EXHIBIT 10.22
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of December 22, 1994, by and among STORAGE EQUITIES, INC.,
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a California corporation (the "Borrower"), WELLS FARGO BANK, NATIONAL
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ASSOCIATION, a national banking association, as agent for the financial
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institutions party hereto (in such capacity, the "Agent"), and THE
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FINANCIAL INSTITUTIONS PARTY TO THIS AMENDMENT (collectively, the "Banks";
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individually, a "Bank").
RECITALS:
A. The Borrower is currently indebted to the Banks pursuant to
the terms and conditions of that certain Credit Agreement dated as of
September 2, 1994, by and among the Borrower, the Agent and the Banks (as
from time to time amended, modified or supplemented, the "Credit
Agreement").
B. The Borrower, the Agent and the Banks have agreed to certain
changes in the terms and conditions set forth in the Credit Agreement, on
the terms set forth in a letter agreement regarding amendment and a fee
letter, each dated December 15, 1994 (collectively, the "Agent's Amendment
Letter") from the Agent to the Borrower, and have agreed to amend the
Credit Agreement to reflect said changes.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS. THE CREDIT AGREEMENT IS HEREBY AMENDED AS
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FOLLOWS:
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1.1 THE DEFINITION OF THE TERM "AFFILIATE ACQUISITION LOAN LIMIT" IN
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ARTICLE 1 SHALL BE DELETED IN ITS ENTIRETY, AND THE FOLLOWING SUBSTITUTED
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THEREFOR:
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"Affiliate Acquisition Loan Limit" means, as of the date of
determination, the lesser of (a) seventy million Dollars
($70,000,000), or (b) the Total Commitment Amount as of such date,
minus the sum of (i) the aggregate principal amount of all Permitted
Acquisition Loans outstanding as of such date, plus (ii) ten million
Dollars ($10,000,000).
1.2 THE DEFINITION OF THE TERM "COMMITMENT PERCENTAGE" IN ARTICLE 1 IS
HEREBY DELETED IN ITS ENTIRETY AND THE FOLLOWING SUBSTITUTED THEREFOR:
"Commitment Percentage" means as to any Bank the percentage set
forth after such Bank's signature at the end of this Agreement (or, if
any amendment to this Agreement sets forth different Commitment
Percentages, then the Commitment Percentage for such Bank set forth in
the latest dated of such amendments), plus the aggregate of any
Commitment Percentages thereafter acquired by such Bank as the
Assignee pursuant to any Assignment and Acceptance to which such Bank
is a party, less the aggregate of any Commitment Percentages assigned
by such Bank pursuant to any Assignment and Acceptance to which such
Bank is a party, and, as to any new Bank, the aggregate of any
Commitment Percentages acquired by such new Bank as the Assignee
pursuant to any Assignment and Acceptance to which such new Bank is a
party, less the aggregate of any Commitment Percentages assigned by
such new Bank as the Assignor pursuant to any Assignment and
Acceptance to which such new Bank is a party.
1.3 THE DEFINITION OF THE TERM "TOTAL COMMITMENT AMOUNT" IN ARTICLE 1
SHALL BE DELETED IN ITS ENTIRETY AND THE FOLLOWING SUBSTITUTED THEREFOR:
"Total Commitment Amount" means, subject to Paragraph 2.1(b)
hereof, the following amounts during the following respective periods:
from the date hereof through and including September 1, 1997, one
hundred fifteen million Dollars ($115,000,000); from September 2, 1997
through and including September 1, 1998, twenty million Dollars
($20,000,000); and from September 2, 1998 through and including
September 1, 1999, ten million Dollars ($10,000,000).
1.4 THE FOLLOWING SHALL BE ADDED TO THE CREDIT AGREEMENT IMMEDIATELY
AFTER THE DEFINITION OF THE TERM "SWING LINE LOAN REFUND" IN ARTICLE 1:
"Swing Line Maximum Amount" shall mean, at any time, the lesser
of (a) forty million Dollars ($40,000,000) or (b) Wells Fargo's
Commitment Amount then in effect.
1.5 SECTION 2.1(B) SHALL BE AMENDED BY DELETING FROM THE FOURTH SENTENCE
AND THE SIXTH SENTENCE THEREOF THE PHRASE "FORTY-FIVE MILLION DOLLARS", AND
SUBSTITUTING FOR SAID PHRASE IN EACH SUCH SENTENCE THE PHRASE "EIGHTY-FIVE
MILLION DOLLARS".
1.6 SECTION 2.4(B) SHALL BE AMENDED TO DELETE THE PHRASE "WELLS FARGO'S
COMMITMENT AMOUNT THEN IN EFFECT" FROM CLAUSE (II) OF THE FIRST SENTENCE OF
SUCH SECTION, AND TO SUBSTITUTE THE FOLLOWING THEREFOR: "THE SWING LINE
MAXIMUM AMOUNT."
SECTION 2. PROCEDURE FOR COMMITMENT INCREASE AND DISTRIBUTION.
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2.1 INCREASE IN COMMITMENT; NEW NOTE. THE FOREGOING AMENDMENTS REFLECT
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AN INCREASE OF FORTY MILLION DOLLARS ($40,000,000) (THE "INCREASE AMOUNT")
IN WELLS FARGO'S COMMITMENT AMOUNT, WHICH INCREASE SHALL BE SUBJECT TO
DISTRIBUTION IN ACCORDANCE WITH SECTION 2.2 OF THIS AMENDMENT. ON OR PRIOR
TO THE AMENDMENT EFFECTIVE DATE, THE BORROWER SHALL EXECUTE AND DELIVER TO
THE AGENT A PROMISSORY NOTE IN FAVOR OF WELLS FARGO IN THE FORM OF EXHIBIT A
ATTACHED HERETO (THE "NEW WELLS FARGO NOTE") EVIDENCING THE BORROWER'S
OBLIGATION TO REPAY ALL LOANS MADE BY WELLS FARGO (THE NEW WELLS FARGO NOTE
BEING GIVEN IN SUBSTITUTION FOR THE NOTE DELIVERED TO WELLS FARGO ON OR
ABOUT THE INITIAL CLOSING DATE).
2.2 DISTRIBUTION OF COMMITMENT INCREASE. WELLS FARGO SHALL HAVE THE
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RIGHT TO ASSIGN AND DELEGATE TO ONE OR MORE OF THE OTHER BANKS AN AGGREGATE
OF UP TO THIRTY MILLION DOLLARS ($30,000,000) OF THE INCREASE AMOUNT OF THE
LOANS OR THE COMMITMENTS (THE "REDISTRIBUTION"), IN SUCH RESPECTIVE AMOUNTS
AS THE AGENT, THE BORROWER AND THE BANKS MAY AGREE, REPRESENTING THE
PRINCIPAL AMOUNT OF THE LOANS ASSIGNED PLUS THE AMOUNT OF THE COMMITMENT
PERCENTAGE SO ASSIGNED MULTIPLIED BY THE TOTAL COMMITMENT AMOUNT (AS
INCREASED IN ACCORDANCE WITH THIS AMENDMENT). UPON THE AGREEMENT OF THE
AGENT, THE BORROWER AND THE BANKS AS TO THE ALLOCATION OF THE REDISTRIBUTION
AMONG THE BANKS, THE REDISTRIBUTION SHALL BE AFFECTED BY A FURTHER AMENDMENT
TO THE CREDIT AGREEMENT REFLECTING THE MODIFIED COMMITMENT PERCENTAGES (THE
"REDISTRIBUTION AMENDMENT") AND BY SUBSTITUTION OF NEW NOTES EXECUTED BY THE
BORROWER IN FAVOR OF THE RESPECTIVE BANKS IN AMOUNTS REFLECTING THE MODIFIED
COMMITMENT PERCENTAGES. THE FOREGOING SHALL NOT LIMIT THE RIGHTS OF ANY
BANK UNDER SECTION 10.1.
2.3 COSTS, EXPENSES AND ATTORNEYS' FEES. THE BORROWER SHALL REIMBURSE THE
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AGENT FOR ALL COSTS AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE
ATTORNEYS' FEES AND EXPENSES (INCLUDING THE ALLOCATED COST OF THE AGENT'S
INTERNAL COUNSEL), EXPENDED OR INCURRED BY THE AGENT IN CONNECTION WITH THE
PREPARATION, NEGOTIATION AND EXECUTION OF THIS AMENDMENT AND ANY
REDISTRIBUTION AMENDMENT. THIS OBLIGATION ON THE PART OF THE BORROWER SHALL
SURVIVE THE EXPIRATION OR TERMINATION OF THIS AMENDMENT, WITH OR WITHOUT
OCCURRENCE OF THE AMENDMENT EFFECTIVE DATE. THE FOREGOING SHALL NOT LIMIT
THE RIGHTS OF THE AGENT OR THE BANKS PURSUANT TO SECTION 10.6.
2.4 AMENDMENT EFFECTIVE DATE. THE TERM "AMENDMENT EFFECTIVE DATE", AS
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USED HEREIN, SHALL MEAN THE DATE ON WHICH ALL OF THE CONDITIONS SET FORTH IN
SECTION 3 OF THIS AMENDMENT SHALL HAVE BEEN SATISFIED OR WAIVED BY THE AGENT
AND THE BANKS.
Section 3. CONDITIONS PRECEDENT.
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3.1 CONDITIONS. THE EFFECTIVENESS OF THIS AMENDMENT SHALL BE SUBJECT TO
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THE PRIOR OR CONTEMPORANEOUS SATISFACTION OF EACH OF THE FOLLOWING
CONDITIONS PRECEDENT (AND, IF ANY SUCH CONDITION PRECEDENT SHALL NOT HAVE
BEEN SATISFIED OR WAIVED IN WRITING BY THE AGENT AND THE BANKS BY DECEMBER
30, 1994, THEN THIS AMENDMENT SHALL BE OF NO FORCE OR EFFECT):
a. DELIVERY OF DOCUMENTS. THIS AMENDMENT SHALL HAVE BEEN EXECUTED AND
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DELIVERED BY EACH OF THE PARTIES HERETO AND THE BORROWER SHALL HAVE
EXECUTED AND DELIVERED TO THE AGENT THE NEW WELLS FARGO NOTE;
b. REPORTS, CERTIFICATES AND OTHER INFORMATION. THE AGENT SHALL HAVE
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RECEIVED THE FOLLOWING, DATED AND IN FULL FORCE AND EFFECT ON THE
AMENDMENT EFFECTIVE DATE, AND IN FORM AND SUBSTANCE SATISFACTORY TO THE
AGENT:
(i) a certificate of the Secretary or an Assistant Secretary of the Borrower
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as to (A) its corporate charter and by-laws, (B) the Joint Venture Agreement
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of each of the Joint Ventures and the Partnership Agreement and certificate
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of limited partnership of each of the PS Partnerships, (C) authorization of
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the execution, delivery and performance of this Amendment and the New Wells
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Fargo Note by the Borrower (including action of shareholders, where
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required), and (D) the incumbency and signatures of persons authorized to
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act hereunder and thereunder on behalf of the Borrower;
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(ii) a certificate, signed by a Responsible Officer of the Borrower, stating
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(A) that the representations and warranties contained in Section 4 hereof,
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in Article 5 of the Credit Agreement and in the Pledge Agreement are then
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true and accurate as though made on and as of such date, and (B) that there
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then exists no Event of Default or Incipient Default; and
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(iii) a good standing certificate for the Borrower from the Secretary of
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State of the State of California, bearing a date satisfactory to the Agent;
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c. OPINION OF COUNSEL. THERE SHALL HAVE BEEN DELIVERED TO THE AGENT A
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WRITTEN OPINION DATED AS OF THE AMENDMENT EFFECTIVE DATE BY DAVID
GOLDBERG, AS COUNSEL TO THE BORROWER, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE AGENT;
d. PAYMENT OF FEES. THE AGENT SHALL HAVE RECEIVED PAYMENT OF (I) ALL
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FEES REQUIRED IN THE AGENT'S AMENDMENT LETTER TO BE PAID ON OR PRIOR TO THE
AMENDMENT EFFECTIVE DATE AND (II) ANY OTHER FEE OR OTHER PAYMENT DUE THE
AGENT OR THE BANKS UNDER ANY OF THE LOAN DOCUMENTS ON OR BEFORE THE
AMENDMENT EFFECTIVE DATE;
e. NO EXISTING DEFAULT. NO EVENT OF DEFAULT OR INCIPIENT DEFAULT
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SHALL EXIST ON THE AMENDMENT EFFECTIVE DATE OR AFTER GIVING EFFECT TO THE
TRANSACTIONS CONTEMPLATED TO TAKE PLACE HEREUNDER ON SUCH DATE;
f. REPRESENTATIONS AND WARRANTIES CORRECT. THE REPRESENTATIONS AND
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WARRANTIES SET FORTH IN ARTICLE 5 OF THE CREDIT AGREEMENT, IN SECTION 4
HEREOF AND IN THE PLEDGE AGREEMENT SHALL BE TRUE AND CORRECT ON THE
AMENDMENT EFFECTIVE DATE, AND AFTER GIVING EFFECT TO THE TRANSACTIONS
CONTEMPLATED TO OCCUR ON SUCH DATE;
g. LEGALITY OF TRANSACTIONS. IT SHALL NOT BE UNLAWFUL FOR THE
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BORROWER, THE AGENT OR THE BANKS TO CARRY OUT THEIR RESPECTIVE OBLIGATIONS
UNDER THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT;
h. SOLVENCY. THE AGENT SHALL HAVE RECEIVED A CERTIFICATE OF THE CHIEF
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FINANCIAL OFFICER OF THE BORROWER IN FORM AND SUBSTANCE SATISFACTORY TO THE
AGENT THAT THE BORROWER IS SOLVENT ON AND AS OF THE AMENDMENT EFFECTIVE
DATE;
i. NO MATERIAL ADVERSE CHANGE. NO MATERIAL ADVERSE CHANGE SHALL HAVE
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OCCURRED SINCE SEPTEMBER 30, 1994.
3.2 CONDITIONS FOR THE BENEFIT OF THE AGENT AND THE BANKS. THE
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CONDITIONS SET FORTH IN SECTION 3.1 HEREOF ARE FOR THE EXCLUSIVE BENEFIT OF
THE BANKS AND THE AGENT AND MAY BE WAIVED ONLY BY A WRITTEN WAIVER SIGNED BY
ALL THE BANKS OR THE AGENT, AS APPLICABLE (BUT THE AGENT SHALL NOT, WITHOUT
THE APPROVAL OF MAJORITY BANKS, WAIVE ANY SUCH CONDITION WHICH IS FOR THE
BENEFIT OF THE BANKS).
3.3 FAILURE OF CONDITIONS. THE BORROWER SHALL TAKE ANY AND ALL ACTIONS
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NECESSARY OR APPROPRIATE ON ITS PART, AND SHALL USE ITS BEST EFFORTS TO
CAUSE OTHERS TO TAKE NECESSARY OR APPROPRIATE ACTION ON THEIR PART, IN ORDER
TO SATISFY THE CONDITIONS SET FORTH IN SECTION 3.1 HEREOF AND OTHERWISE
CAUSE THE AMENDMENT EFFECTIVE DATE TO OCCUR NOT LATER THAN DECEMBER 30,
1994. THIS AMENDMENT (EXCLUSIVE OF OBLIGATIONS OF THE BORROWER STATED
HEREIN TO SURVIVE TERMINATION HEREOF) SHALL TERMINATE IF THE INITIAL CLOSING
DATE DOES NOT OCCUR ON OR BEFORE DECEMBER 30, 1994. IN SUCH EVENT, THE
BORROWER SHALL PAY TO AGENT ON DEMAND SUCH AMOUNTS AS MAY BE DUE UNDER THE
AGENT'S AMENDMENT LETTER. THE OBLIGATION OF THE BORROWER TO MAKE SUCH
PAYMENT SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. IN ORDER TO
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INDUCE THE AGENT AND THE BANKS TO ENTER INTO OR BECOME PARTIES TO THIS
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AMENDMENT AND TO EXTEND THE LOANS, THE BORROWER MAKES THE FOLLOWING
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REPRESENTATIONS AND WARRANTIES TO THE AGENT AND THE BANKS:
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4.1 CREDIT AGREEMENT REPRESENTATIONS. THE REPRESENTATIONS AND
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WARRANTIES OF THE BORROWER SET FORTH IN ARTICLE 5 OF THE CREDIT AGREEMENT
AND IN THE PLEDGE AGREEMENT ARE TRUE AND ACCURATE AS OF THE DATE HEREOF.
4.2 REQUISITE POWER. THE BORROWER HAS ALL REQUISITE POWER TO BORROW
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THE SUMS PROVIDED FOR IN THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT,
AND TO EXECUTE, DELIVER, ISSUE AND PERFORM THIS AMENDMENT, THE CREDIT
AGREEMENT AS AMENDED BY THIS AMENDMENT, THE NEW WELLS FARGO NOTE AND THE
OTHER LOAN DOCUMENTS.
4.3 AUTHORIZATION. ALL CORPORATE ACTION ON THE PART OF THE BORROWER
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AND ITS DIRECTORS AND STOCKHOLDERS NECESSARY FOR THE AUTHORIZATION,
EXECUTION AND DELIVERY AND PERFORMANCE OF THIS AMENDMENT AND THE NEW WELLS
FARGO NOTE HAS BEEN DULY TAKEN AND IS IN FULL FORCE AND EFFECT.
4.4 OFFICER AUTHORIZATION. EACH NATURAL PERSON EXECUTING THIS
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AMENDMENT OR THE NEW WELLS FARGO NOTE ON BEHALF OF THE BORROWER IS (AS OF
THE DATE OF SUCH EXECUTION) DULY AND PROPERLY IN OFFICE AND FULLY AUTHORIZED
TO EXECUTE AND DELIVER THE SAME.
4.5 BINDING NATURE. EACH OF THIS AMENDMENT, THE CREDIT AGREEMENT AS
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AMENDED BY THIS AMENDMENT AND THE NEW WELLS FARGO NOTE IS, OR UPON THE
EXECUTION AND DELIVERY THEREOF WILL BE, A LEGAL, VALID AND BINDING
OBLIGATION OF THE BORROWER, IN FULL FORCE AND EFFECT AND ENFORCEABLE IN
ACCORDANCE WITH ITS RESPECTIVE TERMS, EXCEPT FOR THE EFFECT OF APPLICABLE
LAWS REGARDING BANKRUPTCY OR INSOLVENCY AND THE EFFECT OF EQUITABLE
PRINCIPLES GENERALLY.
4.6 NO CONFLICT. NEITHER THE EXECUTION NOR DELIVERY OF THIS AMENDMENT,
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THE NEW WELLS FARGO NOTE OR ANY OF THE OTHER LOAN DOCUMENTS NOR PERFORMANCE
OF NOR COMPLIANCE WITH THE TERMS AND PROVISIONS HEREOF OR THEREOF WILL (A)
CONFLICT WITH OR RESULT IN A BREACH OF ANY GOVERNMENTAL REQUIREMENT, OR OF
ANY OTHER AGREEMENT OR INSTRUMENT BINDING UPON THE BORROWER, ANY OF ITS
SUBSIDIARIES OR ANY OF THE CONTROLLED PARTNERSHIPS, OR CONFLICT WITH OR
RESULT IN A BREACH OF ANY PROVISION OF THE CORPORATE CHARTER OR BY-LAWS OF
THE BORROWER OR ANY OF ITS SUBSIDIARIES OR THE PARTNERSHIP AGREEMENT OF ANY
OF THE CONTROLLED PARTNERSHIPS, EXCEPT ANY SUCH CONFLICT OR BREACH AS WOULD
NOT, INDIVIDUALLY OR IN THE AGGREGATE, RESULT IN A MATERIAL ADVERSE EFFECT,
OR (B) RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN UPON ANY PROPERTY OF
THE BORROWER, ANY OF ITS SUBSIDIARIES OR ANY OF THE CONTROLLED PARTNERSHIPS
PURSUANT TO ANY SUCH AGREEMENT OR INSTRUMENT (OTHER THAN PURSUANT TO THE
PLEDGE AGREEMENT). NO AUTHORIZATION, CONSENT OR APPROVAL OR OTHER ACTION BY,
AND NO NOTICE TO OR FILING WITH, ANY GOVERNMENTAL AUTHORITY IS REQUIRED TO
BE OBTAINED OR MADE BY THE BORROWER, ANY OF ITS SUBSIDIARIES OR ANY OF THE
CONTROLLED PARTNERSHIPS, OTHER THAN THOSE WHICH WILL BE OBTAINED OR MADE
PRIOR TO THE AMENDMENT EFFECTIVE DATE, FOR THE DUE EXECUTION, DELIVERY AND
PERFORMANCE BY THE BORROWER OF THIS AMENDMENT OR THE NEW WELLS FARGO NOTE OR
FOR THE VALIDITY OR ENFORCEABILITY THEREOF.
Section 5. MISCELLANEOUS.
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5.1 ENTIRE AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE EXHIBITS TO
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THIS AMENDMENT AND THE DISTRIBUTION LETTER AGREEMENT (AS DEFINED BELOW), IS
INTENDED BY THE BORROWER, THE AGENT AND THE BANKS AS A FINAL EXPRESSION OF
THEIR AGREEMENT WITH RESPECT TO THE SUBJECT MATTER OF THIS AMENDMENT AND,
TOGETHER WITH THE NEW WELLS FARGO NOTE, IS INTENDED AS A COMPLETE STATEMENT
OF THE TERMS AND CONDITIONS OF SUCH AGREEMENT. THIS AMENDMENT, TOGETHER WITH
THE DISTRIBUTION LETTER AGREEMENT, CONTAINS ALL OF THE AGREEMENTS AND
UNDERSTANDINGS BETWEEN OR AMONG THE BORROWER, THE AGENT AND THE BANKS
CONCERNING THE TRANSACTIONS CONTEMPLATED HEREBY. "DISTRIBUTION LETTER
AGREEMENT" MEANS A LETTER AGREEMENT BETWEEN WELLS FARGO AND THE BORROWER OF
EVEN DATE HEREWITH RESPECTING CERTAIN REDISTRIBUTION RIGHTS OF WELLS FARGO
IN THE EVENT THE CONTEMPLATED REDISTRIBUTION IS NOT COMPLETED. THIS
AMENDMENT COMPLETELY SUPERSEDES THE AGENT'S AMENDMENT LETTER.
5.2 GOVERNING LAW. THE VALIDITY, CONSTRUCTION AND EFFECT OF THIS
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AMENDMENT AND THE NEW WELLS FARGO NOTE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO ITS LAWS REGARDING CHOICE OF
APPLICABLE LAW, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL AND
FEDERALLY INSURED BANKS.
5.3 DEFINITIONS; HEADINGS; SECTION REFERENCES. ALL CAPITALIZED TERMS
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USED HEREIN AND NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS SET
FORTH IN THE CREDIT AGREEMENT. CAPTIONS, HEADINGS AND THE TABLE OF CONTENTS
IN THIS AGREEMENT ARE FOR CONVENIENCE ONLY, AND ARE NOT TO BE DEEMED PART OF
THIS AGREEMENT. EXCEPT AS OTHERWISE PROVIDED HEREIN, REFERENCES IN THIS
AMENDMENT TO ARTICLES, SECTIONS AND PARAGRAPHS REFER TO THE ARTICLES,
SECTIONS AND PARAGRAPHS OF THE CREDIT AGREEMENT.
5.4 COUNTERPARTS. THIS AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF
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COUNTERPARTS EACH OF WHICH SHALL BE AN ORIGINAL WITH THE SAME EFFECT AS IF
THE SIGNATURES THERETO AND HERETO WERE UPON THE SAME INSTRUMENT.
5.5 REAFFIRMATION OF CREDIT AGREEMENT. THE PARTIES HERETO EACH
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ACKNOWLEDGE AND AGREE THAT THE CREDIT AGREEMENT, AS AMENDED HEREBY, REMAINS
IN FULL FORCE AND EFFECT. THE PARTIES HERETO EACH HEREBY REAFFIRM THEIR
RESPECTIVE COVENANTS SET FORTH IN THE CREDIT AGREEMENT, AS AMENDED HEREBY.
IN WITNESS WHEREOF, the parties hereto have each executed this
Amendment by its duly authorized officers as of the date and year first
above written.
STORAGE EQUITIES, INC.
By /s/ Ronald L. Havner, Jr.
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Ronald L. Havner, Jr.
Chief Financial Officer
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
as Agent
By /s/ Debbie Dillard-Bell
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Debbie Dillard-Bell
Vice President
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
as a Bank
By /s/ Debbie Dillard-Bell
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Debbie Dillard-Bell
Vice President
Commitment Percentage: 60.86956522%
FIRST INTERSTATE BANK
OF CALIFORNIA
By /s/ Gregory P. Brown
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Gregory P. Brown
Title Vice President
Commitment Percentage: 14.21739130%
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Michael T. Corbett
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Michael T. Corbett
Vice President
Commitment Percentage: 10.69565217%
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ James D. Benko
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James D. Benko
Corporate Banking Officer
Commitment Percentage: 14.21739130%
PROMISSORY NOTE
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$70,000,000 Glendale, California
December 22, 1994
The undersigned, for value received, promises to pay to the order of Wells
Fargo Bank, National Association ("Payee"), at its Regional Commercial Banking
Office, 9000 Flair Drive, 1st Floor, El Monte, CA 91731, the principal sum of
Seventy Million Dollars ($70,000,000) representing Payee's Commitment Amount as
a Bank under that certain Credit Agreement dated as of September 2, 1994 by and
among the undersigned, Wells Fargo Bank, National Association, as agent, and the
financial institutions party thereto (as from time to time amended, modified or
supplemented, being herein referred to as the "Credit Agreement") payable in
installments and at Maturity in the amounts, on the dates and pursuant to the
terms set forth in the Credit Agreement.
The unpaid principal balance hereof from time to time outstanding shall
bear interest from the date of disbursement until such amount shall become due
and payable, whether upon Maturity, by Acceleration or otherwise, (i) in the
case of each Base Rate Loan, at a fluctuating rate per annum equal to the Base
Rate, as from time to time in effect, plus the Applicable Margin in effect from
time to time, and (ii) in the case of each LIBOR Loan, at a rate per annum equal
to the LIBOR Rate for the applicable Interest Period plus the Applicable Margin
in effect from time to time. While any Event of Default exists or after
Acceleration, the unpaid principal amount hereof shall, to the extent permitted
by applicable law, bear interest at a rate equal to the applicable rate provided
above plus two percent (2%) per annum. Interest on the Base Rate Loans shall be
payable in arrears on the last Banking Day of each calendar quarter, commencing
with the quarter ending September 30, 1994, on any date that such Base Rate Loan
is converted to a LIBOR Loan, on the date of any prepayment as to the amount of
such prepayment, and on the Termination Date. Interest on each LIBOR Loan shall
be payable in arrears on the last day of the applicable Interest Period
(provided, however, that interest on each LIBOR Loan with an Interest Period of
six (6) months shall be paid three (3) months after commencement of such
Interest Period), on any date when such LIBOR Loan is prepaid as to the amount
of such prepayment, and on the Termination Date. Interest shall be computed for
the actual number of days elapsed on the basis of a year consisting of 360 days.
Payments of both principal and interest are to be made in immediately
available funds in lawful money of the United States of America.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of the Credit Agreement, to which Credit Agreement
reference is hereby made for a statement of said terms and provisions, including
those under which this Note may be paid prior to its due date or under which its
due date may be accelerated, and for a description of the security for this
Note. Capitalized terms used herein and not otherwise defined shall have the
meaning given in the Credit Agreement.
This Notes is delivered to Payee in substitution for the Promissory Note
dated September 2, 1994 in the principal amount of Thirty Million Dollars from
the undersigned to the order of Payee. Such substitution is pursuant to the
First Amendment to Credit Agreement dated as of December 22, 1994 by and among
the undersigned, Wells Fargo Bank, National Association, as agent, and the
financial institutions party thereto.
This Note is made under and governed by the internal laws of the State of
California.
Storage Equities, Inc.
By: /s/ Ronald L. Havner, Jr.
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Ronald L. Havner, Jr.
Chief Financial Officer*
*Authorized Representative.
Address:
600 N. Brand Boulevard
Suite 300
Glendale, CA 91203-5050