Exhibit 10.3
RECORDING REQUESTED BY
AND
WHEN RECORDED MAIL TO:
RIEMER & BRAUNSTEIN LLP
THREE CENTER PLAZA
BOSTON, MASSACHUSETTS 02108
ATTENTION: KEVIN J. LYONS, ESQUIRE
THIS DOCUMENT TO BE RECORDED BOTH AS
A
DEED OF TRUST AND A FIXTURE FILING
THIS DOCUMENT SECURES OBLIGATIONS WHICH CONTAIN
A PROVISION FOR A
VARIABLE RATE OF INTEREST
DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS, SECURITY
AGREEMENT, AND FIXTURE
FILING
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TRUSTOR:
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SSTI 12714 S LA CIENEGA BLVD, LLC,
a Delaware limited liability
company
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BENEFICIARY:
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KEYBANK NATIONAL ASSOCIATION,
a national banking association, as
Agent and Lender
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TRUSTEE:
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Commonwealth Land Title Company,
a California corporation
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DEED OF TRUST,
ASSIGNMENT OF LEASES AND
RENTS,
SECURITY AGREEMENT, AND FIXTURE
FILING
THIS DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT, AND FIXTURE FILING
(“Deed of Trust”) is made as of the 1
st day of July, 2011, by SSTI 12714 S LA CIENEGA
BLVD, LLC, a Delaware limited liability company having an address
at c/o Strategic Storage Holdings, LLC, 111 Corporate Drive, Suite
120, Ladera Ranch, CA 92694 (the “Trustor”) in favor of
Commonwealth Land Title Company, a California corporation, having a
place of business at 801 S. Figueroa St., Suite 870, Los Angeles,
CA 90017, as trustee (“Trustee”), for the benefit of
KEYBANK NATIONAL ASSOCIATION, a national banking association, as
agent under a Credit Agreement (hereinafter called the
“Credit Agreement”) dated July 1, 2011 among the
Trustor, Strategic Storage Operating Partnership, L.P., and its
Subsidiaries party to the Credit Agreement as
“Borrower”, KeyBank National Association and the other
lending institutions which become parties to the Credit Agreement
(KeyBank National Association and the other lending institutions
which become parties to the Credit Agreement are collectively
referred to as the “Lenders” and individually as the
“Lender”), and KeyBank National Association, as Agent,
having a place of business at 225 Franklin Street, Boston,
Massachusetts 02110 (hereinafter, “Agent”)
(hereinafter, the Agent and the Lenders are called
“Beneficiary”).
The term Trustor shall include
wherever the context permits its successors and assigns. The term
Beneficiary shall include, wherever the context permits, its
successors and assigns as the beneficiary for the time being of
this Deed of Trust and the holder of the Note and other Obligations
hereby secured.
This Deed of Trust is granted
pursuant to the terms, provisions and conditions the Credit
Agreement. Further, this Deed of Trust is intended to constitute:
(i) a deed of trust under California law, (ii) a fixture
filing under Section 9334 of the Uniform Commercial Code of
California, and (iii) a security agreement and financing
statement under the Uniform Commercial Code of California. This
Deed of Trust is also intended to operate and be construed as an
absolute present assignment of the rents, issues and profits of the
Property, in accordance with the provisions of California Civil
Code §2938, as the same may be amended from time to time,
Trustor hereby agreeing that Beneficiary is entitled to receive the
rents, issues and profits of the Property prior to an Event of
Default and without entering upon or taking possession of the
Property, all as more particularly described in and subject to the
Credit Agreement. Capitalized terms used herein which are not
otherwise specifically defined shall have the same meaning herein
as in the Credit Agreement.
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WITNESSETH
TRUSTOR HEREBY IRREVOCABLY GRANTS,
BARGAINS, SELLS, CONVEYS, TRANSFERS AND ASSIGNS:
To Trustee, in trust, with power of
sale and right of entry and possession, all of its present and
future estate, right, title and interest in and to that certain
real property located in the County of Los Angeles, State of
California, as more particularly described in Exhibit A
attached hereto and made a part hereof, including all easements and
rights used in connection therewith or as a means of access
thereto, together with all right, title and interest that Trustor
now has or may hereafter acquire in:
A. Real Estate . The fee
simple interest of the Trustor in and to that certain parcel of
land located in Los Angeles County, California more particularly
described on Exhibit A which is annexed hereto and made a
part hereof (“Land”), together with the improvements
and other structures now or hereafter situated thereon (such
improvements and other structures being sometimes collectively
called the “Improvements”) commonly known as and
numbered 12714 S. La Cienega Blvd, Hawthorne, Los Angeles County,
California, together with all rights, privileges, tenements,
hereditaments, appurtenances, easements, including, but not limited
to, rights and easements for access and egress and utility
connections, and other rights now or hereafter appurtenant thereto
(hereinafter, collectively the “Real
Estate”);
B. Fixtures . All real estate
fixtures or items which by agreement of the parties may be deemed
to be such fixtures, now or hereafter owned by Trustor, or in which
Trustor has or hereafter obtains an interest, and now or hereafter
located in or upon the Real Estate, or now or hereafter attached
to, installed in, or used in connection with any of the Real
Estate, including, but not limited to, any and all portable or
sectional buildings, bathroom, plumbing, heating, lighting,
refrigerating, ventilating and air-conditioning apparatus and
equipment, garbage incinerators and receptacles, elevators and
elevator machinery, boilers, furnaces, stoves, tanks, motors,
sprinkler and fire detection and extinguishing systems, doorbell
and alarm systems, window shades, screens, awnings, screen doors,
storm and other detachable windows and doors, mantels, partitions,
built-in cases, counters and other fixtures whether or not included
in the foregoing enumeration (“Fixtures”);
C. Additional Appurtenances .
All bridges, easements, rights of way, licenses, privileges,
hereditaments, permits and appurtenances hereafter belonging to or
enuring to the benefit of the Real Estate and all right, title and
interest of Trustor in and to the land lying within any street or
roadway adjoining any of the Real Estate and all right, title and
interest of Trustor in and to any vacated or hereafter vacated
streets or roads adjoining any of the Real Estate and any and all
reversionary or remainder rights (“Additional
Appurtenances”);
D. Awards . All of the right,
title and interest of Trustor in and to any award or awards
heretofore made or hereafter to be made by any municipal, county,
state or federal authorities to the present or any subsequent
owners of any of the Real Estate or the Land, or the Improvements,
or the Fixtures, or the Additional Appurtenances, or the Leases or
the Personal Property, including, without limitation, any award or
awards, or settlements or payments, or other compensation hereafter
made resulting from (x) condemnation proceedings or the taking
of the Real Estate, or the Land, or the Improvements, or the
Fixtures, or the Additional Appurtenances, or the Leases or the
Personal Property, or any part thereof, under the power of eminent
domain, or (y) the alteration of grade or the location or
discontinuance of any street adjoining the Land or any portion
thereof, or (z) any other injury to or decrease in value of
the Mortgaged Property (as hereinafter
defined)(“Awards”);
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E. Leases . All leases or
subleases now or hereafter entered into of the Real Estate, or any
portion thereof, and all rents, issues, profits, revenues, earnings
and royalties therefrom, and all right, title and interest of
Trustor thereunder, including, without limitation, cash, letters of
credit, or securities deposited thereunder to secure performance by
the tenants or occupants of their obligations thereunder, whether
such cash, letters of credit, or securities are to be held until
the expiration of the terms of such leases, subleases or occupancy
agreements or applied to one or more of the installments of rent
coming due prior to the expiration of such terms including, without
limitation, the right to receive and collect the rents thereunder
(“Leases”); and
F. Personal Property . All
tangible and intangible personal property now owned or at any time
hereafter acquired by Trustor of every nature and description, and
used in any way in connection with the Real Estate, the Fixtures,
the Additional Appurtenances, or any other portion of the Mortgaged
Property, including, without limitation express or implied upon the
generality of the foregoing, all Equipment, Goods, Inventory,
Fixtures, Accounts, Instruments, Documents and General Intangibles
(as each such capitalized term is defined in the Uniform Commercial
Code in effect in the state where the Real Estate is situated) and
further including, without any such limitation, the following
whether or not included in the foregoing: materials; supplies;
furnishings; chattel paper; money; bank accounts; security
deposits; utility deposits; any insurance or tax reserves deposited
with Agent; any cash collateral deposited with Agent; claims to
rebates, refunds or abatements of real estate taxes or any other
taxes; contract rights; plans and specifications; licenses,
permits, approvals and other rights; the rights of Trustor under
contracts with respect to the Real Estate or any other portion of
the Mortgaged Property, or the Project; signs, brochures,
advertising, the name by which the Mortgaged Property is known and
any variation of the words thereof, and good will; copyrights,
service marks, and all goodwill associated therewith; and
trademarks; all proceeds paid for any damage or loss to all or any
portion of the Real Estate, the Fixtures, the Additional
Appurtenances, any other Personal Property or any other portion of
the Mortgaged Property (“Insurance Proceeds”); all
Awards; all Leases; all books and records; and all proceeds,
products, additions, accessions, substitutions and replacements to
any one or more of the foregoing (collectively, the “Personal
Property”).
All of the Real Estate, Fixtures,
Additional Appurtenances, Awards, Leases, Rents and Personal
Property is hereinafter referred to collectively as the
“Mortgaged Property.” The Trustor and the Agent and the
Lenders hereby acknowledge that the Mortgaged Property does not,
and shall not, consist of any Fixtures or Personal Property of any
of the tenants of the Trustor, except to the extent that the
Trustor has any rights, title, or interest in and to said Fixtures
and Personal Property.
Notwithstanding the forgoing, to the
extent that the Credit Agreement provides for particular rights in
favor of Borrower related to the handling, processing or treatment
of specific portions of the Mortgaged Property, including but not
limited to use of proceeds of any Awards, rights of receipt and
collection of rents in connection with Leases and rights related to
particular portions of the Personal Property, the definition of
Mortgaged Property shall include and the Mortgaged Property shall
be subject to any such particular rights as are expressly provided
to Borrower in the Credit Agreement.
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TO HAVE AND TO HOLD said Mortgaged
Property bargained and described, together with all and singular
the lands, tenements, privileges, water rights, hereditaments and
appurtenances thereto belonging or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues
and profits thereof, and all of the estate, right, title, claim and
demands whatsoever of Trustor, either in law or in equity, of, in
and to the above-bargained Mortgaged Property forever, as security
for the faithful performance of the Obligations under the Note
secured hereby and as security for the faithful performance of each
and all of the covenants, agreements, terms and conditions of this
Deed of Trust, FOR THE PURPOSE OF SECURING THE
OBLIGATIONS:
The term “Obligations”
shall mean and include:
A. The payment of the principal sum,
interest at variable rates as may be adjusted from time to time,
charges and indebtedness evidenced by certain promissory notes
(hereinafter individually and collectively referred to as the
“Note”) issued under and in accordance with the Credit
Agreement, including any extensions, renewals, replacements,
increases, modifications and amendments thereof, in the original
aggregate amount of up to TWENTY-TWO MILLION DOLLARS
($22,000,000.00) given by Borrower to the order of the respective
Lenders;
B. The payment, performance,
discharge and satisfaction of each covenant, warranty,
representation, undertaking and condition to be paid, performed,
satisfied and complied with by Trustor under and pursuant to this
Deed of Trust or the Credit Agreement and also by Borrower under
and pursuant to each of the other Loan Documents referred to in, or
executed in connection with, the Credit Agreement;
C. The payment of all reasonable
costs, expenses, legal fees, including those incurred in
proceedings under 11 U.S.C., and liabilities incurred by Agent and
the Lenders in connection with the enforcement of any of
Agent’s or any Lender’s rights or remedies under this
Deed of Trust, the other Loan Documents, or any other instrument,
agreement or document which evidences or secures any other
obligations or collateral therefor, whether now in effect or
hereafter executed; and
D. The payment, performance,
discharge and satisfaction of all other liabilities and obligations
of Trustor to Agent or any Lender, whether now existing or
hereafter arising, direct or indirect, absolute or contingent, and
including, without limitation express or implied upon the
generality of the foregoing, each liability and obligation of
Borrower under any one or more of the Loan Documents and any
amendment, extension, modification, replacement or recasting of any
one or more of the instruments, agreements and documents referred
to herein or therein or executed in connection with the
transactions contemplated hereby or thereby, including, without
limitation, those arising in connection with any Hedging
Obligations.
This instrument is sometimes
referred to as “this Deed of Trust”.
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Trustor hereby grants to Agent, on
behalf of the Lenders, a continuing security interest in all of the
Mortgaged Property in which a security interest may be granted
under the Uniform Commercial Code as such is in effect in the State
of California including, without limitation, the Fixtures and the
Personal Property, together with all proceeds and products, whether
now or at any time hereafter acquired and used in any way in
connection with the development, construction, marketing or
operation of the Real Estate, or in connection with the Project, to
secure all Obligations.
This Deed of Trust creates a lien on
the Mortgaged Property, and to the extent the Mortgaged Property is
not real property under applicable law this Deed of Trust
constitutes a security agreement under the California Uniform
Commercial Code and any other applicable law and is filed as a
fixture filing. If required by Agent, at any time during the term
of this Deed of Trust, Trustor will execute and deliver to Agent,
in form satisfactory to Agent, additional security agreements,
financing statements and/or other instruments covering all Personal
Property or Fixtures of Trustor which may at any time be furnished,
placed on, or annexed or made appurtenant to the Real Estate or
used, useful or held for use, in the operation of the
Improvements.
Trustor covenants, warrants,
represents and agrees with Agent, its successors and assigns,
that:
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1.
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Title . Trustor has good record and marketable title
to the Mortgaged Property and has good right, full power and lawful
authority to grant and convey the same in the manner aforesaid; and
that the Mortgaged Property are free and clear of all encumbrances
and exceptions, except for the schedule of exceptions, if any,
listed in the title insurance policy insuring Agent’s
interest in the Mortgaged Property which are incorporated into this
Deed of Trust, and specifically Exhibit B hereof, by this reference
(the “Permitted Title Exceptions”). Trustor shall make
any further assurances of title that Agent may in good faith
require including, without limitation, such further instruments as
may be requested by Agent to confirm the assignment to Beneficiary
of all Awards.
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2.
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Performance
of Obligations . Trustor
shall pay the Note and interest thereon as the same shall become
due and payable, and pay and perform and observe all of the
obligations and conditions set forth in each of the Note, this Deed
of Trust, the Assignment of Leases and Rents, the Credit Agreement,
and each of the other Loan Documents or other agreements, if any,
executed by Trustor in connection with the Loan.
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3.
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Protection and
Maintenance . Consistent
with the Credit Agreement and, in all cases, ordinary wear and tear
excepted, Trustor shall protect and maintain, or cause to be
maintained, in good, first-class and substantial order, repair and
tenantable condition at all times, including, where applicable,
construction of the Improvements contemplated by the Credit
Agreement, the buildings and structures now standing or hereafter
erected on the Mortgaged Property, and any additions and
improvements thereto, and all Personal Property now or hereafter
situated therein, and the utility services on the
Mortgaged
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Property, the parking areas and
access roads on the Mortgaged Property, and all building fixtures
and equipment and articles of personal property now or hereafter
acquired and used in connection with the operation of the Mortgaged
Property. Trustor shall promptly replace any of the aforesaid which
may become lost, destroyed or unsuitable for use with other
property of similar character, consistent with any applicable
provisions of the Credit Agreement.
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4.
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Insurance
Coverages . Trustor shall
insure (or cause to be insured) the Mortgaged Property and the
operation thereof with such coverages and in such amounts as are
required by the provisions of the Credit Agreement and shall at all
times keep such insurance in full force and effect and pay all
premiums therefor annually, in advance. Trustor hereby irrevocably
appoints Agent its true and lawful attorney-in-fact, with full
power of substitution, to assign any such policy in the event of
the foreclosure of this Deed of Trust or other transfer of title to
the Mortgaged Property in extinguishment, in whole or in part of
the Obligations secured hereby.
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5.
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Insurance
Proceeds . Subject to the
provisions of the Credit Agreement relating to the application of
insurance proceeds, the proceeds of any hazard insurance shall be
applied to or toward the indebtedness secured hereby in such order
as Agent may determine. Notwithstanding anything in this
Section 5 to the contrary, however, if the insurer denies
liability to Trustor, Trustor shall not be relieved of any
obligation under Section 3 of this Deed of Trust. If, pursuant
to the provisions hereof and of the Credit Agreement, Agent and the
Lenders applies insurance proceeds to the Loan and does not release
the same to Trustor, the obligation of Trustor to repair, restore
or rebuild shall be limited to taking all actions reasonably
required to make the Mortgaged Property safe and in compliance with
Legal Requirements and to restore the undamaged portion to an
economically functional unit to the extent that it is reasonably
possible to do so, taking into consideration, without limitation,
the economic viability of such unit within the context of the then
current condition of the overall Mortgage Property.
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6.
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Eminent Domain
. Subject to the provisions of the
Credit Agreement relating to the application of condemnation
proceeds, the Awards of damages on account of any condemnation for
public use of, or injury to, the Mortgaged Property shall be paid
to Agent; such Awards shall, at the option of Agent, be applied to
or toward the indebtedness secured hereby in such order as Agent
may determine, or in the case of a partial taking, at Agent’s
discretion, may be so applied or released to Trustor upon such
conditions as Agent may prescribe to be applied to restoration of
that part of the Mortgaged Property which remains, but not more
than such portion of such Awards as may be required to restore or
repair such damage or injury shall be so released; and any balance
remaining shall be applied by Agent to or toward the indebtedness
secured hereby in such order as Agent may determine. If Agent and
the Lenders apply such Awards to the Loan and do not release the
same to Trustor, the obligation of Trustor to repair, restore or
rebuild shall be limited to taking all actions reasonably required
to make
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the Mortgaged Property, or what
remains thereof, safe and in compliance with Legal Requirements and
to restore the remaining portion to an economically functional unit
to the extent that it is reasonably possible to do so, taking into
consideration, without limitation, the economic viability of such
unit within the context of the then current condition of the
overall Mortgage Property.
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7.
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No Waste;
Compliance With Law .
Trustor shall not commit or suffer any strip or waste of the
Mortgaged Property, or any portion thereof (ordinary wear and tear
excepted), or any violation of any law, rule, regulation,
ordinance, license or permit, or the requirements of any licensing
authority affecting the Mortgaged Property or any business
conducted thereon, and shall not commit or suffer any demolition,
removal or material alteration of any of the Mortgaged Property
(except for the replacement of Fixtures and Personal Property in
the ordinary course of business, so long as items of comparable
value and quality are installed free and clear of liens in favor of
any other party), without the express prior written consent of
Agent in each instance which consent shall not be unreasonably
withheld or delayed, and shall not violate nor suffer the violation
of the covenants and agreements, if any, of record against the
Mortgaged Property, and in all respects Trustor shall do all things
necessary to comply with, and keep in full force and effect all
licenses, permits and other governmental authorizations for the
operation of the Mortgaged Property for its intended purposes,
including, without limitation express or implied, the licenses,
permits and authorizations referenced in the Credit
Agreement.
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8.
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Environmental and Related Matters;
Indemnification . The
Trustor shall at all times comply with all of the terms, conditions
and provisions imposed on Trustor under the Environmental
Indemnity.
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9.
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Payment of
Taxes and Prevention of Liens . Trustor shall pay before delinquent or before
any penalty f
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