This Guaranty Agreement (the “Agreement”) is made
this 16th day of March, 2009, by Strategic Storage Trust,
Inc. , a Maryland corporation (“Guarantor”), in
favor of BB&T Real Estate Funding LLC , a North Carolina
limited liability company (“Lender”).
Lender has made a loan (the “Loan”) to SSTI 15
McClure Dr, LLC, a Delaware limited liability company
(“McClure”), and by SSTI 1742 Pass Rd, LLC, a
Delaware limited liability company (“Pass”), jointly
and severally (McClure and Pass being hereinafter referred to
jointly and severally as the “Borrower”), which is
evidenced by that certain Consolidated, Amended and Restated
Promissory Note (the “Note”) in the original principal
amount of Four Million Nine Hundred Seventy-Five Thousand and No/1
00 Dollars ($4,975,000.00) executed by Borrower in favor of Lender
of even date herewith, and secured by, among other things, that
certain Consolidated, Amended and Restated Mortgage, Assignment of
Rents and Leases and Security Agreement executed by McClure and
that certain Deed of Trust, Assignment of Rents and Leases and
Security Agreement executed by Pass (collectively the "Security
Instrument"), in favor of Lender of even date herewith. As an
inducement to Lender to make the Loan, Guarantor agreed to
guarantee the Obligations (hereinafter defined) of Borrower and to
execute and deliver this Agreement.
Now, therefore, in consideration of the Loan and of each
extension or renewal of such Loan, if any, and the economic benefit
to be derived by Guarantor from the making of such Loan by Lender
to Borrower, and to enable such Loan to be obtained by Borrower,
the receipt, adequacy and sufficiency of which consideration is
hereby acknowledged by Guarantor, Guarantor hereby agrees as
follows:
1. Guarantor does hereby unconditionally guarantee, on a joint
and several basis with Borrower and any other guarantors of the
Loan, the payment to Lender promptly when due of all Obligations
(as hereinafter defined). As used in this Agreement, the term
“Obligations” means:
(a) The full, complete and punctual payment of all amounts of
principal, interest (including at the Default Rate, as defined in
the Note, if applicable), the Exit Fee (as defined in the Note) and
all other amounts payable pursuant to the Loan Documents in the
event of the occurrence of any of the following: (i) Borrower
acquires any material assets in violation of the terms of the Loan
Documents, (ii) Borrower fails to obtain Lender’s prior
written consent to any subordinate financing or other voluntary
lien encumbering the Property, (iii) Borrower fails to obtain
Lender’s prior written consent to any assignment, transfer or
conveyance of the Property or any interest therein as required by
the Security Instrument, (iv) Borrower files a voluntary petition
pursuant to federal bankruptcy law, or any similar federal or state
bankruptcy or insolvency law (“Bankruptcy Law”), (v)
Borrower directly or indirectly solicits creditors for any
involuntary petition against Borrower pursuant to a Bankruptcy Law,
(vi) Borrower files an answer consenting to or otherwise
acquiescing in or joining in any involuntary petition filed against
it under a Bankruptcy Law, (vii) Borrower consents to or acquiesces
in or joins in an application for the appointment of a custodian,
receiver, trustee or examiner for Borrower or any portion of the
Property, (viii) Borrower makes an assignment for the benefit of
creditors, or admits, in writing or in any legal proceeding, its
insolvency or inability to pay its debts as they become due, or
(ix) Borrower or Guarantor engage in any action to interfere with
Lender’s enforcement and collection efforts pursuant to its
rights and remedies under the Note, this Agreement or any of the
other Loan Documents following an Event of Default (other than good
faith assertion of defenses and counterclaims); and (b) any and all
claims, damages, liability and expenses, including reasonable
attorneys’ fees, incurred by Lender resulting from or arising
out of: (A) the failure of Borrower or their affiliates to pay to
Lender upon demand, after an Event of Default, all security
deposits collected by Borrower, Guarantor or their respective
affiliates from tenants then in residence, (B) the failure of
Borrower, Guarantor or their affiliates to
pay to Lender upon demand, after an Event of Default, all rents
received by Borrower, Guarantor or their respective affiliates
after such Event of Default, (C) Lender’s enforcement of the
provisions of that certain Environmental Indemnity Agreement
executed by Borrower of even date herewith, (D) intentional waste
or arson by Borrower, Guarantor or their affiliates relating to the
Property, (E) the acquisition and use by Borrower, Guarantor or
their affiliates of any insurance or condemnation proceeds relating
to the Property in violation of the terms and conditions of the
Security Instrument or the other Loan Documents, (F) fraudulent
conduct or material misrepresentation by Borrower, Guarantor or
their affiliates, (G) the enforcement or application with respect
to the Property of the Americans with Disabilities Act of 1990,
(IT) the failure to apply rents and other income from the Property,
first, to the payment of reasonable operating expenses and then to
debt service amounts, including escrow and reserve deposits, due
under the Loan Documents, however Guarantor will not be personally
liable with respect to rents and other income that are distributed
in any calendar quarter if Borrower has paid all such operating
expenses and debt service amounts for such calendar quarter, (I)
the removal, demolition or material alteration of the Improvements
or any Personal Property in violation of the terms of the Loan
Documents, and (J) any and all costs of collection or enforcement,
including reasonable attorneys’ fees, incurred by Lender in
connection with the obligations in this Section 1. In addition, and
anything contained in the Security Instrument or the other Loan
Documents to the contrary notwithstanding, 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 U.S.
Bankruptcy Code to file a claim for the full amount of the
indebtedness evidenced by the Note and the other obligations of
Borrower under the Loan Documents or to require that all collateral
shall continue to secure all of such indebtedness and
obligations.
2. Guarantor agrees that, if any of the Obligations are not paid
when due, or if the maturity thereof shall have been accelerated by
Lender, Guarantor will, upon demand by Lender, forthwith pay such
Obligations. No such payment shall discharge the liability of
Guarantor hereunder until all amounts for which Guarantor is liable
under this Agreement shall have been paid in full. Guarantor
further agrees to pay to Lender, upon demand, all costs and
expenses, including reasonable attorneys’ fees, that may be
incurred by Lender in collecting or attempting to collect from
