OMNIBUS FIRST AMENDMENT TO MEZZANINE LOAN DOCUMENTS

OMNIBUS FIRST AMENDMENT TO

MEZZANINE LOAN DOCUMENTS

 

 

This Omnibus First Amendment to Mezzanine Loan Documents (the “Amendment”) is made and entered into as of July 8, 2022 (the “Amendment Effective Date”) is made by and between SMARTSTOP OP, L.P., a Delaware limited partnership, having an address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (together with its successors and assigns, “Lender”), and SST VI MEZZ, LLC, a Delaware limited liability company, having its principal place of business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (together with its permitted successors and assigns, “Borrower”).

 

R E C I T A L S:

AMENDMENT

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

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[Signature Pages Follow]

 

 

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IN WITNESS WHEREOF, this Amendment has been executed and becomes effective as of the Amendment Effective Date.

LENDER:

SMARTSTOP OP, L.P.,

a Delaware limited partnership
 

By: SmartStop Self Storage REIT, Inc.,

a Maryland corporation

Its: General Partner

 

By: /s/ H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title: Chief Executive Officer

 

 

[Signatures continued on following page]

[Signature Page to First Amendment to Mezzanine Loan Agreement]

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BORROWER:

SST VI MEZZ, LLC,

a Delaware limited liability company

 

By: Strategic Storage Trust VI, Inc.,

a Maryland corporation

Its: Manager

 

By: /s/ H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title: Chief Executive Officer

 

[End of signatures]

[Signature Page to First Amendment to Mezzanine Loan Agreement]

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EXHIBIT A

AMENDED MEZZANINE LOAN AGREEMENT

(see attached)

 

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77035158.2

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6649112 v01EXHIBIT A

TO

FIRST AMENDMENT

TO MEZZANINE LOAN AGREEMENT

(Amended Mezzanine Loan Agreement as of July 8, 2022)

 

MEZZANINE LOAN AGREEMENT

MEZZANINE LOAN AGREEMENT

Dated as of December 30, 2021

by and between

SST VI MEZZ, LLC

(as Borrower)

and

SMARTSTOP OP, L.P.
(as Lender)

 

 

 

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77035158.2

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TABLE OF CONTENTS

Page

ARTICLE 1 DEFINITIONS; PRINCIPLES OF CONSTRUCTION 1

Section 1.1. Definitions 1

Section 1.2. Location of Additional Defined Terms. 8

Section 1.3. Principles of Construction 9

ARTICLE 2 THE LOAN 9

Section 2.1. The Loan 9

Section 2.2. Interest Rate 9

Section 2.3. Payments 1011

Section 2.4. Prepayments 11

Section 2.5. Extension Option 12

Section 2.6. Advances 12

ARTICLE 3 INTENTIONALLY DELETED 13

ARTICLE 4 REPRESENTATIONS AND WARRANTIES 13

Section 4.1. Organization 1314

Section 4.2. Authorization 1314

Section 4.3. Enforceability 14

Section 4.4. Litigation 14

Section 4.5. Full and Accurate Disclosure 14

Section 4.6. Compliance 1415

Section 4.7. ERISA 1415

Section 4.8. Not Foreign Person 15

Section 4.9. Investment Company Act; Public Utility Holding Company Act; Federal Reserve Regulations 1516

Section 4.10. Title to the Collateral; Liens 1516

Section 4.11. Condemnation 16

Section 4.12. Utilities and Public Access 16

Section 4.13. Separate Lots 16

Section 4.14. Assessments 16

Section 4.15. Flood ▇▇▇▇ ▇▇

▇▇▇▇▇▇▇ 4.16. Physical Condition 16

Section 4.17. Intentionally Omitted. 1617

Section 4.18. Leases and Rents 1617

Section 4.19. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws 17

Section 4.20. Organizational Chart 1718

Section 4.21. Principal Place of Business; State of Organization 1718

Section 4.22. Filing and Recording Taxes 18

Section 4.23. Single-Purpose Entity 18

Section 4.24. Insurance 18

Section 4.25. Intentionally Omitted 18

Section 4.26. Survival 18

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ARTICLE 5 COVENANTS 1819

Section 5.1. Compliance with Legal Requirements; Impositions and Other Claims; Contests 1819

Section 5.2. Maintenance; Waste; Alterations 1920

Section 5.3. Access to Property and Records 20

Section 5.4. Intentionally Omitted 20

Section 5.5. REIT Status and Partnership Operations 20

Section 5.6. Intentionally Omitted 20

Section 5.7. Leases 2021

Section 5.8. Place of Business; State of Organization 2021

Section 5.9. Zoning; Joint Assessment 21

Section 5.10. Title Insurance Proceeds 21

Section 5.11. Material Agreements. 2122

ARTICLE 6 TRANSFERS AND CHANGE OF BUSINESS 2122

Section 6.1. Transfer 2122

Section 6.2. Other Indebtedness 2223

Section 6.3. Liens 2223

Section 6.4. ERISA 2223

Section 6.5. Single-Purpose Entity 2324

Section 6.6. Partial Release 2324

ARTICLE 7 INSURANCE, CASUALTY, CONDEMNATION AND RESTORATION 24

Section 7.1. Insurance. 24

Section 7.2. Casualty 25

Section 7.3. Condemnation 2526

Section 7.4. Restoration. 26

ARTICLE 8 DEFAULTS 27

Section 8.1. Event of Default 27

Section 8.2. Remedies 2829

Section 8.3. Remedies Cumulative 2829

Section 8.4. Lender Appointed Attorney-In-Fact 2930

Section 8.5. Lender’s Right to Perform 2930

ARTICLE 9 INTENTIONALLY OMITTED 2930

ARTICLE 10 EXCULPATION 2930

Section 10.1. Exculpation 2930

ARTICLE 11 MISCELLANEOUS 3132

Section 11.1. Survival 3132

Section 11.2. Lender’s Discretion 32

Section 11.3. Governing Law 32

Section 11.4. Modification, Waiver in Writing 33

Section 11.5. Delay Not a Waiver 33

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Section 11.6. Notices 3334

Section 11.7. Trial By Jury 3435

Section 11.8. Headings 3435

Section 11.9. Severability 3435

Section 11.10. Preferences 3435

Section 11.11. Waiver of Notice 3435

Section 11.12. Remedies of Borrower 35

Section 11.13. Exhibits Incorporated 3536

Section 11.14. Offsets, Counterclaims and Defenses 3536

Section 11.15. No Joint Venture or Partnership 3536

Section 11.16. Waiver of Marshalling of Assets Defense 3536

Section 11.17. Waiver of Offsets/Defenses/Counterclaim 3536

Section 11.18. Construction of Documents 36

Section 11.19. Brokers and Financial Advisors 36

Section 11.20. Counterparts 3637

Section 11.21. Estoppel Certificates 3637

Section 11.22. Reserved. 3637

Section 11.23. Bankruptcy Waiver 3637

Section 11.24. Entire Agreement 37

Section 11.25. Expenses; Liability and Indemnification 3738

Section 11.26. Publicity 39

Section 11.27. Time of the Essence 3940

Section 11.28. Taxes 3940

Section 11.29. Further Assurances 3940

ARTICLE 12 SPECIAL PROVISIONS 40

Section 12.1. The Mortgage Loan and Additional Matters. 40

 

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SCHEDULES AND EXHIBITS

Schedule 1 – Loan Documents S1‑1

Exhibit A – Organizational Chart of Borrower A-1

Exhibit B – Intentionally Omitted B-1

Exhibit C – Definition of Single-Purpose Entity C-1

 

 

 

77035158.2

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MEZZANINE LOAN AGREEMENT

THIS MEZZANINE LOAN AGREEMENT (as the same may from time to time hereafter be modified, supplemented or amended, this “Agreement”), dated as of December 30, 2021 (the “Closing Date”), is made by and between SMARTSTOP OP, L.P., a Delaware limited partnership, having an address at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (together with its successors and assigns, “Lender”), and SST VI MEZZ, LLC, a Delaware limited liability company, having its principal place of business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (together with its permitted successors and assigns, “Borrower”).

RECITALS

Borrower desires to obtain a loan (the “Loan”) from Lender in the principal amount of up to $45,000,000.00 (the “Loan Amount”) the proceeds of which are to be used by Borrower to capitalize MortgageProperty Borrower (hereinafter defined) in connection with MortgageProperty Borrower’s acquisition of the Property (hereinafter defined), including the reasonable out-of-pocket costs and expenses related thereto. Lender is willing to make the Loan on the terms and conditions set forth in this Agreement and the other Loan Documents.

NOW, THEREFORE, in consideration of the making of the Loan by Lender, the parties hereby agree as follows:

“Accrued Interest” means all accrued but unpaid interest due under the Note.

“Advance” means, individually and collectively, as the context requires, (i) the Initial Advance and (ii) future advances of proceeds under the Loan pursuant to Section 2.6 hereof.

“Affiliate” means, as to any Person, any other Person that, (i) directly or indirectly owns twenty percent (20%) or more of all Equity Interests in such Person, and/or (ii) is in Control of, is Controlled by or is under common Control with such Person, and/or (iii) is a director, partner, officer or employee of such Person or of an Affiliate of such Person, and/or (iv) is the spouse, issue, parent or officer of such Person or an Affiliate of such Person.

“Apopka Borrower” means SST VI 2200 Coral Hills Rd, LLC, a Delaware limited liability company.

“Apopka Mortgage” means that certain Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents entered into by Apopka Borrower in favor of Mortgage Lender.

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“Apopka Property” means that certain real property located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.

“Bankruptcy Action” means with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which such Person colludes with, or otherwise assists such Person, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Person; (c) such Person filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person: (d) such Person seeking, consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Person or any portion of the Property; or (e) such Person making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due.

“Bankruptcy Code” means 11 U.S.C. § 101 et seq., as the same may be amended from time to time.

“Bradenton Borrower” means SST VI ▇▇▇▇ ▇▇▇▇ ▇▇ ▇, LLC, a Delaware limited liability company.

“Bradenton Mortgage” means that certain Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents entered into by Bradenton Borrower in favor of Mortgage Lender.

“Bradenton Property” means that certain real property located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

“Code” means the Internal Revenue Code of 1986, as amended, and any successor statutes thereto.

“Collateral Value” means (x) the value of the Property, as determined by Lender in its reasonable discretion, minus (y) the outstanding principal balance of the Mortgage Loan.

“Control” (and terms correlative thereto) when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise.

“Default Rate” means a rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b) five percent (5%) above the Interest Rate.

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“Environmental Indemnity” means that certain Environmental Indemnity Agreement, dated of even date here with, entered into by Borrower and Guarantor in favor of Lender.

“Equity Interests” means (a) partnership interests (general or limited) in a partnership; (b) membership interests in a limited liability company; (c) shares or stock interests in a corporation, (d) the beneficial ownership interests in a trust, and (e) any other legal or beneficial ownership interests in a Person.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended or re-codified from time to time, and the regulations promulgated thereunder.

“Floating Index” means LIBOR, as determined by Lender, as LIBOR is displayed on the LIBOR Reference Source chosen at Lender’s discretion two (2) Business Days prior to the commencement of any Monthly Interest Accrual Period (however, in the event LIBOR is not displayed on the LIBOR Reference Source on such date, then such date shall be deemed to mean the next immediately preceding date on which LIBOR is displayed on the LIBOR Reference Source), provided, however, in the event LIBOR is replaced by a LIBOR Successor Rate pursuant to Section 2.2(e) of this Agreement, then such LIBOR Successor Rate shall be used as the new Floating Index.

“Governmental Authority” means any national, federal, state, regional or local government, or any other political subdivision of any of the foregoing, in each case with jurisdiction over Borrower, MortgageProperty Borrower, the Property, or any Person with jurisdiction over Borrower, MortgageProperty Borrower or the Property exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“Guarantor” means Strategic Storage Operating Partnership VI, L.P., a Delaware limited partnership.

“Impositions” means all ground rents and all taxes (including, without limitation, all real estate, ad valorem or value added, sales (including those imposed on lease rentals), use, single business, gross receipts, intangible transaction privilege, privilege, license or similar taxes), assessments (including, without limitation, to the extent not discharged prior to the Closing Date, all assessments for public improvements or benefits, whether or not commenced or completed within the term of the Loan), water, sewer or other rents and charges, excises, levies, fees (including, without limitation, license, permit, inspection, authorization and similar fees), and all other governmental charges, in each case whether general or special, ordinary or extraordinary, foreseen or unforeseen, of every character in respect of the Property, (including all interest and penalties thereon), which at any time prior to, during or in respect of the term hereof may be assessed or imposed on or in respect of or be a Lien upon (i) Borrower or MortgageProperty Borrower (including, without limitation, all income, franchise, single business or other taxes imposed on Borrower for the privilege of doing business in the jurisdiction in which the Property is located) or Lender (including taxes resulting from future changes in law which impose upon Lender or any trustee an obligation to pay any property taxes or other taxes or which otherwise adversely affect Lender’s interests), (ii) the Collateral, the Property or any part thereof, or (iii) any occupancy, operation, use or possession of, or sales from, or activity conducted on, or in

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connection with the Property or the leasing or use of the Property or any part thereof, or the acquisition or financing of the acquisition of the Property by Borrower or MortgageProperty Borrower.

“Indebtedness” means, at any given time, the Principal Indebtedness, together with all accrued and unpaid interest thereon and all other obligations and liabilities due or to become due to Lender pursuant hereto or any of the other Loan Documents.

“Indemnified Party” means each of Lender, each of its Affiliates and their respective successors and assigns, any Person who is or will have been involved with the servicing of the Loan, Persons who may hold or acquire or will have held a full or partial interest in the Loan (including investors, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties) (including any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan or the collateral therefor), and the respective officers, directors, and employees, agents, Affiliates, successors and assigns of any and all of the foregoing.

“Initial Advance” means the initial advance of Loan proceeds in the amount of $6,800,000.00 to Borrower made on the Closing Date.

“Initial Term” means the one (1) year period commencing on the Closing Date and ending on the unextended Maturity Date.

“Interest Accrual Period” shall mean, with respect to any Payment Date, the period commencing on and including the first (1st) day of the preceding calendar month and ending on and including the last day of such preceding calendar month; provided, however, that (i) no Interest Accrual Period shall end later than the Maturity Date (other than for purposes of calculating interest at the Default Rate) and (ii) in the event the Closing Date is a date other than the first (1st) day of a calendar month, the initial Interest Accrual Period shall begin on and include the Closing Date and shall end on and include the last day of the calendar month in which the Closing Date occurs.

“Interest Rate” means a variable rate of interest, per annum, determined by Lender with respect to each Interest Accrual Period equal to the sum of (a) the Spread plus (b) the Floating Index.

“Leases” means all leases and other agreements or arrangements affecting the use or occupancy of all or any portion of the Property now in effect or hereafter entered into (including all lettings, subleases, licenses, concessions, tenancies and other occupancy agreements covering or encumbering all or any portion of the Property), together with any guarantees, supplements, amendments, modifications, extensions and renewals of the same.

“Legal Requirements” means (a) all statutes, laws, rules, orders, regulations, ordinances, judgments, orders, decrees and injunctions of Governmental Authorities affecting Borrower, MortgageProperty Borrower, the Loan Documents, the Property or any part thereof, and all permits and regulations relating thereto, (b) all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in

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force affecting the Property or any part thereof, (c) terms of any insurance policy maintained by or on behalf of Borrower, and (d) the organizational documents of Borrower or MortgageProperty Borrower.

“LIBOR” means the one-month London Interbank Offered Rate.

 

“LIBOR Reference Source” means the display for the LIBOR quote provided by the ICE Benchmark Administration Limited, a United Kingdom company, Bloomberg, Reuters or the Wall Street Journal (as chosen by Lender, at Lender’s sole and absolute discretion) or such other commercially available source providing such quotations as may be designated by Lender from time to time.

 

“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of Lender, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by Lender in a manner substantially consistent with market practice (or, if Lender determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as Lender determines in its sole and absolute discretion).

 

“Lien” means any mortgage, deed of trust, deed to secure debt, lien pledge, easement, restrictive covenant, hypothecation, assignment, security interest, conditional sale or other title retention agreement, financing lease having substantially the same economic effect as any of the foregoing, or financing statement or similar instrument.

“Loan Documents” means, collectively, this Agreement and all other documents, agreements, instruments and certificates now or hereafter evidencing, securing or delivered to Lender in connection with the Loan, including the documents listed on Schedule 1 attached hereto, as each may be (and each of the defined terms shall refer to such documents as they may be) amended, restated, or otherwise modified from time to time.

“Losses” means any losses, actual damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including strict liabilities), obligations, debts, diminutions in value, fines, penalties, charges, amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, reasonable attorneys’ fees, engineers’ fees, environmental consultants’ fees, and investigation costs (including costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards.

“Material Adverse Effect” means a material adverse effect upon (a) the business or financial position or results of operation of Borrower, (b) the ability of Borrower to perform, or of Lender to enforce, any of the Loan Documents or (c) the value of the Collateral.

“Material Agreement” means each contract and agreement relating to the ownership, management, development, use, operation, leasing, maintenance, repair or

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improvement of the Property, other than the Leases, under which there is an obligation of MortgageProperty Borrower to pay more than $100,000 per annum.

“Maturity Date” shall mean December 30, 2022, as such date may be extended pursuant to and in accordance with Section 2.5 hereof, or such other date on which the final payment of the principal amount of the Loan becomes due and payable as herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” means the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Mortgage” means, individually and collectively, as the context may require, (i) the Apopka Mortgage, (ii) the Bradenton Mortgage, and (iii) any mortgages, deeds of trust, and other collateral documents in connection with the Mortgage Loan securing any New Property (as may be from time to time amended, revised, modified, supplemented or amended and restated).

“Mortgage Borrower” means, individually and collectively, as the context may require, (i) Apopka Borrower, (ii) Bradenton Borrower, and (iii) any entity owning any New Property that is subject to a Mortgage Loan pursuant to the Mortgage Loan Documents.

“Mortgage Lender” means The Huntington National Bank, a national banking association, in its capacity as administrative agent under the Mortgage Loan Agreement, acting for itself and the lenders a party thereto.

“Mortgage Loan” means, individually and collectively, as the context may require, each advance by Mortgage Lender to the applicable Mortgage Borrower pursuant to the Mortgage Loan Documents.

“Mortgage Loan Agreement” means that certain Syndicated Term Loan Agreement entered into by and between ▇▇▇ ▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇, ▇▇▇ VI ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇, LLC, SST VI ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇, ▇▇▇, ▇▇▇▇▇▇ Borrower and Bradenton Borrower, collectively, as borrower, and Mortgage Lender, as lender, as such Syndicated Term Loan Agreement may be from time to time amended, revised, modified, supplemented or amended and restated.

“Mortgage Loan Documents” means the “Loan Documents” as defined in the Mortgage Loan Agreement.

“Net Cash Flow” means net cash flow from operations of the Property distributed by Mortgage Borrower to Borrower from time to time in accordance with the Mortgage Loan Agreement.

“New Property” means, individually and collectively, as the context may require, any real property acquired by any MortgageProperty Borrower subsequent to the Closing Date.

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“Non-Mortgage Borrower” means, individually and collectively, as the context may require, any entity owning any New Property that is not subject to a Mortgage Loan pursuant to the Mortgage Loan Documents.

“Payment Date” shall mean the first (1st) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately preceding Business Day.

“Permitted Encumbrances” means, (a) with respect to the Collateral, collectively, the Liens created by the Loan Documents, and (b) with respect to the Property only, collectively, (i) the Lien created by the Mortgage Loan Documents, (ii) all Liens and other matters disclosed in each title insurance policy insuring the applicable Mortgage, or any part thereof which have been approved by Lender, (iii) Liens, if any, for Impositions imposed by any Governmental Authority not yet due or delinquent, and (iv) such governmental, public utility and private restrictions, covenants, reservations, easements, licenses or other agreements of an immaterial nature which may be granted by MortgageProperty Borrower after the Closing Date and which do not have a Material Adverse Effect.

“Person” means any individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association, or any other entity, any Governmental Authority, and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Prescribed Laws” shall mean, collectively, (a) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act), (b) Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, (c) the International Emergency Economic Power Act, 50 U.S.C. § 1701 et. seq. and (d) all other Legal Requirements relating to money laundering or terrorism.

“Prime Rate” means the rate of interest published in The Wall Street Journal (or if The Wall Street Journal ceases publishing such rate, a successor national business periodical of similar standing designated by Lender by written notice to Borrower) from time to time as the “Prime Rate.”

 

“Principal Indebtedness” means the principal amount of the Loan outstanding as the same may be increased or decreased, as a result of Advances, prepayment or otherwise, from time to time.

“Property” means, individually and collectively, as the context may require, (i) the Apopka Property, (ii) the Bradenton Property, and (iii) any New Property.

“Property Borrower” means, individually and collectively, as the context may require, any Mortgage Borrower and Non-Mortgage Borrower. For the avoidance of doubt, if and to the extent a provision hereunder suggests that any term or condition of the Mortgage Loan Agreement would be applicable to a Non-Mortgage Borrower, such provision shall be interpreted to be solely applicable to a Mortgage Borrower.

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“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“Spread” means (i) with respect to Initial Term, three hundred basis points (3.00%) per annum, and (ii) upon Borrower’s exercise of the Extension Option, with respect to the period of time commencing on the day after expiration of the Initial Term through and until the Extended Maturity Date, four hundred basis points (4.00%) per annum.

 

“Subordination and Standstill Agreement” means that certain Subordination and Standstill Agreement dated as of the date hereof between Lender and Mortgage Lender, as the same may be from time to time amended, revised, modified, supplemented or amended and restated.

“Transfer” means (a) any conveyance, transfer, sale, Lease, assignment or Lien, whether by operation of law or otherwise, of, on or affecting (i) all or any portion of the Property or the Collateral, or (ii) any direct or indirect legal or beneficial interest in Borrower or MortgageProperty Borrower (including any profit interest or the issuance of any new direct or indirect Equity Interest in Borrower or MortgageProperty Borrower), and (b) any change in Control of Borrower or MortgageProperty Borrower.

Defined Term Location

“Agreement” First Paragraph

“Award” The Mortgage

“Borrower” First Paragraph

“Closing Date” First Paragraph

“Collateral” The Pledge Agreement

“ERISA Affiliate” Section 4.7

“Event of Default” Section 8.1

“Extended Maturity Date” Section 2.5

“Extension Notice” Section 2.5

“Extension Option” Section 2.5

“Hazardous Substances” Environmental Indemnity

“Improvements” The Mortgage

“Insolvency Action” Section 8.1(f)

“Insurance Threshold” The Mortgage

“Inventory” The Mortgage

“Lender” First Paragraph

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“LIBOR Successor Rate” Section 2.2(e)

“Loan Amount” Recitals

“Material Alterations” Section 5.2

“Net Insurance Proceeds” Mortgage

“Note” Schedule 1

“Partial Release” Section 6.6

“Partial Release Conditions” Section 6.6

“Permitted Trade Payables” Exhibit C, clause (xx)

“Permitted Transfer” Section 6.1

“Pledge Agreement” Schedule 1

“REIT” Section 5.5

“Rents” The Mortgage

“Restoration” The Mortgage

“Single-Purpose Entity” Exhibit C

“SPE Covenants” Exhibit C

“UCC” The Pledge Agreement

 

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(i) adequate and reasonable means do not exist for ascertaining LIBOR, including, without limitation, because the LIBOR Reference Source is not available or published on a current basis, and such circumstances are unlikely to be temporary; or

(ii) the administrator of the LIBOR Reference Source or a Governmental Authority having jurisdiction over Lender has made a public statement identifying a specific date after which LIBOR or the LIBOR Reference Source shall no longer be made available or be broadly used for determining the interest rate of loans; or

(iii) loans currently being executed, or that include provisions similar to that contained in this Section 2.2, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,

then, reasonably promptly after such determination by Lender, Lender may amend this Agreement to replace LIBOR with SOFR (hereinafter any such proposed rate shall be referred to as a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes, and any such amendment shall become effective as of the date of such amendment.

 

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Borrower represents and warrants to Lender as of the Closing Date as follows:

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The representations, warranties and provisions of this Section 4.19 shall survive the expiration and termination of this Agreement and the repayment of the Indebtedness.

. The organizational chart attached hereto as Exhibit A is true, complete and correct on and as of the date hereof. No Person other than those Persons shown on Exhibit A has any ownership interest in, or right of control, directly or indirectly, in Borrower. Borrower is the owner of 100% of the direct legal and beneficial ownership interest in MortgageProperty Borrower.

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Borrower covenants and agrees that, from the Closing Date and until payment in full of the Indebtedness:

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Borrower covenants and agrees that, from the Closing Date and until payment in full of the Indebtedness:

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Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness in accordance with the Loan Documents, and (B) the Indebtedness shall be fully recourse to Borrower (i) in the event of: (a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or any of the Borrower Parties colludes with or otherwise assists such Person, or soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (c) Borrower or any of the Borrower Parties filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (d) Borrower or any of the Borrower Parties consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or all or any portion of the Property; (e) Borrower or any of the Borrower Parties making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; or (ii) if Borrower or any Borrower Party, or any Affiliate of Borrower or Affiliate of any Borrower Party, in any judicial or quasi-judicial case, action or proceeding directly or indirectly contests the validity or enforceability of the Loan Documents or directly or indirectly contests or intentionally hinders, delays or obstructs the pursuit of any rights or remedies by Lender (including the commencement and/or prosecution of a foreclosure action after an Event of Default. The provisions of this Article 10 shall survive the expiration and termination of this Agreement and the repayment of the Indebtedness.

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If to Lender: SmartStop OP, L.P.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇@▇▇▇.▇▇▇

 

with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

 

If to Borrower: SST VI Mezz, LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇@▇▇▇.▇▇▇

with a copy to: ▇▇▇▇▇ Law Offices, P.C.

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▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇

A party receiving a notice which does not comply with the technical requirements for notice under this Section 11.6 may elect to waive any deficiencies and treat the notice as having been properly given. A notice shall be deemed to have been given: (a) in the case of hand delivery, at the time of delivery; (b) in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; (c) in the case of expedited prepaid delivery upon the first attempted delivery on a Business Day; or (d) in the case of telecopier, upon receipt of answerback confirmation, provided that such telecopied notice was also delivered as required in this Section 11.6.

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[Signatures on the following pages]

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

LENDER:

SMARTSTOP OP, L.P.,

a Delaware limited partnership
 

By: SmartStop Self Storage REIT, Inc.,

a Maryland corporation

Its: General Partner

 

By:

Name:

Title:

[Signatures continued on following page]

Mezzanine Loan Agreement

 

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BORROWER:

SST VI MEZZ, LLC,

a Delaware limited liability company

 

By: Strategic Storage Trust VI, Inc.,

a Maryland corporation

Its: Manager

 

By:___________________________

Name: ________________________

Title: _________________________

 

[End of signatures]

Mezzanine Loan Agreement

 

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Schedule 1

Loan Documents

 

 

 

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EXHIBIT A

Organizational Chart of Borrower

See attached.

 

 

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EXHIBIT B

Intentionally Omitted

 

 

 

B-1

 

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EXHIBIT C

Definition of Single-Purpose Entity

“Single-Purpose Entity” means a corporation, limited partnership, or limited liability company which, at all times since its formation and at all times prior to, on and after the date thereof, has complied with and shall at all times comply with the following requirements (herein referred to as the “SPE Covenants”):

(i) was, is and will be organized solely for the purpose of owning the direct or indirect Equity Interests in MortgageProperty Borrower,

(ii) has not, does not and will not engage in any business unrelated to the direct or indirect Equity Interests in MortgageProperty Borrower,

(iii) has not owned, does not own and will not own any asset or property other than the direct or indirect Equity Interests in MortgageProperty Borrower,

(iv) has not engaged, sought or consented to, and to the fullest extent permitted by law, has not and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation or merger, in whole or in part, and, except as otherwise expressly permitted by this Agreement, and has not and will not engage in, seek or consent to any asset sale, transfer of partnership or membership or shareholder interests, or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation, limited liability company agreement or operating agreement (as applicable),

(v) [Intentionally Deleted],

(vi) [Intentionally Deleted],

(vii) [Intentionally Deleted],

(viii) has not and will not fail to correct any known misunderstanding regarding the separate identity of such entity,

(ix) [Intentionally Deleted],

(x) without the unanimous consent of all of the partners, directors or managers or members, as applicable, has not and will not with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest (w) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally; (x) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for such entity or all or any portion of such entity’s properties; (y) make any assignment for the benefit of such entity’s creditors; or (z) take any action that might cause such entity to become insolvent,

 

ACTIVE 65880584v2	- 1 -

 

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(xi) has maintained and will maintain its books, records, financial statements, accounting records, bank accounts and other entity documents in its own name and separate from any other Person, and has not permitted, and has not and will not permit, its assets to be listed as assets on the financial statement of any other entity except as required for consolidated financial statements by generally accepted accounting principles; provided, however, that any such consolidated financial statement shall contain a note indicating that its separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity;

(xii) has maintained and will maintain its books, records, resolutions and agreements as official records,

(xiii) has not commingled, and will not commingle, its funds or other assets with those of any other Person, other than as provided in this Agreement, and has not participated and will not participate in any cash management system with any other Person;

(xiv) has held and will hold its assets in its own name, and has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person,

(xv) has conducted and will conduct its business in its name, except for services rendered under a business management services agreement with an affiliate that complies with the terms set forth in clause (xxviii) below, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of such Single-Purpose Entity

(xvi) has filed and will file its own tax returns (to the extent required to file any tax returns) and has not filed and will not file a consolidated federal income tax return with any other Person;

(xvii) has been, is and intends to remain solvent, and has paid and will pay its own debts and liabilities out of its own funds and assets (to the extent of such funds and assets) as the same shall become due, and will give prompt written notice to Lender of the insolvency or bankruptcy filing of Borrower or any general partner, managing member or controlling shareholder of Borrower, or the insolvency or bankruptcy filing of any Guarantor;

(xviii) has done and will do or cause to be done, all things necessary to observe all partnership, corporate or limited liability company formalities (as applicable) and preserve its existence and good standing, and, without the prior written consent of Lender, will not, amend, modify or otherwise change any of the single purpose, separateness or bankruptcy remote provisions or requirements of the partnership certificate, partnership agreement, articles of incorporation and bylaws, articles of organization or operating agreement, trust or other organizational documents (except as required by law),

(xix) has maintained and will maintain an arms-length relationship with its Affiliates,

 

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(xx) With respect to Mortgage Borrower, will have no indebtedness other than the indebtedness pursuant to the Mortgage Loan Agreement and unsecured trade payables in the ordinary course of business in amounts that are normal and reasonable under the circumstances relating to the ownership and operation of the Property which (1) do not exceed, at any time, a maximum amount of two percent (2%) of the Loan Amount (as defined in the Mortgage Loan Agreement) and, (2) are not evidenced by a note and (3) are paid within 30 days of the date incurred, or (B) with respect to Borrower, will have no indebtedness other than the Loan and unsecured trade payables in the ordinary course of business relating to the ownership of the direct or indirect Equity Interests in MortgageProperty Borrower which (1) do not exceed, at any time, $50,000 and (2) are paid within 60 days of the date incurred (the foregoing clause (B), “Permitted Trade Payables”),

(xxi) has not assumed and will not assume, guarantee, become obligated for or hold out its credit as being available to satisfy the debts or obligations of any other Person, or the decisions or actions respecting the daily business or affairs of any other Person,

(xxii) has not and will not acquire obligations or securities of its partners, members or shareholders or any other Person,

(xxiii) has allocated and will allocate fairly and reasonably shared expenses, including shared office space, and has maintained and utilized and will maintain and utilize separate stationery, invoices and checks bearing its own name,

(xxiv) except as permitted under the Loan Documents, has not pledged and will not pledge its assets for the benefit of any other Person,

(xxv) has held and will hold itself out to the public as a legal entity separate and distinct from any other Person and under its own name,

(xxvi) has not made and will not make loans or advances to any Person,

(xxvii) has not identified and will not identify its partners, members, shareholders or Affiliates, or any Affiliate of any of them, as a division or part of it, and has not identified itself, and shall not identify itself, as a division of any other Person

(xxviii) except as permitted under the Loan Documents, has not entered and will not enter into any contract or agreement with its partners, members, shareholders or its affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arms-length transaction with an unrelated third party and which are fully disclosed to and approved by Lender in writing in advance,

(xxix) has paid and will pay its own liabilities and expenses, including the salaries of its own employees (if any), out of its own funds and assets, and has maintained and will maintain a sufficient number of employees (if any) in light of its contemplated business operations;

 

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(xxx) intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations,

(xxxi) [Intentionally Deleted],

(xxxii) [Intentionally Deleted],

(xxxiii) [Intentionally Deleted];

(xxxiv) [Intentionally Deleted],

(xxxv) [Intentionally Deleted],

(xxxvi) has not permitted and will not permit any Affiliate independent access to its bank accounts,

(xxxvii) has not and will not have any obligation to indemnify its partners, officers, directors, managers or members, as the case may be, unless such an obligation was and is fully subordinated to the Indebtedness and, to the fullest extent permitted by law, will not constitute a claim against such entity in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such indemnity obligation,

(xxxviii) has not held and will not hold debt or evidence of debt issued by any other Person, other than cash and investment-grade securities issued by an entity that is not affiliated with it and held in the ordinary course of its business activities conducted in accordance with the SPE Covenants,

(xxxix) to the fullest extent permitted by law, including Section 18-1101(c) of the Delaware Limited Liability Company Act, has considered and will consider the interests of its creditors in connection with all of limited liability company actions; and

(xl) has caused and will cause its agents and other representatives to act at all times with respect to such entity consistently and in furtherance of the foregoing and in the best interests of such entity.

 

 

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