GUARANTEE
Exhibit
10.87
GUARANTEE,
dated as of May 31,
2006,
made by U-HAUL INTERNATIONAL, INC. and AMERCO (each, a “Guarantor”
and
collectively, the “Guarantors”),
in
favor of BTMU CAPITAL CORPORATION, as lender (the “Lender”
and
a
“Lender
Party”)
and
ORANGE
TRUCK TRUST 2006,
as
collateral agent (the “Collateral
Agent”
and
a
“Lender
Party”
and,
together with the Lender, the “Lender
Parties”),
parties to the Credit Agreement referred to below.
RECITALS
Pursuant
to the Credit Agreement, dated as of May 31, 2006 (as amended, supplemented
or
otherwise modified from time to time, the “Credit
Agreement”),
among
U-HAUL SALES & LEASING CO., U-HAUL CO. OF ARIZONA and U-HAUL INTERNATIONAL,
INC. (each, a “Borrower”
and
collectively, the “Borrowers”),
the
Guarantors, ORANGE
TRUCK TRUST
2006, as
Collateral Agent, and the Lender, the Lender has agreed to make Loans to the
Borrowers upon the terms and subject to the conditions set forth therein, such
loans to be evidenced by the Note issued by the Borrowers thereunder. The
Borrowers are members of an affiliated group of corporations that includes
the
Guarantors. The Borrowers and the Guarantors are engaged in related businesses,
and the Guarantors will derive substantial direct and indirect benefit from
the
making of the Loans. It is a condition precedent to the obligation of the Lender
to make the Loans to the Borrowers under the Credit Agreement that the
Guarantors hereto shall have executed and delivered this Guarantee to the Lender
Parties.
NOW,
THEREFORE, in consideration of the premises and to induce the Lender to enter
into the Credit Agreement and make the Loans to the Borrowers, under the Credit
Agreement, the Guarantors hereby agree with the Lender Parties as
follows:
Defined
Terms.
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The
words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Guarantee shall refer to this Guarantee as a whole and not to any particular
provision of this Guarantee, and section and paragraph references are to this
Guarantee unless otherwise specified.
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
The
Guarantors hereby, unconditionally and irrevocably, jointly and severally,
guarantee to the Lender Parties and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by
each
of the Borrowers of their obligations under the Loan Documents, whether at
stated maturity, by acceleration or otherwise.
Anything
herein or in any other Loan Document to the contrary notwithstanding, the
maximum liability of the Guarantors hereunder and under the other Loan Documents
shall in no event exceed the amount which can be guaranteed by the Guarantors
under applicable federal and state laws relating to the insolvency of
debtors.
The
Guarantors further agree to pay any and all expenses (including, without
limitation, all fees and disbursements of counsel) which may be paid or incurred
by any Lender Party in enforcing, or obtaining advice of counsel in respect
of,
any rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Guarantors
under this Guarantee. This Guarantee shall remain in full force and effect
until
the Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto the Borrowers, individually
or collectively, may be free from any Obligations.
The
Guarantors agree that the Obligations may at any time and from time to time
exceed the amount of the liability of the Guarantors hereunder without impairing
this Guarantee or affecting the rights and remedies of the Lender
hereunder.
No
payment or payments made by any Borrower, the Guarantors, any other guarantor
or
any other Person or received or collected by any Lender Party from any Borrower,
the Guarantors, any other guarantor or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any time or
from
time to time in reduction of or in payment of the Obligations shall be deemed
to
modify, reduce, release or otherwise affect the liability of the Guarantors
hereunder which shall, notwithstanding any such payment or payments other than
payments made by the Guarantors in respect of the Obligations or payments
received or collected from the Guarantors in respect of the Obligations, remain
liable for the Obligations up to the maximum liability of the Guarantors
hereunder until the Obligations are paid in full and the Commitments are
terminated.
The
Guarantors agree that whenever, at any time, or from time to time, it shall
make
any payment to any Lender Party on account of its liability hereunder, it will
notify such Lender Party in writing that such payment is made under this
Guarantee for such purpose..
Right
of Set-off.
The
Guarantors hereby irrevocably authorize each Lender Party at any time and from
time to time without notice to the Guarantors, any such notice being expressly
waived by the Guarantors, to set-off and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender Party to or for the credit
or the account of the Guarantors, or any part thereof in such amounts as such
Lender Party may elect, against and on account of the obligations and
liabilities of the Guarantors to such Lender Party hereunder and claims of
every
nature and description of such Lender Party against the Guarantors, in any
currency, whether arising hereunder, under the Credit Agreement, the Note,
any
Loan Documents or otherwise, as such Lender Party may elect, whether or not
such
Lender Party has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. Each Lender Party shall
notify the Guarantors promptly of any such set-off and the application made
by
such Lender Party, provided
that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of any Lender Party under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which each Lender Party may have.
No
Subrogation.
Notwithstanding any payment or payments made by the Guarantors hereunder or
any
set-off or application of funds of the Guarantors by any Lender Party, the
Guarantors shall not be entitled to be subrogated to any of the rights of the
Lender Party against the Borrowers or any other guarantor or any collateral
security or guarantee or right of offset held by any Lender Party for the
payment of the Obligations, nor shall the Guarantors seek or be entitled to
seek
any contribution or reimbursement from the Borrowers or any other guarantor
in
respect of payments made by the Guarantors hereunder, until all amounts owing
to
the Lender Parties by the Borrowers on account of the Obligations are paid
in
full and the Commitments are terminated. If any amount shall be paid to the
Guarantors on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by
the
Guarantors in trust for the Lender Parties, segregated from other funds of
the
Guarantors, and shall, forthwith upon receipt by the Guarantors, be turned
over
to the Lender Parties in the exact form received by the Guarantors (duly
indorsed by the Guarantors to the Lender Parties, if required), to be applied
against the Obligations, whether matured or unmatured, in such order as each
Lender Party may determine.
Amendments,
etc. with respect to the Obligations; Waiver of Rights.
The
Guarantors shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantors and without notice to or further
assent by the Guarantors, (a) any demand for payment of any of the Obligations
made by any Lender Party may be rescinded by such party and any of the
Obligations continued, (b) the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or
in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Lender Parties, (c) the Credit Agreement, the
Note and the other Loan Documents and any other documents executed and delivered
in connection therewith may be amended, modified, supplemented or terminated,
in
whole or in part, as the Lender Parties may deem advisable from time to time,
and (d) any collateral security, guarantee or right of offset at any time held
by any Lender Party for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released by such Lender Party. Neither Lender Party
shall
have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Obligations or for this Guarantee or any property
subject thereto. When making any demand hereunder against the Guarantors, any
Lender Party may, but shall be under no obligation to, make a similar demand
on
the Borrowers or any other guarantor, and any failure by such Lender Party
to
make any such demand or to collect any payments from the Borrowers or any such
other guarantor or any release of an Borrower or such other guarantor shall
not
relieve the Guarantors of their obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter
of law, of any Lender Party against the Guarantors. For the purposes hereof
“demand” shall include the commencement and continuance of any legal
proceedings.
Guarantee
Absolute and Unconditional.
The
Guarantors waive (i) any and all notice of the creation, renewal, extension
or
accrual of any of the Obligations, (ii) notice or proof of reliance by any
Lender Party upon this Guarantee and (iii) acceptance of this Guarantee by
any
Lender Party. Each of the Obligations shall conclusively be deemed to have
been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this Guarantee. All dealings between the Borrowers and the
Guarantors, on the one hand, and each Lender Party and the Borrowers, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. The Guarantors waive diligence,
presentment, protest, demand for payment and notice of default or nonpayment
to
or upon the Borrowers or the Guarantors with respect to the Obligations. The
Guarantors understand and agree that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard
to
(a) the validity, regularity or enforceability of the Credit Agreement, the
Note
or any other Loan Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by any Lender Party, (b) any defense, set-off
or
counterclaim (other than a defense of payment or performance) which may at
any
time be available to or be asserted by the Borrowers against any Lender Party,
or (c) any other circumstance whatsoever (with or without notice to or knowledge
of any Borrower or the Guarantors) which constitutes, or might be construed
to
constitute, an equitable or legal discharge of any Borrower for the Obligations,
or of the Guarantors under this Guarantee, in bankruptcy or in any other
instance. When pursuing its rights and remedies hereunder against the
Guarantors, any Lender Party may, but shall be under no obligation to, pursue
such rights and remedies as it may have against any Borrower or any other Person
or against any collateral security or guarantee for the Obligations or any
right
of offset with respect thereto, and any failure by the such Lender Party to
pursue such other rights or remedies or to collect any payments from any
Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release
of
any Borrower or any such other Person or any such collateral security, guarantee
or right of offset, shall not relieve the Guarantors of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of such Lender Party against the Guarantors.
This Guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each of the Guarantors
and
its respective successors and assigns, and shall inure to the benefit of each
Lender Party, and its respective successors, indorsees, transferees and assigns,
until all the Obligations and the obligations of the Guarantors under this
Guarantee shall have been satisfied by payment in full and the Commitments
shall
be terminated, notwithstanding that from time to time during the term of the
Credit Agreement the Borrowers, individually or collectively, may be free from
any Obligations.
Reinstatement.
This
Guarantee shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Lender Parties upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
any
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
Not
Affected by Bankruptcy.
Notwithstanding any modification, discharge or extension of the Obligations
or
any amendment, modification, stay or cure of each Lender Party’s rights which
may occur in any bankruptcy or reorganization case or proceeding against any
Borrower, whether permanent or temporary, and whether or not assented to by
each
Lender Party, each Guarantor hereby agrees that it shall be obligated hereunder
to pay and perform the Obligations and discharge its other obligations in
accordance with the terms of the Obligations and the terms of this Guarantee.
Each Guarantor understands and acknowledges that, by virtue of this Guarantee,
it has specifically assumed any and all risks of a bankruptcy or reorganization
case or proceeding with respect to any or all Borrowers. Without in any way
limiting the generality of the foregoing, any subsequent modification of the
Obligations in any reorganization case concerning any Borrower shall not affect
the obligation of the any Guarantor to pay and perform the Obligations in
accordance with the original terms thereof.
Payments.
Each
Guarantor hereby guarantees that payments hereunder will be paid to each Lender
Party without set-off or counterclaim in U.S. Dollars at the office of each
Lender Party specified in Section 12.01 of the Credit Agreement.
Notices.
All
notices, requests and demands to or upon each Lender Party or each Guarantor
to
be effective shall be in writing (or by telex, fax or similar electronic
transfer confirmed in writing) and shall be deemed to have been duly given
or
made (1) when delivered by hand or (2) if given by mail, when deposited in
the
mails by certified mail, return receipt requested, or (3) if by telex, fax
or
similar electronic transfer, when sent and receipt has been confirmed, addressed
as follows:
if
to the
Lender, at its address or transmission number for notices provided in Section
12.01 of the Credit Agreement;
if
to the
Collateral Agent, at its address or transmission number for notices provided
in
Section 12.01 of the Credit Agreement; and
if
to the
Guarantors, at their addresses or transmission number for notices set forth
under their signatures below.
The
Lender Parties and the Guarantors may change their addresses and transmission
numbers for notices by notice in the manner provided in this
Section.
Severability.
Any
provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Integration.
This
Guarantee represents the agreement of each Guarantor with respect to the subject
matter hereof and there are no promises or representations by any Lender Party
relative to the subject matter hereof not reflected herein.
Amendments
in Writing; No Waiver; Cumulative Remedies.
None
of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Guarantors
and the Lender Parties, provided that any provision of this Guarantee may be
waived by the Lender Parties in a letter or agreement executed by the Lender
Parties or by telex or facsimile transmission from the Lender
Parties.
Each
Lender Party shall not by any act (except by a written instrument pursuant
to
Section 13(a) hereof), of delay, indulgence, omission or otherwise be deemed
to
have waived any right or remedy hereunder or to have acquiesced in any default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of any Lender
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by any Lender Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar
to
any right or remedy which such Lender Party would otherwise have on any future
occasion.
The
rights and remedies herein provided are cumulative, may be exercised singly
or
concurrently and are not exclusive of any other rights or remedies provided
by
law.
Section
Headings.
The
section headings used in this Guarantee are for convenience of reference only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
Successors
and Assigns.
This
Guarantee shall be binding upon the successors and assigns of the Guarantors
and
shall inure to the benefit of each Lender Party and its successors and
assigns.
GOVERNING
LAW.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
Submission
to Jurisdiction; Waivers.
Each
Guarantor hereby irrevocably and unconditionally:
submits
for itself and its property in any legal action or proceeding relating to this
Guarantee and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Guarantors at their addresses
set
forth under their signatures below or at such other addresses of which the
Lender Parties shall have been notified pursuant hereto;
agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to xxx in any other
jurisdiction; and
waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
Acknowledgments.
Each
Guarantor hereby acknowledges that:
it
has
been advised by counsel in the negotiation, execution and delivery of this
Guarantee and the other Loan Documents to which each is a party;
no
Lender
Party has a fiduciary relationship with or a duty to the Guarantors arising
out
of or in connection with this Guarantee or any of the other Loan Documents
to
which it is a party, and the relationship between the Guarantors and the
Borrowers
on the
one hand, and the Guarantors and each Lender Party, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
no
joint
venture is created hereby or by the other Loan Documents or otherwise exists
by
virtue of the transactions contemplated hereby among any Guarantor, any
Borrower
and each
Lender Party.
WAIVER
OF JURY TRIAL.
EACH
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be duly
executed and delivered by its duly authorized officer as of the day and year
first above written.
U-HAUL
INTERNATIONAL, INC.
By: ______________________
Name:
Title:
Address
for Notices:
0000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
AMERCO
By: ______________________
Name:
Title:
Address
for Notices:
0000
Xxxxxxxxx Xxx, Xxx. 000
Xxxx,
Xxxxxx 00000-0000
Tel: [(000)
000-0000]
Fax: [(775)
688-[____]]
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Date:
May __, 2006
ACCEPTED
AND AGREED:
BTMU
CAPITAL CORPORATION
By: ______________________
Name:
Title:
ORANGE
TRUCK TRUST 2006
By:
Xxxxx Fargo Bank Northwest, National Association, solely as
Trustee
By: ______________________
Name:
Title:
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