of Borrower's knowledge, there is no
delinquent tax, sewer, rent, water charge, assessment, or other
outstanding charge against any of the Negative Pledge Properties,
or any part thereof, and there are no mechanics' or similar
Liens, or to Borrower's knowledge, significant, valid, undisputed
claims for overdue payment for work performed, labor or material
affecting any of the Negative Pledge Properties and there are no
mechanics' or similar Liens (other than Permitted Encumbrances)
affecting any of the Negative Pledge Properties which have not
been insured or indorsed over by title policies.
.15 Improvements
. Except as disclosed in any title policies, reports,
preliminary commitments, surveys, appraisals or other documents
available for inspection by Agent pursuant to Section 7.3, to the
best of Borrower's knowledge, all buildings, structures and other
improvements located on any of the Negative Pledge Properties lie
wholly within the boundary and building restriction lines of such
Properties and no buildings, structures or other improvements on
adjoining property encroach upon any of the Negative Pledge
Properties in any respect so as to materially and adversely
affect the market value of such Property.
.16 Casualty; Condemnation
. To the best of Borrower's knowledge, each of the Negative
Pledge Properties is free of material damage and waste, and there
is no proceeding pending or, to the best of Borrower's knowledge,
threatened, for the total or partial condemnation or taking by
eminent domain of any of the Negative Pledge Properties.
.17 Assessments
. Borrower has not received any notice of actual or pending
special assessments or reassessments of any of the Negative
Pledge Properties which, taken together, would have a Material
Adverse Effect other than such assessments or reassessments as
have been disclosed to Agent in writing.
.18 Rights of Others to Purchase Property
. No Negative Pledge Property is subject to or affected by
any contracts for the sale thereof, or by any rights of first
refusal or options to purchase such Property, unless such
contract, right of first refusal or option is entered into in
anticipation of such Property being removed from the Negative
Pledge Properties pursuant to Section 4.2 and Borrower provides
Agent with written notice of such contract, right of first
refusal or option before the closing of such transaction.
.19 Representations as a Whole
. This Agreement, the other Loan Documents, the financial
statements referred to in Section 6.6, and all other instruments,
documents, certificates and statements furnished to Agent or any
Lender by Borrower or any Consolidated Subsidiary, taken as a
whole, do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, each of the representations and
warranties made by Borrower or any Guarantor in the other Loan
Documents is true and correct on and as of the date when made, on
and as of the date hereof, and on and as of each date this
representation is deemed made hereunder with the same force and
effect as if made on and as of such dates.
ARTICLE 7
AFFIRMATIVE COVENANTS
So long as Agent or any Lender shall have any commitment to
lend hereunder and until payment in full of the Loan and
performance of all other obligations of Borrower under this
Agreement and the other Loan Documents, Borrower agrees to do all
of the following unless Agent (with the approval of Majority
Lenders) shall otherwise consent in writing.
.1 Use of Proceeds from Loans
. The proceeds of the Loan may be used only for
predevelopment costs, development costs, acquisition of mini-
storage facilities, capital expenditures, costs of buildouts or
working capital (in each case, incurred or expended in connection
with a business activity permitted under Section 8.4 hereof,
including any permitted ancillary business activity), equity
investments, dividends, and expenses related to closing and
administering the Loan, repayment of Indebtedness of Borrower or
any Guarantor or any Potential Guarantor (if, concurrently with
the payment of such Indebtedness, such Potential Guarantor
becomes a Guarantor) or scheduled amortization payments on Debt.
.2 Preservation of Corporate Existence, Etc
. Borrower will, and will cause each Relevant Subsidiary
to, preserve and maintain its corporate existence and all
material rights, franchises and privileges in the jurisdiction of
its incorporation and will, and will cause each Relevant
Subsidiary to, qualify and remain qualified as a foreign
corporation in each jurisdiction where qualification is necessary
or advisable in view of its business and operations or the
ownership of its properties; provided, however, that Borrower
may, or permit any Relevant Subsidiary to, change the state of
its incorporation, but only if, prior to doing so, Borrower has
provided to Agent a legal opinion in form and substance
satisfactory, and from legal counsel acceptable, to Agent to the
effect that such reincorporation shall have no adverse legal
effect on any of Agent's or any Lender's rights or remedies under
any of the Loan Documents, together with such other evidence as
Agent may reasonably require relating to the effect of any such
reincorporation. Borrower shall cause each Relevant Subsidiary
to observe all material corporate formalities applicable to such
Subsidiary.
.3 Visitation Rights
. At any reasonable time, and from time to time during
usual business hours on usual business days, upon reasonable
prior notice, Borrower will permit Agent and Lenders to examine
and make copies of and abstracts from the records and books of
account of and to visit the properties of Borrower and the
Relevant Subsidiaries, to review all environmental and other
reports relating to such properties and to discuss the affairs,
finances and accounts of Borrower and the Relevant Subsidiaries
with any of their respective employees, officers or directors.
.4 Keeping of Books and Records
. Borrower will, and will cause each of the Relevant
Subsidiaries to, keep adequate records and books of account in
which complete entries will be made, reflecting all financial
transactions of Borrower and each of the Relevant Subsidiaries.
.5 Maintenance of Property, Etc
. Borrower will, and will cause each of the Relevant
Subsidiaries to, maintain and preserve in good working order and
condition, ordinary wear and tear excepted, all of the Negative
Pledge Property and all of its other properties which are
necessary in the ordinary course of business.
.6 Compliance With Laws, Etc
. Borrower will, and will cause each of the Relevant
Subsidiaries and each of the Negative Pledge Properties to,
comply in all material respects with all laws, regulations,
rules, and orders of Governmental Authorities applicable to
Borrower or to any of the Relevant Subsidiaries or to the
operations or property of any of them or to any of the Negative
Pledge Properties, unless the validity of such law, regulation,
rule or order is being contested in good faith by appropriate
proceedings upon stay of execution of the enforcement thereof or
unless failure to comply with such law, regulation, rule or order
would not, taken together with all such other noncompliance by
Borrower, have a Material Adverse Effect.
.7 Insurance
. Borrower will, and will cause each of the Relevant
Subsidiaries to, keep in force upon all of its properties and
operations policies of insurance carried with responsible
companies in such amounts and covering all such risks as shall be
customary in the industry in accordance with prevailing market
conditions and availability. Borrower will on request furnish to
Agent certificates of insurance evidencing such coverage.
Without limiting the generality of the foregoing, Borrower shall
also comply with the following requirements:
(a) Property Insurance
. Borrower will keep the Property insured as follows:
(i) against property damage or loss by such risks as are
covered by an "all risk" replacement cost policy including earthquake if
available at a commercially reasonable cost in an amount not less
than the Full Insurable Value of the improvements and personal
property, with a deductible or self-insured retention amount not
to exceed a reasonable amount;
(ii) business interruption/rent loss insurance in an
amount equal to six months proforma stabilized rent for all perils for the
Property;
(iii) against any damage or loss by flood if the Property is
located in an area identified by the Secretary of Housing and
Urban Development or any successor thereof as an area within a
100 year flood plain or having special flood hazards and in which
flood insurance has been made available under the National Flood
Insurance Act of 1968 or the Flood Disaster Protection Act of
1973, as amended, modified, supplemented or replaced from time to
time, as may be available under such Acts;
(iv) against damage or loss from (i) sprinkler system
leakage and (ii) boilers, boiler tanks, heating and air conditioning
equipment, pressure vessels, auxiliary piping and similar
apparatus, if applicable;
(v) during the period of any construction or replacement of
improvements to the Property, for losses insured under an "all
risk" replacement cost completed value builder's risk coverage
form of insurance policy. The policy providing such coverage
shall contain the "permission to occupy upon completion of work
or occupancy" provision; and
(vi) insurance policy shall bear a Lenders' loss payable
endorsement to the extent of Lenders' interest in the insurance
proceeds payable under the policy.
(b) Liability Insurance
. Borrower shall procure and maintain:
(i) commercial general liability insurance covering
Borrower, Agent and Lenders against claims for bodily injury or death or
property damage occurring in, upon or about the Property or
resulting from or involving the Property, in standard form, which
insurance shall include blanket contractual liability coverage
(but such coverage or the amount thereof shall in no way limit
the indemnification set forth in Section 7.19); and
(ii) during the period of any construction, restoration or
replacement of improvements to the Property, Borrower shall
insure against loss from damage or injury caused by such
construction, restoration or replacement with additional coverage
by obtaining (1) commercial public liability insurance (including
coverage for elevators and escalators, if any) on an "occurrence
and in the aggregate basis," for personal injury claims,
including, without limitation, bodily injury, death or property
damage occurring in, upon, or about the improvements being
constructed, restored or replaced, such insurance to afford
immediate minimum protection with a commercially reasonable limit
with respect to personal injury or death to any one or more
persons or damage to property; and (2) worker's compensation
insurance (including employer's liability insurance if requested
by Agent) for all employees of Borrower engaged in construction
on or with respect to the Property and improvements to the
Property in such amounts as are established by law or otherwise
are reasonable under the circumstances.
(c) Title Insurance
. Borrower shall maintain one or more owner's title
insurance policies with an aggregate coverage amount of not less
than $425,000,000 insuring Borrower's or each Consolidated
Subsidiary's fee simple interest, as the case may be, (or in the
case of the Negative Pledge Properties located in Solana Beach,
California, and Hillcroft, Texas, or any other Negative Pledge
Property that is subject to a Qualifying Lease, Borrower's sole
ownership of the leasehold interest) in all of their real
property, including, without limitation, all Negative Pledge
Properties.
(d) Certain Terms of Policy
. All insurance required under this Section 7.7 shall
provide that the same shall not be cancelled, amended or
materially altered (including by reduction in the scope or limits
of coverage) without at least forty-five (45) days' prior written
notice to the Lender. The policies required under Section 7.7(a)
shall contain a minimum of 80% of value coinsurance clause or a
"stipulated value" or "agreed amount" provision.
(e) Evidence of Payment
. Borrower will deliver to Agent receipts evidencing
payment of all premiums thereon. Upon renewal of any of the
insurance policies required by this Section 7.7, Borrower shall,
upon Agent's request therefor, cause to be provided to Agent a
copy of such renewal policy or, at Agent's option, a certificate
of renewal for such policy.
(f) Approval Not Warranty
. No approval by Agent or any Lender of any insurer shall
be construed to be a representation, certification or warranty of
its solvency and no approval by Agent or any Lender as to the
amount, type or form of any insurance shall be construed to be a
representation, certification or warranty of its sufficiency.
.8 Financial Information
. Borrower will deliver to Agent:
(a) Annual Audited Financial Statements
. As soon as available and in any event within 120 days
after the end of each fiscal year of Borrower, the consolidated
financial statements of Borrower and the Consolidated
Subsidiaries as of the end of such fiscal year, accompanied by
the audit report thereon by independent certified public
accountants selected by Borrower and reasonably satisfactory to
Agent (which reports shall be prepared in accordance with
generally accepted accounting principles and shall not be
qualified by reason of restricted or limited examination of any
material portion of the records of Borrower or the Consolidated
Subsidiaries and shall contain no disclaimer of opinion or
adverse opinion).
(b) Quarterly Unaudited Financial Statements
. As soon as available and in any event within 45 days
after the end of each fiscal quarter, the unaudited consolidated
financial statements of Borrower and the Consolidated
Subsidiaries as of the end of such fiscal quarter (including the
fiscal year to the end of such quarter) and operating statements
for each of the Negative Pledge Properties, accompanied by an
Officer's Certificate of Borrower certifying that such unaudited
financial and operating statements have been prepared in
conformity with generally accepted accounting principles and, in
all material respects, present fairly the consolidated financial
position and the results of operations of Borrower and the
Subsidiaries and of the Negative Pledge Properties as at the end
of and for such quarter and identifying any material adverse
changes that have occurred since the fiscal year-end report
referred to in clause (a) in the consolidated financial condition
or operations of Borrower and the Subsidiaries as shown on the
financial statements as of said date.
(c) Quarterly Compliance Certificates
. Within 45 days after the end of Borrower's fiscal
quarter, an Officer's Certificate in the form agreed to by
Borrower and Agent prior to the execution and delivery of this
Agreement with such subsequent modifications as may be mutually
agreed to by Borrower and Agent (the "Quarterly Compliance
Certificate") from Borrower to the effect that as of the close of
such fiscal quarter no Event of Default or Default had occurred
and was continuing and demonstrating through appropriate
calculations that Borrower was in compliance with the covenants
in Sections 7.11, 7.12, 7.13, 7.14, 7.15, and 8.7 hereof (to
extent tested on a quarterly basis) and setting forth the
calculation of the Available Amount during the Applicable
Measurement Period beginning on the date such Quarterly
Compliance Certificate is submitted to Agent.
(d) Annual Budget
. On or before March 1 of each year an annual cash flow
income statement budget for such year prepared by Borrower.
(e) Other
. All other statements, reports and other information as
Agent or any Lender may reasonably request concerning the
financial condition and business affairs of Borrower or any
Consolidated Subsidiary or one or more of the Negative Pledge
Properties, including, without limitation, property budgets and
operating statements for the current and immediately preceding
fiscal years.
.9 Notification
. Promptly after learning thereof, Borrower shall notify
Agent of (a) any action, proceeding, investigation or claim
against or affecting Borrower or any of the Consolidated
Subsidiaries instituted before any court, arbitrator or
Governmental Authority or, to Borrower's knowledge, threatened to
be instituted, which, if determined adversely to Borrower or any
Consolidated Subsidiary, would have a Material Adverse Effect, or
to result in a judgment or order against Borrower or any of the
Consolidated Subsidiaries for more than $1,000,000 (in excess of
coverage) or, when combined with all other pending or threatened
claims against Borrower or any of the Consolidated Subsidiaries,
more than $1,000,000 (in excess of insurance coverage); (b) any
substantial dispute between Borrower or any of the Consolidated
Subsidiaries and any Governmental Authority; (c) any labor
controversy which has resulted in or, to Borrower's knowledge,
threatens to result in a strike which would materially affect the
business operations of Borrower or any of the Consolidated
Subsidiaries, taken as a whole; (d) if Borrower or any of the
Consolidated Subsidiaries or any member of a Controlled Group
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in subsections (b)(1), (2), (5) or
(6) of Section 4043 of ERISA) with respect to any Plan (or the
Internal Revenue Service gives notice to the PBGC of any
"reportable event" as defined in subsection (c)(2) of
Section 4043 of ERISA and Borrower obtains knowledge thereof)
which might constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; and (e) the occurrence
of any Event of Default or Default. In the case of the
occurrence of an Event of Default or Default, Borrower will
deliver to Agent an Officer's Certificate specifying the nature
thereof, the period of existence thereof, and what action
Borrower or the affected Consolidated Subsidiary proposes to take
with respect thereto. In addition, Borrower shall provide Agent
with at least 30 days prior written notice of any material
acquisitions, mergers, or asset purchases which notice shall be,
upon Agent's request, accompanied by an Officer's Certificate
certifying that, after giving effect to such proposed
acquisition, merger or asset purchase, no Default or Event of
Default shall exist.
.10 Additional Payments; Additional Acts
. From time to time, Borrower will pay the following
amounts and take the following actions.
(a) Taxes on or Expenses Incurred In Preparation of Loan
Documents
. Borrower will pay or reimburse Agent and Lenders on
request for all Taxes (other than Taxes imposed on the net income
or gross revenues of Agent or Lenders) imposed on any Loan
Document or payment and for all expenses, including legal fees
including allocated costs of in-house counsel incurred by Agent
in connection with the preparation of the Loan Documents or the
making of the Loan.
(b) Expenses of Administering Loan
. Borrower will pay or reimburse Agent for all out-of-
pocket expenses reasonably incurred by Agent in connection with
administration of the Loan, including the costs of any site
visits deemed necessary by Agent (provided, however, that
Borrower shall not be obligated to reimburse Agent for any such
expenses in excess of $15,000 for either of the twelve (12) month
periods of the Commitment Period except that such limit shall not
apply to any expenses or costs incurred after the occurrence and
during the continuation of an Event of Default).
(c) Expenses In Changing Classification of Property
. Borrower will pay or reimburse Agent for all out-of-
pocket expenses reasonably incurred by Agent in connection with
the designation of any Property as a Negative Pledge Property
(which expenses may include legal fees including allocated costs
of in-house counsel).
(d) Expenses of Enforcement
. Borrower will pay or reimburse Agent and any Lender for
all reasonable expenses, including legal fees including allocated
costs for in-house counsel, incurred by Agent or any Lender in
connection with the enforcement by judicial proceedings or
arbitration or other alternative dispute resolution proceeding or
otherwise of any of the rights of Agent or any Lender under the
Loan Documents following a Default or an Event of Default
(including, without limitation, any reasonable legal fees or
expenses incurred by Agent or any Lender in connection with
enforcing or protecting the rights of Agent or such Lender in any
bankruptcy or insolvency proceeding).
(e) Evidence of Government Approvals
. Borrower will, if requested by Agent, obtain and promptly
furnish to Agent evidence of all such Government Approvals as may
be required to enable Borrower to comply with its obligations
under the Loan Documents.
(f) Additional Instruments and Acts
. Borrower will execute and deliver all such instruments
and perform all such other acts as Agent may reasonably request
to carry out the transactions contemplated by the Loan Documents.
.11 Net Worth
. Borrower shall, at all times during each Applicable
Measurement Period, maintain a net worth of not less than
$418,870,000, plus (a) 90% of the net cash proceeds received by
Borrower from the sale of any of its equity securities after June
30, 1996 through the end of the full fiscal quarter immediately
preceding the first day of such Applicable Measurement Period;
plus (b) 90% of the market value of any equity securities of
Borrower issued in exchange for contributed properties after June
30, 1996 through the end of such fiscal quarter; minus (c) the
amount, if any, by which dividends paid by Borrower after June
30, 1996 through the end of such fiscal quarter exceeded net
income of Borrower and the Consolidated Subsidiaries during such
period.
.12 Ratio of Total Indebtedness to Gross Asset Value
. Borrower shall, at all times during each Applicable
Measurement Period, cause the ratio of the Total Indebtedness to
Gross Asset Value to be less than or equal to .55 to 1, in each
case, calculated with respect to the full fiscal quarter
immediately preceding the first day of such Applicable
Measurement Period. 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 the Indebtedness of each of the
Unconsolidated Subsidiaries as of the end of such fiscal quarter.
.13 Ratio of Secured Debt to Gross Asset Value
. Borrower shall, at all times during each Applicable
Measurement Period, maintain a ratio of Secured Debt to Gross
Asset Value of not more than .30 to 1, in each case, calculated
with respect to the full fiscal quarter immediately preceding the
first day of such Applicable Measurement Period.
.14 Cash Flow Coverage
. Borrower shall, at all times during each Applicable
Measurement Period, maintain a ratio of EBIDA to Interest Expense
of not less than 2.25 to 1, in each case, as calculated with
respect to the full fiscal quarter immediately preceding the
first day of such Applicable Measurement Period. As used in this
Section, "EBIDA" means net income, plus interest expense,
depreciation and amortization expense of Borrower and its
Consolidated Subsidiaries, calculated in accordance with
generally accepted accounting principles, plus (without
redundancy) Borrower's Pro Rata Share of the net income, plus
interest expense, depreciation and amortization expense of the
Unconsolidated Subsidiaries (other than any Unconsolidated
Subsidiary that is now or hereafter becomes subject, voluntarily
or involuntarily, to any bankruptcy or other insolvency
proceeding), but excluding in each case extraordinary gains
(extraordinary losses) from asset sales, write-offs or
forgiveness of debt.
.15 Unsecured Interest Expense Coverage
. Borrower shall, at all times during each Applicable
Measurement Period, maintain a ratio of Unencumbered Stabilized
NOI to Unsecured Interest Expense of not less than 2.0 to 1, in
each case, as calculated with respect to the full fiscal quarter
immediately preceding the first day of such Applicable
Measurement Period. As used in this Section, "Unsecured Interest
Expense" means Interest Expense incurred during such fiscal
quarter that is attributable to any Indebtedness that is not
Secured Debt.
.16 Capital Expenditure Reserve
. In the event that, at the end of any month, an Event of
Default has occurred and is continuing, Borrower shall deposit
into an account maintained by Borrower with Agent (any and all of
such accounts being referred to herein as the "Capital Reserve
Account") an amount equal to the product of $0.17 multiplied by
the number of rental square feet of all mini-storage facilities
which then constitute one of the Negative Pledge Properties
divided by twelve. Borrower hereby grants Agent for the ratable
benefit of Lenders a security interest in the Capital Reserve
Account in all amounts and investments from time to time
contained therein to secure the full and timely payment and
performance of all amounts and obligations now or hereafter owing
by Borrower under any of the Loan Documents and agrees to execute
such additional documents and take such additional acts as may be
deemed necessary or advisable by Agent to create, perfect or
ensure the first priority of such security interest. Borrower
will be permitted at any time to make withdrawals from the
Capital Reserve Account in amounts sufficient to pay for capital
expenditures with respect to the Negative Pledge Properties. No
other withdrawals may be made by Borrower from the Capital
Reserve Account.
.17 Compliance With Environmental Due Diligence Standards
. Borrower shall exercise reasonable diligence in
conducting environmental assessments of properties to be acquired
by it after the date of this Agreement and shall exercise
reasonable prudence in determining whether to purchase any
properties that have material environmental problems. Borrower
shall not acquire any such properties without the prior approval
of the Real Estate Committee of Borrower. Upon request by Agent,
Borrower shall provide Agent with copies of any and all
environmental reports relating to any such newly acquired
properties promptly after such reports have been prepared.
Borrower's obligations under this Section are in addition to, and
not in lieu of, Borrower's obligations under the Environmental
Agreements and the Building Law Compliance Agreements.
.18 Indemnification
(a) General Indemnity
. Borrower shall indemnify and hold harmless Agent and each
Lender and each of their directors, officers, employees,
attorneys, agents, successors and assigns (the "Indemnified
Parties") from and against all damages and liabilities
(collectively and severally, "Losses") assessed against any such
Indemnified Party in respect of any of their respective
capacities as Agent or Lender under this Agreement or the other
Loan Documents, as the case may be, or as a director, officer,
employee, attorney, agent, successor or assign of Agent or any
Lender in any of their respective capacities thereunder, as the
case may be, resulting from the claims of any party relating to
or arising out of the Loan Documents except for (i) Losses caused
by the negligence or willful misconduct of such Indemnified Party
and (ii) Losses resulting from the noncompliance (consistent with
the standards for performance in any applicable Loan Document) by
such Indemnified Party with any of the terms of, or any
misrepresentation by such Indemnified Party contained in, any
applicable Loan Document, and Borrower shall reimburse each
Indemnified Party for any expenses (including the fees and
disbursements of legal counsel) reasonably incurred in connection
with the investigation of, preparation for or defense of any
actual or threatened claim, action or proceeding arising
therefrom (including any such costs of responding to discovery
requests or subpoenas), regardless of whether the Lender or such
other Indemnified Person is a party thereto.
(b) Environmental Indemnity
. Without limiting the generality of any other portion of
this Section 7.19 and subject to the exceptions set forth in
clauses (i) and (ii) of Section 7.19(a), Borrower shall defend,
indemnify, exonerate and hold harmless the Indemnified Parties
from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses which
accrue to or are made against or incurred by Indemnified Parties
prior to transfer of any such Negative Pledge Property pursuant
to foreclosure or deed in lieu of foreclosure, including, but not
limited to, reasonable attorney's (including allocated costs of
in-house counsel) and consultant's fees, investigation and
laboratory fees, removal, remedial, response and corrective
action costs, court costs and litigation expenses, of whatever
kind or nature known or unknown, contingent or otherwise, based
on or arising under any Environmental Laws, including, without
limitation, those enacted hereafter, and pertaining to or
attributable in any way to the business, operations, properties,
assets, acts or omissions of Borrower, any of Borrower's tenant
or subtenant occupants of any Negative Pledge Property or any
predecessor in interest thereof or to any past, present or future
Negative Pledge Property.
(c) Building Law Indemnity
. Without limiting the generality of any other portion of
this Section 7.19 and subject to the exceptions set forth in
clauses (i) and (ii) of Section 7.19(a), Borrower shall defend,
indemnify, exonerate and hold harmless the Indemnified Parties
from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses made
against or suffered by Indemnified Parties (prior to transfer of
any such Negative Pledge Property pursuant to foreclosure or deed
in lieu of foreclosure) by reason of breach of any of the
representations, warranties and covenants of the Borrower set
forth in any of the Building Law Compliance Agreements.
(d) Indemnification Procedures
. Any Indemnified Party seeking indemnification under this
Section 7.19 in respect of any claim shall notify Borrower of the
assertion of any such claim within a reasonable time after such
Indemnified Party has knowledge of such claim. With reference to
the provisions set forth in this Section 7.19 for payment by
Borrower of attorneys fees incurred by the Indemnified Parties in
any action or claim brought by a third party, Borrower shall
diligently defend such Indemnified Party and diligently conduct
the defense. If the Indemnified Party desires to engage separate
counsel, it may do so at its own expense; provided, however, that
such limitation on the obligation of Borrower to pay the fees of
separate counsel for such Indemnified Party shall not apply if
such Indemnified Party has retained said separate counsel because
Borrower is not diligently defending it or not diligently
conducting the defense and the Indemnified Party so notifies
Borrower. Anything to the contrary contained herein or any other
Loan Documents notwithstanding, the Loan shall not be considered
to have been paid in full unless all obligations of Borrower
under this Section 7.19 shall have been fully performed (except
for contingent indemnification obligations for which no claim has
actually been made pursuant to this Agreement).
.19 Taxes
. Borrower shall promptly pay and discharge all lawful
taxes, sewer rents, water charges, assessments and other
governmental charges or levies imposed upon Borrower or upon its
income or profits or upon any of the Negative Pledge Properties,
other than those being contested in good faith by appropriate
proceedings.
.20 Additional Guaranties
. In the event any Potential Guarantor ceases to be a
Precluded Guarantor, Borrower shall cause such Potential
Guarantor to execute and deliver a Guaranty to Agent together
with such evidence as Agent may request showing that such
Guaranty and the Contribution Agreement are enforceable against
such Potential Guarantor, which evidence may include, without
limitation, a legal opinion from counsel acceptable to Agent
covering with respect to such Potential Guarantor, such Guaranty
and the Contribution Agreement the matters covered by the legal
opinion of Borrower's counsel referred to in Section 5.1(c).
Thereafter, such Potential Guarantor shall, for all purposes, be
one of the Guarantors hereunder, and such Guaranty shall, for all
purposes, be one of the Guaranties hereunder. In each case,
Borrower shall cause such Potential Guarantor to execute and
deliver such Guaranty within seven Business Days after the date
such Potential Guarantor ceases to be a Precluded Subsidiary.
.21 Other Agreements
. Borrower shall comply with all other agreements to which
Borrower is a party, whether related to any of the Negative
Pledge Properties, the Loan Documents or otherwise, other than
(a) agreements or obligations thereunder being contested in good
faith or (b) agreements non-compliance with which would not have
a Material Adverse Effect.
.22 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.
ARTICLE 8
NEGATIVE COVENANTS
So long as Agent or any Lender shall have any commitment to
lend hereunder or until payment in full of the Loan and
performance of all other obligations of Borrower under this
Agreement and the other Loan Documents, Borrower agrees that it
will not do any of the following unless Agent acting (with the
approval of Majority Lenders) shall otherwise consent in writing.
.1 Liquidation, Merger, Sale of Assets
. Except as otherwise expressly permitted hereunder,
Borrower shall not liquidate, dissolve or enter into any joint
venture, partnership or other combination (other than any joint
venture, partnership or other combination established in
connection with Borrower's operation of its mini-storage
business) or sell, lease, or dispose of all or any substantial
portion of its business or assets (other than the sale of
inventory in the ordinary course of business), or enter into any
merger or consolidation unless Borrower is the surviving entity.
Borrower shall not permit any of the Relevant Subsidiaries to
liquidate, dissolve or enter into any joint venture, partnership
or other combination or sell, lease, or dispose of all or any
substantial portion of its business or assets (other than the
sale of inventory in the ordinary course of business) or enter
into any merger or consolidation unless such Relevant Subsidiary
is the surviving entity if any of the foregoing actions would
have a Material Adverse Effect.
.2 Liens
. Borrower shall not create, assume or suffer to exist any
Lien (other than Permitted Encumbrances) on any of the Negative
Pledge Properties.
.3 Sale of Property
. Borrower shall not sell, transfer, lease (other than in
the ordinary course of business and as expressly permitted by the
Loan Documents), assign, exchange, contribute, abandon or
otherwise dispose of, directly or indirectly, any Negative Pledge
Property or any interest therein.
.4 Operations
. Borrower shall not, and shall not permit any of the
Relevant Subsidiaries or any joint venture to which it is a party
or of which it is an owner to, engage in any material activity or
introduce any major product which is substantially different from
or unrelated and not ancillary to the moving and storage business
or products of Borrower or its subsidiaries.
.5 ERISA Compliance
. Neither Borrower nor any member of a Controlled Group nor
any Plan will:
(a)
Engage in any "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975(c)(1) of the
Code) which could reasonably be expected to result in a
liability to Borrower in excess of $1,000,000;
(b)
Incur any "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA) whether or not waived which
could reasonably be expected to result in a liability to Borrower
in excess of $1,000,000;
(c)
Terminate any Pension Plan in a manner which could
reasonably be expected to result in a liability to Borrower in
excess of $1,000,000 or could reasonably be expected to result in
the imposition of a Lien in excess of $1,000,000 on any property
of Borrower pursuant to Section 4068 of ERISA;
(d)
Violate state or federal securities laws applicable to any
Plan in any material respect; or
(e)
Participate in any multi-employer plan (as defined in
Section 4001(3) of ERISA).
.6 Transactions With Affiliates
. Borrower shall not, and shall cause each of the Relevant
Subsidiaries not to, purchase, acquire or lease any property
from, or sell, transfer or lease any property to, or lend or
advance any money to, or borrow any money from, or guarantee any
obligation of, or acquire any stock, obligations or securities
of, or enter into any merger or consolidation agreement, or any
management or similar agreement with, any Affiliate, or enter
into any other transaction or arrangement or make any payment to
(including, without limitation, on account of any management
fees, service fees, office charges, consulting fees, technical
services charges or tax sharing charges) or otherwise deal with,
in the ordinary course of business or otherwise, any Affiliate on
terms other than those approved from time to time by a majority
of Borrower's independent directors. In addition, Borrower shall
not transfer any material portion of its property to any
Affiliate and shall cause each of the Guarantors and Potential
Guarantors not to transfer a material portion of its property to
any Affiliate that is not a Guarantor.
.7 Distributions
. Borrower shall not declare or pay any dividends, or other
payments or distributions on account of, the purchase,
redemption, retirement or other acquisition of shares of any
class of stock of Borrower attributable to any consecutive four
quarter period in excess of 95% of the Funds From Operations of
Borrower and Consolidated Subsidiaries calculated in accordance
with generally accepted accounting principles for such four
quarter period, except that, for the purposes of such
measurement, the $0.10 per share special dividend paid in January
1996 as a result of the merger of Borrower and Shurgard, Inc.,
shall be excluded from such calculation. Upon the occurrence and
during the continuation of any Event of Default (other than an
Event of Default under Section 9.1(a)), and subject to the 95%
limitation described above, Borrower shall not make any
Restricted Distributions in excess of the minimum amount
necessary to remain a qualified "real estate investment trust"
under the Code. Upon the occurrence and during the continuation
of any Event of Default under Section 9.1(a), Borrower shall not
make any Restricted Distributions.
.8 Amendments to Organizational Documents
. Borrower shall not amend or otherwise modify its
Certificate of Incorporation except as required by applicable tax
or other law.
.9 Immaterial Subsidiaries
. Borrower shall not permit Immaterial Subsidiaries to own
fee interests in mini-storage facilities in the United States or
Canada with a total aggregate value (measured by the cost thereof
to such Immaterial Subsidiary) of more than $15,000,000.
ARTICLE 9
EVENTS OF DEFAULT
.1 Events of Default
. The occurrence of any of the following events shall
constitute an "Event of Default" hereunder.
(a) Payment Default
. Borrower shall fail to pay when due any amount of
principal of or interest on the Loan (other than any mandatory
principal prepayment required under Section 2.4(b)) or any other
amount payable by it hereunder or under any other Loan Document,
and such failure shall continue for a period of three days after
Borrower's receipt of written notice thereof from Agent; or
(b) Breach of Warranty
. Any representation or warranty made or deemed made by
Borrower or any Relevant Subsidiary under or in connection with
any Loan Document shall prove to have been incorrect in any
material respect when made and if (i) (A) such representation or
warranty is capable of being made accurate and complete, and (B)
the inaccuracy or incompleteness of such representation or
warranty does not have a Material Adverse Effect, Borrower or
such Relevant Subsidiary fails to make such representation or
warranty accurate and complete within 30 days after written
notice thereof from Agent, or (ii) (1) such representation or
warranty is capable of being made accurate and complete and (2)
the inaccuracy or incompleteness of such representation or
warranty results in a Material Adverse Effect, Borrower or such
Relevant Subsidiary fails to make such representation or warranty
accurate and complete within 10 days after written notice thereof
from Agent.
(c) Breach of Certain Covenants
. Borrower shall have failed to maintain in effect
insurance substantially in compliance with Sections 7.7(a),
7.7(b) or 7.7(c); or Borrower shall have failed to comply with
Section 7.9 of this Agreement and such failure continues for a
period of ten days and the event in respect of which the
applicable notice was not given thereunder has a Material Adverse
Effect; or Borrower shall have failed to comply with Sections
2.4(b), 7.11, 7.12, 7.13, 7.14 or 7.15 of this Agreement and such
failure continues for a period of 90 days after the date of such
noncompliance; or
(d) Breach of Other Covenants
. Borrower shall have failed to perform or observe in any
material respect any of its other covenants, obligations or
agreements in any of the Loan Documents; provided, however, that
if such failure can be cured in a manner which eliminates any
Material Adverse Effect resulting from such failure and Borrower
is making diligent efforts to effect such cure, then such event
shall not constitute an Event of Default unless such event
continues for 45 days after written notice thereof from Agent; or
any Guarantor shall have failed to comply with any covenant under
any Guaranty to which it is a party or under the Contribution
Agreement and such failure continues for a period of ten days
after the date of such noncompliance; or any Guarantor shall
dispute or disclaim it obligations under the Guaranty to which it
is a party or under the Contribution Agreement or shall notify
Agent or any Lender that its Guaranty will not cover future
Revolving Loans; or
(e) Cross-default
. (i) Borrower or any Relevant Subsidiary shall fail to pay
when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) any Indebtedness of Borrower
or such Relevant Subsidiary or any interest or premium thereon in
a cumulative amount in excess of $1,000,000 and such failure
shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Indebtedness, or (ii) Borrower or any Relevant Subsidiary shall
fail to perform any term or covenant on its part to be performed
under any agreement or instrument relating to any such
Indebtedness and required to be performed or a default or event
of default (however defined) shall occur under any such agreement
or instrument and such failure or default shall continue after
the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such failure to perform or
default is to accelerate or to permit the acceleration of the
maturity of such Indebtedness, or (iii) any such Indebtedness
shall be declared to be due and payable or required to be prepaid
(other than by regularly scheduled required prepayment) prior to
the stated maturity thereof; or
(f) Voluntary Bankruptcy, Etc
. Borrower or any Relevant Subsidiary shall: (i) file a
petition seeking relief for itself under Title 11 of the United
States Code, as now constituted or hereafter amended, or file an
answer consenting to, admitting the material allegations of or
otherwise not controverting, or fail timely to controvert a
petition filed against it seeking relief under Title 11 of the
United State Code, as now constituted or hereafter amended; or
(ii) file such petition or answer with respect to relief under
the provisions of any other now existing or future applicable
bankruptcy, insolvency, or other similar law of the United States
of America or any State thereof or of any other country or
jurisdiction providing for the reorganization, winding-up or
liquidation of corporations or an arrangement, composition,
extension or adjustment with creditors; or
(g) Involuntary Bankruptcy, Etc
. An order for relief shall be entered against Borrower or
any Relevant Subsidiary under Title 11 of the United States Code,
as now constituted or hereafter amended, which order is not
stayed; or upon the entry of an order, judgment or decree by
operation of law or by a court having jurisdiction in the
premises which is not stayed adjudging it a bankrupt or insolvent
under, or ordering relief against it under, or approving as
properly filed a petition seeking relief against it under the
provisions of any other now existing or future applicable
bankruptcy, insolvency or other similar law of the United States
of America or any State thereof or of any other country or
jurisdiction providing for the reorganization, winding-up or
liquidation of corporations or any arrangement, composition,
extension or adjustment with creditors; or appointing a receiver,
liquidator, assignee, sequestrator, trustee or custodian of
Borrower or any Relevant Subsidiary or of any substantial part of
any of their property, or ordering the reorganization, winding-up
or liquidation of any of their affairs; or upon the expiration of
90 days after the filing of any involuntary petition against
Borrower or any Relevant Subsidiary seeking any of the relief
specified in Section 9.1(f) or this Section 9.1(g) without the
petition being dismissed prior to that time; or
(h) Insolvency, Etc
. Borrower or any Relevant Subsidiary shall (i) make a
general assignment for the benefit of its creditors or (ii)
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, or custodian of all or a
substantial part of the property of Borrower or any Relevant
Subsidiary, as the case may be, or (iii) admit its insolvency or
inability to pay its debts generally as they become due, or (iv)
fail generally to pay its debts as they become due, or (v) take
any action (or suffer any action to be taken by its directors or
shareholders) looking to the dissolution or liquidation of
Borrower or, looking to the dissolution or liquidation of any
Relevant Subsidiary if such dissolution or liquidation would have
a Material Adverse Effect.
(i) Judgment
. A final judgment or order shall have been entered against
Borrower or any Relevant Subsidiary (by a court or other tribunal
having jurisdiction) for the payment of money in excess of the
lesser of $5,000,000.00 or such amount as would have a Material
Adverse Effect if paid and such judgment or order shall not have
been vacated, discharged, stayed, satisfied or bonded pending
appeal; or a final judgment in an amount which, if paid, would
have a Material Adverse Effect and such judgment or order shall
not have been vacated, discharged or satisfied for a period of 30
consecutive days; provided, however, that no judgment or order
referred to in this Section 9.1(i) shall constitute an Event of
Default if such judgment or order is covered by insurance with
respect to which no subrogation right exists against Borrower or
any Relevant Subsidiary; or
(j) Condemnation
. A substantial portion of the properties of Borrower or
any Relevant Subsidiary shall be condemned, seized or
appropriated and such action will have a Material Adverse Effect;
or
(k) Governmental Approvals
. Any Government Approval or registration or filing with
any Governmental Authority now or hereafter required in
connection with the performance by Borrower or any Relevant
Subsidiary of its obligations set forth in the Loan Documents
shall be revoked, withdrawn or withheld or shall fail to remain
in full force and effect unless such revocation, withdrawal or
withholding does not have a Material Adverse Effect; or
(l) Other Government Action
. Any act of any Governmental Authority shall deprive
Borrower or any Relevant Subsidiaries of any right, privilege, or
franchise or restrict the exercise thereof and such act is not
revoked or rescinded within 60 days after it becomes effective or
within 30 days after notice from Agent, whichever first occurs
unless such act does not have a Material Adverse Effect; or
(m) Stock Listing
. Borrower's common stock shall not be listed on the New
York Stock Exchange.
(n) ERISA
. Borrower, any Relevant Subsidiary or any member of a
Controlled Group shall fail to pay when due an amount or amounts
which it shall have become liable to pay to the PBGC or to a Plan
under Section 515 of ERISA or Title IV of ERISA other than
premiums under Section 4007 of ERISA unless such failure would
not have a Material Adverse Effect; or notice of intent to
terminate a Plan or Plans (other than a multi-employer plan, as
defined in Section 4001(a)(3) of ERISA) having aggregate Unfunded
Vested Liabilities in excess of $1,000,000 shall be filed under
Title IV of ERISA by Borrower, or any Relevant Subsidiary or any
member of a Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate any Plan or
Plans which could result in liability of Borrower or any Relevant
Subsidiary unless such termination would not have a Material
Adverse Effect.
(o) REIT
. Borrower shall cease to be qualified as, a "real estate
investment trust" under the Code or to be entitled to receive the
tax benefits resulting from such qualification.
.2 Consequences of Default
. If an Event of Default described in Section 9.1(f) or
9.1(g) shall occur and be continuing, then in any such case, each
Lender's commitment to lend under this Agreement shall be
immediately terminated and, if any amount of the Loan is then
outstanding, the principal of and interest on the Loan, and all
other sums payable by Borrower under the Loan Documents shall
become immediately due and payable all without notice or demand
of any kind. If any other Event of Default shall occur and be
continuing, then in any such case and at any time thereafter so
long as any such Event of Default shall be continuing, Agent may,
and at the direction of Majority Lenders shall, immediately
terminate each Lender's commitment to lend under this Agreement
and, if any amount of the Loan is then outstanding, Agent may,
and at the direction of Majority Lenders shall, declare the
principal of and the interest on the Loan, and all other sums
payable by Borrower under the Loan Documents immediately due,
whereupon the same shall become immediately due and payable
without pro-test, presentment, notice or demand, all of which
Borrower expressly waives the rights and remedies referred to.
The rights and remedies referred to in this Section 9.2 shall be
in addition to all of the rights and remedies of Agent and
Lenders in the other Loan Documents.
ARTICLE 10
AGENT
.1 Authorization and Action
. Each Lender hereby appoints and authorizes Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to Agent by the terms
hereof, together with such powers as are reasonably incidental
thereto. Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement. The duties of Agent
shall be mechanical and administrative in nature; Agent shall not
have by reason of this Agreement a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or the other
Loan Documents, expressed or implied, is intended to or shall be
so construed as to impose upon Agent any obligations in respect
of this Agreement or the other Loan Documents except as expressly
set forth herein. As to any matters not expressly provided for
by this Agreement, including enforcement or collection of the
Loan, Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining)
upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders, provided that
Agent shall not be required to take any action which exposes
Agent to personal liability or which is contrary to the Loan
Documents or applicable law and provided, further, that without
the consent of all Lenders, Agent shall not change or modify the
Commitment, any Lender's Pro Rata Share, Funded Pro Rata Share,
Adjusted Pro Rata Share, or Funded Adjusted Pro Rata Share of the
Commitment, the definition of "Majority Lenders," the timing or
rates of interest payments, the timing or amount of facility
fees, the timing or amounts of principal payments due in respect
of the Loan, and provided, further, that the terms of Section 2.3
and this Article 10 shall not be amended without the prior
written consent of Agent (acting for its own account). In the
absence of instructions from the Majority Lenders, Agent shall
have authority (but no obligation), in its sole discretion, to
take or not to take any action, unless this Agreement
specifically requires the consent of Lenders or the consent of
the Majority Lenders and any such action or failure to act shall
be binding on all Lenders and holders of the Notes. Each Lender
shall execute and deliver such additional instruments, including
powers of attorney in favor of Agent, as may be necessary or
desirable to enable Agent to exercise its powers hereunder.
.2 Duties and Obligations.
(a)
Neither Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be
taken by it or any of them under or in connection with this
Agreement except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing,
Agent (i) may treat each Lender which is a party hereto as the
party entitled to receive payments hereunder until Agent receives
written notice of the assignment of such Lender's interest herein
signed by such Lender and made in accordance with the terms
hereof and a written agreement of the assignee that it is bound
hereby as it would have been had it been an original party
hereto, in each case in form satisfactory to Agent; (ii) may
consult with legal counsel (including counsel for Borrower),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with this
Agreement, the other Loan Documents or in any instrument or
document furnished pursuant hereto or thereto; (iv) shall not
have any duty to ascertain or to inquire as to the performance of
any of the terms, covenants, or conditions of the Loan Documents
on the part of Borrower or as to the use any of the proceeds of
the Loan or as to the existence or possible existence of any
Default or Event of Default; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability,
genuineness, effectiveness, or value of this Agreement or of any
instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect to this Agreement by
acting upon any oral or written notice, consent, certificate or
other instrument or writing (which may be by telegram, facsimile
transmission, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties or by acting upon
any representation or warranty of Borrower made or deemed to be
made hereunder.
(b)
Agent will account to each Lender in accordance with
Section 2.7(c) for payments of principal of, and interest on, the
Loan which are received by Agent from Borrower and will promptly
remit to Lenders entitled thereto all such payments. If and to
the extent that Agent receives any such payment on or before
12:00 noon, Seattle time, and otherwise in accordance with
Section 2.7(a) and Agent has not remitted the appropriate portion
thereof to any Lender by the close of business on that day, then
Agent shall pay interest on such amount to such Lender at the
Federal Funds Rate for each day until such remittance is made.
Agent will transmit to each Lender copies of all documents
received from Borrower pursuant to the requirements of this
Agreement other than documents which by the terms of this
Agreement Borrower is obligated to deliver directly to Lenders.
Agent will give written notice to all Lenders of any matter
requiring approval by all Lenders or by the Majority Lenders, and
Agent will use its best efforts to give such notice sufficiently
in advance of the time at which action must be taken so as to
afford the Lenders a chance to review and consider the matter;
provided, however, that this notice requirement shall not modify
or affect the right or obligation of Agent to act or refrain from
acting upon the instructions or with the consent of all Lenders
or Majority Lenders, as applicable, pursuant to this Article 10.
(c)
Each Lender or its assignee organized outside of the United
States shall furnish to Agent in a timely fashion such
documentation (including, but not by way of limitation, IRS Forms
Nos. 1001 and 4224) as may be required by applicable law or
regulation to establish such Lender's status for tax withholding
purposes.
.3 Dealings Between Agent and Borrower
. With respect to its commitment to lend under this
Agreement and the portion of the Loan made by it, Agent shall
have the same rights and powers under this Agreement and the
other Loan Documents as any other Lender and may exercise the
same as though it were not Agent, and the term "Lender" shall
unless otherwise expressly indicated include Agent in its
individual capacity. Agent may accept deposits from, lend money
to, act and generally engage in any kind of business with
Borrower and any person which may do business with Borrower, all
as if Agent were not Agent hereunder and without any duty to
account therefor to Lenders.
.4 Lender Credit Decision
. Each Lender acknowledges that it has, independently and
without reliance upon Agent or any other Lender and based upon
such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon Agent or any other Lender
and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
.5 Indemnification
. Lenders agree to indemnify Agent (to the extent not
reimbursed by Borrower) ratably according to their respective Pro
Rata Shares from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against Agent in any way relating to or arising out of this
Agreement or any other Loan Document or any action taken or
omitted by Agent under this Agreement or any other Loan Document,
except any such as result from Agent's gross negligence or
willful misconduct. Without limiting the foregoing, each Lender
agrees to reimburse Agent promptly on demand in proportion to its
Pro Rata Shares for any out-of-pocket expenses, including legal
fees (including reasonable allocated costs of in-house counsel),
incurred or advances made by Agent in connection with the
administration or enforcement of or the preservation or
protection of any rights under this Agreement or any other Loan
Document (to the extent that Agent is not reimbursed for such
expenses by Borrower).
.6 Successor Agent
. Agent may give written notice of resignation at any time
to Lenders and Borrower and may be removed at any time with cause
by the Majority Lenders. Upon any such resignation or removal,
the Majority Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the
Majority Lenders and shall have accepted such appointment within
thirty (30) days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of Lenders, appoint
a successor Agent, which shall be a bank organized under the laws
of the United States or of any state thereof, or any affiliate of
such bank, and having a combined capital and surplus of at least
Five Hundred Million Dollars ($500,000,000). Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement. Until the acceptance by
such a successor Agent, the retiring Agent shall continue as
"Agent" hereunder. Notwithstanding any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this
Article 10 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this
Agreement.
Any company into which Agent may be merged or converted or
with which it may be consolidated or any company resulting from
any merger, conversion or consolidation to which it shall be a
party or, with Borrower's consent, any company to which Agent may
sell or transfer all or substantially all of its agency
relationships shall be the successor to Agent without the
execution or filing of any paper or further act, anything herein
to the contrary notwithstanding.
.7 Application of Article 10
. The provisions set forth in this Article 10 are intended
to address the relationship between Agent and Lenders, and shall
not affect any of the rights and obligations of Borrower set
forth elsewhere in this Agreement.
ARTICLE 11
MISCELLANEOUS
.1 No Waiver; Remedies Cumulative
. No failure by Agent or Lenders to exercise, and no delay
in exercising, any right, power or remedy under any Loan Document
shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or remedy under any Loan
Document preclude any other or further exercise thereof or the
exercise of any other right, power, or remedy. The exercise of
any right, power, or remedy shall in no event constitute a cure
or waiver of any Event of Default or prejudice the rights of
Agent or Lenders in the exercise of any right hereunder or
thereunder. The rights and remedies provided herein and therein
are cumulative and not exclusive of any right or remedy provided
by law.
.2 Governing Law
. This Agreement and the other Loan Documents shall be
governed by and construed in accordance with the laws of the
State of Washington without regard to principles of conflicts of
laws.
.3 Mandatory Arbitration.
(a)
At the written request of either all of the Lenders or
Borrower, any controversy or claim between the Lenders and
Borrower, arising from or relating to this Agreement or any of
the other Loan Documents, or arising from an alleged tort, shall
be settled by arbitration in Seattle, Washington. The United
States Arbitration Act shall apply even though this Agreement is
otherwise governed by Washington law. The proceedings shall be
administered by the American Arbitration Association under its
commercial rules of arbitration. Any controversy over whether an
issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court
having jurisdiction over the parties. The institution and
maintenance of an action for judicial relief or pursuit of an
ancillary or provisional remedy shall not constitute a waiver of
the right of either party, including the plaintiff, to submit the
controversy or claim to arbitration if such action for judicial
relief is contested. For purposes of the application of the
statute of limitations, laches or other time bar, the filing of
an arbitration pursuant to this Subsection is the equivalent of
the filing of a lawsuit, and any claim or controversy which may
be arbitrated under this Subsection is subject to any applicable
statute of limitations, laches or other time bar. The
arbitrator(s) will have the authority to decide whether any such
claim or controversy is barred by the statute of limitations,
laches or other time bar and, if so, to dismiss the arbitration
on that basis. The parties consent to the joinder of any
guarantor, hypothecator, or other party having an interest
relating to the claim or controversy being arbitrated in any
proceedings under this Section.
(b)
Notwithstanding the provisions of Subsection 11.3(a), no
controversy or claim shall be submitted to arbitration without
the consent of all parties if at the time of the proposed
submission, such controversy or claim arises from or relates to
an obligation secured by real property.
(c)
No provision of this Subsection shall limit the right of
Borrower, Agent or Lenders to exercise self-help remedies such as
setoff, foreclosure, retention or sale of any collateral, or
obtaining any ancillary, provisional, or interim remedies from a
court of competent jurisdiction before, after, or during the
pendency of any arbitration proceeding. The exercise of any such
remedy does not waive the right of either party to request
arbitration.
.4 Consent to Jurisdiction; Waiver of Immunities
. Borrower, Agent and Lenders hereby irrevocably submit to
the nonexclusive jurisdiction of any state or federal court
sitting in Seattle, King County, Washington, in any action or
proceeding brought to enforce or otherwise arising out of or
relating to any Loan Document and irrevocably waive to the
fullest extent permitted by law any objection which they may now
or hereafter have to the laying of venue in any such action or
proceeding in any such forum, and hereby further irrevocably
waive any claim that any such forum is an inconvenient forum.
Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner
provided by law. Nothing in this Section 11.4 shall impair the
right of any party to request or demand arbitration under
Section 11.3 or the right of Agent or a Lender or the holder of
any Note to bring any action or proceeding against Borrower or
its property in the courts of any other jurisdiction, and
Borrower irrevocably submits to the nonexclusive jurisdiction of
the appropriate courts of the jurisdiction in which Borrower is
incorporated or sitting and any place where property or an office
of Borrower is located.
.5 Notices
. All notices and other communications provided for in any
Loan Document shall be in writing (unless otherwise specified)
and shall be mailed (with first class postage prepaid) or sent or
delivered to each party by telefax or courier service at the
address or telefax number set forth under its name on the
signature page hereof, or at such other address as shall be
designated by such party in a written notice to the other
parties. Except as otherwise specified all notices and
communications if duly given or made shall be effective upon
receipt. Neither Agent nor any Lender shall incur any liability
to Borrower for actions taken in reliance on any telephonic
notice referred to in this Agreement which Agent believes in good
faith to have been given by a duly authorized officer or other
person authorized to borrow or give such telephonic notice
hereunder on behalf of Borrower.
.6 Assignment.
(a) Assignments by Borrower
. This Agreement and each of the other Loan Documents shall
be binding upon and inure to the benefit of the parties and their
respective Successors and assigns, provided that Borrower may not
assign or otherwise transfer all or any part of its rights or
obligations hereunder or under any other Loan Document without
the prior written consent of Agent acting on behalf of all
Lenders.
(b) Assignments by Lender
. Any Lender whose Pro Rata Share of the Commitment is
$35,000,000 or more may at any time assign all or any portion of
its interest under the Loan Documents with or without the consent
of Borrower and Agent so long as any partial assignment is in an
integral multiple of $10,000,000. Otherwise, any Lender may at
any time assign all or any portion of its interest under the Loan
Documents with the prior written consent of Borrower and Agent
(which may not be unreasonably withheld). Any Lender may at any
time after the occurrence and during the continuation of a
Default or Event of Default assign all or any portion of its
interest under the Loan Documents with or without the prior
written consent of Borrower (but not without the prior written
consent of Agent, which may not be unreasonably withheld).
(c) Sale of Participations by Lender
. Any Lender may sell participations in any portion of its
Loans or commitment to lend or of its right, title and interest
therein or thereto or in or to this Agreement to any other person
without obtaining Borrower's or Agent's consent provided that
such Lender notifies Agent and Borrower of the sale. In the case
of any sale of a participation by any Lender hereunder (as
distinguished from an assignment), such Lender shall remain fully
liable hereunder, the participant shall not acquire any direct
rights against Borrower, Agent or any Lender under any Loan
Document, Agent and Borrower shall continue to deal exclusively
with such Lender and shall not have any obligations whatsoever to
such participant.
.7 Severability
. Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall as to such jurisdiction
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. To the extent permitted by
applicable law, the parties waive any provision of law which
renders any provision hereof prohibited or unenforceable in any
respect.
.8 Survival; Discharge
. The representations, warranties and indemnities of
Borrower in the Loan Documents in favor of Agent and Lenders
shall survive the execution and delivery of the Loan Documents
and the making of any Revolving Loans until the Loan is paid and
performed in full and Lenders have no further commitment to lend
under this Agreement, except in the case of the indemnities set
forth in Section 7.19 which shall survive indefinitely.
.9 Executed in Counterparts
. The Loan Documents may be executed in any number of
counterparts and by different parties 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
agreement.
.10 Entire Agreement; Amendment, Etc
. The Loan Documents comprise the entire agreement of the
parties and may not be amended or modified except by written
agreement of Borrower and Agent executed in conformance with the
terms of Section 10.1. No provision of this Agreement or any
other Loan Document may be waived except in writing and then only
in the specific instance and for the specific purpose for which
given.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
.11 Effective Date; Transitional Matters
. This Agreement shall become effective to amend and
restate the Amended and Restated Loan Agreement, as it may have
been amended from time to time prior to the date hereof,
immediately upon the satisfaction (or the waiver by Agent) of all
of the Conditions to Initial Revolving Loan set forth in
Section 5.1 hereof (such effective date being referred to herein
as the "Effective Date").
.12 Reaffirmation of Loan Documents
. Borrower hereby reaffirms all of its obligations under
the Loan Documents (as defined in the Amended and Restated Loan
Agreement) and acknowledges and agrees that, as of the date
hereof, it has no defenses to the enforcement thereof.
.13 Addition of New Lenders
. The parties hereto acknowledge that Borrower has asked
Agent to identify one or more financial institutions that wish to
become additional Lenders under this Agreement. Such additional
Lenders would have commitments in an aggregate amount of up to
$50,000,000. Lenders agree that, if Agent is successful in
identifying such additional Lenders, the amount of the
Commitment, on March 31, 2000, will be reduced to the sum of
$150,000,000 plus the amount of the Commitments of such
additional Lenders (rather than to $150,000,000 as is now
contemplated by the definition of "Commitment"). If any such
additional Lenders become parties to this Agreement prior to the
scheduled Commitment reduction on March 31, 2000, then each
Lender's Pro Rata share shall be recalculated accordingly. The
parties hereto further acknowledge that they will negotiate in
good faith to reach agreement on such other amendments to the
Loan Documents as may be necessary to give effect to the addition
of such other Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement 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/ Harrell Beck
----------------
Its Sr. Vice President
Address: 1155 Valley Street
Suite 400
Seattle, WA 98109-4426
Attn: Chris McKay
Telephone:(206) 652-3854
Telefax: (206) 652-3710
LENDERS:
Pro Rata Share of
Commitment
From Effective
Date until BANK OF AMERICA, N.A.
March 31, 2000:
$60,600,000 30.3%
By /s/ Robert Peters
------------------
After March 31, 2000: Its Vice President
$45,450,000 30.3%
Address: Bank of America Tower
Floor 11
701 Fifth Avenue
Seattle, WA 98104
Attn: Robert Peters
Commercial Banking Division
Telephone:(206) 358-3133
Telefax: (206) 585-1794
From Effective Date until KEYBANK NATIONAL ASSOCIATION
March 31, 2000:
$49,800,000 24.9%
By /s/ Thomas A. Crandell
----------------------
After March 31, 2000: Its Vice President
$37,350,000 24.9%
Address: 700 Fifth Avenue
Seattle, WA 98111
Attn: Richard J. Ameny
Telephone:(206) 684-6014
Telefax: (206) 684-6035
From Effective Date until U.S. BANK NATIONAL ASSOCIATION
March 31, 2000:
$49,800,000 24.9%
By /s/ Miles Silverthorn
---------------------
After March 31, 2000: Its Vice President
$37,350,000 24.9%
Address: 1420 Fifth Avenue,
Floor 11, WWH733
Seattle, WA 98101
Attn: Miles Silverthorn
Telephone:(206) 344-4278
Telefax: (206) 344-2332
From Effective Date until LASALLE BANK N.A.
March 31, 2000:
$39,800,000 19.9%
By /s/ Klay Schmeisser
---------------------
After March 31, 2000: Its Assistant Vice President
$29,850,000 19.9% Address: 135 South LaSalle Street
Suite 1225
Chicago, Illinois 60603
Attn: Klay Schmeisser
Telephone:(312) 904-0647
Telefax: (312) 904-6991
AGENT:
BANK OF AMERICA, N.A.
By /s/ Dora A. Brown
------------------
Its Vice President
Address: Bank of America, N.A.
701 Fifth Ave., Floor 16
WA1-102-16-20
Seattle, WA 98104-7001
Attn: Agency Management Services
Telephone:(206) 358-0101
Telefax: (206) 358-0971
SCHEDULE 1
DESIGNATED NEGATIVE PLEDGE PROPERTIES
See attached.
SCHEDULE 2
PREPAYMENT FEES
The amount of the fee to be paid pursuant to Section 2.10
shall depend on the following:
(a) The amount by which interest rates have changed between
the Reference Date and the Prepayment Date. As used
herein, "Reference Date" shall mean the first day of an
Applicable Interest Period. As used herein,
"Prepayment Date" shall mean the date the Borrower
either voluntarily or involuntarily prepays a LIBOR
Loan. Certain U.S. Treasury rates are used as a
benchmark to measure changes in interest rate levels.
A "reference rate" equal to the average
interest rate yield at the Reference Date for
U.S. Government Securities having maturities
equivalent to that of the applicable LIBOR
Loan will be determined in the manner
described below for determining applicable
rates but will be established as of the
Reference Date for the Applicable Interest
Period. This rate represents interest rate
levels at the time a Revolving Loan is made
or its interest rate fixed.
An "applicable rate," determined as described
below, represents interest rate levels as of
the Prepayment Date.
(b) The amount of principal prepaid.
(c) A payment fee factor (see "payment fee factor schedule"
below).
CALCULATION OF PAYMENT FEE
If the reference rate is lower than or equal to the
applicable rate, there is no payment fee.
If the applicable rate is lower than the reference rate, the
payment fee shall be equal to the difference between the
reference rate and the applicable rate (expressed as a decimal),
multiplied by the appropriate factor from the payment fee factor
schedule, multiplied by the principal amount of the Loan which is
prepaid.
Example:
A LIBOR Loan with principal of $850,000 is fully
prepaid with 4 months remaining prior to the end of the
Applicable Interest Period. A reference rate of 10%
was assigned to the LIBOR Loan when the rate was fixed.
The applicable rate (as determined by current 4-month
U.S. Treasury rates) is 8.5%. Rates are therefore
judged to have dropped by 1.5% since the rate was
fixed, and a payment fee applies.
A payment fee factor of .37 is determined from the
tables below, and the payment fee is computed as
follows:
Payment Fee = (.10-.085) x (.37) x ($850,000) = $4,717.50
APPLICABLE RATES
The applicable rate is equal to the Treasury Rate at the
time of prepayment for U.S. Government Securities having
maturities equivalent to the remaining portion of the Applicable
Interest Period.
Rates listed in the Federal Reserve Statistical Release for
maturities of less than one year are on a discount rate basis,
and these rates shall be converted to a coupon equivalent basis,
based upon a 360-day year. The Statistical Release published on
Monday shall be used for calculation of payment fees payable on
the following Tuesday through the following Monday, with
appropriate adjustment if the day of publication changes.
PAYMENT FEE FACTOR SCHEDULES
Months Remaining in the
Applicable Interest Period for LIBOR Loans 1
0 1 2 3 4 5 6
Factors 0 .09 .18 .28 .37 .46 .55
1 If the remaining Applicable Interest Period is betwen any two time periods
in the above schedules, interpolate between the corresponding factors.
Agent and Lenders are not required to actually reinvest the paid principle
in any U.S. Government Treasury obligations as a condition to receiving a
payment fee as calculated above.
SCHEDULE 3
LITIGATION
None.
SCHEDULE 4
GUARANTORS, POTENTIAL GUARANTORS AND IMMATERIAL SUBSIDIARIES
CHANGED TO 12 PITCHTable 4.1. Corporator Guarantors, Potential
Guarantors, and Immaterial Subsidiaries
State of Authorized # Shares
Name Incorporation of Shares Issued
- ------------ ------------- ----------- --------
SSC Property DE Class A Shurgard
Holdings, Inc. Common - Storage
3,000 Centers,
Inc. -1,000
SSC Acquisitions, DE Class A Shurgard
Inc. Common - Storage
3,000 Centers,
Inc. - 1,000
SSC Benelux, Inc. DE Class A Shurgard
Common - Storage
3,000 Centers,
Inc. - 1,000
SSC Evergreen, Inc. DE 3,000 1,000 -Shurgard
Storage Centers,
Inc.
Shurgard's Storage To DE Common -
Go, Inc. 1,000
Preferred -
1,000
Table 4.2. Partnership Guarantors, Potential Guarantors, and
Immaterial Subsidiaries
State of General Limited Percentage
Name Formation Partner(s) Partner(s) Ownership by
General Partner
---------- ---------- --------- --------------
Shurgard DE Shurgard ___%
Evergreen Limited Storage
Partnership Centers,
Inc.
Shurgard Texas WA Shurgard SSC 1%
Limited Storage Evergreen,
Partnership Centers, Inc.
Inc.
SCHEDULE 5
PERMITTED ENCUMBRANCES
None.
EXHIBIT A-1
REVOLVING PROMISSORY NOTE
$60,600,000 Date: September 30, 1999
FOR VALUE RECEIVED, the undersigned SHURGARD STORAGE
CENTERS, INC., a Washington corporation ("Borrower"), hereby
promises to pay to the order of BANK OF AMERICA, N.A. ("Lender"),
the unpaid principal balance of all Revolving Loans evidenced by
this Note in a maximum amount not to exceed Sixty Million Six
Hundred Thousand Dollars ($60,600,000), together with interest
thereon from the date advanced until due as hereinafter provided.
This Note is one of the Revolving Notes issued by the Borrower
pursuant to that certain Second Amended and Restated Loan
Agreement of even date herewith (as the same may be amended,
renewed, modified or supplemented from time to time, the "Loan
Agreement"), by and among Lender, KeyBank National Association,
U.S. Bank National Association, and LaSalle Bank N.A. as
Lenders, Bank of America, N.A., as Agent for the Lenders, and
Borrower. Capitalized terms not otherwise defined in this Note
shall have the meanings set forth in the Loan Agreement.
Borrower further agrees as follows:
1. This Note evidences a revolving line of credit to Borrower
from Lender and, subject to the terms and conditions of the Loan
Agreement, Borrower may borrow, repay and reborrow up to the
maximum principal amount of Sixty Million Six Hundred Thousand
Dollars ($60,600,000), at any time on or before the Revolving
Loan Maturity Date.
2. Borrower shall repay the principal balance of the Revolving
Loans evidenced hereby on or before the Revolving Loan Maturity
Date.
3. Interest shall accrue on the unpaid principal balance of all
Revolving Loans evidenced by this Note from the date hereof until
due at a per annum rate equal to the Applicable Interest Rate,
and if default shall occur in the payment when due of principal
of any such Loan, from maturity until it is paid in full at a per
annum rate equal to three percent (3%) above the Prime Rate
(changing as the Prime Rate changes). Notwithstanding anything
herein to the contrary, in no event shall interest accrue at a
rate which exceeds the maximum rate permitted by applicable law.
Accrued but unpaid interest shall be payable on dates set forth
in Section 2.5(a) of the Loan Agreement.
4. The unpaid principal balance shall be the total amount
advanced hereunder, less the amount of the principal payments
made hereon. This Note is given to avoid the execution of an
individual note for each Revolving Loan by Lender to Borrower.
5. All payments of principal and of interest on this Note shall
be made to the Agent at its Commercial Loan Processing Center, in
U.S. Dollars, as provided in Section 2.7(a) of the Loan
Agreement.
6. Each maker, surety, guarantor and endorser of this Note
expressly waives all notices, demands for payment, presentations
for payment, notices of intention to accelerate the maturity,
protest and notice of protest as to this Note.
7. In the event this Note is placed in the hands of an attorney
for collection, or suit is brought on the same, or the same is
collected through bankruptcy or other judicial proceedings, then
Borrower agrees and promises to pay reasonable attorney's fees
and collection costs, including all out-of-pocket expenses
incurred by Agent or Lenders.
8. Moneys received from or for account of the Borrower shall be
applied in accordance with the terms of the Loan Agreement.
9. Upon the occurrence of an Event of Default, the entire
remaining unpaid balance of the principal and interest may, in
accordance with Section 9.2 of the Loan Agreement, be declared to
be immediately due and payable.
10. This Note is issued in connection with and is subject to the
terms of the Loan Agreement.
11. This Note amends, restates and continues that certain
Revolving Promissory Note made by Borrower in favor of Lender
dated as of May 1, 1998.
SHURGARD STORAGE CENTERS, INC
By
-----------------
Its
EXHIBIT A-2
REVOLVING PROMISSORY NOTE
$49,800,000 Date: September 30, 1999
FOR VALUE RECEIVED, the undersigned SHURGARD STORAGE
CENTERS, INC., a Washington corporation ("Borrower"), hereby
promises to pay to the order of KEYBANK NATIONAL ASSOCIATION
("Lender") the unpaid principal balance of all Revolving Loans
evidenced by this Note in a maximum amount not to exceed Forty-
nine Million Eight Hundred Thousand Dollars ($49,800,000),
together with interest thereon from the date advanced until due
as hereinafter provided. This Note is one of the Revolving Notes
issued by the Borrower pursuant to that certain Second Amended
and Restated Loan Agreement of even date herewith (as the same
may be amended, renewed, modified or supplemented from time to
time, the "Loan Agreement"), by and among Lender, Bank of
America, N.A., U.S. Bank National Association, and LaSalle Bank
N.A., as Lenders, Bank of America, N.A., as Agent for the
Lenders, and Borrower. Capitalized terms not otherwise defined
in this Note shall have the meanings set forth in the Loan
Agreement.
Borrower further agrees as follows:
1. This Note evidences a revolving line of credit to Borrower
from Lender and, subject to the terms and conditions of the Loan
Agreement, Borrower may borrow, repay and reborrow up to the
maximum principal amount of Forty-nine Million Eight Hundred
Thousand Dollars ($49,800,000), at any time on or before the
Revolving Loan Maturity Date.
2. Borrower shall repay the principal balance of the Revolving
Loans evidenced hereby on or before the Revolving Loan Maturity
Date.
3. Interest shall accrue on the unpaid principal balance of all
Revolving Loans evidenced by this Note from the date hereof until
due at a per annum rate equal to the Applicable Interest Rate,
and if default shall occur in the payment when due of principal
of any such Loan, from maturity until it is paid in full at a per
annum rate equal to three percent (3%) above the Prime Rate
(changing as the Prime Rate changes). Notwithstanding anything
herein to the contrary, in no event shall interest accrue at a
rate which exceeds the maximum rate permitted by applicable law.
Accrued but unpaid interest shall be payable on dates set forth
in Section 2.5(a) of the Loan Agreement.
4. The unpaid principal balance shall be the total amount
advanced hereunder, less the amount of the principal payments
made hereon. This Note is given to avoid the execution of an
individual note for each Revolving Loan by Lender to Borrower.
5. All payments of principal and of interest on this Note shall
be made to the Agent at its Commercial Loan Processing Center, in
U.S. Dollars, as provided in Section 2.7(a) of the Loan
Agreement.
6. Each maker, surety, guarantor and endorser of this Note
expressly waives all notices, demands for payment, presentations
for payment, notices of intention to accelerate the maturity,
protest and notice of protest as to this Note.
7. In the event this Note is placed in the hands of an attorney
for collection, or suit is brought on the same, or the same is
collected through bankruptcy or other judicial proceedings, then
Borrower agrees and promises to pay reasonable attorney's fees
and collection costs, including all out-of-pocket expenses
incurred by Agent or Lenders.
8. Moneys received from or for account of the Borrower shall be
applied in accordance with the terms of the Loan Agreement.
9. Upon the occurrence of an Event of Default, the entire
remaining unpaid balance of the principal and interest may, in
accordance with Section 9.2 of the Loan Agreement, be declared to
be immediately due and payable.
10. This Note is issued in connection with and is subject to the
terms of the Loan Agreement.
11. This Note amends, restates and continues that certain
Revolving Promissory Note made by Borrower in favor of Lender
dated as of May 1, 1998.
SHURGARD STORAGE CENTERS, INC.
By
------------------
Its
EXHIBIT A-3
REVOLVING PROMISSORY NOTE
$49,800,000 Date: September 30, 1999
FOR VALUE RECEIVED, the undersigned SHURGARD STORAGE
CENTERS, INC., a Washington corporation ("Borrower"), hereby
promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION
("Lender") the unpaid principal balance of all Revolving Loans
evidenced by this Note in a maximum amount not to exceed Forty-
nine Million Eight Hundred Thousand Dollars ($49,800,000),
together with interest thereon from the date advanced until due
as hereinafter provided. This Note is one of the Revolving Notes
issued by the Borrower pursuant to that certain Second Amended
and Restated Loan Agreement of even date herewith (as the same
may be amended, renewed, modified or supplemented from time to
time, the "Loan Agreement"), by and among Lender, Bank of
America, N.A., KeyBank National Association, and LaSalle Bank
N.A., as Lenders, Bank of America, N.A., as Agent for the
Lenders, and Borrower. Capitalized terms not otherwise defined
in this Note shall have the meanings set forth in the Loan
Agreement.
Borrower further agrees as follows:
1. This Note evidences a revolving line of credit to Borrower
from Lender and, subject to the terms and conditions of the Loan
Agreement, Borrower may borrow, repay and reborrow up to the
maximum principal amount of Forty-nine Million Eight Hundred
Thousand Dollars ($49,800,000), at any time on or before the
Revolving Loan Maturity Date.
2. Borrower shall repay the principal balance of the Revolving
Loans evidenced hereby on or before the Revolving Loan Maturity
Date.
3. Interest shall accrue on the unpaid principal balance of all
Revolving Loans evidenced by this Note from the date hereof until
due at a per annum rate equal to the Applicable Interest Rate,
and if default shall occur in the payment when due of principal
of any such Loan, from maturity until it is paid in full at a per
annum rate equal to three percent (3%) above the Prime Rate
(changing as the Prime Rate changes). Notwithstanding anything
herein to the contrary, in no event shall interest accrue at a
rate which exceeds the maximum rate permitted by applicable law.
Accrued but unpaid interest shall be payable on dates set forth
in Section 2.5(a) of the Loan Agreement.
4. The unpaid principal balance shall be the total amount
advanced hereunder, less the amount of the principal payments
made hereon. This Note is given to avoid the execution of an
individual note for each Revolving Loan by Lender to Borrower.
5. All payments of principal and of interest on this Note shall
be made to the Agent at its Commercial Loan Processing Center, in
U.S. Dollars, as provided in Section 2.7(a) of the Loan
Agreement.
6. Each maker, surety, guarantor and endorser of this Note
expressly waives all notices, demands for payment, presentations
for payment, notices of intention to accelerate the maturity,
protest and notice of protest as to this Note.
7. In the event this Note is placed in the hands of an attorney
for collection, or suit is brought on the same, or the same is
collected through bankruptcy or other judicial proceedings, then
Borrower agrees and promises to pay reasonable attorney's fees
and collection costs, including all out-of-pocket expenses
incurred by Agent or Lenders.
8. Moneys received from or for account of the Borrower shall be
applied in accordance with the terms of the Loan Agreement.
9. Upon the occurrence of an Event of Default, the entire
remaining unpaid balance of the principal and interest may, in
accordance with Section 9.2 of the Loan Agreement, be declared to
be immediately due and payable.
10. This Note is issued in connection with and is subject to the
terms of the Loan Agreement.
11. This Note amends, restates and continues that certain
Revolving Promissory Note made by Borrower in favor of Lender
dated as of May 1, 1998.
SHURGARD STORAGE CENTERS, INC.
By
-------------------
Its
EXHIBIT A-4
REVOLVING PROMISSORY NOTE
$39,800,000 Date: September 30, 1999
FOR VALUE RECEIVED, the undersigned SHURGARD STORAGE
CENTERS, INC., a Washington corporation ("Borrower"), hereby
promises to pay to the order of LASALLE BANK N.A. ("Lender") the
unpaid principal balance of all Revolving Loans evidenced by this
Note in a maximum amount not to exceed Thirty-nine Million Eight
Hundred Thousand Dollars ($39,800,000), together with interest
thereon from the date advanced until due as hereinafter provided.
This Note is one of the Revolving Notes issued by the Borrower
pursuant to that certain Second Amended and Restated Loan
Agreement of even date herewith (as the same may be amended,
renewed, modified or supplemented from time to time, the "Loan
Agreement"), by and among Lender, Bank of America, N.A., KeyBank
National Association, and U.S. Bank National Association, as
Lenders, Bank of America, N.A., as Agent for the Lenders, and
Borrower. Capitalized terms not otherwise defined in this Note
shall have the meanings set forth in the Loan Agreement.
Borrower further agrees as follows:
1. This Note evidences a revolving line of credit to Borrower
from Lender and, subject to the terms and conditions of the Loan
Agreement, Borrower may borrow, repay and reborrow up to the
maximum principal amount of Thirty-nine Million Eight Hundred
Thousand Dollars ($39,800,000), at any time on or before the
Revolving Loan Maturity Date.
2. Borrower shall repay the principal balance of the Revolving
Loans evidenced hereby on or before the Revolving Loan Maturity
Date.
3. Interest shall accrue on the unpaid principal balance of all
Revolving Loans evidenced by this Note from the date hereof until
due at a per annum rate equal to the Applicable Interest Rate,
and if default shall occur in the payment when due of principal
of any such Loan, from maturity until it is paid in full at a per
annum rate equal to three percent (3%) above the Prime Rate
(changing as the Prime Rate changes). Notwithstanding anything
herein to the contrary, in no event shall interest accrue at a
rate which exceeds the maximum rate permitted by applicable law.
Accrued but unpaid interest shall be payable on dates set forth
in Section 2.5(a) of the Loan Agreement.
4. The unpaid principal balance shall be the total amount
advanced hereunder, less the amount of the principal payments
made hereon. This Note is given to avoid the execution of an
individual note for each Revolving Loan by Lender to Borrower.
5. All payments of principal and of interest on this Note shall
be made to the Agent at its Commercial Loan Processing Center, in
U.S. Dollars, as provided in Section 2.7(a) of the Loan
Agreement.
6. Each maker, surety, guarantor and endorser of this Note
expressly waives all notices, demands for payment, presentations
for payment, notices of intention to accelerate the maturity,
protest and notice of protest as to this Note.
7. In the event this Note is placed in the hands of an attorney
for collection, or suit is brought on the same, or the same is
collected through bankruptcy or other judicial proceedings, then
Borrower agrees and promises to pay reasonable attorney's fees
and collection costs, including all out-of-pocket expenses
incurred by Agent or Lenders.
8. Moneys received from or for account of the Borrower shall be
applied in accordance with the terms of the Loan Agreement.
9. Upon the occurrence of an Event of Default, the entire
remaining unpaid balance of the principal and interest may, in
accordance with Section 9.2 of the Loan Agreement, be declared to
be immediately due and payable.
10. This Note is issued in connection with and is subject to the
terms of the Loan Agreement.
11. This Note amends, restates and continues that certain
Revolving Promissory Note made by Borrower in favor of Lender
dated as of May 1, 1998.
SHURGARD STORAGE CENTERS, INC.
By
-------------------
Its
EXHIBIT B-1
GUARANTOR 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 of even date
herewith (the "Loan Agreement") and the other Loan Documents
described in the Loan Agreement. The Guarantor hereby
acknowledges that it has received a copy of the Loan Agreement
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 and restated by the Second Amended and
Restated Loan Agreement.
DATED: September 30, 1999
GUARANTOR: SHURGARD TEXAS LIMITED PARTNERSHIP,
By: Shurgard Storage Centers, Inc.,
a Washington corporation,
its General Partner
By
------------------
Its
EXHIBIT B-2
GUARANTOR 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 of even date
herewith (the "Loan Agreement") and the other Loan Documents
described in the Loan Agreement. The Guarantor hereby
acknowledges that it has received a copy of the Loan Agreement
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 and restated by the Second Amended and
Restated Loan Agreement.
DATED: September 30, 1999
GUARANTOR: SHURGARD EVERGREEN LIMITED PARTNERSHIP,
By: Shurgard Storage Centers, Inc.,
a Delaware corporation,
its General Partner
By
-----------------
Its
EXHIBIT B-3
GUARANTOR 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 of even date herewith (the "Loan
Agreement") and the other Loan Documents described in the Loan
Agreement. The Guarantor hereby acknowledges that it has
received a copy of the Loan Agreement 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
and restated by the Second Amended and Restated Loan Agreement.
DATED: September 30, 1999
GUARANTOR: SSC EVERGREEN, INC.
By
------------------
Its
EXHIBIT C
NOTICE OF BORROWING/INTEREST RATE NOTICE
To: Bank of America
Commercial Loan Service Center
Seattle, WA
Notice of Borrowing
Date of requested borrowing: _______________
Amount requested: __________________________
(amount must be not less than $____________________ and
must be an integral multiple of $__________________)
Interest Rate Notice
Rate Requested: Adjusted LIBOR Prime
Applicable Interest Period:
Adjusted LIBOR:
1 week 1 month 2 months 3 months 6 months
Amount to which Rate applies: $__________
Borrower hereby represents and warrants to Lenders that as
of the date hereof (a) the statements set forth in Article 6 of
the Loan Agreement are true and correct; and (b) no Default or
Event of Default (as defined in the Loan Agreement) has occurred
and is continuing or will result from disbursement of the
requested loan.
DATED as of the ______ day of _____________.
SHURGARD STORAGE CENTERS, INC.
By
-------------------
Its
EXHIBIT D
LEGAL OPINION OF BORROWER'S COUNSEL
See attached.
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<PERIOD-END> SEP-30-1999
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