Exhibit 10.1
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THIS AMENDMENT AGREEMENT IS MADE AS OF 31 OCTOBER 2009 BY AND BETWEEN:
(1) Public Storage, a real estate investment trust organized and existing
under the laws of Maryland, having its principal office at 701 Western
Avenue, Glendale, California 91201-2349, USA, represented for the
purposes of this Amendment Agreement by Mr. John Reyes;
(2) PS LPT Properties Investors, a real estate investment trust organized and
existing under the laws of Maryland, having its principal office at 701
Western Avenue, Glendale, California 91201-2349, USA, represented for the
purposes of this Amendment Agreement by Mr. John Reyes;
(1) and (2) hereinafter jointly referred to as the "SUBSCRIBERS" or
individually as a "SUBSCRIBER",
(3) Shurgard Self Storage SCA, a company organized and existing under the
laws of Belgium, having its registered office at Quai du
Commerce/Handelskaai 48, 1000 Brussels, Belgium, registered with the
Crossroads Bank for Enterprises under company number 0454.057.394,
represented for the purposes of this Amendment Agreement by Self Storage
Management Belgium BVBA, manager, represented by Mr. Ronald L. Havner,
Jr.;
hereinafter referred to as the "ISSUER", and
(4) Each of the Guarantors (defined herein) providing an Abstract Guarantee
in respect of all amounts that may from time to time be outstanding under
the Bonds.
WHEREAS
(A) The Subscribers have subscribed to a total of 373,700 bonds in the
aggregate principal amount of EUR 373,700,000.00 issued by the Issuer
(the "INITIAL BONDS").
(B) The Subscribers have agreed to subscribe to the issuance of additional
bonds by the Issuer (the "ADDITIONAL BONDS", and together with the
Initial Bonds, the "BONDS"), and to fully pay up such Additional Bonds on
the terms and subject to the conditions described in the Subscription
Agreement dated 31 March 2008, as amended from time to time.
(C) The Parties intend to amend the terms and conditions applicable to the
Bonds.
NOW, THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
1 DEFINITIONS - INTERPRETATIONS
1.1 For the purposes of this Amendment Agreement, the following terms shall
have the meanings specified or referred to in this Clause 1.1:
"AMENDED SSS SCA TERMS AND CONDITIONS" means the Third Amended and
Restated Terms and Conditions of the Bonds issued by the Issuer, as
amended from time to time, and as set out in Annex 1.
"ABSTRACT GUARANTEE" means the abstract and independent guarantee to be
provided by each of the Guarantors, substantially in the form of Annex 2.
"AMENDMENT AGREEMENT" means this amendment agreement executed as of the
Amendment Effective Date.
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"AMENDMENT EFFECTIVE DATE" means 31 October 2009.
"FIRST SHURGARD SPRL" means First Shurgard sprl, a limited liability
company organized and existing under the laws of Belgium, having its
registered office at Quai du Commerce/Handelskaai 48, 1000 Brussels,
Belgium, registered with the Register of Legal Entities (Crossroads Bank
of Enterprises) under enterprise number 0479.505.939.
"GUARANTOR" means each of Shurgard European Holdings LLC, Shurgard
Guernsey Investment LLC, Shurgard Self Storage Europe Limited, Shurgard
Self Storage Luxembourg Sarl, SSC Luxembourg Sarl, Shurgard Holding
Luxembourg Sarl, Self Storage Management Belgium BVBA, Shurgard C.V. and
Shurgard Luxembourg Sarl.
"PARTIES" means the parties mentioned above as well as any other Person
who may in the future become a party to this Amendment Agreement.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"SECOND SHURGARD SPRL" means Second Shurgard sprl, a limited liability
company organized and existing under the laws of Belgium, having its
registered office at Quai du Commerce/Handelskaai 48, 1000 Brussels,
Belgium, registered with the Register of Legal Entities (Crossroads Bank
of Enterprises) under enterprise number 0864.611.874.
"SEH LLC" means Shurgard European Holdings LLC, a limited liability
company organised under the laws of the State of Delaware.
"SHURGARD GROUP" means SEH LLC and its direct and indirect subsidiaries,
including, for the avoidance of doubt, First Shurgard SPRL and Second
Shurgard SPRL and their subsidiaries.
"SHURGARD GROUP MEMBER" means any Person that is part of the Shurgard
Group.
1.2 Interpretation
1.2.1 The titles and headings included in this Amendment Agreement are
for convenience only and do not express in any way the intended
understanding of the Parties. They shall not be taken into account
in the interpretation of the provisions of this Amendment
Agreement.
1.2.2 The "Issuer", the "Subscribers" or any other Person shall be
construed so as to include its successors in title, permitted
assigns and permitted transferees.
1.2.3 The original version of this Amendment Agreement has been drafted
in English. Should this Amendment Agreement be translated into
French, Dutch or any other language, the English version shall
prevail among the Parties to the fullest extent permitted by
Belgian law, provided, however, that whenever French and/or Dutch
translations of certain words or expressions are contained in the
original English version of this Amendment Agreement, such
translations shall be conclusive in determining the Belgian legal
concept(s) to which the Parties intended to refer.
1.2.4 The words "herein", "hereof", "hereunder", hereby", "hereto",
"herewith" and words of similar import shall refer to this
Amendment Agreement as a whole and not to any particular clause,
paragraph or other subdivision.
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1.2.5 The words "include", "includes", "including" and all forms and
derivations thereof shall mean including but not limited to.
1.2.6 All terms defined in this Amendment Agreement shall have the same
meaning regardless of whether they are used in the singular or
plural number.
1.2.7 Unless otherwise provided herein, all references to a fixed time
of a day shall mean Brussels time.
1.2.8 Capitalised terms used but not otherwise defined herein shall have
the meanings given to them in the Amended SSS SCA Terms and
Conditions.
2 AMENDMENT OF THE TERMS AND CONDITIONS
2.1 The Parties hereto agree that the Amended SSS SCA Terms and Conditions
shall apply to the Bonds as from the Amendment Effective Date.
2.2 The Issuer shall forthwith convene a meeting of the bondholders with a
view to approving the Amended SSS SCA Terms and Conditions.
3 GUARANTEES
Each Guarantor irrevocably and unconditionally jointly and severally (i)
guarantees to each Subscriber the obligations of the Issuer under the
Bonds and (ii) agrees to provide an Abstract Guarantee in respect of all
amounts that may from time to time be outstanding under the Bonds.
4 GENERAL
4.1 Press Announcements
All public announcements, releases, statements and communications by any
of the Parties to third Persons (excluding the employees of either Party
and customers) relating to this Amendment Agreement shall be made only at
such time and in such manner as may be prior agreed upon in writing by
the Parties, unless otherwise required by law or contract. To the
greatest extent practicable, the Parties shall discuss with each other
the form, timing and substance of such announcements, releases,
statements and communications prior to the dissemination thereof.
4.2 Severability
If any provision of this Amendment Agreement shall be held invalid or
unenforceable in whole or in part, then such provision shall be
ineffective to the extent of such invalidity or unenforceability, without
invalidating the remaining provisions of this Amendment Agreement. In
this event, the Parties shall cooperate to achieve the intended purpose
of such provision, to the extent legally permissible.
4.3 Applicable Law and Choice of Forum
This Amendment Agreement shall be governed by Belgian law.
To the extent permitted by Belgian Law, any dispute arising out of or in
connection with this Amendment Agreement shall be finally settled by
arbitration under the Rules of Conciliation and Arbitration of the
"Centre Belge pour l'Etude et la Pratique de l'arbitrage national et
International" ("CEPANI"), as in force on the Date of this agreement, by
three arbitrators appointed in accordance with said rules.
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The place of arbitration shall be Brussels, Belgium, or such other place
as the Parties may agree upon. The language of the arbitration shall be
English.
The arbitrators' award shall be final and binding upon the Parties, and
the Parties shall carry out its terms properly.
Done in Glendale, California, on Nov. 4, 2009, in as many originals as there are
Parties. Each Party acknowledges receipt of its own original.
SUBSCRIBER
Public Storage,
represented by:
/s/ John Reyes
---------------------------------------
Name: John Reyes
Title: Senior Vice President & Chief
Financial Officer
SUBSCRIBER
PS LPT Properties Investors,
represented by:
/s/ John Reyes
---------------------------------------
Name: John Reyes
Title: Senior Vice President & Chief
Financial Officer
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ISSUER
SHURGARD SELF STORAGE SCA,
REPRESENTED BY:
/s/ Ronald L. Havner, Jr.
------------------------------------
Name : Self Storage Management Belgium
BVBA
Title : Executive General Manager
represented by :
Name : Ronald L. Havner, Jr.
Title : Permanent Representative
GUARANTOR
SHURGARD EUROPEAN HOLDINGS LLC,
REPRESENTED BY:
/s/ John Reyes
By : Shurgard Storage Centers, LLC
a Delaware limited liability company
Its : Managing Member
----------------------------------------
Name :
John Reyes
Title : Senior Vice President and Chief
Financial Officer
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GUARANTOR
SHURGARD GUERNSEY INVESTMENT LLC
By: Shurgard European Holdings LLC
a Delaware limited liability company,
its sole member
By: Shurgard Storage Centers, LLC,
a Delaware limited liability company,
its Managing Member
By: /s/ John Reyes
------------------------
Name: John Reyes
Title: Senior Vice President and Chief Financial Officer
GUARANTOR
SHURGARD SELF STORAGE EUROPE LIMITED,
REPRESENTED BY:
/s/ John Reyes
------------------------------------
Name : John Reyes
Title : Director
GUARANTOR
SHURGARD SELF STORAGE LUXEMBOURG SARL,
REPRESENTED BY:
/s/ Steven De Tollenaere
------------------------------------
Name : Steven De Tollenaere
Title : Attorney-in-fact
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GUARANTOR
SSC LUXEMBOURG SARL,
REPRESENTED BY:
/s/ John Reyes
------------------------------------
Name : John Reyes
Title : Attorney-in-fact
GUARANTOR
SHURGARD HOLDING LUXEMBOURG SARL,
REPRESENTED BY:
/s/ Steven De Tollenaere
------------------------------------
Name : Steven De Tollenaere
Title : Attorney-in-fact
GUARANTOR
SELF STORAGE MANAGEMENT BELGIUM BVBA,
REPRESENTED BY:
/s/ Ronald L. Havner, Jr.
------------------------------------
Name : Ronald L. Havner, Jr.
Title : Attorney-in-fact
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GUARANTOR
SHURGARD C.V.,
REPRESENTED BY
Name: Shurgard Self Storage Luxembourg
Sarl
Title: General Partner
Represented by
_/s/ Olivier Dorier
- ---------------------------
Name: Olivier Dorier
Title: Class A Manager
_/s/ Steven De Tollenaere
- ---------------------------
Name: Steven De Tollenaere
Title: Class B Manager
GUARANTOR
SHURGARD LUXEMBOURG SARL,
REPRESENTED BY:
/s/ Ronald L. Havner, Jr.
------------------------------------
Name : Ronald L. Havner, Jr.
Title : Attorney-in-fact
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ANNEX 1
AMENDED SSS SCA TERMS AND CONDITIONS
THIRD AMENDED AND RESTATED TERMS AND CONDITIONS OF THE BONDS ISSUED BY SHURGARD
SELF STORAGE SCA
This Third Amended and Restated Terms and Conditions of the Bonds Issued by
Shurgard Self Storage SCA has been entered into by the Parties (as defined
below) as of 31 October 2009 and amends and completely restates that certain
Second Amended and Restated Terms and Conditions of the Bonds Issued by Shurgard
Self Storage SCA previously entered into by the Parties as of 31 March 2008.
5 DEFINITION AND INTERPRETATION
5.1 For the purposes of these SSS SCA Terms and Conditions, the following
terms shall have the meanings specified or referred to in this Clause
5.1:
"ABSTRACT GUARANTEE" means the abstract and independent guarantee
provided by each of the Guarantors, substantially in the form of Annex
1 to these SSS SCA Terms and Conditions.
"ADDITIONAL BONDS" means bonds issued by the Issuer at any time
following the Effective Date pursuant to the Subscription Agreement and
subject to these SSS SCA Terms and Conditions.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise.
"AMENDMENT AGREEMENT" means the amendment agreement entered into as of
31 October 2009 between (amongst others), the Issuer, the Subscribers
and the Guarantors in relation to the amendment of the SSS SCA Terms
and Conditions and certain other matters.
"ARCAPITA" means Crescent Euro Self Storage Investments SARL
(Luxembourg), Crescent Euro Self Storage Investments II SARL
(Luxembourg) and their respective affiliates, as applicable.
"BONDS" means the bonds in uncertificated registered form, issued by
the Issuer and subscribed or acquired by the Subscribers, represented
on 31 October 2009 by 373,700 bonds having an aggregate principal
amount of EUR 373,700,000.00 and any Additional Bonds.
"BONDHOLDERS" means the legitimate holders of any Bonds. Any such
Person must be duly registered in the Register of Bondholders.
"BONDHOLDERS' MEETING" means a meeting of the Bondholders ("assemblee
generale des obligataires" / "algemene vergadering van
obligatiehouders").
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
commercial banks are open for business in Brussels.
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"BUSINESS PLAN" means the business plan of the Shurgard Group, dated as
of the Effective Date and approved by the Subscribers.
"BCC" means the Belgian Companies Code.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person
under GAAP and, for purposes hereof, the amount of such obligations at
any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"CASH EQUIVALENTS" means:
(1) U.S. Dollars, pounds sterling, euros, the national currency of
any member state in the European Union or, in the case of any
Shurgard Group Member not organized or existing under the laws of
the United States of America or any state or territory thereof or
the District of Columbia, such local currencies held by it from
time to time in the ordinary course of business;
(2) securities issued or directly and fully guaranteed or insured
by the U.S. government or any country that is a member of the
European Union or any agency or instrumentality thereof in each
case maturing not more than two years from the date of
acquisition;
(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of
acquisition, bankers' acceptances, in each case with maturities
not exceeding one year and overnight bank deposits, in each case
with any commercial bank having capital and surplus in excess of
$250 million and whose long-term debt is rated "A" or the
equivalent thereof by Moody's or S&P (or reasonably equivalent
ratings of another internationally recognized ratings agency);
(4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in
clause (3) above;
(5) commercial paper issued by a corporation (other than an
Affiliate of the Issuer) rated at least "A-1" or the equivalent
thereof by Moody's or S&P (or reasonably equivalent ratings of
another internationally recognized ratings agency) and in each
case maturing within one year after the date of acquisition;
(6) readily marketable direct obligations issued by any state of
the United States of America or any political subdivision thereof
having one of the two highest rating categories obtainable from
either Moody's or S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency) in each case with
maturities not exceeding two years from the date of acquisition;
(7) Indebtedness issued by Persons (other than the Issuer or any
of its Affiliates) with a rating of "A" or higher from S&P or
"A-2" or higher from Moody's in each case with maturities not
exceeding two years from the date of acquisition; and
(8) investment funds investing at least 95% of their assets in
securities of the types described in clauses (1) through (7)
above.
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"COMMERCIALLY REASONABLE TERMS" means terms and conditions that are no
less favourable to the Issuer than those generally available in the
debt markets to issuers of comparable debt financing with
creditworthiness comparable to that of the Issuer; provided however
that in no event shall such terms and conditions include (a) a fixed
rate of interest greater than 7.50% per annum or (b) a floating rate of
interest which, as of the closing date of such debt financing, equates
to an actual rate of interest as of such date greater than 7.50% per
annum, in each case, exclusive of fees and charges (including upfront
fees).
"CONSOLIDATED INTEREST EXPENSE" means, with respect to the Shurgard
Group for any period, the sum, without duplication, of:
(1) consolidated interest expense of the Shurgard Group for such
period, to the extent such expense was deducted in computing
Consolidated Net Income (including amortization of original issue
discount, the interest component of Capitalized Lease Obligations,
and net payments and receipts (if any) pursuant to interest rate
Swap Agreements and excluding amortization of deferred financing
fees and expensing of any bridge or other financing fees); plus
(2) consolidated capitalized interest of the Shurgard Group for
such period, whether paid or accrued; minus
(3) interest income for such period.
"CONSOLIDATED NET INCOME" means, with respect to the Shurgard Group for
any period, net income (loss) of the Shurgard Group, on a consolidated
basis, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to the Shurgard
Group for any period, the aggregate depreciation, amortization and
other non-cash expenses of the Shurgard Group, on a consolidated basis,
reducing Consolidated Net Income of the Shurgard Group for such period
and otherwise determined in accordance with GAAP, but excluding any
such charge which consists of or requires an accrual of, or cash
reserve for, anticipated cash charges for any future period.
"CONSOLIDATED TAXES" means provision for taxes based on income, profits
or capital, including, without limitation, state, franchise and similar
taxes taken into account in Consolidated Net Income.
"DISQUALIFIED STOCK" shall mean, with respect to any Person, any Equity
Interests of such Person that, by its terms (or by the terms of any
security or other Equity Interests into which it is convertible or for
which it is redeemable or exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable (other than
solely for Equity Interests other than Disqualified Stock), pursuant to
a sinking fund obligation or otherwise (except as a result of a change
of control or asset sale so long as any rights of the holders thereof
upon the occurrence of a change of control or asset sale event shall be
subject to the prior repayment in full of the Bonds that are accrued
and payable and the termination of the Commitments), (b) is redeemable
at the option of the holder thereof (other than solely for Qualified
Equity Interests), in whole or in part, (c) provides for the scheduled
payments of dividends in cash, or (d) is or becomes convertible into or
exchangeable for Indebtedness or any other Equity Interests that would
constitute Disqualified Stock, in each case, prior to the date that is
ninety-one (91) days after the Redemption Date, as applicable;
provided, however, that only the portion of the Equity Interests that
so mature or are mandatorily redeemable, are so convertible or
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exchangeable or are so redeemable at the option of the holder thereof
prior to such date shall be deemed to be Disqualified Stock; provided
further, however, that if such Equity Interests are issued to any
employee or to any plan for the benefit of employees of any Shurgard
Group Member or by any such plan to such employees, such Equity
Interests shall not constitute Disqualified Stock solely because they
may be required to be repurchased by a Shurgard Group Member in order
to satisfy applicable statutory or regulatory obligations or as a
result of such employee's termination, death or disability.
"EBITDA" means, with respect to the Shurgard Group for any period,
Consolidated Net Income plus, without duplication, to the extent the
same was deducted in calculating Consolidated Net Income:
(1) Consolidated Taxes; plus
(2) Consolidated Interest Expense; plus
(3) Consolidated Non-cash Charges.
"EFFECTIVE DATE" means 31 March 2008.
"EQUITY INTERESTS" of any Person shall mean any and all shares,
interests, rights to purchase or otherwise acquire, warrants, options,
participations or other equivalents of or interests in (however
designated) equity or ownership of such Person, including any preferred
stock, any limited or general partnership interest and any limited
liability company membership interest, and any securities or other
rights or interests convertible into or exchangeable for any of the
foregoing.
"EVENT OF DEFAULT" has the meaning set out in Clause 10.1 of these SSS
SCA Terms and Conditions.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
"FACE VALUE" means the nominal value of each of the Bonds, being EUR
1,000.
"FIRST SHURGARD SPRL" means First Shurgard sprl, a limited liability
company organized and existing under the laws of Belgium, having its
registered office at Quai du Commerce/Handelskaai 48, 1000 Brussels,
Belgium registered with the Register of Legal Entities (Crossroads Bank
of Enterprises) under enterprise number 0479.505.939.
"FIXED CHARGE COVERAGE RATIO" means the ratio of EBITDA for the four
consecutive fiscal quarters most recently ended to the Fixed Charges
for such period.
"FIXED CHARGES" means the sum, without duplication, of:
(1) Consolidated Interest Expense for such period, and
(2) all cash dividend payments (excluding items eliminated in
consolidation) on any series of Preferred Stock or Disqualified
Stock of any Shurgard Group Member.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other
entity as have been approved by a significant segment of the accounting
profession.
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"GUARANTOR" means each of Shurgard European Holdings LLC, Shurgard
Guernsey Investment LLC, Shurgard Self Storage Europe Limited, Shurgard
Self Storage Luxembourg Sarl, SSC Luxembourg Sarl, Shurgard Holding
Luxembourg Sarl, Self Storage Management Belgium BVBA, Shurgard C.V.,
Shurgard Luxembourg Sarl and any entity that becomes a Guarantor
pursuant to Section 3 of these SSS SCA Terms and Conditions.
"INDEBTEDNESS" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property or assets
purchased by such Person, (d) all obligations of such Person issued or
assumed as the deferred purchase price of property or services, to the
extent that the same would be required to be shown as a long term
liability on a balance sheet prepared in accordance with GAAP, (e) all
Capital Lease Obligations of such Person, (f) all net payments that
such Person would have to make in the event of an early termination, on
the date Indebtedness of such Person is being determined, in respect of
outstanding Swap Agreements, (g) the principal component of all
obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit, (h) the principal component of
all obligations of such Person in respect of bankers' acceptances, (i)
all guarantees (contingent or otherwise, direct or indirect, including,
without limitation, by hypothecation) by such Person of Indebtedness
described in clauses (a) to (h) above) and (j) the amount of all
obligations of such Person with respect to the redemption, repayment or
other repurchase of any Disqualified Stock (excluding accrued dividends
that have not increased the liquidation preference of such Disqualified
Stock); provided, that Indebtedness shall not include (A) trade
payables, accrued expenses and intercompany liabilities arising in the
ordinary course of business, (B) prepaid or deferred revenue arising in
the ordinary course of business, (C) purchase price holdbacks arising
in the ordinary course of business in respect of a portion of the
purchase prices of an asset to satisfy unperformed obligations of the
seller of such asset, or (D) earn-out obligations until such
obligations become a liability on the balance sheet of such Person in
accordance with GAAP. The Indebtedness of any Person shall include the
Indebtedness of any partnership in which such Person is a general
partner, other than to the extent that the instrument or agreement
evidencing such Indebtedness expressly limits the liability of such
Person in respect thereof.
"INTEREST" means the interest determined in Clause 5.1 of these SSS SCA
Terms and Conditions.
"INTEREST RATE" means the interest rate set out in Clause 9 of these
SSS SCA Terms and Conditions.
"INTEREST PAYMENT DATE" has the meaning set out in Clause 9.2 of these
SSS SCA Terms and Conditions.
"INVESTMENT" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding
accounts receivable, trade credit and advances to customers and
commission, travel and similar advances to officers, employees and
consultants made in the ordinary course of business consistent with
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past practice), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by any other
Person and investments that are required by GAAP to be classified on
the balance sheet of the Issuer in the same manner as the other
investments included in this definition to the extent such transactions
involve the transfer of cash or other property.
"INVESTMENT GRADE SECURITIES" means:
(1) securities issued or directly and fully guaranteed or insured
by the U.S. government or any agency or instrumentality thereof
(other than Cash Equivalents),
(2) securities that have a rating equal to or higher than Baa3 (or
equivalent) by Moody's or BBB- (or equivalent) by S&P, or an
equivalent rating by any other Rating Agency, but excluding any
debt securities or loans or advances between and among Shurgard
Group Members;
(3) investments in any fund that invests exclusively in
investments of the type described in clauses (1) and (2) which
fund may also hold immaterial amounts of cash pending investment
and/or distribution, and
(4) corresponding instruments in countries other than the United
States customarily utilized for high quality investments and in
each case with maturities not exceeding two years from the date of
acquisition.
"ISSUE PRICE" means EUR 1,000 per Bond, which the Subscribers must pay
upon subscription to the Bonds, being 100% of their Face Value.
"ISSUER" means Shurgard Self Storage SCA, a "societe en commandite par
actions / commanditaire vennootschap op aandelen" organised under the
laws of Belgium, having its registered office at Quai du
Commerce/Handelskaai 48, 1000 Brussels, Belgium, and registered with
the Crossroads Bank for Enterprises under company number 0454.057.394.
"JV CREDIT AGREEMENTS" means the credit agreements entered into by
First Shurgard SPRL and Second Shurgard SPRL and each of their group
members on, respectively 26 May 2003 and 12 July 2004 (both as
amended).
"LIQUIDATION PREFERENCE" has the meaning set out in Clause 11 of these
SSS SCA Terms and Conditions.
"LOAN-TO-VALUE RATIO" means the ratio of (a) the sum of all
Indebtedness of the Shurgard Group (including, without limitation, (i)
any and all Indebtedness incurred under the JV Credit Agreements and
(ii) the aggregate value of the Bonds, the SSC Lux Bonds and any other
bonds issued pursuant to the Subscription Agreement, but not including
any Indebtedness of any Shurgard Group Member owing to another Shurgard
Group Member) to (b) $1,530,000,000 (i) plus any and all capital
expenditures (other than maintenance capital expenditures) made by any
Shurgard Group Member between the Effective Date and the date of the
quarterly consolidated balance sheet of the Shurgard Group for the
fiscal quarter most recently ended, and (ii) minus (x) the amount of
proceeds of the disposal of any properties of any Shurgard Group Member
from the Effective Date to the last day of the fiscal quarter of the
Shurgard Group most recently ended and (y) the amount of any Restricted
Payments made by Shurgard Group Members from the Effective Date to the
last day of the fiscal quarter of the Shurgard Group most recently
ended.
"MANAGING MEMBER" means Shurgard Storage Centers, LLC, the managing
member of SEH LLC.
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"MATERIAL INDEBTEDNESS" means (i) the SSC Lux Bonds, (ii) any other
bonds issued pursuant to the Subscription Agreement, and (iii)
Indebtedness of any one or more of the Shurgard Group Member in an
aggregate principal amount exceeding EUR 500,000; provided that, (a) so
long as Arcapita owns Equity Interests in First Shurgard SPRL, then the
credit agreement of First Shurgard SPRL dated as of 26 May 2003 shall
not constitute Material Indebtedness, and (b) so long as Arcapita owns
Equity Interests in Second Shurgard SPRL, then the credit agreement of
Second Shurgard SPRL, dated as of 12 July 2004 shall not constitute
Material Indebtedness.
"MOODY'S" means Moody's Investors Service, Inc. or any successor to the
rating agency business thereof.
"PARTIES" means the Subscribers and the Issuer (each of them being
referred to individually as a "PARTY").
"PARTNER" means any Person(s) or entit(y)(ies) who are holding a
shareholder's interest in the Issuer at any time.
"PARTNERS' MEETING" means a meeting of the Partners ("assemblee
generale des associes" / "algemene vergadering van vennoten") of the
Issuer.
"PERMITTED INVESTMENTS" means (i) any Investment by any Shurgard Group
Member in any other Shurgard Group Member, (ii) any Investment in Cash
Equivalents or Investment Grade Securities, (iii) advances to
non-senior executives and, if approved by Public Storage, senior
executives, and (iv) loans and advances to officers, directors and
employees for business-related travel expenses, moving expenses and
other similar expenses, in each case incurred in the ordinary course of
business consistent with past practice.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"PREFERRED STOCK" means any Equity Interest with preferential right of
payment of dividends or upon liquidation, dissolution, or winding up.
"PROPERTY" means any real property owned by any Shurgard Group Member.
"RATING AGENCY" means (1) each of Moody's and S&P and (2) if Moody's or
S&P ceases to rate securities, a "nationally recognized statistical
rating organization" within the meaning of Rule 15cs-1(c)(2)(vi)(F)
under the Exchange Act selected by the Issuer or any direct or indirect
parent of the Issuer as a replacement agency for Moody's or S&P, as the
case may be.
"REDEMPTION DATE" means 31 March 2013.
"REGISTER OF BONDHOLDERS" means the official register held at the
registered office of the Issuer, in which the Bondholders are duly
registered with their name, address or registered office and number of
subscribed Bonds. This register serves as proof of ownership of the
Bonds.
"RESOLUTION" means a resolution of the Bondholders duly passed at a
Bondholders' Meeting called and held in accordance with the BCC.
"RESTRICTED INVESTMENT" means any Investment other than a Permitted
Investment.
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"S&P" means Standard & Poor's Ratings Group or any successor to the
rating agency business thereof.
"SECOND SHURGARD SPRL" means Second Shurgard sprl, a limited liability
company organized and existing under the laws of Belgium, having its
registered office at Quai du Commerce/Handelskaai 48, 1000 Brussels,
Belgium registered with the Register of Legal Entities (Crossroads Bank
of Enterprises) under enterprise number 0864.611.874.
"SEH LLC" means Shurgard European Holdings LLC, a limited liability
company organised under the laws of the State of Delaware.
"SEH LLC AGREEMENT" means the Limited Liability Company Agreement,
dated as of 31 March 2008, concerning SEH LLC, by and between Shurgard
Storage Centers, LLC, a Delaware limited liability company, together
with its permitted successors and assigns, Thomas P. DiNapoli,
Comptroller of the State of New York, as Trustee of the Common
Retirement Fund, together with its permitted successor and assigns (the
"NYC Member") and, solely with respect to Articles 12, 15 and 16
thereof, Public Storage (as defined herein).
"SHURGARD EUROPE" means Shurgard Self Storage Europe Ltd, a company
organized and existing under the laws of Guernsey, having its
registered office at 22 Smith Street, St Peter Port, Guernsey, GY1 2JQ.
"SHURGARD GROUp" means SEH LLC and its direct and indirect
subsidiaries, including, for the avoidance of doubt, First Shurgard
SPRL and Second Shurgard SPRL and their subsidiaries.
"SHURGARD GROUP MEMBER" means any Person that is part of the Shurgard
Group.
"SSC LUX" means SSC Luxembourg Sarl, a societe a responsabilite limitee
organized and existing under the laws of the Grand Duchy of Luxembourg,
having its registered office at 6, Parc d'Activites Syrdall, L-5362
Munsbach, having a share capital of EUR 3,063,500.- and registered with
the Luxembourg Register of Commerce and Companies under number
B-110.080.
"SSC LUX BONDS" means the unsecured bonds in uncertificated registered
form, issued by SSC Lux and subscribed or acquired by Public Storage
(as defined herein), represented on 31 October 2009 by 17,077 bonds
having an aggregate principal amount of EUR 17,077,000.00.
"SSC LUX TERMS AND CONDITIONS" means the Amended and Restated Terms and
Conditions of the SSC Lux Bonds, as amended from time to time.
"SSS SCA TERMS AND CONDITIONS" means these terms and conditions of
issuance of the Bonds by the Issuer, as amended from time to time.
"SUBORDINATED INDEBTEDNESS" means (a) with respect to the Issuer, any
Indebtedness of the Issuer which is by its terms subordinated in right
of payment to the Bonds, and (b) with respect to any Guarantor, any
Indebtedness of such Guarantor which is by its terms subordinated in
right of payment to its guarantee of the Bonds.
"SUBSCRIBERS" means (i) Public Storage, a real estate investment trust
organized and existing under the laws of Maryland ("PUBLIC STORAGE"),
having its principal office at 701 Western Avenue, Glendale, California
9
91201-2349, USA and (ii) PS LPT Properties Investors, a Maryland real
estate investment trust, having its principal office at 701 Western
Avenue, Glendale, California 91201-2349, USA.
"SUBSCRIPTION AGREEMENT" means that Subscription Agreement dated 31
March 2008 by and between the Subscribers and the Issuer, as amended
from time to time.
"SWAP AGREEMENT" shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided, that no phantom stock or
similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or
consultants of any Shurgard Group Member shall be a Swap Agreement.
"TAKE OUT FINANCING" means debt financing provided by third-party
lenders on Commercially Reasonable Terms, the proceeds of which are
used to repay the Bonds.
5.2 Interpretation
5.2.1 The titles and headings included in these SSS SCA Terms and
Conditions are for convenience only and do not express in any
way the intended understanding of the Parties. They shall not be
taken into account in the interpretation of the provisions of
these SSS SCA Terms and Conditions.
5.2.2 The "Issuer", the "Subscribers" or any other Person shall be
construed so as to include its successors in title, permitted
assigns and permitted transferees.
5.2.3 The original version of these SSS SCA Terms and Conditions has
been drafted in English. Should these SSS SCA Terms and
Conditions be translated into French, Dutch or any other
language, the English version shall prevail among the Parties to
the fullest extent permitted by Belgian law, provided, however,
that whenever French and/or Dutch translations of certain words
or expressions are contained in the original English version of
these SSS SCA Terms and Conditions, such translations shall be
conclusive in determining the Belgian legal concept(s) to which
the Parties intended to refer.
5.2.4 The words "herein", "hereof", "hereunder", hereby", "hereto",
"herewith" and words of similar import shall refer to these SSS
SCA Terms and Conditions as a whole and not to any particular
clause, paragraph or other subdivision.
5.2.5 The words "include", "includes", "including" and all forms and
derivations thereof shall mean including but not limited to.
5.2.6 All terms defined in these SSS SCA Terms and Conditions shall
have the same meaning regardless of whether they are used in the
singular or plural number.
5.2.7 Unless otherwise provided herein, all references to a fixed time
of a day shall mean Brussels time.
5.2.8 Capitalised terms used but not otherwise defined herein shall
have the meanings given to them in the Subscription Agreement.
6 FORM, DENOMINATION AND TITLE
6.1 Form and denomination
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The Bonds are in registered form, numbered and denominated in EUR.
6.2 Title
All Bonds are and shall remain in registered form. Ownership of all
Bonds shall be established exclusively by the entry in the Register of
Bondholders. The transfer of a Bond shall only be effective after a
record has been made in the Register of Bondholders of the transfer
declaration dated and signed by the transferor and the transferee or by
their representatives, or after the completion of the formalities
required by law for the valid assignment of a Bond interest.
The Bonds are indivisible and the Issuer recognises only one owner per
Bond. If several Persons have rights in respect of the same Bond, the
exercise of these rights shall be suspended until one Person has been
designated as the owner of the Bond vis-a-vis the Issuer.
7 UNSECURED BUT GUARANTEED OBLIGATIONS
The Bonds are unsecured obligations of the Issuer.
Each Guarantor irrevocably and unconditionally jointly and severally
(i) guarantees to each Subscriber the obligations of the Issuer under
the Bonds and (ii) agrees to provide an Abstract Guarantee in respect
of all amounts that may from time to time be outstanding under the
Bonds; provided that the guarantee of each Guarantor shall be subject
to limitations (a) required by the laws (including corporate benefit
and tax laws) of the jurisdiction of incorporation of such Guarantor,
(b) to the extent, but only to the extent, that such a guarantee would
result in a breach of the terms of, or constitute a default under, a
material licence, contract or agreement to which such Guarantor is a
party, and (c) with the consent (not to be unreasonably withheld) of
each Subscriber, to the extent necessary to avoid materially adverse
tax consequences to such Guarantor or other Shurgard Group Members, as
described in reasonable detail in a certificate executed by an officer
of the Issuer and delivered to each Subscriber.
The Issuer and each Guarantor shall cause any Person that is, is formed
as or becomes a direct or indirect subsidiary of SEH LLC and a direct
or indirect shareholder of the Issuer to, concurrently with such
Person's formation, become a Guarantor by irrevocably and
unconditionally jointly and severally (i) guaranteeing to each
Subscriber the obligations of the Issuer under the Bonds and (ii)
providing an Abstract Guarantee in respect of all amounts that may from
time to time be outstanding under the Bonds; provided that the
guarantee of any Guarantor may be subject to limitations (a) required
by the laws (including corporate benefit and tax laws) of the
jurisdiction of incorporation of such Guarantor, (b) to the extent, but
only to the extent, that such a guarantee would result in a breach of
the terms of, or constitute a default under, a material licence,
contract or agreement to which such Guarantor is a party and (c) with
the consent (not to be unreasonably withheld) of each Subscriber, to
the extent necessary to avoid materially adverse tax consequences to
such Guarantor or other Shurgard Group Members, as described in
reasonable detail in a certificate executed by an officer of the Issuer
and delivered to each Subscriber.
If the guarantee of a Guarantor is limited pursuant to clause (b) of
the provision in the second paragraph of this Clause 3, or pursuant to
clause (b) of the provision in the third paragraph of this Clause 3,
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such Guarantor and each other Shurgard Group Member shall use their
commercially reasonable efforts to obtain a waiver of the applicable
breach or default and remove such limitation.
8 REDEMPTION
8.1 Final Redemption
The Bonds will be redeemed at their Face Value, together with any
accrued and unpaid interest thereon on the Redemption Date.
8.2 Redemption at the option of the Issuer
The Issuer may redeem all or any part of the outstanding Bonds at any
time, in cash, for an amount equal to the Face Value of the redeemed
Bonds, together with any accrued and unpaid interest thereon. The
Issuer shall notify the Subscribers of such a decision at least 15 days
before such redemption is to take place.
8.3 Mandatory prepayment
Each of the Guarantors and the Issuer shall within five days of
receipt by any Shurgard Group Members of any of the following
proceeds (the "PREPAYMENT PROCEEDS") cause an amount equal to
such proceeds to be used to redeem the then outstanding Bonds,
the then outstanding SSC Lux Bonds, and any other bonds issued
pursuant to the Subscription Agreement, on a pro rata basis:
8.3.1 the net proceeds of the sale of any property or properties owned
by any Shurgard Group Member;
8.3.2 the net proceeds received by any Shurgard Group Member from the
incurrence, issuance or sale by any Shurgard Group Member of any
indebtedness for borrowed money (other than revolving credit
indebtedness incurred by such Person for working capital
purposes and in the ordinary course of business or financing
used to permanently repay borrowings and correspondingly reduce
commitments under the JV Credit Agreements) or from any other
financing arrangement of any kind entered into by any Shurgard
Group Member, other than any indebtedness or other financing
arrangement the proceeds of which are used to finance the
development, expansion or acquisition of Properties as and to
the extent provided in the Business Plan or as otherwise
approved by the Subscribers; and
8.3.3 the net proceeds of any sale or issuance of any Equity Interests
of any Shurgard Group Member, other than any such sale or
issuance to (a) NYC Member or Shurgard Storage Centers, LLC
pursuant to Section 4.02 of the SEH LLC Agreement or (b) any
other Shurgard Group Member;
provided that notwithstanding the foregoing, to the extent the
terms of any Indebtedness existing as of the date hereof of any
Shurgard Group Member require prepayment of such Indebtedness
with Prepayment Proceeds, the Guarantors and the Issuer shall
not be required to cause the amount of Prepayment Proceeds so
required to be used to prepay such Indebtedness to be used to
redeem the then outstanding Bonds, the then outstanding SSC Lux
Bonds or any other bonds issued pursuant to the Subscription
Agreement.
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The Issuer and each Guarantor shall promptly notify the
Subscribers of the pendency of any event that could reasonably
be expected to result in the receipt by any Shurgard Group
Member of any Prepayment Proceeds.
8.4 Cancellation
All Bonds redeemed by or contributed to the Issuer pursuant to any of
the provisions of these SSS SCA Terms and Conditions will be cancelled
or surrendered therewith and may not be reissued or resold.
8.5 Redemption Notices
A notice given by the Issuer under Clauses 4.1, 4.2 or 4.3 shall be
irrevocable and shall specify (i) the date when the relevant redemption
will take place, which will be a Business Day, (ii) the aggregate
principal amount of the outstanding Bonds to be redeemed, and (iii) the
amount of accrued interest thereon.
9 INTEREST
9.1 Interest Rate
Interest shall accrue on the Bonds on a quarterly basis at the
percentage rate equal to 7.50% per annum through and including 31
October 2009 and at the percentage rate equal to 9.00% per annum
thereafter (the "INTEREST", and such rate, the "INTEREST RATE").
9.2 Payment of the Interest
The Interest is payable quarterly in arrears on the 31st of March, the
30th of June, the 30th of September and the 31st of December of each
year (each, an "Interest Payment Date"). The Interest will be
calculated on the basis of actual days in the quarter and a 360-day
year.
9.3 Default Interest
If the Issuer fails to pay any amount payable by it under the Bonds
when due (whether at the stated maturity or redemption date, by
acceleration or otherwise), interest shall accrue on the overdue amount
from the due date (or, in case of interest, from the earliest date
permitted by Article 1154 of the Belgian Civil Code) up to the date of
actual payment at a rate which is equal to 11.00% per annum.
10 PAYMENTS AND APPLICATION
10.1 By the Issuer
On each date on which any sum is due by the Issuer under these SSS SCA
Terms and Conditions, it shall make that sum available before 4 p.m. in
EUR to the Bondholders, to the account numbers specified by the
Bondholders.
10.2 Application and Distribution of Payments
All payments received by the Bondholders from the Issuer under these
SSS SCA Terms and Conditions shall, regardless of any designation by
the Issuer, be applied, first towards reimbursement of costs or payment
of fees hereunder, under the Amendment Agreement or the Subscription
Agreement, second in or towards payment of any interest then due and
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payable, third in or towards payment of principal then due and payable
hereunder, and fourth in or towards payment of any other sum then due
and payable hereunder or under the Amendment Agreement or the
Subscription Agreement.
11 LIQUIDATION OF THE ISSUER
Upon a liquidation or winding up of the Issuer prior to the Redemption
Date, Bondholders shall receive an amount equal to the Face Value of
the Bonds issued by the Issuer, together with any accrued and unpaid
interest thereon (the "Liquidation Preference") at the time of the
liquidation, subject however to applicable senior claims and statutory
liens.
12 BONDHOLDERS RIGHTS
12.1 Voting rights
Each Bond will carry one vote in the applicable Bondholders' Meeting.
The Bondholders' Meeting shall decide at a simple majority of the
Bondholders present or represented, except if otherwise required by the
BCC.
12.2 Bondholders' Meetings
Bondholders' Meetings will be called and held in accordance with the
BCC. A Resolution duly passed in accordance with the BCC will be
binding on all applicable Bondholders, whether or not they are present
at the Bondholders' Meeting and whether or not they voted in favour
thereof.
The Bondholders' Meeting shall have the following powers:
12.2.1 to postpone one or more Interest Payment Dates, to consent to a
reduction of the Interest Rate or to a modification of the
payment of the interest applicable in respect of the Bonds;
12.2.2 to postpone the Redemption Date, to suspend the redemption of
the Bonds and to consent to modifications to the conditions
under which the Bonds must be redeemed; and
12.2.3 to accept that the receivables of the Bondholders against the
Issuer be reimbursed in shares in the Issuer.
The Bondholders' Meeting has also the right:
12.2.4 to accept any action to be taken by the Issuer in order to (i)
grant securities in favour of the Bondholders, or (ii) modify or
terminate the securities granted to the Bondholders;
12.2.5 to decide on interim action in the common interest of the
Bondholders;
12.2.6 to appoint one or more special agents to implement the
Resolutions of the Bondholders' Meeting; and
12.3 Invitation to the Partners' Meeting
The Bondholders shall be invited to the Partners' Meeting when required
by the BCC.
12.4 Transfer of Bonds
Subject to the following sentence, Bonds shall be freely transferable
by the Subscribers only to a qualified institutional buyer as defined
in Rule 144A(a)(1) under the Securities Act of 1933. The transfer of
14
the Bonds to any Person other than an affiliate of the Subscribers
shall be subject to the consent of the Issuer of such Bonds. It is
specifically provided that if such transferee does not benefit from a
withholding tax exemption in relation to the interests received on the
Bonds, no gross up provision shall apply and the Issuer shall withhold
such amounts as required by law.
No Bonds issued by the Issuer shall be offered or sold to the public.
13 COVENANTS
13.1 Merger and Other Extraordinary Transactions
Without the prior written consent of the Subscribers, neither the
Issuer nor any of the Guarantors shall (and the Issuer and each
Guarantor shall procure that none of the other Shurgard Group Members
will), directly or indirectly, whether in one transaction or in a
series of transactions, enter into any merger, consolidation or other
similar extraordinary type of corporate transaction (including, without
limitation, any dissolution, liquidation or transfer of all or
substantially all of its assets (whether now owned or hereafter
acquired) to or in favor of any other Person), except that any Shurgard
Group Member may, without the prior written consent of the Subscribers,
(a) merge or consolidate with, dissolve or liquidate into or transfer
all or substantially all of its assets to any Shurgard Group Member,
and (b) acquire all of the outstanding Equity Interests in First
Shurgard SPRL and/or Second Shurgard SPRL owned by Arcapita.
13.2 Negative Pledge
Without the prior written consent of the Subscribers, neither the
Issuer nor any Guarantor shall (and the Issuer and each Guarantor shall
procure that none of the other Shurgard Group Members will) create or
permit to subsist any security over any of its assets, other than (i)
any security arising by operation of law and in the ordinary course of
business consistent with past practice, (ii) any security arrangement
entered into in the ordinary course of the relevant Shurgard Group
Member's banking arrangements, (iii) any security over assets which are
acquired by any Shurgard Group Member (provided such security is
removed or discharged as soon as practicable), (iv) any security
created pursuant to the JV Credit Agreements and (v) any security
granted in respect of Indebtedness used to finance development or
expansion of Properties as and to the extent that (a) such development
or expansion is set forth in the Business Plan or otherwise approved by
the Subscribers and (b) the granting of such security is necessary, as
determined by, and set forth in a resolution of, the Managing Member,
to obtain financing for such development or expansion.
13.3 Hedging
Without the prior written consent of the Subscribers, neither the
Issuer nor any Guarantor shall (and the Issuer and each Guarantor shall
procure that none of the other Shurgard Group Members will) enter into
any derivative transaction in order to hedge the interest rate on the
Bonds.
13.4 Restricted Payments
Without the prior written consent of the Subscribers, neither the
Issuer nor any Guarantor shall (and the Issuer and each Guarantor shall
procure that none of the other Shurgard Group Members will) (i)
purchase or otherwise acquire or retire for value any Equity Interests
of SEH LLC, (ii) declare or pay any dividend or make any distribution
15
on account of the Equity Interests of SEH LLC (including any payment
made in connection with any merger, amalgamation or consolidation
involving SEH LLC or any Affiliate thereof (other than any subsidiary
of SEH LLC)), (iii) make any principal payment on, or redeem,
repurchase, defease or otherwise acquire or retire for value, in each
case prior to any scheduled repayment or scheduled maturity, any
Subordinated Indebtedness of any Shurgard Group Member or (iv) make any
Restricted Investments (any of the foregoing, a "Restricted Payment").
13.5 Further Assurances
The Issuer and each Guarantor shall (and the Issuer and each Guarantor
shall procure that each other Shurgard Group Member will) use their
reasonable best efforts to arrange and consummate Take Out Financing as
soon as is reasonably practicable following the Effective Date.
13.6 Financing Demand
Any time after the Effective Date, the Subscribers shall have the right
to (a) arrange Take Out Financing and (b) demand in writing that any
Shurgard Group Member consummate such Take Out Financing. If the
Subscribers (a) arrange Take Out Financing and (b) demand in writing
that any Shurgard Group Member consummate such Take Out Financing and
become a party thereto as a borrower, guarantor or otherwise, then such
Shurgard Group Member shall (or if not the Issuer or a Guarantor, the
Issuer and each Guarantor shall procure that such other Shurgard Group
Member will), as soon as is reasonably practicable, consummate such
Take Out Financing and become a party thereto as a borrower, guarantor
or otherwise, to the extent demanded by the Subscribers.
13.7 Financial Covenants
The Issuer and each Guarantor shall not permit (and the Issuer and each
Guarantor shall procure that each other Shurgard Group Member shall not
permit): (a) the Loan-to-Value Ratio to exceed 0.46 to 1.00 at any
time, or (b) the Fixed Charge Coverage Ratio to be less than 1.60 to
1.00 at any time.
14 EVENTS OF DEFAULT
14.1 Events of Default
Any of the following events or circumstances is an Event of Default:
14.1.1 the Issuer does not pay on the due date any amount payable under
the Bonds, and such failure is not remedied within 5 days of the
due date;
14.1.2 the Issuer or any Guarantor does not comply with any provision
of the Bonds, other than the covenants contained in Section 9
hereto, and such failure to comply is not remedied within 20
days of the relevant obligor becoming aware of such failure to
comply or the Subscribers giving notice to the Issuer;
14.1.3 the Issuer or any Guarantor does not comply with any covenant
contained in Section 9 hereto;
14.1.4 (i) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or
(ii) any Shurgard Group Member shall fail to pay the principal
of any Material Indebtedness at the stated final maturity
thereof.
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14.1.5 any of the Abstract Guarantees is terminated, except if on terms
contractually agreed to therein or between the applicable
Guarantor and the Subscribers, or otherwise becomes ineffective;
14.1.6 the Issuer, Shurgard Europe or any other Shurgard Group Member
is unable or admits its inability to pay its debts as they fall
due, becomes insolvent or is subject to any bankruptcy,
moratorium, judicial composition, administration, dissolution,
winding up or any similar proceedings; and
14.1.7 the assets of any Shurgard Group Member (other than the property
located in Nijmegen, Netherlands) having an aggregate value in
excess of EUR 1,000,000 are expropriated, attached or otherwise
subject to any seizure or sequestration.
14.2 Acceleration of the Bonds
On and at any time after the occurrence of an Event of Default which is
continuing, each of the Subscribers may by notice to the Issuer declare
that all or part of the amounts outstanding under the Bonds, together
with all accrued and unpaid interest and any other costs, be payable on
demand (an "ACCELERATION"), at which time they shall immediately become
payable and due on demand. Notwithstanding the foregoing, the
Subscribers shall not have the right to declare an Acceleration on the
basis of an Event of Default caused directly by an action taken by the
managing member of SEH LLC if (a) such managing member is Public
Storage or an Affiliate of Public Storage (a "PSA MANAGING MEMBER") and
(b) (i) the PSA Managing Member's primary intent for taking such action
is to create an Event of Default or (ii) such action is the result of
the PSA Managing Member's bad faith, gross negligence, or willful
misconduct.
15 GENERAL
15.1 Governing Law
The Bond shall be governed by and construed in accordance with the laws
of the Kingdom of Belgium.
15.2 Arbitration
To the extent permitted by Belgian Law, any dispute arising out of or
in connection with these SSS SCA Terms and Conditions shall be finally
settled by arbitration under the Rules of Conciliation and Arbitration
of the "Centre Belge pour l'Etude et la Pratique de l'arbitrage
national et International" ("CEPANI"), as in force on 31 October 2009,
by three arbitrators appointed in accordance with said rules.
The place of arbitration shall be Brussels, Belgium, or such other
place as the Parties may agree upon. The language of the arbitration
shall be English.
The arbitrators' award shall be final and binding upon the Parties, and
the Parties shall carry out its terms properly.
15.3 Notices
All notices, requests, claims, demands and other communications
hereunder shall be delivered to the Parties in person by first class
courier or by registered letter, postage prepaid and return receipt
requested, or by telefax as follows:
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If to the Subscribers:
----------------------
To: Public Storage
701 Western Avenue, Glendale
91201-2349 California
USA
Attn: John Reyes
Telefax: +1 818 244 9267
To: PS LPT Properties Investors
701 Western Avenue, Glendale
91201-2349 California
USA
Attn: John Reyes
Telefax: +1 818 244 9267
If to the Issuer:
-----------------
To: Shurgard Self Storage SCA
Quai du Commerce/Handelskaai 48
1000 Brussels
Belgium
Attn: Steven De Tollenaere
Telefax: +32 2 229 56 55
Each change of address by a Party shall be notified to the other
Parties in accordance with the provisions of this Clause 11.3.
Any notice, demand or other communication sent by first class courier
or by mail shall be deemed to have been received by the Party to whom
it was sent on the day shown as the day of receipt on the return
receipt sent with the same. Any notice, demand or other communication
sent by telefax shall be deemed, in the absence of proof to the
contrary, to have been received by the Party to whom it was sent on the
date of dispatch, provided that the report generated by the sender's
telefax machine shows that all pages of such notice, demand or other
communication were properly transmitted to the recipient's telefax
number.
For the calculation of a period of time for any notice, such period
shall start the next following day after the day on which the event
triggering such period of time has occurred. The expiry date shall be
included in the period of time. If the expiry date is a Saturday, a
Sunday or a bank holiday in Belgium, the expiry date shall be postponed
until the next Business Day. Unless otherwise provided herein, all
periods of time shall be calculated in calendar days in Belgium.
15.4 Remedies and Waivers
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No failure or delay on the part of the Bondholders or the Issuer in
exercising any right hereunder shall operate as a waiver of, or impair,
any such right. No single or partial exercise of any such right shall
preclude any other or further exercise thereof or the exercise of any
other right. No waiver of any such right shall be deemed a waiver of
any other right hereunder.
15.5 Survival
All obligations of the Parties hereunder shall survive until payment in
full of all amounts due hereunder.
15.6 Severability of Provisions
If any provision of these SSS SCA Terms and Conditions shall be held
invalid or unenforceable in whole or in part, then such provision shall
be ineffective to the extent of such invalidity or unenforceability,
without invalidating the remaining provisions of these SSS SCA Terms
and Conditions. In this event, the Parties shall co-operate to achieve
the intended purpose of such provision, to the extent legally
permissible.
19
ANNEX 1
ABSTRACT GUARANTEE
To: Public Storage and PS LPT Properties Investors, in their capacity as
subscribers to the Bonds (as defined in the SSS SCA Terms and Conditions (as
defined below))
31 October 2009
Dear Sirs,
Re. ABSTRACT AND INDEPENDENT ON-DEMAND GUARANTEE
We refer to (i) the Amendment Agreement (the "AMENDMENT AGREEMENT") dated as of
31 October 2009, between Shurgard Self Storage SCA, as issuers (the "ISSUER"),
Public Storage and PS LPT Properties Investors, as subscribers (the
"SUBSCRIBERS"), and the Guarantors (as defined therein), and (ii) the Third
Amended and Restated Terms and Conditions of the Bonds issued by the Issuer (the
"SSS SCA TERMS AND CONDITIONS"), dated as of the date hereof by and between the
Subscribers, the Issuer and the Guarantors party thereto.
Capitalised terms used but not otherwise defined herein shall have the meanings
given to them in the SSS SCA Terms and Conditions.
For the benefit of the Subscribers (including any successor, assignee or other
Person to whom the Bonds may be transferred), we hereby irrevocably and
unconditionally agree (a) to guarantee, on first demand, the payment of all
amounts due by the Issuer under or in connection with the Bonds and (b) to be
bound by SSS SCA Terms and Conditions, including, without limitation, Clauses
4.3 and 9.1 through 9.7 thereof, provided that this guarantee shall be subject
to limitations, and/or shall be null and void: (a) to the extent required by the
laws (including corporate benefit and tax laws) of the jurisdiction of
incorporation of the undersigned Guarantor, (b) to the extent that such a
guarantee would result in a breach of the terms of, or constitute a default
under, a material licence, contract or agreement to which such Guarantor is a
party, and (c) with the consent (not to be unreasonably withheld) of each
Subscriber, to the extent necessary to avoid materially adverse tax consequences
to such Guarantor or other Shurgard Group Members, as described in reasonable
detail in a certificate executed by an officer of the Issuer and delivered to
each Subscriber. Notwithstanding the foregoing and any other provision of the
Amendment Agreement and SSS SCA Terms and Conditions to the contrary, the
payment undertaking of any Guarantor which is incorporated under the laws of the
Grand Duchy of Luxembourg shall be limited at any time, to an aggregate amount
not exceeding ninety-five percent (95%) of the greater of the Guarantor's own
funds ("capitaux propres"), as determined by article 34 and foll. of the
Luxembourg law of 19 December 2002 on the register of commerce and companies,
accounting and companies' annual accounts, as amended, as mentioned in its then
most recently approved financial statements, or existing as at the date of this
Abstract Guarantee.
This guarantee is abstract and independent from any contractual or other
obligation existing now or in the future between any of the parties to the
Amendment Agreement, including (without limitation) between the Issuer and the
Guarantors. We hereby waive the right to raise any defence arising under or in
connection with any such obligations.
This guarantee shall automatically take effect as from the date hereof. This
guarantee shall remain in full force and effect until all amounts due under or
in connection with the Bonds have been irrevocably and unconditionally paid in
full and all obligations and commitments of the Issuer thereunder have been
1
terminated. Notwithstanding a termination of this guarantee in accordance with
the preceding sentence, this guarantee shall be automatically reinstated if the
Subscribers determine (acting in good faith) that any amount paid under or in
connection with the Bonds is capable of being avoided or otherwise set aside,
including (without limitation) as a result of the bankruptcy, insolvency,
administration or winding-up of the Issuer.
This guarantee shall be governed by Belgian law. Any dispute arising out of or
in connection with this guarantee shall be subject to arbitration under the
Rules of Conciliation and Arbitration of the "Centre Belge pour l'Etude et la
Pratique de l'arbitrage national et International" ("CEPANI"), in accordance
with Clause 11.2 of the SSS SCA Terms and Conditions.
2
ANNEX 2
FORM OF ABSTRACT GUARANTEE
To: Public Storage and PS LPT Properties Investors, in their capacity as
subscribers to the Bonds (as defined in the SSS SCA Terms and Conditions (as
defined below))
-------------------
Dear Sirs,
Re. Abstract and independent on-demand guarantee
We refer to the Amendment Agreement (the "AMENDMENT AGREEMENT") dated 31 October
2009, between Shurgard Self Storage SCA , as issuer (the "ISSUER"), Public
Storage and PS LPT Properties Investors, as subscribers (the "SUBSCRIBERS"), and
the Guarantors (as defined therein), and (ii) the Third Amended and Restated
Terms and Conditions of the Bonds issued by the Issuer (the "SSS SCA TERMS AND
CONDITIONS"), set out in Annex 1 to the Amendment Agreement, dated as of the
date hereof by and between the Subscribers, the Issuer and the Guarantors party
thereto.
Capitalised terms used but not otherwise defined herein shall have the meanings
given to them in the SSS SCA Terms and Conditions.
For the benefit of the Subscribers (including any successor, assignee or other
Person to whom the Bonds may be transferred), we hereby irrevocably and
unconditionally agree (a) to guarantee, on first demand, the payment of all
amounts due by the Issuer under or in connection with the Bonds and (b) to be
bound by the SSS SCA Terms and Conditions, including, without limitation,
Clauses 4.3 and 9.1 through 9.7 thereof, provided that this guarantee shall be
subject to limitations, and/or shall be null and void: (a) to the extent
required by the laws (including corporate benefit and tax laws) of the
jurisdiction of incorporation of the undersigned Guarantor, (b) to the extent
that such a guarantee would result in a breach of the terms of, or constitute a
default under, a material licence, contract or agreement to which such Guarantor
is a party, and (c) with the consent (not to be unreasonably withheld) of each
Subscriber, to the extent necessary to avoid materially adverse tax consequences
to such Guarantor or other Shurgard Group Members, as described in reasonable
detail in a certificate executed by an officer of the Issuer and delivered to
each Subscriber. Notwithstanding the foregoing and any other provision of the
Amendment Agreement and SSS SCA Terms and Conditions to the contrary, the
payment undertaking of any Guarantor which is incorporated under the laws of the
Grand Duchy of Luxembourg shall be limited at any time to an aggregate amount
not exceeding ninety-five percent (95%) of the greater of the Guarantor's own
funds ("capitaux propres"), as determined by article 34 and foll. of the
Luxembourg law of 19 December 2002 on the register of commerce and companies,
accounting and companies' annual accounts, as amended, as mentioned in its then
most recently approved financial statements, or existing as at the date of this
Abstract Guarantee.
This guarantee is abstract and independent from any contractual or other
obligation existing now or in the future between any of the parties to the
Amendment Agreement, including (without limitation) between the Issuer and the
Guarantors. We hereby waive the right to raise any defence arising under or in
connection with any such obligations.
This guarantee shall automatically take effect as from the date hereof. This
guarantee shall remain in full force and effect until all amounts due under or
in connection with the Bonds have been irrevocably and unconditionally paid in
full and all obligations and commitments of the Issuer thereunder have been
1
terminated. Notwithstanding a termination of this guarantee in accordance with
the preceding sentence, this guarantee shall be automatically reinstated if the
Subscribers determine (acting in good faith) that any amount paid under or in
connection with the Bonds is capable of being avoided or otherwise set aside,
including (without limitation) as a result of the bankruptcy, insolvency,
administration or winding-up of the Issuer.
This guarantee shall be governed by Belgian law. Any dispute arising out of or
in connection with this guarantee shall be subject to arbitration under the
Rules of Conciliation and Arbitration of the "Centre Belge pour l'Etude et la
Pratique de l'arbitrage national et International" ("CEPANI"), in accordance
with Clause 11.2 of the SSS SCA Terms and Conditions.
Yours sincerely,
For and on behalf of:
[GUARANTOR]
By: _________________________
Name:
Title:
2